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Should Law Enforcement Respond to Every Open Carry Man With a Gun 911 Call?

Discussion in 'Carry Issues' started by kensteele, Feb 27, 2010.

  1. kensteele

    kensteele

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    Dear Chief or Sheriff:

    Attached is information on the legality of the open carry of a handgun in Michigan. The open carry of a
    handgun has increased in Michigan in the last year as more and more citizens are becoming aware of its
    legality. It is our hope that this information is helpful to you, and that you will take the time to review the
    information and inform your officers on the legality of the open carry of a handgun in Michigan. We also hope
    that you work with your 911 dispatchers in regards to asking some simple question when they receive a call of a
    “person with a gun”.
    If you have questions please talk with your prosecuting attorney or you can contact me via
    email or phone for more information. We thank you for your time and consideration in this regard and
    appreciate the difficult job you all do.

    Sincerely,

    PURPOSE: To provide guidance in calls for services that involves a person who is openly carrying a
    pistol in a holster.

    As you may know, any law-abiding citizen of the State of Michigan who can legally possess a firearm may
    openly carry (in a holster) said firearm in all places not explicitly exempt by law without a CPL (1). Those that
    do not have a CPL when transporting their firearms must do so as prescribe by law. No local ordinance
    concerning firearm possession is enforceable due to Michigan’s preemption law (2).

    Brandishing and disturbing the peace are not an offense while lawfully openly carrying a firearm (3). Attorney
    General Opinion 7101, 2/02 states “…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.” In regards to
    disorderly conduct, due to the nature of this code, officers have cited this law in order to suppress or discourage
    lawful open carry. Since a person who is not licensed to carry concealed MUST open carry their firearms on
    foot in order to avoid criminal charge, (nor is there any duty for anyone licensed to conceal their handgun),
    open carry is not disorderly conduct. The open carrying of a firearm is not by itself threatening, nor does it
    cause a hazardous or physically offensive condition.

    If a person is openly carrying a firearm on foot, and in a legal manner, he/she need not give a police officer their
    name and address after being approached and questioned if the only reason for that questioning is because of the
    openly carried firearm. Officers should not editorialize against open carry by private citizens in any way shape
    or form, or in any way suggest that a person should conceal their firearm. Suggestions and editorializing
    against lawful open carry may be interpreted as “commands” by civilians who are lawfully open carrying and
    may subject officers to complaints filed against them, as well as possible legal action against themselves and the
    department.

    Recently it has been opined by the AG opinion, the MSP and Senator Prusi that persons with a CPL can carry a
    firearm openly in the exempted areas listed in MCL 750.234d. (4).

    It is suggested that Law enforcement supervisors inform their staff in regards to the legality of openly carrying a
    handgun in Michigan. It is also suggested that an officer protocol be developed in dealing with such a call.
    Furthermore, it also would be beneficial to inform your dispatchers and your county 911 department’s in
    developing a protocol on receiving a “man with a gun” call.
    An example of some questions to ask a person
    calling 911 about a person openly carrying is included.

    It is our hope that by informing you and all law enforcement personnel throughout the state about the legality of
    open carry that we can avoid any civil or criminal actions that might otherwise occur. If you have questions or
    concerns, please contact your prosecuting attorney. We thank you for your time and consideration in this
    regard, and as law-abiding citizens we appreciate the demanding and dangerous work you all do.


    Footnotes:

    (1) Sec. 234d (1) Except as otherwise provided in subsection (2), a person shall not possess a firearm on the
    premises of any of the following:

    a) A depository financial institution or a subsidiary or affiliate of a depository financial institution.
    b) A church or other house of religious worship.
    c) A court.
    d) A theatre.
    e) A sports arena.
    f) A day care center.
    g) A hospital.
    h) An establishment licensed under the Michigan liquor control act.

    (2) This section does not apply to any of the following:
    a) A person who owns, or is employed by or contracted by, an entity described in subsection (1) if the
    possession
    of that firearm is to provide security services for that entity.
    b) A peace officer.
    c) A person licensed by this state or another state to carry a concealed weapon.
    d) A person who possesses a firearm on the premises of an entity described in subsection (1) if that possession
    is with the permission of the owner or an agent of the owner of that entity.

