Attorneys' Debate Charges Ahead of Rifle-Carrying Teen's Hearing

Briefs debate definition of 'brandishing' leading up to Wednesday's evidentiary hearing for 18-year-old Sean Combs of Troy, who was arrested with a rifle in Birmingham in April.

Sean Combs, the Troy 18-year-old who was arrested in April after he was found carrying a loaded rifle in downtown Birmingham, will be back in court Wednesday for a hearing to determine whether charges of brandishing a firearm, disturbing the peace and obstructing an officer will move forward or be dismissed.

after he refused to show police officers his identification after they asked about the M1 Garande rifle strapped to his back, according to police reports. The rifle was loaded with one round in the chamber, police say.

As an adult under Michigan law, Combs had a legal right to openly carry the rifle and Birmingham police violated his second amendment rights, Combs' lawyer Jim Makowski says.

Makowski filed a motion to dismiss the case several weeks ago and last Monday, in and at the Birmingham City Commission meeting.

However, according to a 16-page brief filed on behalf of the city last week, what's at stake in this case is whether Combs met the definition of "brandishing a firearm" — and according to the city, he did.

Briefs debate definition of 'brandishing'

According to Birmingham's ordinance, which mirrors Michigan law, brandishing a firearm in public is considered a misdemeanor and excludes:

  • a peace officer lawfully performing his or her duties
  • a person lawfully engaged in hunting
  • a person lawfully engaged in target practice
  • a person lawfully engaged in the sale, purchase, repair or transfer of that firearm.

According to attorney Mary Kucharek of Beier Howlett, P.C., who wrote the brief on behalf of the city, "the Legislature could have included walking down a public street with a firearm strapped to one's back (as one of the exceptions), but it did not because such activity has no legitimate purpose."

"(The) defendant finds himself in the unfortunate position of having to argue that he was engaged in none of the legitimate activities defined under the statute," Kucharek writes. "Rather, he is left to argue that he 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."

However, Makowski argues that carrying and brandishing a firearm are not the same thing, and that Combs was merely carrying the rifle.

In his brief, Makowski cites then-Michigan Attorney General Jennifer Granholm, who stated in 2002 that carrying a weapon in plain view is not waving or displaying the weapon in a threatening manner, and should not be considered brandishing.

"Openly wearing a firearm without using the firearm to intimidate or threaten another person is not brandishing," Makowski writes.

However, Kucharek said during the confrontation that night, a police officer overheard a pedestrian say, "Oh my gosh, that's a gun" — a sign Combs' actions were "unusual, out of place and engendering shock and fear in nearby pedestrians."

"A young man, walking the streets of Birmingham where large numbers of young people congregate well after dark with no legitimate stated reason for transporting a loaded weapon means the defendant could only have been walking with the gun in that position so that people would see it," Kucharek said. "It could only have been his intent that other pedestrians and motorists should see the gun, which is tantamount to brandishing the weapon."

Disturbing the peace, obstructing an officer charges also legitimate, attorney says

In his brief, Makowski claims the other two charges — disturbing the peace and obstructing a police officer — should be dropped should the brandishing charge be dismissed.

"Mr. Combs was simply walking down the street minding his own business," Makowski said. "Any public disturbance that resulted from this encounter came about due to the actions of the Birmingham Police themselves."

Kucharek disagrees, claiming Combs was very loud while arguing with officers about showing his identification, sparking a large gathering of teenagers that later had to be disbursed by police.

Kucharek also claims the obstructing charges are legitimate because police made a valid stop. Officers claimed Combs looked "very young" — younger than 18, in fact — in their reports. , Combs' friend Lia Grabowski said Combs turned 18 a month before the incident.

"If (the) Defendant, who appeared to the officers to be only 15 or 16 years old, was under age then his possession of the weapon was unlawful," Kucharek writes. "This was a lawful investigation and the officers certainly had an articulable suspicion that a crime may have been committed if it turned out the Defendant was under age."

At the hearing Wednesday, Judge Marc Baron, , will review the two briefs to decide if there is enough evidence to move the case to trial.

