View Full Version : OPEN CARRY - Michaganders will March on 7/24 after PD Chief says OC is Brandishing

07-24-2008, 9:24 AM

• Supporters of Barry County Sheriff Dar Leaf are taking shots at Hastings Police Chief Jerry Sarver, a candidate for sheriff in the August primary. Sarver is seen by gun lovers as being insufficiently "pro gun." Sarver is drawing fire for his alleged opposition to "open carry," the legal right to openly carry your sidearm on your person in a public place. They no doubt feel emboldened by the recent Supreme Court decision striking down a ban on handguns in Washington D.C. but mainly they feel like their support got current Sheriff Dar Leaf elected. Leaf's opponent in that election was the then-current Sheriff, Steve DeBoer, who was being attacked for sometimes denying concealed carry permits). I think Leaf's victory had more to do with former Sheriff DeBoer's drunken meeting with a mailbox while driving home from Grand Rapids and the attempted cover-up of the incident. Regardless, Leaf has long courted the extreme elements among the pro-gun crowd and counts himself among them.

• Sarver defended himself in a July 17, 2008 letter to the Hastings Banner in which Sarver relates his understanding of Michigan law concerning the open carrying of handguns and an incident in which a man was threatening to walk through a local grocery store openly displaying his firearm. The man in question backed down, perhaps deciding his Second Amendment rights could wait until election season to be exercised.


In response to the Police Chief of Hastings, Chief Sarver, law-abiding citizens will be walking down Main Street in Hastings open carrying. Chief Sarver in response to a letter to the editor responded by saying it was brandishing, a misdemeanor. He failed to say that the Michigan Attorney General’s office wrote him telling him that open carry is not against the law. We are asking anyone who is interested in furthering their Second Amendment rights to join us on Thursday, July 24th at 4 PM. We will be meeting at Richie's Coffee Shop (146 W. State Street, Hastings, MI 49058).

An attorney that supports your right to keep and bear arms will be joining us.

It is important to note that this is a peaceful demonstration of our constitutional rights and everyone must be on their best behavior. All well mannered, law-abiding citizens are welcome to join us. Please RSVP if you can. Please do not dress like a paramilitary organization. Wear ordinary clothing that fits in well with the general public.

If you have any questions you can contact me at dstevens@iserv.net

David Stevens
Barry County Citizens for Second Amendment and Firearm Rights (B-SAFR)

Michigan State Constitution Declaration of Rights, Article I, Section 6

"Every person has a right to keep and bear arms for the defense of himself and the state."

Michigan AG opinion on "brandishing" (http://www.ag.state.mi.us/opinion/datafiles/2000s/op10176.htm)







Reserve police officer carrying exposed but holstered handgun is not brandishing firearm in violation of Michigan Penal Code

A reserve police officer, by carrying a handgun in a holster that is in plain view, does not violate section 234e of the Michigan Penal Code, which prohibits brandishing a firearm in public.

Opinion No. 7101

February 6, 2002

Honorable Bill Bullard, Jr.
State Senator
The Capitol
Lansing, MI

You have asked if a reserve police officer, by carrying a handgun in a holster that is in plain view, violates section 234e of the Michigan Penal Code, which prohibits brandishing a firearm in public.

The Michigan Penal Code, MCL 750.1 et seq, revises, consolidates, and codifies the state's criminal statutes. Section 234e(1) of the Code criminalizes1 the brandishing of a firearm in public as follows:

(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 "[s]ubsection (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 ascribed 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."

Applying these definitions to your question, it is clear that a reserve police officer, regardless whether he or she qualifies as a "peace officer," when carrying a handgun in a holster in plain view, is not waving or displaying the firearm in a threatening manner. Thus, such conduct does not constitute brandishing a firearm in violation of section 234e of the Michigan Penal Code.
It is my opinion, therefore, that a reserve police officer, by carrying a handgun in a holster that is in plain view, does not violate section 234e of the Michigan Penal Code, which prohibits brandishing a firearm in public.

Attorney General

1Violation of this section is a misdemeanor punishable by imprisonment for up to 90 days, or a fine of not more than $100, or both.

2 See, for example: People v Jones, 443 Mich 88, 90; 504 NW2d 158 (1993), People v Kreger, 214 Mich App 549, 552; 543 NW2d 55 (1995), and People v Stubbs, 15 Mich App 453, 455; 166 NW2d 477 (1968).

07-25-2008, 3:23 AM
Brandishing? I think not!!! :p (for the Chief!):p

Looks like they got a little press.


Video: http://www.wwmt.com/video/index.php?bcpid=1111405973&bclid=1137706675&bctid=1688292702

Channel 8: http://www.woodtv.com/Global/story.asp?S=8733074

MSNBC: http://www.msnbc.msn.com/id/25841132

07-25-2008, 6:00 AM
The great thing about MI is that the state has preemption on the possession and carry of firearms (among other things) and that no political subdivision of the state can enforce a law that restricts or controls either, except discharge of firearms in city/village/town limits. I have a letter in the AG's office asking for the official opinion that if an officer makes an arrest for open carrying say, for "breach of peace", "disturbing the peace", etc that they are essentially trying to regulate the carrying of arms, thus in violation of the preemption.

I open carry quite a bit up here (Upper Peninsula) and never get hassled by the police. If I were closer to Hastings, I'd be there to show my support in person.

07-25-2008, 3:07 PM
just had an 'open carry' picnic in the town next to me, I didn't find out about it until after the fact.


Michigan doesn't quite have the same outlook on firearms as Cali...


Subject: OPEN CARRY EVENT in Hastings, Michigan Thursday, July 24 at 4PM - Open Carry Brigade

Hi Lenox. I don't know how to post to this thing, so please pass this on for me.

The event was a smashing success, even according to the media.
Channel 3 (Kazoo) channel 8 (GR) and the Detroit Free Press were all there.
There were a few anti's outside but I don't think they were even given coverage.
They said a few mean things but we ignored them.

There were over 40 people there, most of them openly carrying.
A good mix of men, women, and children.

Most of the general public lined the streets and watched us march down the sidewalk.
Many of them were taking pictures like they'd never seen a free person before.

The speech went well and the anti-gun Police Chief never showed his face.
In fact, in a town crawling with city, state and county cops, there was an unusual
absence of law enforcement. I found out later that the County Prosecutor (one of my former CPL students)
had called the Chief and educated him on open carry.

I am proud to announce that the City of Hastings, which once passed a city ordinance against CPL holders, is now safe for open carry.
I'll be carrying openly in Barry county more often now, especially in the city. It was really quite fun. I felt more like a free man and less like a criminal with something to hide. I know that open carry isn't for everyone, but I thought it was a blast!

Will be writing articles about it soon.

Here's the News 3 Kazoo coverage.


Here's channel 8 in GR.


Both are 2 minutes or less.

M. Sage
07-25-2008, 4:17 PM
Wish I still lived there... Hastings isn't too far from where I used to live.

I still think of WOOD TV as WOTV...