    (2) MSP Legal Update Newsletter: April 2007
    Did You Know: It is not illegal under Michigan law to openly carry a pistol.
    Preemption: In MCRGO v. Ferndale, the Michigan Court of Appeals held that local units of government may
    not impose restrictions upon firearms possession. Therefore, officers should check with their prosecutors before
    enforcing an ordinance that imposes a general ban on openly carrying a pistol.

    THE MICHIGAN APPEALS COURT CONCLUDED:
    April 29, 2003 9:10 am. v No. 242237
    In sum, we conclude that § 1102 is a statute that specifically imposes a prohibition on local units of
    government from enacting and enforcing any ordinances or regulations pertaining to the transportation
    and possession of firearms, and thus preempts any ordinance or regulation of a local unit of government
    concerning these areas.

    Further, we conclude that the specific language of the 2000 amendments to MCL 28.421 et seq.,
    particularly §§ 5c and 5o, which were adopted more than a decade after the enactment of § 1102, do not
    repeal § 1102 or otherwise reopen this area to local regulation of the carrying of firearms.17 Accordingly,
    we hold that the Ferndale ordinance is preempted by state law and, consequently, we reverse.
    In 1990, the Michigan legislature enacted MCL 123.1102 which provides, in pertinent part: A local unit of
    government shall not impose special taxation on, enact or enforce any ordinance or regulation pertaining to,
    or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or
    possession of pistols or other firearms, ammunition for pistols or other firearms, or components of pistols or
    other firearms, except as otherwise provided by federal law or a law of this state.

    (3) Act 328 of 1931
    750.234e Brandishing firearm in public; applicability; violation as misdemeanor.
    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.
    History: Add. 1990, Act 321, Eff. Mar. 28, 1991

    Opinion No. 7101 February 6, 2002 In part:

    … 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, …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. JENNIFER M.
    GRANHOLM, Attorney General

    (4) Three opinions on this topic. An AG’s opinion, the Michigan State Police, and a State Senator’s.
    AG opinion 'o. 7097 FIREARMS LAWS OF MICHIGAN January 11, 2002: This conclusion is not affected
    by the provisions of section 234d of the Michigan Penal Code, 1931 PA 328, MCL 750.1 et seq. That statute
    prohibits certain persons from possessing firearms on certain types of premises as follows: Sec. 234d (1)
    Except as otherwise provided in subsection (2), a person shall not possess a firearm on the premises of any of
    the following:

    a) A depository financial institution or a subsidiary or affiliate of a depository financial institution.
    b) A church or other house of religious worship.
    c) A court.
    d) A theatre.
    e) A sports arena.
    f) A day care center.
    g) A hospital.
    h) An establishment licensed under the Michigan liquor control act.

    (2) This section does not apply to any of the following:
    a) A person who owns, or is employed by or contracted by, an entity described in subsection (1) if the
    possession
    of that firearm is to provide security services for that entity.
    b) A peace officer.
    c) A person licensed by this state or another state to carry a concealed weapon.
    d) A person who possesses a firearm on the premises of an entity described in subsection (1) if that possession
    is with the permission of the owner or an agent of the owner of that entity.

    By its express terms, section 234d prohibits certain persons from carrying a firearm in the enumerated places
    but explicitly exempts from its prohibition “[a] person licensed by this state or another state to carry a concealed
    weapon.” Thus, any person licensed to carry a concealed pistol,… is exempt from the gun-free zone
    restrictions imposed by section 234d of the Penal Code and may therefore possess firearms while on the
    types of premises listed in that statute.

    MSP opinion: Your analysis is correct. Non-CPL pistol free zones do not apply to CPL holders. The CPL
    pistol free zones only apply to CPL holders carrying a concealed pistol. Therefore, a CPL holder may openly
    carry a pistol in Michigan's pistol free zones.

