On July 27, 2015, a 57 y.o. single woman was driving her Ford F150 pickup truck in Washtenaw County when she was pulled over for a burned-out tail light. When the deputy sheriff approached the vehicle she disclosed that she was a CPL carrier and that she had a firearm in her truck. The driver could not immediately locate her CPL so the deputy took her driver's license and the revolver back to his car and ran a check LEIN check. The LEIN check revealed that the revolver was registered to the driver but her CPL was expired.
The driver had thought her license was valid for another year but it had actually expired several months prior to the incident (Under the prior version of MCL 28.425l many CPL holders who should have received licenses good for five years actually received licenses valid for only four years plus a couple days. This language was fixed in 2011 to ensure licenses last a full five years). The sheriff's deputy arrested the driver for CCW.
The story takes an interesting twist at this point. My client's .22lr revolver was unloaded, in a factory Smith & Wesson case, stored under the rear bench seat of her truck. Under the 'transportation exceptions' to CCW contained in MCL 750.231a, the proper way to transport a firearm in a vehicle without a trunk:
e) To a person while transporting a pistol for a lawful purpose that is licensed by the owner or occupant of the motor vehicle in compliance with section 2 of 1927 PA 372, MCL 28.422, and the pistol is unloaded in a closed case designed for the storage of firearms in a vehicle that does not have a trunk and is not readily accessible to the occupants of the vehicle.
As stated previously, my client's gun was cased, unloaded, under the rear bench seat and clearly inaccessible due to the design of the F150. It is hard to imagine someone getting arrested for CCW when each and every element of the transportation exception was met but it happened anyways. Even after that though, one would think that the prosecutor's office would review the charges and dismiss the case. If it were only that simple...
The Washtenaw County Prosecutor's Office elected to continue and prosecute the driver for Carrying a Concealed Weapon. At her arraignment, due to difficult financial circumstances she requested court-appointed counsel. At her Probable Cause Conference the court-appointed counsel, an attorney with nearly forty years' experience, urged her to plead guilty to the charge because 'Washtenaw County is really tough on gun crimes' and that he believed it would be impossible to get the charge reduced to a misdemeanor. Thankfully, she declined. The woman then went to her local gun store where she initially purchased her handgun and asked for advice. The staff at the shop referred her to me and I agreed to represent her.
At the Preliminary Examination I spoke to the Assistant Prosecuting Attorney in charge of the case, showed her the relevant statute, and demanded a dismissal. We agreed at that time to adjourn the examination to allow the Prosecutor's Office to review the case further. I then supplied demonstrative photos showing the location of the gun in the truck highlighting the sheer impossibility of accessing the firearm from the front seat of the truck. It was my honest belief that the Prosecutor's Office would voluntarily dismiss the case but just prior to the adjourned Preliminary Examination I was informed that the Prosecutor's Office had no intention of dropping the charges.
At the Preliminary Examination the testimony from the officer made it clear to all that the 750.231a(e) transportation method was complied with but the Assistant Prosecutor tried to argue that my client had no 'lawful purpose' for transporting the firearm. I pointed out that there was zero evidence of any UNLAWFUL purpose and that a lawful purpose is simply transporting the firearm from one location to another. Thankfully, the judge agreed with me and dismissed the case.
There are four lessons to be learned from this case. First and foremost, make sure that you pay attention to when your CPL expires. Misreading the expiration date on your CPL can turn you into a felon and there county clerk WILL NOT notify you when your CPL expires. The draconian penalty for a simple oversight is something the legislature needs to address.
Second, do not count on the police to be familiar with the law. After court the deputy sheriff approached my client and I apologizing for the incident. In his NINE years of law enforcement experience he had not been trained to understand the transportation exception contained in MCL 750.231a! He saw the expired CPL and wrongfully assumed that the prosecutors would sort the matter out.
Third, DO NOT ASSUME that the clear meaning of a statute will set you free. The Washtenaw County Prosecutor's Office had ample opportunity to admit its mistake and dismiss charges but elected not to do so. We were taught in law school that the role of a prosecutor was not to find people guilty but rather to see justice done. Clearly the Washtenaw County Prosecutor's Office failed in this case.
Finally, and most importantly, make sure you have competent legal counsel. The court appointed attorney originally assigned to the case had almost forty years' experience but had no understanding about gun laws and zero interest in learning. Had my client listened to this advice she would now be a convicted felon unable to own a weapon.
