The right to own and use a firearm also comes with the responsibility to use the weapon safely. This means that a person should not brandish a weapon unless authorized to do so by law. For many years, the term “brandishing” was not defined under state law and led to confusion among regular citizens and even police or prosecutors as to what this conduct entailed. However, Governor Rick Snyder signed Public Act 27 of 2015 and Public Act 28 of 2015 which statutorily defined “brandishing” for the first time and provided exceptions to prosecution under law. These amendments to the Michigan Penal Code became effective August 10, 2015. All Michigan gun owners should familiarize themselves with these laws.
MCL 750.234e(1) provides that “a person shall not willfully and knowingly brandish a firearm in public.” However, this statute does not apply to any of the following:
- “A peace officer lawfully performing his or her duties as a peace officer.” MCL 750.234e(2)(a).
- “A person lawfully acting in self-defense or defense of another…”. MCL 750.234e(2)(b).
A person may brandish a firearm acting in self-defense but only under specific circumstances since a pistol or rifle has the potential to deal fatal damage. “An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:”
- “The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.” MCL 780.972(1)(a).
- “The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.” MCL 780.972(1)(b).
However, “[a]n individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.” MCL 780.972(2).
A person who brandishes a firearm contrary to law is guilty of a misdemeanor punishable by a fine up to $100.00 or up to 90 days in jail, or both. MCL 750.234e(3). In addition, all pistols and weapons used contrary to this law are forfeited to the state and shall be turned over to the Michigan State Police for disposition. MCL 750.230(1).
“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). This means that the prosecutor has to prove beyond a reasonable doubt that the person with the firearm was trying to frighten someone else by his or her handling or display of the gun on purpose. This would not cover situations where someone was merely removing the handgun from the holster to examine it. However, the intent to brandish could be implied if the person was yelling loudly or otherwise deliberately drawing attention to himself while the gun was displayed. This can also cover a situation where someone is arguing with someone else and he opens his jacket to display the gun in his holster in a menacing manner. Brandishing does NOT require that the person must actually point the gun at someone. In fact, pointing the gun at someone could lead to more serious criminal charges:
- A person who intentionally but without malice points or aims a firearm at or toward another person is guilty of a misdemeanor punishable by a fine up to $500.00 or up to 93 days in jail, or both. MCL 750.233(1). This does not apply to a peace officer performing his or her duties. MCL 750.233(2).
- A person who assaults another person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder is guilty of a felony punishable by a fine up to $2,000.00 or up to 4 years in prison, or both. MCL 750.82(1). Assault does not require touching someone. Assault can include “an act that would cause a reasonable person to fear or apprehend an immediate battery.” M Crim JI 17.1(2). This means that pointing a gun at someone and telling them you are going to shoot could be considered assault with a dangerous weapon.
The new statutory language also makes it clear that open carry of a weapon is not brandishing. Michigan law allows a person to display a firearm in plain sight without a permit. As long as that person is not pointing, waving around or displaying the firearm in a threatening manner, then the mere open carry of a gun is not unlawful. The “brandishing” statute does not abridge the right to bear arms as guaranteed by the Second Amendment of the U.S. Constitution, but it does impose the duty to use the weapon responsibly.
A charge of brandishing a weapon is a serious offense that prosecutors and judges will not take lightly. You need a skilled criminal defense attorney in your corner to protect your rights and ensure you are treated fairly under the law. The evidence may show that you lawfully brandished the gun in self-defense. Even if the evidence against you is strong, a lawyer on your side may even be able to negotiate the charge to a lesser offense (e.g. disorderly person).
If you or a loved one is charged with a firearm crime or any other criminal offense, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.