    Sincerely,

    Sgt. Thomas Deasy, Michigan State Police
    Executive Resource Section, 714 S. Harrison Rd.
    East Lansing, MI 48823
    (517) 336-6441

    Senator Prusi’s opinion: My office received your inquiry regarding the legality of a licensed CPL holder to
    open carry a firearm in "Pistol Free Zones." On Friday we received a copy of your correspondence, as Senator
    Carl Levin's Office referred your letter to my office because your concerns mainly pertain to state issues. As
    such, I am happy to assist you in this matter.

    My office has contacted the Michigan State Police legislative liaison and has received some answers to share
    with you. According to the liaison, it is legal to openly carry a firearm in a "Pistol Free Zone" if you are
    licensed a CPL holder. I was advised that your information was correct that MCL 28.425o and MCL 750-234d
    permit this activity. I was informed that there was no other additional relevant laws regarding this
    matter….Michael A Prusi, State Senator 38th District"


    Example of a 911 Protocol for a
    “Person with a gun call”

    911: This is 911 what is your emergency?

    Caller: Ah….not sure if this is an emergency but there’s some guy with a gun on his belt here in the Wal-Mart.

    911: Is the gun in a holster or is this person waving the gun around or threatening anyone? Is anyone injured? What is the man doing?

    Caller: Aaah…no one is hurt. Aaaah…the guy is just shopping. Pushing a cart looking at some frozen carrots I think. Yah he’s looking at carrots.
    911: Does this man seem to be intoxicated or mentally impaired? Does he appear to be acting irrationally?

    Caller: No he doesn’t seem to be acting strange other than the gun. Can’t you send some officers here to check him out? Think of the children.

    911: Does the person appear to be 18 years old or older?

    Caller: I would say he’s about 35 years old, average build, dark short hair, and he has a short beard. He’s
    wearing khaki pants with a dark blue polo shirt.

    911: Sir, the open carry of a handgun is legal in Michigan by any lawful person 18 years old or older. Unless the person is waving it around in a threatening manner or is acting irrationally there is nothing we can legally do. Now if the person should threaten someone or become agitated let us know and we’ll send a car, but until then, have a good night.

    If 911 dispatchers had a protocol similar to this over simplified example for handling this type of call; that is,
    just by asking a few short questions, the adrenalin factor would be reduced and officer stress would be
    diminished. Each department can decide if a patrol car needs to be dispatched to investigate this kind of call,
    and if so, the officer would have more information on how to handle the encounter.


    source; emphasis is mine to draw attention to relevant sections.
     
  2. kensteele

    kensteele

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    more opinions and comments about dispatching leo to open carriers. not the law, not the facts, but you called my ideas imaginary so i'm just letting you know i don't make this stuff up all by myself and others (including the courts) are thinking about it as well. again, this doesn't mean 911 should not dispatch, just tells what happened in one little case:

    -------------

    Details on a nice court victory for citizen rights against police immunity from a federal court in New Mexico, from the Liberty for All blog. The case was:

    St. John v Alamogordo Public Safety, U. S. District Court of New Mexico, No. 08-994 BB/LAM.

    Mr. St. John went into a movie theater openly carrying a holstered handgun. New Mexico has no law forbidding the open carry of a handgun.

    The theater owner called Alamogordo Public Safety. Four law enforcement officers (LEO) approached Mr. St. John and with force removed him from the theater, took his handgun and patted him down. After checking, found out that the handgun was legal and that he was not a criminal, returned his handgun and let him go back to the movie but without his handgun, which he placed in his vehicle.

    Mr. St. John filed suit in state court but the case was moved to a federal court because Mr. St. John alleged that his Fourth Amendment rights were violated and also asserts his rights under the New Mexico Tort Claims Act.

    The undisputed fact is that Mr. St. John seizure was unreasonable. He had not committed a crime, was not committing a crime and was not about to commit a crime.

    The court stated that “the firearm alone did not create a reasonable suspicion of criminal activity”. The court went on to state that the “Defendants (LEO) had no legitimate reason to engage Mr. St. John in the first place”, also the “Defendants (LEO) had no reason for seizing Mr. St. John”, “Mr. St. John had done nothing to arouse suspicion”.

