Weapons and the Law

Weapons and The Law

001

Concealed Carry

Weapons Sec. 227. (1) A person shall not carry a dagger, dirk, stiletto, a double-edged non - folding stabbing instrument of any length, or any other dangerous weapon, except a hunting knife adapted and carried as such, concealed on or about his or her person, or whether concealed or otherwise in any vehicle operated or occupied by the person , (except in his or her dwelling house, place of business or on other land possessed by the person.) Concealed Pistol A person shall not carry a pistol concealed on or about his or her person , or, whether concealed or otherwise, in a vehicle operated or occupied by the person , (except in his or her dwelling house, place of business, or on other land possessed by the person), without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license. A person who violates this section is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500 .00. Concealed Carry VS Open Carry The carrying of a pistol in a holster or belt outside the clothing is not carrying a concealed weapon. Carrying a pistol under a coat is carrying a concealed weapon. Op. Atty. Gen. 1945, O-3158. According to the Court of Appeals in People v. Reynolds, a weapon is concealed if it is not observed by those casually observing the person as in the ordinary course and usual association of life. Brandishing a Firearm in Public Michigan Compiled Laws §750.234e prohibits individuals from willfully and knowingly brandishing a firearm in public. According to MCL §750.222(c), the term "brandishing" as used in this statute refers to pointing, waving, or displaying a firearm with the intent to cause fear in another person. The offense of brandishing a firearm in public is a misdemeanor under Michigan law that may result in up to 90 days in jail and a fine of up to $100 upon conviction. It should be noted, though, that this section does not apply to peace officers performing their official duties or individuals who are lawfully acting in self-defense or defense of another under the self- defense act. The open carry of a handgun by itself is not considered brandishing . 750.224 Weapons; manufacture, sale, or possession as felony; violation as felony; penalty; exceptions; "muffler'' or "silencer'' defined . Sec. 224. (I) A person shall not manufacture, sell, offer for sale, or possess any of the following: (a) A machine gun or firearm that shoots or is designed to shoot automatically more than I shot without manual reloading, by a single function of the trigger. (b) A muffler or silencer. (c) A bomb or bombshell (d) A blackjack, slungshot, billy, metallic knuckles, sand club, sandbag, or bludgeon.

002

Taser Age 21 years old Possesses a Michigan Concealed Pistol License Purchase taser approved in Michigan

Taser can be purchased from a dealer or person Receive approved training for a dealer or person Must be registered with the manufacturer Comes under same laws and restrictions as a concealed pistol license

CRIMINAL LAW Tasers August 13, 2012 Michigan Penal Code and Firearms Act amended to allow for possession and reasonable use of Tasers by Michigan Concealed Pistol License holders. MCL 750.224a (2)(b) allows the possession and reasonable use of a device that uses electro-muscular disruption technology (EMD device) by a Michigan Concealed Pistol License (CPL) holder who has been trained in the use, effects, and risks of the device. Reserve peace officer, as defined in MCL 28.421, was added to the definition of peace officer in MCL 750.224a(7)(c), therefore, a reserve peace officer may possess and use an EMD device in performance of his or her duties. MCL 750.224a ( 6) prohibits all persons, including peace officers, who are allowed to possess and use an EMD device from using the device against another person except under circumstances that would justify the person’s lawful use of physical force. Violation of this section is punishable as a two-year misdemeanor. MCL 750.224a ( 5) requires an authorized dealer or other person who sells an EMD device to a Michigan CPL holder to verify the person’s identity and verify that the person holds a valid Michigan CPL. The dealer or seller must provide the Michigan CPL holder with training on the use, effects, and risks of the EMD device at the time of sale. Note, to qualify as an EMD device, MCL 750.224a(7)( a) requires that the device contain an identification and tracking system that when the device is initially used, dispenses coded material traceable to the purchaser through records kept by the manufacturer, and the manufacturer of the device has a policy of providing that identification and tracking information to a police agency upon written request by that agency (e.g., Taser). Therefore, devices that do not dispense this material are n ot lawful to possess (e.g., stun guns, stun batons, stun canes, stun flashlights). Public Act 123 of 2012 amended various sections of the Firearms Act that apply to a CPL holder when carrying a concealed pistol to also apply when the CPL holder is carrying an EMD device. Violations are punishable by the listed penalties that apply to carrying a concealed pistol under the same circumstances.

