Michigan Open Carry Gun Laws Present Challenges for Police
"KALAMAZOO, MI — It's legal to openly carry a gun in public in Michigan, but just when that crosses the line from constitutional right to criminal act can be tricky for law enforcement.
Open-carry rights came under the spotlight in Kalamazoo last Sunday, after police got calls about a man carrying a rifle on a city sidewalk outside a Cork Street laundromat.
The man, who didn't have a sling for the rifle and was shifting it from shoulder to shoulder, unleashed a string of obscenities toward Kalamazoo Department of Public Safety officers who responded. Officers ended up seizing the rifle, but returning it the next day and ultimately police decided no laws had been broken.
Assistant Chief Donald Webster said the department decided not to forward the case to the prosecutor for a misdemeanor charge of brandishing a firearm in public because even though the man was said to be [']fidgeting['] with the rifle, it was not evident that he was [']brandishing['] it.
What defines brandishing?
Webster recalls KDPS first getting calls about open-carry advocates in the downtown area displaying their firearms around 2010. Initially, it was jarring to some in the department, particularly recent hires, he said.
[']At that time, a lot of our officers were new to seeing someone open carry,['] the assistant chief said. [']They knew about the Second Amendment right to bear arms, and we always knew you could carry a gun out, but how do you approach the situation without violating people’s Fourth Amendment rights (against unreasonable searches and seizures) too?[']
[']So, we started looking at some protocols and putting training together.[']
Kalamazoo Public Safety officers are trained to approach an open-carry situation in the same manner as any incident when a person has a weapon, he said. But dispatchers who receive those calls are directed to ask a series of questions so officers can have a better sense of whether they will be approaching a potentially hostile person or someone exercising their right to openly carry a gun.
[']Our dispatchers are trained to ask questions like: Is it holstered? Is it in a sling? Is the person walking around? Are they waving it around?['] Webster said.
Officers are told to decide whether they believe a person is [']brandishing['] the gun, which is essentially [']waving or displaying the firearm in a threatening manner,['] he said.
[']The big difference in brandishing a weapon versus open carry is mostly with open carry the gun is in a neutral position, in a holster or a sling,['] Webster explained. [']It’s not in a person’s hand, he’s not walking around and pointing it at people in a way that makes people fearful for their life in that situation.[']
Lt. Stacey Geik, a command officer who responded May 4 to calls from witnesses who suggested the man outside the laundromat appeared intoxicated, said despite that the man acting [']irrationally['] and shouting at officers who approached with their weapons drawn, he was not brandishing the rifle.
Kalamazoo County Prosecutor Jeff Getting said brandishing is not defined by Michigan law, which can complicate matters for law enforcement.
[']Because it’s not defined in the statute, it does make it a little more difficult to interpret what that means or what brandishing means in the law,['] Getting said.
When deciding whether to issues charges, prosecutors refer to a 2002 opinion from then-Michigan Attorney General Jennifer Granholm that defines brandishing in three ways: [']To wave or flourish menacingly as a weapon; to display ostentatiously; a menacing or defiant wave or flourish.[']
Granholm cited federal sentencing guidelines, which say brandishing occurs when [']the weapon was pointed or waved about or displayed in a threatening manner,['] Getting said.
For him, brandishing is something less than directly pointing a gun at a person and threatening them, which would qualify as felony assault, punishable by up to four years in prison, Getting said.
[']It’s something less than a direct threat, but something more than openly carrying,['] said the Kalamazoo County prosecutor, whose office has authorized seven charges for brandishing firearms since Jan. 1, 2012.
Michigan Open Carry
Phillip Hoffmeister, president of Michigan Open Carry Inc., notes that Michigan doesn’t have a law that expressly permits or prohibits the open carrying of firearms.
[']We’re in a common law system of law,['] he said. [']The rule under common law says anything is legal unless it’s prohibited, so the reason it’s legal in Michigan is there’s no law prohibiting it.[']
Like law enforcement officials, Hoffmeister expressed frustration over the uncertainty surrounding what constitutes brandishing, something he hopes will change with bills pending in the Michigan Legislature.
House Bill 5091 would define when a person can legally brandish a weapon in public, which under the bill would be only in the defense of one’s self or another. House Bill 5092 would codify brandishing as,[']to point, wave about, or display in a threatening manner with the intent to induce fear in another person.[']
State Rep. Brandon Dillion, R-Grand Rapids, a sponsor for both bills, said the legislation was introduced last year due to questions surrounding a few high profile open-carry demonstrations in Grand Rapids.
[']The vast majority of law enforcement agencies in the state understand (that open carry is legal),['] said Dillon, adding that HB 5092 would essentially seek to codify Granholm’s 2002 opinion on brandishing. [']It’s not an issue that comes up a lot, but it comes up enough we felt it was worth defining.[']
Dillon, who noted that he does not own any firearms, said as long as open carry is legal, citizens and law enforcement agencies should be fully aware of what is and isn’t allowed.
[']There’s a whole debate to have over whether open carry is a good policy, but as long as it’s allowed, we felt it needed to be better defined,['] he said.
Both bills have passed the state House and are garnering bipartisan support, according to Dillon.
Getting, however, isn’t so sure the proposed definition of brandishing is going to make it easier for prosecutors to determine whether charges are warranted. The Kalamazoo County prosecutor said that despite similarities in language in HB 5092 and the 2002 attorney general's opinion on brandishing, he has concerns with the portion of the bill dealing with [']intent to induce fear.[']
[']I don’t think brandishing should require an intent provision,['] Getting said. [']Brandishing is an action, but not one conducted with intent to induce fear. That’s already covered by the assault with dangerous weapon (law).[']
[']I appreciate the Legislature making an effort to help to define what brandish means, but I think they are making it too difficult.[']
[']Not particularly noteworthy[']
Hoffmeister, whose organization advocates for [']lawful open carry for a holstered handgun,['] said the ultimate goal for Michigan Open Carry is to help the public become comfortable seeing law-abiding citizens openly carrying holstered handguns, so people aren't fearful and don't unnecessarily call police.
[']In many states it’s not particularly noteworthy,['] Hoffmeister said, citing Arizona in particular as a state that's grown accustomed to its citizens openly carrying.
[']More and more in Michigan, people don’t notice if you’re openly carrying, or if they do, they don’t care,['] he said.
Webster didn't want to hazard a guess why more people are exercising their right to openly carry guns than in the past. He said he has no problem with people exercising that right responsibly, but the Kalamazoo Public Safety assistant chief doesn’t quite share Hoffmeister’s optimism about the public’s growing acceptance of it.
[']I think society has not (adjusted to open carry),['] Webster said. [']That’s why you get calls on it. Society has not accepted folks carrying guns around.[']"