    The judge did rule that the Defendants (LEO) did violate Mr. St. John’s Fourth Amendment rights.

    Lastly and the best part of this case was that the judge stated that the “Defendants (LEO) motion for summary judgment is denied with regard to qualified immunity”.

    In short, the LEOs can be sued....This ruling means that the law enforcement officers will have to think about what they are doing and begin to make sound judgment and not act on impulse. They will have to take responsibility for their action and/ or maybe face a lawsuit....

    The Wisconsin Gun Rights Examiner has more thoughts and interesting details on this decision:

    I thought this decision was interesting because this court goes even further to address the “community caretaker function” of the police and that it may be invoked as a defense only so long as the officer is entitled to make a forcible stop. Merely receiving a call from a hypersensitive person that someone is armed where it is lawful to be armed, is not reason enough to believe anyone’s safety is in danger in the absence of any suspicious or threatening behavior. This seems to me to be the big disconnect with law enforcement training. The 911 operators need to ask more questions of the caller to determine if there is any criminal activity before sending out one or more officers. In this case, Mr. St. John was in a theater watching a preview to a movie, a perfectly legal activity. The responding officers should have been trained to discern the difference between unlawful activity and a person quietly watching a movie.

    The court also found that merely being armed does not automatically make a person armed and dangerous, which would be necessary to justify a limited protective search (Terry stop) that justify officers disarming an individual.

    source
     

  3. kensteele

    kensteele

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  4. FireForged

    FireForged Millenium #3936 Millennium Member

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    In response to the Q, "should leo's respond"?

    My feeling as a non expert Joe citizen is that the 911 system is set up to quickly initiate a help response to emergencies. Unfortuantely, one can never be 100% sure of the callers intelligence, mental state or ability to accurately comprehend and discribe correctly, what is happening. It is this reason that I would be concerned with dismissing a "manwithagun"call without eyes on. It is also possible that the caller at some point during the call became under threat and gives bad or ficticious info.

    In todays world, most people are going to err on the side of caution rather than risk even the slightest liability.
     
    Last edited: Feb 27, 2010
  5. beforeobamabans

    beforeobamabans FYPM

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    Well, that's a lot to digest Ken. I think the state will make a big difference. In Indiana, one must have a permit to carry (LTCH). Therefore, LE has a built in cause to stop any MWAG calls to see if they are carrying legally. So, if I am subject to an LE stop, I will be willing to show my permit. If it goes beyond that, I will resist.
     
  6. TBO

    TBO Why so serious? CLM

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    Should LEO's not respond to:


    • Suspicious vehicle calls in your neighborhood?
    • Suspicious person calls outside a business or on a neighborhood street?

     
  7. Jon_R

    Jon_R

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    Resources (officers) should be dispatched based on priority. Man with a holstered gun any nothing else in an open carry state would be pretty low priority. If an officer has nothing higher priority for his time dispatch him. If it is a state where you need no permit to open carry I am not sure what the dispatched officer is going to do other then make sure the open carrier knows you are there and try and engage him in conversation and act accordingly.

    I think it would be excessive to require ID because he might have a warrant or be a felon. Or run the serial number on the gun because it might be stolen. If the person looks close to the required age then that could warrant a check of ID.

    I hope nobody makes me prove me son is my son when we are at the mall because I might be a kidnapper.

    In the end the sherriff / cheif should develop whatever processes he thinks serves his community best in order to keep his or her job. :)

    Interesting topic IMO.
     
  8. Dragoon44

    Dragoon44 Unfair Facist Lifetime Member

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    of course not, being outside of a business is perfectly legal!!! no officer has the right to investigate something that is legal to do!!

    :tongueout::rofl:
     
    Last edited: Feb 27, 2010
  9. trifecta

    trifecta

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    We don't have open carry in Texas, so it isn't a factor here. A suspicious vehicle is not the same to me. That indicates the possiblity they are up to no good based on a variety of factors. Carrying a gun in a legal manner isn't illegal and nothing about walking in a restaurant and ordering the blue plate special should make it a problem. If the business doesn't like it, most or all states have a way to put a sign up to prohibit it. That is not to say a person with a gun CAN'T be suspicious. The knucklehead with the AK and fatigues in the park comes to mind.

