[author: Josh Crank]
What does it mean to “brandish” a firearm? A Michigan jury will have to answer that question in next month’s trial of 18-year-old Sean Combs, who was arrested in April after being stopped by police while carrying a loaded M-1 Garand rifle strapped to his back.
An armed Combs was walking with his girlfriend through downtown Birmingham, an affluent Detroit suburb with a popular nightlife district. It was about 10 p.m. on a Saturday and sidewalks were crowded when police spotted Combs and suspected him to be under 18 — too young to legally carry a gun.
According to a brief filed by City of Birmingham attorney Mary M. Kucharek, officers approached Combs and asked him for ID to confirm his age. Combs refused, stating that he was not required to present ID. As the officers persisted, Combs began arguing loudly, drawing a crowd that had to be dispersed. After repeated refusals to provide ID, Combs was arrested and charged with brandishing a firearm, resisting and obstructing, and disorderly conduct.
News of the arrest inspired a crowd of gun advocates to march to a recent Birmingham City Commission meeting, where they filled the commission chambers while displaying their handguns and rifles in plain view. Though they voiced their support for Combs, the commission did not address the controversy, and Birmingham Mayor Mark Nickita said “the issue has gone to the courts.”
Where is the Line?
Michigan is an open carry state, which means that it’s legal for adults to carry guns as long as they’re not concealed. Most states allow some form of open carry, and only 13 open carry states require a special license. Only Arkansas, Florida, Illinois, New York, Oklahoma, South Carolina, Texas and Washington D.C. prohibit open carry in all or most circumstances.
While you can carry a gun openly in Michigan, you can’t brandish it. If you’re not sure what the difference is, you won’t be helped by the fact that the relevant statute does not define “brandish.” But in court briefs, Kucharek argues that this is intentional.
“That the legislature did not specifically define the term ‘brandishing’ within the statute suggests an intent to permit circumstances surrounding the activity to be taken into consideration,” she wrote.
The law against brandishing does include some specific exceptions. Approved grounds for brandishing include peace officers performing their duties, people legally hunting or engaging in target practice, and people selling, buying, repairing or transferring firearms. Kucharek’s case relies in part on the argument that Combs’ actions fall outside of those exceptions.
“It is also noteworthy that the statute defines several activities which, backed up by common sense, are not considered brandishing,” she wrote. “The legislature could have included walking down a public street with a firearm strapped to one’s back, but it did not because such activity has no legitimate purpose.”
A Question of Definition
Birmingham attorney James G. Schmier says that the way the law is written, the difference between legally carrying a gun and brandishing it can often “come down to what a police officer says and thinks.”
“You can walk around with your gun on your hip like John Wayne,” he said. “You’re legally allowed to do that. But when you pull the gun out of the holster, you can expect to be called out for brandishing it.”
Combs’ fate could come down to a jury’s interpretation of the term “brandish,” and jurors will have to decide whether someone can brandish a gun that isn’t even in his hands. They will also have to weigh Kucharek’s argument that Combs was “carrying a fully loaded, frightening looking high-powered military surplus weapon, for no legitimate purpose or reason other than people should see it, particularly large crowds of teenagers in downtown Birmingham on a Saturday night.”
The two sides cite their own dictionary definitions of the term. Combs’ attorney prefers “to wave or flourish menacingly,” while Kucharek finds “to display ostentatiously, to exhibit in a showy manner” to be equally appropriate.
Regarding the balance between exercising your Second Amendment rights and steering clear of curious cops, Schmier says to use common sense and keep your cool.
“If you want to assert your freedoms, that’s cool, but carrying a loaded rifle through downtown and screaming at the police is not a great way to ask to be left alone.”
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