Is Brandishing a Firearm During Road Rage the New Middle Finger?

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?”

Can I Have Pistol Inside My Car?

Yes, you can transport your pistol inside your car, but only when you have a valid concealed pistol license (CPL). However, if you have a CPL, you are permitted to have a loaded pistol on your person or within the passenger area of your car. Also, a CPL only applies to pistols.  Loaded and accessible long guns can never lawfully be transported inside a motor vehicle.

I Thought Michigan was an Open Carry State?

Michigan is an open carry state it is just that open carry does not apply inside a car. If you do not have a CPL then any pistol inside a motor vehicle is concerned to be concealed.  So, if you do not have a valid CPL but wish to open carry, then you may not transport the gun unless it is broken down, separated from ammunition, in a locked box, and placed inside the trunk, or area not otherwise accessible. There are certain exceptions, but the general rule is open carry does not extend to your car.  If you do not have a CPL, and do not fit within one of the enumerated exceptions, you may be charged with a five year felony called carrying a concealed weapon.

Can I Defend Myself in a Road Rage Situation?

Maybe.  Michigan has excellent self-defense laws, including the stand your ground law and the castle doctrine. And self-defense can apply to brandishing because it is literally written into the brandishing statute. Self-defense is an affirmative defense that justifies intentional actions by you that would otherwise under certain circumstances be considered criminal conduct. Keep in mind that there are two separate but similar statutes, MCL 750.234e for brandishing, and MCL 750.233 for pointing and aiming.  Both contain subtle nuances, and if you have found yourself having to use force to defend yourself, it’s best to hire a firearms lawyer to help make sure you don’t end up being wrongfully convicted.

Having said that, brandishing is the use of nondeadly force in self-defense and to do so lawfully, you must honestly and reasonably believe that the use of force is necessary to protect yourself or others from the imminent unlawful use of force by another. The words “honestly” and “reasonably” are the key legal terms used throughout self-defense analysis, and summarily means would a reasonable person in that specific situation feel and act the same way.

Now that we have addressed the nuts and bolts of all this, let us look at the legal difficulty within the context of road rage.  In this context there are two things to consider;

  1. Is there an unlawful force (assault for example) being perpetrated against me, and if so, then
  2. Is the unlawful force imminent?

Imminent meaning that you are in immediate danger and unable to call for the assistance of others.  It means only you and your actions in that moment can prevent it. It is also difficult to establish, at least while driving is still occurring, that there is imminent unlawful force against you. Certainly, a car can be used for an assault. Assault does not require any actual physical contact but at minimum the immediate threat of physical contact, but is a difficult legal argument, very fact specific, and often witness dependent. If two drivers have exited their vehicles, the imminent unlawful force can be more reasonably comprehended.

What About the Issue of Intent?

Intent is a legal principle that means that you meant to do something.  Intent is a crucial legal issue in not only the brandishing but also in the potential defense.  First, brandishing requires that you do so willfully and knowingly, which means intentionally.  It also requires that you did so in a threatening manner. And it requires you intended to induce fear in another person. Here are some pertinent questions:

  • Did you intentionally point the gun, did you intentionally wave the gun about, or did you intentionally display the gun? If you did not, then it is not brandishing.
  • Did you do so in a threatening manner? If not, then it is not brandishing.
  • Did you intend to induce or cause fear in another person? If you did not, then it is not brandishing.

If you did intend to point, wave, or display the gun, and you did in a threatening manner, and you did intend to induce fear, did you do so prevent an immediate unlawful force against you? If you did, then it would be self-defense.

These issues are very complex not only because of the legal nuance but also because of what is considered reasonable.  Each potential judge, prosecutor, police officer, and juror, may have different views of what is reasonable. Just because you are annoyed or even scared does not necessarily mean you have a legal justification.

What Should I Do if I am Involved in a Road Rage Incident?

It is advisable that you have a clear understanding of your rights, the legal issues, and the potential procedure to follow. First, as you learned at your initial CPL training courses, a firearm should never be brought out unless you intend to use it.  Be prepared but be smart. While driving in the car there is rarely a legally justifiable reason to brandish your firearm. It is never advisable to pull your car over in a public or private area to engage the other driver, regardless of whether you have a firearm.  Call the police and make a report.  Advise the police that you have been victim of road rage incident. Provide a description of the other car and driver. And advise them where they can contact you, phone, address, etc. Most of the brandishing cases we handle in the context of road rage are a result of the other person(s) calling and making a report (first). Call your Michigan gun lawyer at the Barone Defense Firm. You should not attempt to resolve the matter without representation.

What if I am Contacted by Police?

If you are contacted by police by phone or in person it is your right, and we advise, that you do not make any statements until you have discussed with your lawyer.  There are many reasons for this approach, but at this point you are now the target of their investigation and they are building a case.  Be polite, be professional, but be smart, and as we have all heard throughout our lives anything you say can be used against you. Any statements that you make during this time are not protected under Miranda because they would be deemed voluntary.

What Happens to My Gun? And My CPL?

You obviously take your training and your 2nd Amendment Rights seriously, and our goal is to maintain those rights.  A conviction for brandishing in majority of cases will cause a forfeiture of your firearm and will revoke your CPL and can also prevent you from obtaining CPL in the future. Although the charge may only be a 90-day misdemeanor, the consequences could have a lifetime impact.

If you have been involved in a road rage incident involving a firearm you should contact the Team at the Barone Defense Firm to help protect your 2nd Amendment Rights and your freedom.

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