The brandishing thing is BS. Unless you are physically trying to intimidate an individual with the gun (in an illegal manner) it's not brandishing.
This is a discussion on Open Carry on Private Property within the Open Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; I've done a little research, but understand don't use what I'm about to say as your legal defense . Almost in very situation, once you ...
I've done a little research, but understand don't use what I'm about to say as your legal defense. Almost in very situation, once you take the gun out of the holster, in open view, even if just showing a friend the gun, you are easily charged with brandishing a weapon.
I spoke to a few lawyers and LE who happen by where I work. I see a lot of them. In MI, and most states, if you are a citizen of that state, and the pistol is legal, you own the firearm, and you are on your own property, it is legal to open carry (unless the laws in that area clearly state no open carry, or open carry = brandish, etc).
Interesting side note, CC is ok in almost every situation if you are a citizen of that state, you own the firearm, and the pistol is legal, and you are on your own property.
In addition, it would be bad idea to be a grumpy loud neighbor while doing the open carry. Might sound wrong, but basically you give up freedom of speach if you are practing the right to bear arms open carry. While what I just said about rights is not legally true, I'm just summing up with out being wordy or PC.
MI open carry law is impossible to nail down. Basically it is legal unless they deside to charge you for 500 other options.
Last edited by Thanis; November 7th, 2008 at 09:07 PM. Reason: spelling of option.
Pretty much once you place your hand on a firearm not contained in a holster out in the open (not talking hunting), from brandishing to disturbing the peace, something will stick.
We're starting to get a little off topic here, so if this continues, I will move it to another thread all it's own...
So by your justification, if I am walking out of the Gibralter Trade Center gun show, I just bought a rifle, and I'm carrying to my car, I'm going to be charged "from brandishing to disturbing the peace, something will stick."
Or how about all those guys out at Island Lake? They're handling guns and not hunting, are they going be be charged with something?
Just ask the Governor. (From her AG days)
Opinion #7101 (sets a precedent as to what brandishing is)And why would anyone handle their gun in public (or on your own land) without legal reason anyway? Keep it holstered unless there's a threat.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."
My post are just concerning open carry on land you own with say a pistol in a holster .
Not as a matter of law (or legal fact) but as a matter of fact (real world reality), once you take the open carry gun out of the holster, in public, and / or act aggressively, you are opening yourself to other possibilities. I'll leave the samantics to others.
But per the thread topic, IMO, and per those I have spoken to, open carry is very often legal on property you own, but can lead to other issues if not keep in the holster.
Not talking rifles, trade shows, hunting, etc. Just Joe & Jane average open carry pistol on private property.
It may not be a very good reason. I may not think it is fair. But very often with open carry issues, it is more about what LE thinks is reasonable then what I think is reasonable.
Not for a second I am stating this should happen to people who open carry and do this or that. I'm just stating what often does happen.
I think the most recient example here in MI was a guy who was told to go home by LE when the people at a sporting goods store told him he could not enter store while open carry. Now this is an example of OC on anothers private property, but LE did not tell him to leave. They told him to go home and keep the firearm at home or else. No one clarified the or else.
Here in MI, when it comes up, and LE gets involved with dispute between someone who is open carry and an anti-gun who has a problem with it, very often, the one with an open carry firearm gets charged. I think 2 summers ago it was a charge for disturbing the peace (person out in public not on private property) and that person has not recived their firearm yet even though charges were dropped. There was a lot of chatter about it on the internet.
These are all open carry related issues (that are revelant and even discussed on opencarry.com or some site address like that).
I open carry very often in lower northern (central?) MI.
I have OC in my shop SE MI. When people ask to see the pistol, I have never agreed to take it out of the holster.
If I can add my .37 (tax included) to this topic before it gets moved. IANAL
Judging from the brandishing wording in my state law and at least one other I've seen I'd wager that there is careful exception built in to prevent charging when it is unnecessary.
On private property, exhibitory or instructive display is not brandishing. It may well be on public property if in the mind of another fear is induced. (uninvolved passerby for example)
However, display with INTENT to use, on both public and private property is excepted when necessary for lawful defensive purposes.
The standard that must be reached for charging is intent to induce fear in the mind of another. The lawful exception is in defense. LE must prove intent to induce fear, beyond the lawful exception, for the charge to stick. Period.
You and I can not help the knowledge or lack of in an attending LEO. And it is not your job or even wise to attempt to 'educate' LE on fine points of law during detainment. It may become inconvenient and you may have to take a short ride, but the place to correct the situation is with the judge. Be polite, firm, and just cooperative enough to not be additionally charged with resisting, but don't run your mouth in an attempt to talk your way out of anything. You may find your words misinterpreted and used against you.
First it was "You can get charged for brandishing for OC'ing on your own property", I debunked that.
Then it was "You can get charged for brandishing for holding a gun in public" I debunked that.
Then it was "You can get charged for acting like an ass while OC'ing in public" I left that one alone because it's true...kind of...
Then it was you going get charged for drawing your gun.
I'm done with it.
The bottom line is that it's totally legal to OC on your own property, your not going to be charged for brandishing unless you're wrongfully threatening someone.
I will agree with that if you do OC, you need to have a pleasant demeanor as if you do get into a "heated discussion" no matter what property you're on, the other party may feel threatened enough by your attitude and the presance of your gun to swing a brandishing charge...you'll probably beat it, but it could happen.
You dont have to remove your pistol from your holster to 'induce fear in the mind of another' to be charged with brandishing. Placing your hand on the butt of your holstered weapon with menacing eye contact and/or verbal threats is also brandishing.
Just got out of a law class this morn with atty Richard Gardiner (Heller brief submitter) where we discussed this along with many other issues.
(From my BlackJack II)
as for the OP, OC is legal in LA; although i'm not sure of the restrictions, i'm willing to bet money that you can OC on your own property. the problem is, as with most problems regarding OC, the opinions of whatever LEOs respond to a "man with a gun" call.