I was happy to help my client in resolving this matter and the victory felt great but at the same time it deeply offended me that this poor woman had to endure the time, expense and stress of what I believe was a malicious prosecution for such a seriously flawed case.
First, let me be clear: Domestic Violence is NEVER acceptable and this blog post should not be construed as me condoning or approving of violence against women. That being said, most people believe that a conviction for Domestic Violence automatically means the loss of their gun rights. That is not necessarily the case.
In 1996 Congress, in a nearly unanimous decision, voted to amend the Gun Control Act of 1968 to prohibit individuals convicted of the 'Misdemeanor Crime of Domestic Violence' from ever being able to possess a firearm (see 18 USC Section 922(g)(9)). As anyone who has attempted to purchase a firearm from a Federal Firearms Licensed dealer knows, Form 4473, Line 11(i) specifically asks if the purchaser has “ever been convicted of the misdemeanor crime of domestic violence” and an affirmative answer means your purchase will not be approved. That would seem to be the end of the inquiry but in fact it is just the beginning.
First, one must look at the definition of Domestic Violence. The Lautenberg Amendment defines Domestic Violence as any state or federal misdemeanor that 'has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.' Michigan's definition of domestic violence is far broader under MCL 750.81: '...an individual who assaults or assaults and batters his or her spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individual with whom he or she has had a child in common, or a resident or former resident of his or her household, is guilty of a misdemeanor ...'
A person is only federally prohibited from owning firearms if the conviction was for domestic violence against someone who cohabitated with or had a child in common with the victim. In Michigan, people are frequently charged with and convicted of Domestic Violence if the dispute occurred between people with a dating relationship. This distinction is key.
What should you do if you have a conviction for DV that does not rise to the level of federal prohibition? Simple, contact me and I will help you get your gun rights restored.
This morning I had to run down to the Coleman A. Young Municipal Center in downtown Detroit. For those unfamiliar with the building, it is the former City/County Building and houses the Wayne County Circuit Court-Civil Division, Wayne County Probate Court, the Detroit City Council and Mayor's offices and various City of Detroit departments.
When I went through the security checkpoint it beeped. I had my empty Crossbreed Supertuck at it's normal 4 o'clock position. The security guards then informed me that holsters were not allowed in the building. I demanded to see where they were listed and by what authority and the claim was made that they were following the policy of the Chief Judge. The debate got a little heated and four security guards attempted to kick me out and ban me for a week. I wasn't budging so they summoned a Detroit Police officer for assistance. After discussing the situation I agreed to comply (no choice had to get in the building).
I returned to my car, left my holster in the vehicle and went back to the building. Before I reentered I composed and sent the following email to the Honorable Robert J. Colombo, Chief Judge of the Wayne County Circuit Court:
'Dear Judge Colombo,
My name is Jim Makowski I am the Corporation Counsel and Legislative Director for Michigan Gun Owners, Inc.
A m>oment ago I was denied entry into CAYMC because I had an empty holster on my belt, having left my firearm in my vehicle in accordance with SCAO directives.
Thank you for your attention to this matter and I would be happy to discuss the matter further should you wish to.'
Let's see what happens now.
I just had a very good conversation with Judge Colombo. He apologized for what happened and will investigate. He stated that there had been an incident last year in which a deputy spotted an empty holster and it created a security concern so as a result the security people took it upon themselves to ban holsters. He stated he is going to examine the issue and then either add it to the list of banned items or direct his security staff to ignore holsters. I urged him to follow the latter course and explained why.
Let's see what happens now!
On December 14, 2014, Defendant took his legally purchased and owned semiautomatic pistol to The Firing Line gun range located in Westland, Michigan for target practice. After he finished target practice Defendant placed the pistol in what is commonly referred to as “transport mode” as defined by MCL 750.227d in that he unloaded the firearm, locked the action open and encased it in a holster separate from the ammunition. He then went to a friend’s house in Redford, Michigan to visit and play video games.
At some point thereafter Defendant received a telephone call from the mother of his child. Ms. Doe has had severe psychiatric issues and had in fact attempted to commit suicide by overdosing on pills just the week prior. Following her suicide attempt Doe was placed at the Psychiatric Intervention Center, located on Schoolcraft Road in Livonia, Michigan for treatment of her psychoses.
