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View Full Version : HB 4012 Branishing penalty increased



Tallbear
01-14-2011, 12:59 PM
http://www.legislature.mi.gov/documents/2011-2012/billintroduced/House/pdf/2011-HIB-4012.pdf


As it reads now.......


750.234e Brandishing firearm in public; applicability; violation as misdemeanor; penalty.
Sec. 234e. (1) Except as provided in subsection (2), a person shall not knowingly brandish a firearm in public.
(2) Subsection (1) does not apply to any of the following:
(a) A peace officer lawfully performing his or her duties as a peace officer.
(b) A person lawfully engaged in hunting.
(c) A person lawfully engaged in target practice.
(d) A person lawfully engaged in the sale, purchase, repair, or transfer of that firearm.
(3) A person who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days, or
a fine of not more than $100.00, or both.

"with definition".....

(1) Except as provided in subsection (2), a person shall not knowingly brandish a firearm in public.
Subsection (2) of the same section states that “subsection (1) does not apply to . . .
[a] peace officer lawfully performing his or her duties as a peace officer.”
The term “peace officer” refers to members of governmental police forces who have been given broad, general authority by law to enforce and preserve the public peace. People v Bissonette, 327 Mich 349, 356; 42 NW2d 113 (1950). Most governmental police officers, i.e., officers who are employed by the state or its political subdivisions, possess such authority and are, therefore, “peace officers.” 1 OAG, 1955, No 1891, p 72 (February 24, 1955); 2 OAG, 1958, No 3212, p 60 (February 21, 1958 ). Conversely, police officers such as motor carrier enforcement officers who possess only restricted or special enforcement authority do not meet this standard and therefore do not qualify as “peace officers.” People v Bissonette, supra; OAG, 1987-1988, No 6530, p 362 (August 5, 1988 ). Thus, a reserve police officer with limited law enforcement authority would not qualify as a “peace officer” under subsection 2 of section 234e of the Michigan Penal Code. A reserve police officer with general law enforcement authority who is regularly employed would qualify as a “peace officer” under subsection (2) of section 234e. See OAG, 1973-1974, No 4792, p 78 (August 27, 1973), and OAG, 1979-1980, No 5806, p 1055 (October 28, 1980).


Section 234e of the Michigan Penal Code does not define the crime of brandishing a firearm in public. The Michigan Criminal Jury Instructions, published by the Committee on Standard Criminal Jury Instructions, does not include a recommended jury instruction on brandishing a firearm. Research discloses that while the term “brandishing” appears in reported Michigan cases,2 none of the cases define the term.

In the absence of any reported Michigan appellate court decisions defining “brandishing,” it is appropriate to rely upon dictionary definitions. People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). According to The American Heritage Dictionary, Second College Edition (1982), at p 204, the term brandishing is defined as:

“1. To wave or flourish menacingly, as a weapon. 2. To display ostentatiously. –n. A menacing or defiant wave or flourish.” This definition comports with the meaning subscribed to this term by courts of other jurisdictions. For example, in United States v Moerman, 233 F3d 379, 380 (CA 6, 2000), the court recognized that in federal sentencing guidelines, “brandishing” a weapon is defined to mean “that the weapon was pointed or waved about, or displayed in a threatening manner.”

PackRat
01-15-2011, 11:24 AM
"displayed in a threatening manner"

Would that include unsnapping a security holster?

Would that include intentionally moving a cover garment to expose?

One would think that they could do better.

rigges
01-15-2011, 02:10 PM
I do not see a exception for legally armed person who is protecting Life and limb.

In Example Bad guy pulls gun on store teller and says give me your money he brandished then you Joe good guy with CPL draws you gun and says put it down Bad guy complies and puts his gun down. you just brandished your gun on him. This by the above law is a violation and compromises your use of your fire arm and your ability to protect and prevent a problem like this.

Any other comments or law input.

Buzzcat
01-15-2011, 02:28 PM
https://secure.cartkeeper.com/~reededwa/images/image/Book%20Covers/flourishing_life_frontcover.jpg

bsf
01-15-2011, 06:01 PM
The changes are an increase in the maximum imprisonment to 93 days and in the fine to $500. What is the reason for these proposed changes? Does the imprisonment term have something to do with fingerprinting and criminal records?

kensho
01-20-2011, 09:46 PM
@rigges has a point - what do the law savvy have to say?

45/70fan
01-20-2011, 10:31 PM
The changes are an increase in the maximum imprisonment to 93 days and in the fine to $500. What is the reason for these proposed changes? Does the imprisonment term have something to do with fingerprinting and criminal records?

Who proposed the change and why? I know there is something about a conviction being over 90 days jail time and having something to do with a person's ability to get or retain a cpl. I would imagine the MSP is pushing this one to reduce the number of permit holders and make sure fewer people are qualified to own a firearm.

zedsded
01-21-2011, 10:19 AM
Would that include intentionally moving a cover garment to expose?

I wonder about this too.

In regards to the thread about the guy in Muskegon who got in trouble after a kids soccer game, if the guy had just uncovered his concealed weapon to get the other guy to back off. Would that be: 2. To display ostentatiously?

PDinDetroit
01-21-2011, 02:16 PM
Please see the following thread for the 90 vs 93 day differences.

http://www.migunowners.org/forum/showthread.php?t=120044

There is a very good link which describes the differences...

langenc
01-30-2011, 05:35 PM
[
""In regards to the thread about the guy in Muskegon who got in trouble after a kids soccer game, if the guy had just uncovered his concealed weapon to get the other guy to back off. Would that be: 2. To display ostentatiously?"" quoted from above


Most likely. Discretionary power-way too much of it around. LEOs, fish cops and prosecutors love it.