Posted on 06/26/2012 12:24:07 PM PDT by marktwain
What does it mean to “brandish” a firearm? A Michigan jury will have to answer that question in next month’s trial of 18-year-old Sean Combs, who was arrested in April after being stopped by police while carrying a loaded M-1 Garand rifle strapped to his back.
An armed Combs was walking with his girlfriend through downtown Birmingham, an affluent Detroit suburb with a popular nightlife district. It was about 10 p.m. on a Saturday and sidewalks were crowded when police spotted Combs and suspected him to be under 18 — too young to legally carry a gun.
According to a brief filed by City of Birmingham attorney Mary M. Kucharek, officers approached Combs and asked him for ID to confirm his age. Combs refused, stating that he was not required to present ID. As the officers persisted, Combs began arguing loudly, drawing a crowd that had to be dispersed. After repeated refusals to provide ID, Combs was arrested and charged with brandishing a firearm, resisting and obstructing, and disorderly conduct.
News of the arrest inspired a crowd of gun advocates to march to a recent Birmingham City Commission meeting, where they filled the commission chambers while displaying their handguns and rifles in plain view. Though they voiced their support for Combs, the commission did not address the controversy, and Birmingham Mayor Mark Nickita said “the issue has gone to the courts.”
Where is the Line?
Michigan is an open carry state, which means that it’s legal for adults to carry guns as long as they’re not concealed. Most states allow some form of open carry, and only 13 open carry states require a special license. Only Arkansas, Florida, Illinois, New York, Oklahoma, South Carolina, Texas and Washington D.C. prohibit open carry in all or most circumstances.
(Excerpt) Read more at jdsupra.com ...
- U.S. District Court Magistrate Craig M. Kellison, March 2011
Supposedly the stopped him to check his I.D. He says that after initially refusing, he provided it.
I notice that they did not charge him with illegal possesion, but with brandishing. If he was "brandishing" before the police became involved, why did they not arrest him for that? Under the prosecution's theory of "brandishing" the many protestors who openly carried rifles in protest of this case would have been "brandishing, but they were not arrested.
It appears to me that the prosecutors theory of "brandishing amounts to exercise of your Second Amendment rights.
A citizen need show no purpose in order to exercise his rights.
Previous articles:
http://www.freerepublic.com/focus/f-news/2897155/posts
http://www.freerepublic.com/focus/f-news/2897718/posts
http://www.freerepublic.com/focus/f-news/2898260/posts
My wife saw a young woman on a mountain bike in downtown Medford, OR, with a pink-stocked AR-15 strapped to her back.
Nobody bothered her!
Only Arkansas, Florida, Illinois, New York, Oklahoma, South Carolina, Texas and Washington D.C. prohibit open carry in all or most circumstances.
They forgot Maryland... which is one of the top 5 rights restricted states in the union.
This is the last refuge of a pig when no real crime has been committed. Most thugs cannot cope when their authority is challenged.
The cops were making sh*t up to mess with the kid. Nothing new here, you can go on You Tube and spend the whole day watching cops making asses out of themselves with this kind of nonsense.
Traditionally, a carried gun or rifle has three states: holstered or slung in a carry mode, brandished *in hand or hands*, but importantly *not* “menacing”, the third state, which is either pointing it at someone or “waving it around” in a reckless manner.
For example, if a friendly, known person asked to examine your handgun, it would begin in a holstered state. As soon as you removed it from the holster, it would technically be brandished, even as you removed the magazine and cleared it, before handing it to the other person. At that point, even though unloaded, he is still technically brandishing it, though that is a very thin legal hair.
That’s actually kind of an odd list of states that prohibit open carry.
Lots of different towns in Michigan have tried to prohibit but the state constitution specifies that they cannot. Even open carry on school property is kind of up in the air at this point.
http://www.freerepublic.com/focus/f-news/2854271/posts
Can you believe it? No open carry in Texas?
Geez, I'm going to get in trouble one of these days.
If he was 18 then I don’t see a problem. In my state we allow rifle ownership by anyone 18 and older. They can also own ammo.
For handguns you must be 21 years or older.
Sounds like he was following the law. I don’t know about MI laws and age limits, but 18 is a reasonable age for rifle ownership.
Back in the day I owned handguns and rifles at the age of 16.
In most places, “brandishing” by definition has to cause a reasonable person to be put in fear of death or serious injury by your careless or aggressive gun handling. Carrying a slung or holstered weapon, or holding it in a fixed, safe direction with your hands off the action, is not brandishing. Wave it around in the air, heedless of what the muzzle is covering, and you’re brandishing. Point it at someone deliberately, and you’re committing assault or reckless endangerment.
If you can open carry, then openly carrying the firearm is not brandishing.
Brandishing is either when you pull the weapon (in your hand) and wave it and/or shake it in a menacing way.
By definition, carrying a firearm in a holster, or on a sling across your back, is not brandishing because you are not waving or shaking it about in a menacing fashion.
Carrying weapons in itself is not menacing. Time to take the cops to court and make their coffers lighter. Hopefully large punitive damages so that they and other places don’t dare do it again.
If a friend asked to see my gun (if I had any) in public, I would go to a room or location (my vehicle, etc) to do that, otherwise I’d say I can show you later. It is not a good habit to get into to take your gun out of your holster in public just because someone wants to check it out.
Then can I defend myself anytime I see an armed cop, because I “fear” the SWAT team getting a wrong address and busting into my home to shoot my dog and my wife and me at 3 am?
That’s just as irrational and unreasonable fear these stupid gun haters have for law-abiding people that are out in public living their lives, armed.
I’m more concerned about a hot-headed cop, especially small woman cop who will pull her gun far easier than a male cop, threatening my life than most regular citizens walking around armed (I say most because if you look like scum/gangbangers common sense kicks in and you treat them accordingly until you know different).
Federal law defines brandished as, “with reference to a dangerous weapon (including a firearm) means that all or part of the weapon was displayed, or the presence of the weapon was otherwise made known to another person, in order to intimidate that person, regardless of whether the weapon was directly visible to that person. Accordingly, although the dangerous weapon does not have to be directly visible, the weapon must be present.” (18 USCS Appx § 1B1.1)
Of course this is just nonsensical, for a “brandished” weapon could still be in a holster, or even in a nearby locked car in a parking lot. And basing a law on whether a person was intimidated by an idea is downright stupid.
It is going to take decades of gun organizations trying to get such poorly worded and illogical laws and regulations fixed.
There is a self-defense exception, but Subsection (B) states, "Any police officer in the performance of his duty, in making an arrest under the provisions of this section, shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, holding, or brandishing such firearm . . . with intent to induce fear in the mind of another."
1. This is prosecuted by the City Attorney, not the County Prosecutor who is usually the one doing this.
2. This directly contradicts an AG opinion on what constitutes Brandishing.
This should be overturned on appeal, at least the brandishing part. Unfortunately, this is what is possibly the most anti-2nd Amendment part of the entire state.
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