Ms. Doe informed Defendant that she was being released from the Center and needed a ride home. Defendant had been driving Ms. Doe’s vehicle, a car for which he was a cosignor on the loan but was not the actual owner. Defendant drove the car to the Psychiatric Intervention Center to pick Doe up as requested. Upon his arrival at the Center, Ms. Doe and Defendant got into a verbal altercation. Doe decided to call the police because she didn’t want Defendant in her car and reported that Defendant had a gun in her car. The Defendant decided to defuse the situation and seek alternative transportation home, leaving Doe to keep the car. Defendant removed all of his belongings from the vehicle, including the pistol and placed the belongings in a plastic bag. Responding to a telephone call regarding the altercation, Livonia Police arrived, immediately placing handcuffs on Defendant for “officer safety.” When asked if he had a firearm the Defendant readily admitted he had an unloaded gun in the bag. Defendant was placed under arrest and eventually charged with felony CCW for having the unloaded, cased firearm in a plastic bag.
At the Preliminary Examination the prosecutor first tried to say it was a crime to transport a firearm anywhere without a CPL. When asked about transporting a firearm to a gun range for target practice the prosecutor made up her own distinctions, stating that it would be acceptable to transport the pistol in a pistol case such as those that frequently accompany the purchase of a handgun but not in any other type of case. This is absurd.
This matter was set for trial before Judge _______________ on April 15, 2015. On that date the CCW count was tried by a jury. During deliberations one of the jurors became obsessed with what the gun must have looked like in the plastic bag, which the Livonia PD had failed to preserve as evidence. At lunch this juror visited several different stores in the Greektown area and brought six bags back to the jury room as samples to conduct her own research. This was reported to Judge ________________ and a mistrial subsequently declared.
Yesterday the matter was tried a second time. At the trial I pointed out to the jury that my client had four five options on how to deal with the situation.
OPTION 1. The Defendant could have continued the fight with Ms. Doe and subsequently been arrested for Domestic Violence.
OPTION 2. The Defendant could have driven away and left Doe there and subsequently been arrested for UDAA as he was not the titled owner of the vehicle.
OPTION 3. The Defendant could have simply left the gun and ammunition in the car and left, giving access to a firearm to a person who just attempted suicide a week prior.
OPTION 4. The Defendant could have put the holster on and Open Carried but the police were already on the way, knew a gun was present from the prior call and were responding to a domestic disturbance. Defendant was rightfully fearful of displaying a firearm in such a high stress situation and didn’t want to either be shot by police or charged with assault and/or brandishing.
OPTION 5 This is the option Defendant went with. He gathered his belongings and attempted to remove himself from the situation. After gathering his belongings Defendant stood on the sidewalk and was calling his mother for a ride home when the Livonia PD rolled up and subsequently arrested him.
The case went to the jury and 25 minutes later (shortest jury deliberation I’ve ever had) returned a Not Guilty verdict. While I am pleased with the result I find the fact that my client was ever even CHARGED to be outrageous.
The pro-gun world is starting to hear more and more about members of the anti-gun crowd “SWATTING” gun owners, specifically open carriers.
SWATTING, in case you haven’t heard, is the name people have given to the practice of calling the police and telling them someone has a gun and is actively shooting or planning to shoot innocent people. The goal is to cause a heavy-handed police response, with hopes of having the SWAT team arrive and storm the unsuspecting innocent with a violent and possibly deadly takedown. The video game crowd started SWATTING when the person about to lose the online video game would call 911 and send police to the home of his opponent.
Of course it is illegal. It is making a false police report. But people still do it and now that anti-gun crowd has decided they should do it every time they see someone with a gun. It is especially easy when the target of the SWATTING is practicing open carry.
The legal response to SWATTING should be swift and powerful for those people sending much-needed police assets against law-abiding citizens, but we can’t count on that. As long as these idiots can make anonymous reports, the police will still have to respond and gun owners will still be in danger during the police response.
So here is my suggestion on how to deal with the situation should you be SWATTED by some idiotic anti-gunner.
