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Criminal Appellate & Post-Conviction Services

Michigan’s Open Carry Law: A Trap for the Unwary

I am pro-gun. I have a CPL permit and recognize the right of a person to carry a gun in self-defense. Despite this, I frequently find myself in fights with people over “open carry.” My opinion as a lawyer is that it is a legal minefield that most people cannot properly negotiate on a regular basis. If they slip, they have a felony conviction. Last week’s opinion in People v Wheeler, Court of Appeals No. 355419 (Mich App 3-11-2021) is a perfect example.
Simon Wheeler had a gun in his waistband while working on his car in the City of Detroit. Police officer’s passing the Defendant noted his gun in his “waistband with its handle sticking out of his coat.” The Defendant successfully moved to suppress the evidence claiming that he was open carrying the firearm and hat was permitted under Michigan law. The Court of Appeals reversed this ruling in a published opinion.
The Court of Appeals said “It has long been established by this Court that total concealment or invisibility is not required under the statute to support such a conviction.” Rather, “a weapon is concealed when it is not discernible by the ordinary observation of persons coming in contact with the person carrying it, casually observing him, as people do in the ordinary and usual associations of life.” Id. (cleaned up). The Court went on to note that “While the handgun was partially visible because of the positioning of defendant’s body and the vantage point of the police officers, it cannot be said that defendant was “openly” carrying the weapon in full view for the public to see upon casual observation. A portion of the gun was in defendant’s waistband and the portion that was not in his waistband was, at minimum, partially covered by his clothing.”
In order to be openly carried, the fire arm had to be ”in full view for the public to see upon casual observation.” Normally the question of whether the concealment is open is a question of fact for the jury. While a person can carry a gun in a concealed manner on their own property, one step off of your property lands you felony.
Should a person wish to attempt to open carry a weapon, their best strategy would be to carry the gun in a manner that makes it completely obvious. A clear holster worn so that it can’t be obstructed by outer clothing would seem to be the best solution. Also be aware that there is no such thing as “open carry” inside a motor vehicle. The firearm must be transported unloaded, in a locked case which is inaccessible to the occupant of the motor vehicle.

60 Minutes Takes on Bullet Lead Analysis

SCOTUS Receives Briefs on Misdemeanor Defendant's Right to Own Firearms

As was noted by the by a Las Vegas New Channel, US District Judge Mahan has declared unconstitutional Nevada’s Adam Walsh Act. In order to gain federal grant funding, Nevada modified its registration laws to require numerous individuals previously thought not to be a risk of reoffending to register. Last Friday, a Federal District Judge found this law violated due process.
President Bush signed the federal Adam Walsh Act in 2006 to expand the National Sex Offender Registry and to create national standards for ranking sex offenders. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006). The law established three tiers, rankings based on the crime the offender committed.
Section 111 of the Adam Walsh Act specifically sets out expanded definitions that include registration and notification which were considerably broader than the versions previously used in Nevada. Under this section, a sex offender is “an individual who was convicted of a sex offense.” A sex offense is a criminal offense that has an “element involving a sexual act or sexual contact with another.”
The new provisions physically resemble the three tier system previously used in Nevada, but the federal law is considerably more exapnsive. A tier three sex offender is punishable by more than one year in prison. The individual must have attempted, conspired, or actually committed a sexual abuse or aggravated sexual abuse, an abusive sexual contact against a minor who has not attained the age of thirteen years, or a more severe offense. A tier three offense may also be committed if the offense involves kidnapping of a minor that is not one's own child or if the offense occurs after the offender is a tier two sex offender.
Second tier sex offenders are those who do not fit into tier three, but may still be punishable by more than one year in prison. Tier two includes offenses against a minor, or conspiracy to commit such offenses against a minor, such as: (1) sex trafficking; (2) coercion and enticement; (3) transportation with the intent to engage in criminal sexual activity; and (4) abusive sexual conduct. A tier two offense may also involve: (1) use of a minor in a sexual performance; (2) solicitation of a minor to practice prostitution; or (3) production or distribution of child pornography. [FN72] An offense can also qualify as a tier two if any of these offenses occur after the offender is already a tier one offender. The first tier includes any sex offender who does not squarely fit into categories two or three. Tier one offenders are considered at low risk to reoffend and are not seen as dangerous.
The expansion of the sex offense definition includes any “[1] criminal offense that has an element involving a sexual act or sexual contact with another; [and 2] a criminal offense that is a specified offense against a minor ....” An offense that is consensual is not a sex offense unless the adult victim is under the custodial care of the offender, the victim is not an adult and the offender is more than four years older than the victim, or the victim is under the age of thirteen.
A juvenile is considered to be “convicted” of a sex offense when the juvenile “is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse ... or was an attempt or conspiracy to commit such an offense.”
Nevada used a scheme that required only the most dangerous offenders to appear on the public registry. Under the old law, you could only see offenders ranked two or three. After Adam Walsh, virtually all offenders were on the public registry. The Court found that this retrospective change in the law violated due process.