Suzanne Shields June 19, 2012 at 01:51 PM
what is wrong with a parent who allows an 18 year old to take a gun downtown in a busy city. 18 year olds have the brains of a gnat (I know I was one), This is just inviting an accident - legal rights aside,
Dennis T June 19, 2012 at 02:03 PM
The right to bear arms is not the same as the right to intimidate or cause alarm in others. Any reasonable person of average intelligence can recognize the terrifying effect of seeing someone approach you bearing and "brandishing" an assault rifle. Would you want your wife or daughter to be walking a child in a stroller and see such a person approaching you? I have the right to approach and insult every person I encounter on the street but do not. It is considered inappropriate behavior and would provoke and anger others. This is not the wild west or a place where armed troops are oppressing the citizens. This is a civilized community. I noted with humor the recent report on the H VAC repairman who was carrying a loaded glock hand gun and realizing that he would terrify his customer, whose house he was about to enter and attempting to remove it from his waist band shot himself in the penis. A more apt analogy is not possible.
Tom Roth June 19, 2012 at 02:22 PM
The law is the law.... Combs is an idiot, but since we cannot charge people with being an idiot in public, taking this to trial is a waste of time and money. I would suggest Baron brushes up on his constitutional law before making any decisions.
Debbie Thomas June 19, 2012 at 03:11 PM
You lost me at "civilized community." ROFL! We have basically naked women who look like hookers walking the streets every day. And, yeah, with faces so frozen they look like aliens. I say everyone can carry a gun and we won't even notice.
Mary Carleton-Smith June 19, 2012 at 05:51 PM
I know this may sound strange but... Has any one questioned why Mr. Combs was 'displaying' his fully loaded automatic weapon in the midst of what is usually considered to be a non-threatening congregation of citizens? If intent was to simply exercise the right to bear arms , Why chooses a peaceful situation? Id rather be arguing definition of brandishing than questioning the alternative potential scenario... good call Officers!
Mac McAllister June 20, 2012 at 05:57 AM
Why are cops legally exempted from the brandishing laws? Don't they, too, need good reason to threaten people with their firearm? Or we could just use the real definition of brandishing, which requires actually being a menace or threatening people. If simply carrying is so bad, why not make it against the law? Why break the law to wrongly enforce a non-existent law because you don't like something? I'm coming to the conclusion that "law enforcement" is just a title instead of an actual job description.
Albert Lowe June 20, 2012 at 06:00 AM
Like it or not, 18 is the age of majority for many things. Eighteen year old people can do many things. Join the military and fight for their country, vote in elections, enter into contracts, buy rifles from FFL dealers, buy handguns via private sales, rent an apartment, and so on. Parents can't stop an 18 year old from walking down the street with a rifle slung on his back, a perfectly legal exercise, by the way.
Albert Lowe June 20, 2012 at 06:07 AM
What Mr. Combs did was NOT brandishing. Since there is no definition in the Michigan Compiled Laws, the definition would be from a standard dictionary, which defines brandishing as "to wave about, or flourish." The SEMI-automatic rifle was not in his hands. It was slung across his back. Now, I'll say I don't agree with long arm open carry. I think it's too unwieldy, and prone to creating way too much misunderstanding. But what Mr. Combs did, was NOT illegal. As for his apparent age being Reasonable, articuable suspicion, that I cannot say. I guess we'll have to let the judge decide on that one.
Birminghamster June 20, 2012 at 01:19 PM
Second amendment rights are important and serious, as could be attested to by millions throughout history who have been brutally oppressed by a government. For these gun toting, attention seekers to toy around with this right, is to lack foresight and intelligence. Speak softly, and save your big stick for the day you really need it. Otherwise, you are just a fool who does not understand the reason for our right to bear arms.
Mac McAllister June 20, 2012 at 05:16 PM
Birminghamster: Should one be required to own a handgun in order to be armed as the law allows? Are you aware that this man is forbidden by law from purchasing handguns from firearms dealers because he is under 21? Yes, that's right, he is old enough to carry an M16 and die overseas for his country, though. And these same laws force him to carry a rifle instead of a handgun if he chooses to actually be armed as you are bragging about him having the right to do so.
