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People v. Davenport: Do Convictions for Carrying a Concealed Weapon and Carrying a Firearm with Unlawful Intent Violate Double Jeopardy?

August 26, 2008 Criminal Law and Procedure

The Michigan Court of Appeals in People v. Davenport addresses the issue of whether convictions for carrying a concealed weapon and carrying a firearm with unlawful intent violate the Double Jeopardy provision of the Constitution.

What Happened in the Case

Davenport was in a bar when the cops first saw him. A cop testified he saw the outline of a gun in Davenport’s pocket. The police went to chase him but he got away. The police caught up with him later. When the police caught up with him, he had his hand in his pocket. Defendant was charged with two counts.

The first count was carrying a concealed weapon MCL 750.227. This law states it is unlawful to carry a weapon concealed unless the person has a concealed pistol license. Carrying a firearm or dangerous weapon with unlawful intent MCL 750.226 was the second charge. This charge is what it sounds like.

Legal Arguments

Defendant argued that carrying a concealed weapon and carrying a weapon with unlawful intent violates Double Jeopardy. Double Jeopardy is the constitutional rule that prohibits a person from being convicted twice for the same thing. A defendant will argue that convictions for two crimes violates Double Jeopardy where those two crimes are so similar that they are essentially the same crime. The question to answer is whether each crime has an element the other crime does not. The Court went on to discuss each crime to determine whether both crimes were sufficiently the same and what was the purpose of the law.

Carrying a Concealed Weapon

A person violates this law where there is a gun on their person (could also be in a car) and the person has no CPL. The charge is a felony, punishable by up to five years in prison. The purpose of the law is to prevent situations where a fight arises and one person has a weapon while the other person has no notice the fight would involve weapons. The idea is that people will behave differently if they know the other person is armed. There’s no way to tell if a person is armed if the weapon is concealed

Carrying a Firearm or Weapon with Unlawful Intent

Again, the elements of the crime are found in the name of the crime. This crime is a felony, punishable by 5 years in prison as well. The Court discussed the purpose of this statute as well. While there is a Second Amendment right to bear arms, this law is an attempt at civilizing society. We of course don’t want people walking around with weapons when they intend to use those weapons against each other.

The Court’s Decision

The Court ruled that the carrying a concealed weapons statute and the carrying a firearm with an unlawful intent statute are not sufficiently the same as to violate Double Jeopardy. It is true that both offenses involve carrying a weapon. However, from there the law involve a different element. Carrying a concealed weapon doesn’t necessarily mean the person had unlawful intent with the weapon. And carrying a weapon with unlawful intent does not include that the weapon be concealed. There is also no case law holding that either offense has even been considered a lesser offense of the other.

This case is People v. Davenport 89 Mich. App. 678 (1979), 282 N.W.2d 179.

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Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is a Criminal Defense Lawyer in Ann Arbor and Ypsilanti.

ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.

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