042 003

MCL 28.425f was amended to require the following of a CPL holder when he or she is carrying an EMD device: • T he CPL holder shall have his or her CPL in possession at all times he or she is carrying the EMD device. • The CPL holder shall show his or her CPL and driver license or Michigan personal identification card to a peace officer upon request. • When carrying a concealed EMD device, the CPL holder shall immediately disclose to the peace officer that he or she is carrying an EMD device concealed upon his or her person or in his or her vehicle. MCL 28.425f(7) provides an EMD device carried in violation of the above disclosure and identification provisions is subject to immediate seizure in the same manner for concealed pistols . MCL 28.425g subjects an EMD device carried in violation of the Firearms Act to seizure and forfeiture in the same manner for concealed pistols. MCL 28.425k prohibits a CPL holder from carrying an EMD device while under the influence of alcoholic liquor or a controlled substance or while having any bodily alcohol content of .02 or more. A peace officer who has probable cause to believe the CPL holder is carrying an EMD device in violation of this section may require the person to submit to a chemical analysis of his or her breath, blood, or urine in the same manner pertaining to persons suspected of carrying a concealed pistol under the same conditions. This section does not prohibit a CPL holder who has any bodily alcohol content from transporting the EMD device: I n the locked trunk of his or her motor vehicle or a vehicle in which he or she is a passenger. If the vehicle does not have a trunk, the EMD device may be transported in a locked compartment or container. MCL 28.425o prohibits a CPL holder, unless exempt, from carrying an EMD device on the premises listed in MCL 28.425o(1) (e.g., school, stadium, hospital). CPL holders who are court officers were added to the list of people who may carry a concealed pistol or an EMD device on the prohibited premises listed in MCL 28.425o(1) and (2).

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043 004

(“felony firearm”) A person who carries or possesses a pneumatic gun and uses it in furtherance of committing or attempting to commit a felony, except a violation of MCL 750.223, 750.227, 750.227a, or 750.230, is guilty of a two-year felony with increasing penalties for second or subsequent offenses. MCL 750.227b(2) Transporting a loaded firearm or pneumatic gun in a vehicle Except as otherwise permitted by law, a person shall not transport or possess either of the following in or upon a sailboat, motor vehicle, aircraft, motorboat, or any other vehicle propelled by mechanical means: • A firearm, other than a pistol that is loaded. • A pneumatic gun that is loaded and expels a metallic BB or metallic pellet greater than .177 caliber. A person who violates this section is guilty of two-year misdemeanor. MCL 750.227c A person shall not, with intent to use the same unlawfully against the person of another, go armed with a pistol or other firearm, or a pneumatic gun, dagger, dirk, razor, stiletto, or knife having a blade over three inches in length, or any other dangerous or deadly weapon or instrument. A person who violates this section is guilty of a five-year felony. MCL 750.226 Possession of a pneumatic gun in furtherance of a crime CRIMINAL LAW NO. 117 - Firearms and Pneumatic guns July 1, 2015 Amendments to the Firearms chapter of the Michigan Penal Code related to firearms and pneumatic guns. Public Act 26 of 2015 amended various sections of the Firearms chapter of the Michigan Penal Code related to firearms and pneumatic guns. Definitions As a result of the amendments, the following terms have the following meaning for purposes of the Firearms chapter of the Michigan Penal Code: “Brandish” means to point, wave about, or display in a threatening manner with the intent to induce fear in another person. MCL 750.222(c) “Firearm” means any weapon which will, is designed to, or may readily be converted to expel a projectile by action of an explosive. Previously, the definition of “firearm” included weapons that propelled a dangerous projectile by gas or air. MCL 750.222(e) “Pneumatic gun” means any implement, designed as a gun, that will expel a BB or pellet by spring, gas, or air. Pneumatic gun includes a paintball gun that expels by pneumatic pressure plastic balls filled with paint for the purpose of marking the point of impact. MCL 750.222(g) Pneumatic guns added to weapons-related violations. Carrying a pneumatic gun with unlawful intent

044 005

Transporting an unloaded firearm or a pneumatic gun in a vehicle Except as otherwise permitted by law, a person shall not transport or possess in or upon a motor vehicle or any self-propelled vehicle designed for land travel either of the following: • A firearm, other than a pistol, or • A pneumatic gun that expels a metallic BB or metallic pellet greater than .177, unless the firearm or pneumatic gun is one or more of the following:

• Taken down. • Enclosed in a case. • Carried in the trunk of a vehicle. • Inaccessible from the interior of the vehicle.

