January 2012 - Attorney Pg 12
In Minnesota, Minn. Stat. §609.66 makes it illegal to (1) recklessly handle or use a gun or other dangerous weapon or explosive so as to endanger the safety of another; or (2) intentionally point a gun of any kind, capable of injuring or killing a human being and whether loaded or unloaded, at or toward another.
Interestingly, Minnesota also makes it illegal to display, exhibit, brandish, or otherwise employ a replica firearm . . . in a threatening manner . . . Minn. Stat. §609.713, subd. 3 (2008). So, it is possible to argue that simply revealing the fact that one is carrying a pistol in Minnesota does not rise to the level of a crime.
Minnesota is an “open carry” state, meaning that if one possesses a properly issued permit to carry a pistol, the pistol can be carried in an open fashion and need not be concealed. Most firearms instructors, including myself and my staff, strongly recommend to our students that they carry their handguns concealed. However, that advice has more to do with issues of public reaction and relations, safety, and firearm retention. Openly carrying a handgun when armed thugs barge into a convenience store for a robbery, for example, will likely guarantee that you are the first one shot.
On the face of it, it would then appear that in Minnesota, simply displaying a holstered handgun as a deterrent to a violent attack would not be the subject of prosecution. Similarly, in Michigan, the State Attorney General issued an opinion in 2002 that openly carrying a firearm under Michigan’s open carry law did not equate to an illegal brandishing. Noting that neither the Michigan Penal Code nor the Michigan Criminal Jury Instructions include a definition of brandishing, the AG concluded since the dictionary definition of brandishing is defined as: to wave or flourish [a weapon] menacingly, then “carrying a handgun in a holster in plain view, is not waving or displaying the firearm in a threatening manner.”
However, there are other Minnesota statutes which are from time to time unfortunately employed by over-zealous prosecutors who believe that only cops should carry guns, gun possession by private citizens should be outlawed and in general, have only a limited understanding of the laws and realities of self defense.
For example, there is assault in the second degree, a serious felony which includes an act done with intent to cause fear in another of immediate bodily harm or death. Assault in the fifth degree, which is defined (in part) as committing an act with intent to cause fear in another of immediate bodily harm or death. There is also disorderly conduct, defined as engaging in offensive, obscene, abusive, boisterous, or noisy conduct tending reasonably to arouse alarm, anger, or resentment in others. Or, terroristic threats, in which the actor directly or indirectly, threatens to commit any crime of violence with a purpose to terrorize another. Ask any criminal defense attorney and they can recount examples of clients who have been subjected to criminal prosecution under one of these laws or similar statutes, for simply displaying the fact that they were carrying a means of protecting themselves.
It is true that the defense of self defense would apply in any prosecution where such offenses are charged. However, legally employing deadly force, even by the display of a firearm, would require that there be a reasonable apprehension of imminent crippling injury or death. The Minnesota Appellate Courts have ruled that threats of physical assault can create such a reasonable fear. However, they set out that ruling in a different context, probably did not consider the natural and logical extension of their ruling, and nobody should want to be a test case. Being a test case costs money, time, stress and notoriety.
In Minnesota, deadly force is justified in the defense of oneself or another, in the face of a reasonable fear of imminent death or crippling injury. If pointing a firearm at an attacker is enough to stop the attack, then the analysis of the justification is the same. It is not necessary to shoot the attacker to give rise to a valid self-defense claim. However, you are going to have only seconds if that, to interpret the attacker’s intentions. So, I cannot recommend that a member show the gun unless they pull it, and if they pull it, they have to be ready to use it. The right to carry a firearm is more than a Constitutional right as some would suggest. It carries with it tremendous responsibility. A criminal only has to be right once. We have to be right all the time.