    In my life before GT, I didn't realize open carry was allowed in so many states. I think I knew AZ allowed it and hadn't spent much time really thinking about it till we took a trip. Don't recall which state, but I was in a restaurant eating lunch with my family. I noticed a male subject walk in wearing civilian clothes, with a full size pistola on his belt. Looked again for a badge on his belt and there wasn't one. I looked around, watched him for second, decided I didn't have a good reason to kill him and went back to my lunch. I'm not even from an open carry state and it wasn't an issue for me.

    I've seen people on here tell others to get the law changed if they think the carry laws are too restrictive. From my limited reading of the state in question, it seems clear open carry is the law. If the police or the DA's don't like the law, then they should work to get it changed or move to a state where it isn't allowed.

    In any case, the many threads on here haven't managed to solve the problem or find consensus and I'm guessing this one will be no different.
     
  10. Gunnut 45/454

    Gunnut 45/454

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    I agree that a few purdent questions by the 911 Dispatcher could be used to determine if further involvement is required, but the main thing would be that the caller stay at the location! If the caller will not I'd disreguard the call! That way if the officer finds nothing wrong he could then educate the caller on the law and then ticket him for waste of resources! This would put an end to such waste of resources!:rofl:
     
  11. doktarZues

    doktarZues I'm anti-anti

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    I would like to see each and every state ban open carry and pass shall issue concealed carry laws. There I said it. :wavey:
     
  12. doktarZues

    doktarZues I'm anti-anti

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    Echoing a few posts already made.. 911 operators and police dispatchers couldn't possibly be given discretion on "man with a gun calls" and be expected to consistently "make the right judgment decisions". The thought is quite ridiculous actually. Yes police need to investigate man with a gun calls.
     
  13. HK Dan

    HK Dan

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    Well what the Hell do you THINK they'd do?

    Did you think the dispatcher would give the complete dossier, or just say "Man with a gun"? While I respect the motive, I question the method. You guys seem like a bunch of attention-seeking PETA activists, except that you aren't spraying red paint on fur coats and make more of a presence on GLOCKTalk than they do.
     
  14. Rebel_James

    Rebel_James

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    My experience is most 911 operaters are trained to obtain information and NOT make decisions on whether to send deputies/officers or other emergency personnel to a scene.

    Deputies/Officers are trained in laws, 911 operators aren't.


    .
     
  15. TBO

    TBO Why so serious? CLM

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    These opinions on "how things should be run" are proposed by those who have no practical basis in reality.

    None of them have spent any time in a 911 call center much less in a squad car.

    The postings/"scenarios" show that as clear as a light house lamp on a clear winter's night.
     
  16. Jon_R

    Jon_R

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    I don't disagree but they are still welcome to voice their opinions and ideas. It is Glocktalk opinions and ideas from Gun Owners / Glock Owners. A forum focused on 911 call center operators and police officers would probably go in different directions.

    We can't limit discussion to only experts..... There would not be hardly any posts at all. :tongueout:
     
  17. Rebel_James

    Rebel_James

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    +1,000,000
     
  18. Jon_R

    Jon_R

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    Who does typically make the decisions? Someone has to prioritize. Decide if it is one car or four or swat.
     
  19. TBO

    TBO Why so serious? CLM

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    I'm not talking about discussion, I'm talking about people putting forth "hard/fast" opinions that are not based on anything other than "what I want...", and actually are often times more of a demand of same.

    jmho


     
  20. silverado_mick

    silverado_mick

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    Wanna know how most "man with a gun" calls really hit the dispatch desk? Here ya go:

    911 call taker: 911 what's your emergency?

    Caller: I'm at 123 bacon st and there's a guy with a gun here! CLICK! (hanging up the phone).

    Around here most complainants want to remain anonymous and hang up as soo as they give a location and the problem. YMMV, but these perfect world scenarios of call takers deciding if police response is needed is complete bunk.