Posted on 06/19/2012 4:52:16 PM PDT by marktwain
Sean Combs, the Troy 18-year-old who was arrested in April after he was found carrying a loaded rifle in downtown Birmingham, will be back in court Wednesday for a hearing to determine whether charges of brandishing a firearm, disturbing the peace and obstructing an officer will move forward or be dismissed.
Combs was arrested around 10 p.m. April 13 after he refused to show police officers his identification after they asked about the M1 Garande rifle strapped to his back, according to police reports. The rifle was loaded with one round in the chamber, police say.
As an adult under Michigan law, Combs had a legal right to openly carry the rifle and Birmingham police violated his second amendment rights, Combs' lawyer Jim Makowski says.
Makowski filed a motion to dismiss the case several weeks ago and last Monday, a group of open carry advocates protested Combs' arrest in Shain Park and at the Birmingham City Commission meeting.
However, according to a 16-page brief filed on behalf of the city last week, what's at stake in this case is whether Combs met the definition of "brandishing a firearm" — and according to the city, he did. Briefs debate definition of 'brandishing'
According to Birmingham's ordinance, which mirrors Michigan law, brandishing a firearm in public is considered a misdemeanor and excludes:
* a peace officer lawfully performing his or her duties
* a person lawfully engaged in hunting
* a person lawfully engaged in target practice
* a person lawfully engaged in the sale, purchase, repair or transfer of that firearm.
According to attorney Mary Kucharek of Beier Howlett, P.C., who wrote the brief on behalf of the city, "the Legislature could have included walking down a public street with a firearm strapped to one's back (as one of the exceptions), but it did not because such activity has no legitimate purpose."
"(The) defendant finds himself in the unfortunate position of having to argue that he was engaged in none of the legitimate activities defined under the statute," Kucharek writes. "Rather, he is left to argue that he was carrying a fully loaded, frightening looking high-powered military surplus weapon, for no legitimate purpose or reason other than people should see it, particularly large crowds of teenagers in downtown Birmingham on a Saturday night."
However, Makowski argues that carrying and brandishing a firearm are not the same thing, and that Combs was merely carrying the rifle.
In his brief, Makowski cites then-Michigan Attorney General Jennifer Granholm, who stated in 2002 that carrying a weapon in plain view is not waving or displaying the weapon in a threatening manner, and should not be considered brandishing.
"Openly wearing a firearm without using the firearm to intimidate or threaten another person is not brandishing," Makowski writes.
However, Kucharek said during the confrontation that night, a police officer overheard a pedestrian say, "Oh my gosh, that's a gun" — a sign Combs' actions were "unusual, out of place and engendering shock and fear in nearby pedestrians."
"A young man, walking the streets of Birmingham where large numbers of young people congregate well after dark with no legitimate stated reason for transporting a loaded weapon means the defendant could only have been walking with the gun in that position so that people would see it," Kucharek said. "It could only have been his intent that other pedestrians and motorists should see the gun, which is tantamount to brandishing the weapon." Disturbing the peace, obstructing an officer charges also legitimate, attorney says
In his brief, Makowski claims the other two charges — disturbing the peace and obstructing a police officer — should be dropped should the brandishing charge be dismissed.
"Mr. Combs was simply walking down the street minding his own business," Makowski said. "Any public disturbance that resulted from this encounter came about due to the actions of the Birmingham Police themselves."
Kucharek disagrees, claiming Combs was very loud while arguing with officers about showing his identification, sparking a large gathering of teenagers that later had to be disbursed by police.
Kucharek also claims the obstructing charges are legitimate because police made a valid stop. Officers claimed Combs looked "very young" — younger than 18, in fact — in their reports. In an interview with Patch, Combs' friend Lia Grabowski said Combs turned 18 a month before the incident.
"If (the) Defendant, who appeared to the officers to be only 15 or 16 years old, was under age then his possession of the weapon was unlawful," Kucharek writes. "This was a lawful investigation and the officers certainly had an articulable suspicion that a crime may have been committed if it turned out the Defendant was under age."
At the hearing Wednesday, Judge Marc Baron, who saw Combs during a pre-trial on May 15, will review the two briefs to decide if there is enough evidence to move the case to trial.
It appears that Birmingham is trying to move from the United States philosophy of that which is not forbidden, is allowed, to the totalitarian philosophy of that which is not allowed, is forbidden.
The DA is a political hack and obviously a gun grabber. Brandishing and carrying are different. Just look it up in the dictionary.
And by the DA’s definition, anyone who pulls a gun in self-defense of his own life has committed a crime. I don’t see that on the list of government allowed activities with a firearm.
No wonder so many people from Michigan are moving here to Indiana. The communists are in charge.
I would be happy to secure that young man’s Garand though.
SOP for gun grabbers looking for an excuse to harass anyone exercising 2nd amendment rights
From what I can find on the net, a person must be 21 in Michigan to get a concealed carry permit. Just exactly how is an 18 year old adult supposed to bear arms in Michigan if not openly as the subject of this article did? This situation has been created by the Michigan legislature and should be solved by them before somebody gets hurt.
If they are so sensitive to the sight of a firearm, let them wear plastic undies.
THIS passes for a legal argument?
The judge should throw the case out with prejudice, and sanction this idiot lawyer for frivolity.
Oooh, a high-powered military surplus weapon! How scary!
I'm 61 now. It was a different time then. I miss it. No one even gave a thought that I might shoot someone even accidentally.
I well remember a friend of mine and I in our early teens riding our bikes with several guns to the hardware store to buy ammo to shoot in the woods. That is where a lot of our grass cutting money went. I don’t think anybody ever gave it a second thought, if they did they never said anything except for my mother telling me to be careful. What has happened to our society?
Been that way for decades...
Here it is again – tin badge wearing, donut-munching, authority complex ridden, unionized cops being what they are – scum. The DAs and the higher ups are equally at fault, but it all starts with “Barney” – must have been a slow day – no HEINOUS “rolling stop” or 5 MPH over the limit to an out-of-state license plate citations (getting close to the end of the month – QUOTA, QUOTA, QUOTA!) to giddily and gigglingly write. Drug dealers? Kiddie porn merchants? Illegal alien gang-bangers? Nah, chasing THEM would require putting down the KRISPY KREMEs too much.
Does not the state of Michigan have a law prohibiting local jurisdictions from laws more strict than the state law?
As a Michigan resident, I have never heard of the Birmingham type law at the state level.
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