The first thing you need to remember is to keep your wits about you. If you and the family are just minding your own business at the mall and you are suddenly surrounded by police pointing guns at you and barking orders, I say follow those orders. Comply immediately. This is no time to become that guy who stands and argues, “I know my rights.” This is also no time to be the guy who starts hollering, “What is going on?” If you are on the business end of a heavy-handed police response, realize that you likely have been SWATTED and know that the person who called police told them you were an immediate threat and they should respond with force. Police arriving to such a call only know what the person on the other end of the line told the 911 operator. The caller could have said something like, “There was this guy threatening to shoot his wife if she didn’t shut up. He’s trying to act calm but he said he was going to kill her. You have to do something right away.”
That puts the police in a tough spot and you in a tougher spot. So, comply with their orders, be polite, and follow instructions. You might be handcuffed. Officers might separate you and your wife for interviews. The cops will very likely take your gun while they are trying to sort things out. If you remain calm you will have a better chance of convincing the police on the scene that you are not a threat.
Once the incident is winding down, it is time for you to start asking questions. Officers might not be able to tell you who called, but you can certainly let them know that you believe someone filed a false report and you want to make a complaint about that. Just remember to keep your cool. It may not be easy, because you have been wronged, but a calm demeanor will allow the situation to come back from the brink much more quickly.
There is nothing good about this and we as gun owners have every right to be angry if it happens to us, but we need to be angry at the callers, not the police. Taking an aggressive posture with the police will only elevate the danger. This is not a simple traffic stop. This is a situation where a caller has tricked police into thinking they are entering a very volatile and dangerous situation. It’s not right, but you need to help defuse this thing.
SWATTING is messed up on so many levels I can’t even begin to imagine what kind of idiot would do such a thing, but these are the kinds of idiots we deal with every day in the fight to protect our Second Amendment rights.
Just one more thing law-abiding gun owners have to deal with.
If you only remember three things, these basic elements will keep you alive. These rules are easy to follow, easy to remember, and require no special skills. Again, self-defense is mostly in your mind. Effective self-defense is about thinking things through before the need for defense arises. You’re not paranoid; you are prepared.
Video: Three Things You Need To Know To Help You Stay Alive!
Think about these three self-defense ideas and you will greatly increase your odds of survival. In fact, if you focus on item No. 1, you will greatly reduce the chances that you will even end up in a deadly force incident.
Thank you all for coming out here today. Your appearance here today shows our legislators here in Lansing that firearm owners are a political force to be reckoned with.
As gun owners we have a lot of friends in the State Legislature. To those lawmakers who recognize and support our Second Amendment rights I would like to say thanks. Representatives McMillan, Hildebrand, Johnson, Brunner, and Baines as well as Senators Green, Schuitmaker, Casperson, and many others are great friends to the Second Amendment and they all deserve a round of applause.
Now I would like to speak to those lawmakers with different beliefs. Those elected officials who believe that the solution to violent crime can be accomplished through banning or restricting firearm ownership. To those lawmakers who favor curtailing the rights guaranteed by the Second Amendment I would ask two things:
I would ask that you try to set aside the rhetoric and emotions and instead examine issues logically. Doing so will inevitably force you to realize that anti-gun legislation harms the public and does nothing to protect the citizenry.
If you are unable to set aside these illogical, even irrational opinions I would at least ask that you listen to your constituents when making voting decisions. With well over 400,000 Concealed Pistol Licensees in the State of Michigan it is clear that the people have spoken.
The citizens of Michigan recognize that they are responsible for their own health and safety. The people want and must be able to protect themselves. Police cannot be everywhere and the responsibility for your own personal security cannot be left to chance. The new Detroit Police Chief, Daniel Craig, has upset a lot of people because he acknowledges this and encourages honest, law-abiding citizens to be armed to protect themselves. He realizes that a good person with a gun is the only way to combat a bad person with a gun.
For the most part we are lucky here in Michigan. Thirty years ago it was nearly impossible to get a concealed carry license in Michigan. Our friends in the Legislature recognized that this did nothing but harm public safety. In 2001, when Michigan became a 'shall issue' state the anti-gun media and politicians warned that gun-toting, trigger happy citizens were going to be shooting up our streets. Claims were made that Michigan was turning into the Wild West. The Michigan Association of Chiefs of Police and the Prosecuting Attorneys Association of Michigan were up in arms, claiming that the way was being paved for gun battles in the streets and predicted the sewers would be running red with blood.
