Articles Posted in Gun Laws

A St. Louis Missouri couple have garnered national attention for their actions involving their firearms while at their home during a protest, which has now led to Felony criminal charges.  To add to this drama the Missouri Governor has stated that he would pardon the couple, and interestingly the Attorney General has put himself into the case by filing a brief and demanding charges be dropped.

According to a CNN Article, ‘”It is illegal to wave weapons in a threatening manner at those participating in nonviolent protest, and while we are fortunate this situation did not escalate into deadly force, this type of conduct is unacceptable in St. Louis,” Circuit Attorney Kimberly Gardner said in a statement.

In Missouri, and according to the local prosecutor, these actions are considered a Felony.  However, in Michigan, the alleged conduct described would be most similar to Michigan’s brandishing law, found at MCL Sec. 750.234e. This crime is punishable by up to 90 days in jail, which means it is considered a misdemeanor criminal offense. ‘”Brandishing” is defined as: to point, wave about, or display in a threatening manner with the intent to induce fear in another person.’ We’ve also previously addressed brandishing.

The short answer is yes. There is no Michigan law specifically on this topic and the existing laws in Michigan do not otherwise preclude the wearing of a Covid-19 facemask while otherwise carrying a firearm in Michigan.

In Michigan, the Covid-19 Pandemic has brought significant changes and restrictions to Michiganders.  One of the often-debated pandemic guidelines is the requirement to wear a facemask. Currently, there is no absolute rule on the facemask requirement, and the guidelines on this topic vary between counties, municipalities, stores, and restaurants to wear facemasks.  While the actual scientific merits of the facemask requirements may remain up for debate, it also leads to significant questions of legality.

One of the questions frequently asked of the Michigan Gun Lawyers at the Barone Defense Firm is whether a person carrying a firearm can do so legally while wearing a facemask.  Obviously, wearing a facemask while carrying a pistol into the local Kroger feels like you are going to rob the place, but is it illegal?

Recent Mlive news reports that a Michigan CPL (Concealed Pistol License) holder shot and killed a gunman who was “seen firing gunshots into the air and pointing a handgun at motorists.”  Will the CPL holder literally get away with murder, or will he go to prison?  The question depends on how Michigan’s Stand Your Ground Law is interpreted.

According to Michigan’s Stand Your Ground Law, a person may use deadly force against another if, but only if, he or she honestly and reasonably believe that the use of deadly force is necessary to prevent the imminent death or imminent great bodily harm or imminent sexual assault to himself or herself or to another individual. This is a simplified paraphrase of Michigan Compiled Laws section 780.972.

On a plain reading of the law therefore, it would appear that the CPL shooter has a viable self-defense claim. This assumes that three things are also true, because if they’re not, then no self-defense.  First, the CPL shooter must not have been himself engaged in a crime. This seems like a reasonable assumption based on what little has been reported about this incident so far. Second, he must have been somewhere he was legally allowed to be. Again, we do not know the answer from the reports, but it seems likely the CPL shooter was not trespassing or otherwise someplace he wasn’t lawfully allowed to be. Finally, the CPL shooter must have believed that deadly force was the only way to defend himself or another person. This seems self-evident.

It is a sign of the times, a driver gets cut off, or suffers some other grievous offense, and before you know it, firearms are displayed and waived, and violence is threatened. In many instances, simply displaying your pistol to another driver can result in a brandishing charge.

What is Brandishing?

According to the Michigan Penal Code, “brandishing” occurs when a person points, waves about, or displays a firearm in a threatening manner with the intent to induce fear in another person. The laws and penalties regarding brandishing have some subtle factors, and recent news reports regarding arrests for brandishing arising out of a road rage incident, such as one regarding a person in Ottawa County provoke the question:  “what do I do if I am in a road rage incident and I have a firearm?”

New Book Covers Everything You Need to Know about Self-Defense Laws in Michigan

The Barone Defense Firm proudly announces the release of Patrick Barone’s latest book entitled “Michigan Gun Law: Armed and Educated.” Containing all the dos and don’ts of Michigan’s firearms laws, the book’s more than 400 pages and 14 chapters cover the following topics:

  • The History of the Right to Bear Arms
  • The Law of Purchasing, Transferring and Possessing Firearms
  • Michigan’s Law of Self Defense Including Stand Your Ground and Castle Doctrine
  • Use of Force Law in Michigan
  • Concealed Carry and Open Carry Laws in Michigan
  • The Potential Criminal and Civil Liability Involved in Firearms Ownership and Self Defense

The book is written in layman’s terms, yet it contains dozens of legal citations to Michigan’s statutory and common law. Due to its breadth of coverage, Michigan Gun Law is a reliable and authoritative legal compendium that can be used as a reference guide by gun owners and enthusiasts alike.  This book is the first of its kind in Michigan and is already the seminal work for all of Michigan’s gun owners.

The book’s author has been a gun owner and enthusiast for more than 35 years and is well-versed in all aspects of this complicated area of Michigan’s jurisprudence. Early in his career as a criminal defense trial lawyer, Mr. Barone gained experience defending a multitude of different crimes involving the alleged unlawful use or possession of firearms. As one of Michigan’s leading experts on intoxicated driving cases, Mr. Barone utilizes his firearms expertise when the citizen-accused’s DUI case also involves the additional complication of firearms possession. While intoxicated driving is briefly covered within the pages of Michigan Gun Law, the primary focus of the book is guiding gun owners in the lawful possession, carrying and use of firearms in self-defense.

