Open carry
Michigan’s Open Carry Law: A Trap for the Unwary
10/03/21 11:48
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.
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.