Joechaos June 21, 2012 at 02:47 AM
The state police have guidance for these matters with published opinions by the Attorney General. The police are idiots, they vilated his rights. According to the state police brief there is no reason to provide ID while doing something within your rights. He was legally carrying a firearm. I hope he sues the city for wrongful arrest. Also, the attornery general has published that walking down the street with a holstered weapon is not brandishing. Ignorance of the law is often cited by judges against the accused, but ignorance of the law by law enforcement or the judicial brance is inexcusable.
Jim U Lacrum July 01, 2012 at 11:22 PM
Firstly, to brandish a weapon is to present it in a menacing or aggressive manner; having a rifle or any other weapon slung over one's back, i.e., in a passive carrying fashion, is not brandishing. To bear is to carry, e.g., to sling over one's back. That is EXACTLY the right that is referred in the Second Amendment's phrase "right of the people to keep and bear arms." Secondly, the M1 Garand is not what is considered an "assault rifle" under the law or by anyone who knows guns. It's a primitive autoloader, and the last time it was in general use was in the 1950s. It's a borderline antique weapon. Thirdly, the unreasonable alarm of another person is only the concern of that person. If you don't like guns, don't own one, but don't expect everyone else to hide their weapons because you have an overabundance of fear. Finally, the HVAC repairman's accident was a good example of poor firearm safety, and nothing more. A LESS apt analogy is not possible. That incident has nothing to do with this incident, except perhaps in the minds of people who group all firearm incidents together to justify their irrational fear of guns.
Jim U Lacrum July 01, 2012 at 11:24 PM
The M1 Garand is not an automatic weapon.
Jim U Lacrum July 01, 2012 at 11:56 PM
I'm entirely on board with you here. And I really wish more people would do their homework before throwing around terms like "automatic" and "assault rifle." It's just a bunch of fear-vocabulary that people pick up by watching too much TV. I'd bet good money that these folks also think a round is a "bullet," a magazine is a "clip," and anything more advanced than a revolver is a "killing machine designed to murder people as fast as a gunman can pull the trigger."
Jim U Lacrum July 02, 2012 at 12:06 AM
I'm fully supportive of the right to bear arms, and I carry myself, but I have to play the devil's advocate here, just a little. He does look like a kid (no offense, Mr. Combs). Take a close look at the photo included in the article. If you were to see him out and about, doing anything—and particularly while wearing something other than his Sunday best—would you think you were looking at an adult? I wouldn't, not even for a second. I think it was appropriate for the police to speak to him and request ID. As to whether he was required to show ID, that's another story. But I can understand even the most well-meaning, best-trained police officer feeling compelled and within his rights to stop a person who is carrying a rifle and who looks like Mr. Combs, if for no other reason than to verify his age. If they give him the benefit of the doubt, and they turn out to be wrong (which seems very probable given his looks), they are allowing an underage kid to walk around with a loaded gun. The arrest, on the other hand, smells like BS. He didn't brandish the weapon, threaten anyone, or commit any real crime. The NH Attorney General's office said it very well: "open carry is a right, and … another person’s 'annoyance and alarm' doesn’t supersede that right."
Chris D July 14, 2012 at 02:49 PM
There are tens of thousands more car accidents than there are gun accidents every year. Shall we demonize every parent who allows their 18 year old kid to drive because they might crash, legal rights aside?
Chris D July 14, 2012 at 02:54 PM
Who taught you the nonsense you are spouting? If you are intimidated by the mere sight of a gun you are the one with issues, not the person carrying the gun.
Chris D July 14, 2012 at 02:55 PM
So the kid who didn't break the law is an idiot but the cops who violated his rights are not? You got that backwards kid. Something tells me the cops are not the only real idiots.
Chris D July 14, 2012 at 02:57 PM
"Why" someone is doing something legal is a moot point. You have no right or cause to question why someone is doing something legal.
Chris D July 14, 2012 at 02:58 PM
A most excellent point. Cops carry their guns in plain sight all day long.


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