A person who violates this section is guilty of a 90-day misdemeanor. MCL 750.227d Pneumatic guns and “weapon free school zones” MCL 750.237a(6)(d) was amended to provide that the term “weapon” for purpose of the weapon free school zones includes, but is not limited to, a pneumatic gun.

048 006

Pepper Spray 18 years old 18 percent OC Self Defense use:

A person in the protection of a person or property under circumstances that would justify use of physical force if the solution contains not more than 18 percent OC or contains not more than 18 percent OC and an ultraviolet dye.

NO. 132 August 23, 2018 Pepper Spray

Public Act 98 of 2018 amended the definition of “self- defense spray or foam device” under MCL 750.224d. The maximum amount of allowed OC was changed from a solution containing not more than 10 percent OC to a solution containing not more than 18 percent OC. Also, Public Act 98 added to the definition of “self-defense spray or foam device” a solution containing an ultraviolet dye that is not more than 18 percent OC. Officers are reminded that using a self-defense spray or foam device to eject, release, or emit orthochlorobenzalmalononitrile or OC at another person is guilty of a misdemeanor. MCL 750.224d(2). However, MCL 750.224d(5), as amended, provides an exception for the following individuals’ “reasonable use” of a self-defense spray or foam device: • An employee of a county sheriff or chief of police who has prior written authorization and training on its use, effects, and risks, while performing official duties, if the solution contains not more than 18 percent OC. • A person in the protection of a person or property under circumstances that would justify use of physical force if the solution contains not more than 18 percent OC or contains not more than 18 percent OC and an ultraviolet dye.

007

What you should Know

Can a convicted felon be in the same vehicle, home or business that is occupied by a person with a firearm?

Possession and Constructive Possession And Felony Convictions

008

Felon in car or home with a person that is in the possession of a firearm.

Possession and Constructive Possession Explained Question : Can a convicted felon be in the same vehicle, home or business that is occupied by a person with a firearm. Answer: yes – but first a person must understand Possession and Constructive Possession. If the person with the firearm is the sole possessor of the firearm and that you are not able to exercise control over it. For instance, the CPL holder must be carrying a firearm on their person, they cannot keep the gun in the glove box, under seat or anywhere in the vehicle that would allow a convicted felon to have access to the handgun. That could be construed as constructive possession. Constructive possession allows you to be charged with a serious crime even when the guns or drugs are not found on you. Usually this will happen when you are the driver or passenger of a car where the guns or drugs are found, or when they are found in a home you occupy. To fully understand this legal concept, it is helpful to start with a definition of the term “constructive.”

Constructive possession when a person does not have actual possession , but has the power to control an asset, he/she has constructive possession. Having the key to a safe deposit box, for example, gives one constructive possession.

With constructive possession it is the possession that is implied or inferred . According to Black’s Law Dictionary, constructive possession occurs “where one does not have physical custody or possession but is in a position to exercise dominion or control over a thing.” Michigan courts recognize that the term “possession” includes both actual and constructive possession. Accordingly, a person has constructive possession if there is proximity to the article together with indicia of control. Said differently , a person has constructive possession if the location of the drugs or the gun is known, and it is reasonably accessible to the person. Physical possession is not necessary if the person has constructive possession. Constructive possession can be established with circumstantial evidence.

009

When trying to understand this concept , another place to look is the standard Michigan Criminal Jury instructions. These are used to explain legal concepts to jurors and are considered to be a correct summary of Michigan law. Reading from M Crim JI 12.7 the judge will say this to the jury about the meaning of possession: Possession does not necessarily mean ownership. Possession means that either: • The person has actual physical control of the [substance / thing], as I do with the pen I’m now holding, or • The person has the right to control the [substance / thing], even though it is in a different room or place. • Possession may be sole, where one person alone possesses the [substance / thing]. • Possession may be joint, where two or more people each share possession. • It is not enough if the defendant merely knew about the [state substance or thing]; the defendant possessed the [state substance or thing] only if [he / she] had control of it or the right to control it, either alone or together with s omeone else.