Well, as we all know that didn't happen. Violent crime is down in our state, thanks in no small part to armed, law-abiding citizens standing up for themselves and refusing to be victims. Now, whenever a mugger starts scouting out a potential victim he must ask himself 'I wonder if that woman has a gun in her purse?' With an armed populace that would-be carjacker now gambles with his own life every time he attempts to steal a car. The bottom line is that when victims have the ability to fight back the whole dynamic changes. Perhaps that is even enough to convince someone not to begin a life of crime.
As I said, we have come a long way since 2001 but we have a still have a long way to go. Back in 2001 the only way 'shall issue' received enough votes to pass was with the inclusion of what are legally referred to as Pistol Free Zones, or as many of us call them, Criminal Empowerment Zones, or even Mass Murder Empowerment Zones. This needs to change.
Statistics show that those who hold concealed pistol licenses are far more law abiding than the general public. Prohibiting trained, law-abiding citizens from carrying their firearms in schools or churches does absolutely nothing to increase public safety. In fact, just the opposite is true. Pistol Free Zones are premised on a lie: that murderers will follow rules, and that law abiding CPL holders trained in the use of deadly force are a greater danger to those around them than crazed killers. That's insulting to all of us. When you ban guns, it is the law-abiding good citizens who obey the law, not the criminals.
Laws banning the public from carrying weapons allow criminals free rein. It is a fact that almost every mass shooting in the last several years took place in locations where it was illegal to possess a firearm for self-defense. Connecticut laws banning firearms in schools did not stop Adam Lanza from committing mass murder in Newtown. Colorado laws banning firearms in movie theaters did not prevent James Holmes from committing mass murder in Aurora. We all learned lessons from the Newtown and Aurora tragedies. Sadly, some learned the wrong lesson. The bottom line is that Pistol Free Zones create a false sense of security but do nothing to protect the public.
Thankfully, mass shootings are rare but what about the danger posed by simply having to disarm when entering a Pistol Free Zone? Anyone with common sense knows that guns in holsters do not shoot themselves. The only time a gun discharges accidentally or negligently is when it is being handled. Even trained police officers sometimes have problems with this.
Quite often I drive my 6 year-old to school in the morning and she attends latchkey when I have to be in court early. I have to enter the school to sign her in those mornings. For me to act within the law I must remove my firearm from its holster and leave it UNATTENDED in my car while I walk into the school. When I return to my car I then have to re-holster it. How is that safer for anybody? In January a police chief in Indiana actually shot himself when holstering his gun! Can anyone seriously believe that a firearm left UNATTENDED in a car in the school parking lot is safer than one riding safely in a holster under my jacket? That is simply ridiculous!
To make matters even more difficult, as many of you know it is legal to Open Carry in a Pistol Free Zone as long as you have your Concealed Pistol License. The only way to carry a pistol at a school is to do so openly. How many incidents have we had where someone calls the police when someone LAWFULLY open carries a firearm at a school?
Now understand this: I am absolutely, 100% in favor of Open Carry and am proud that I have fought and won in court to uphold it. That being said, very few people I know would choose to Open Carry in a Pistol Free Zone if they had any other option. Those who enter Pistol Free Zones openly carrying are simply exercising their right to self-protection in the only legal way available to them. These brave souls run an increased risk of a dangerous encounter with ill-trained police or even misguided parents who might think that person a threat. When the police respond to an Open Carry call not only is the general public put at needless risk but valuable police resources are wasted.
A few years ago the Legislature passed SB 59 which would have eliminated Pistol Free Zones after the CPL holder received additional training. One day after SB59 passed both house the Newtown massacre took place. In the wake of that tragedy the bill died. It is now time to revisit this.
Today I call upon the Legislature to reintroduce legislation to eliminate Pistol Free Zones. I also call upon Governor Snyder to sign that legislation into law. Eliminating Pistol Free Zones WILL protect our children and families. Allowing Pistol Free Zones to continue to exist ENDANGERS our children and families.
As I said before the only way to beat a bad man with a gun is with a good man with a gun. Please, Governor Snyder, GIVE US THE ABILITY TO PROTECT OUR CHILDREN!
Finally, to all of the people here, PLEASE make sure to vote in the November general election. Support those candidates who share our beliefs and philosophy. THEY NEED YOUR VOTES!
Thank you all for coming out here today and showing your support. We ARE making a difference! Our voices ARE being heard!