Can a Michigan CPL Holder Concealed Carry on a Boat?

Michigan is often referred to as the “Great Lakes State.”  Four of the five Great Lakes share borders with Canada, and when combined, all five of the Great Lakes share borders with seven other states, including Illinois, Indiana, Minnesota, Ohio, Pennsylvania, Wisconsin and New York. Then there is Lake St. Clair and the Detroit River, both of which also share borders with Canada. Consequently, boats in Michigan have the potential of originating their travels in a lake or river governed by State waters then crossing over into waters governed by a different state, or even crossing over into international waters. Unlike vehicles on land, these boundaries between states and countries are not always readily discernable. These facts combined with other unique qualities applicable to boating generally mean that there is no definitive answer to the “guns in boats” question that will apply in all situations.

Another complicating factor is that there is no law in Michigan that specifically addresses this issue.  While MCL § 28.425c does provide that a person with a CPL may carry concealed anywhere in the state (unless otherwise prohibited) including inside a vehicle, the term vehicle as used here probably does not include powerboats and other kinds of vessels, such as sailboats. However, this also is not 100% clear on its face.

There are also various laws applicable to boating and guns that appear to apply only in very specific scenarios, such as MCL §324.40111(2) which is applicable to boats used while hunting. This sub-section provides that “[E]xcept as otherwise provided in this part or in a department order authorized under section 40107, a person shall not transport or have in possession a firearm in or upon a vehicle, unless the firearm is unloaded … in a motorized boat.” Arguably this law, and others like it, are designed to stop poaching, and don’t otherwise apply to recreational boating.

Restoration of Firearms Rights in Michigan After Felony Conviction

Michigan law provides that if you have been convicted of a felony you may not use, possess transport, sell or carry a firearm for a period of either three or five years. After this period has elapsed limited firearms rights under state law will either be returned to you automatically, or you will be required to affirmatively seek to restore such rights by petitioning a judge. It is important for you to understand that any restoration granted applies only to your eligibility under Michigan law. Although pursuant to Michigan law you may lawfully use, possess, transport and sell a firearm, you may still be prohibited from same under Federal law. This means that:

After restoration of your rights, the only firearms you can possess or use are certain types of firearms that do not take a modern cartridge, i.e., a pellet rifle, muzzle-loader, or black powder gun.

Knowing these limitations, if you are still interested in a restoration of your firearms rights, then you should also know that the specific felon in possession statute appears in the Firearms chapter of the Michigan Penal Code, and is found at Michigan Compiled Laws § 750.224f.  This law defines the term “felony” as being a conviction for a crime that is punishable by imprisonment for four years or more. Some felonies are punishable by maximum terms of less than four years, and if you were convicted of such a crime, then this law will not prohibit you under this statute.

Can Off Duty Officer Concealed Carry in Court?

The answer will depend on the written security policy of the individual court.  Police officers and other law enforcement officers are advised to check with the specific court prior to attempting to conceal carry.

Michigan law provides that any person with a CPL may carry anywhere in the State of Michigan unless otherwise precluded.  Most of the areas that are prohibited carry zones are set forth in Michigan Compiled Laws sec. 28.425o. Subsection 5 of this law sets forth the people who are exempt from these restrictions and who may therefore otherwise carry in weapons free zones. Provided certain licensing requirements are met, exempted persons include the following:

A retired police officer, retired law enforcement officer, or retired federal law enforcement officer, a private investigator or private detective, a corrections officer, a motor carrier officer or capitol security officer, a member of a sheriff’s posse, a parole, probation, or corrections officer, a state court judge, a court officer, a peace officer.

Michigan Recreational Marijuana Users Advised to Avoid Firearm Possession

Now that Michigan has legalized the recreational use of marijuana, many citizens want to know how they can possess and use recreational marijuana without running afoul of the law.  It will take many years for the legislators and courts to sort this all out, and in the meanwhile, recreational users may unknowingly place themselves at risk for criminal prosecution or other adverse legal consequences.  One area that is particularly rife with such risks is the combination of marijuana and firearms.

An example of this this risk relates to the possession or use of marijuana while also being in the possession of a firearm. While this article focuses on State law there is also an interplay between Federal law and marijuana, and this interplay is the subject of a different article on this site.

As it relates to State law, Michigan gun owners should know that it is unlawful in Michigan to possess a firearm under the influence of alcohol, drugs or a combination of alcohol and drugs. There are two separate laws that apply to this scenario, one of which appears in the criminal code and one of which appears in the firearms statute. Both contain provisions applicable to the possession of a firearm under the influence of marijuana, but there are important differences as well.

Can I Have a CPL and be a Medical or Recreational Marijuana User?

No, according to Federal law, you are not allowed to both use medical or recreational marijuana and have a Michigan Concealed Pistol License (CPL).  This is due to a conflict in state and federal law.

Michigan is not the only state facing this dilemma. For example, a man in Pennsylvania has filed a lawsuit seeking clarity regarding gun ownership rights.  According to the HuffPost,

A medical marijuana prescriber and patient is challenging President Donald Trump’s administration over a federal statute barring cannabis users from purchasing or owning firearms, even when they take the drug legally pursuant to state law.

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