By: Tom Lambert
In 2015, Michigan Open Carry, Inc. (MOC) joined with a Kenneth Herman to file a lawsuit against the Clio Area School District after the school bullied his daughter and threatened to trespass Mr. Herman for lawfully carrying a pistol while picking up his daughter.
Michigan law prohibits the possession of firearms on school property but also exempts anyone with a Concealed Pistol License (CPL) from that prohibition. Michigan law also prohibits anyone with a CPL from carrying a concealed pistol into a school, but that prohibition does not apply to pistols carried openly. Thus, under Michigan’s complex laws, it is lawful for CPL holders to openly carry in schools. As you might imagine, this makes a lot of schools unhappy, and many of them look for any way around the law they can find.
At the center of the dispute is whether or not local school districts can make and enforce policies that contradict state law.
The school district in this case contends that the state’s firearm regulation preemption law, Michigan Public Act 319 of 1990, doesn’t enumerate school districts in its definition of “local unit of government” and therefore not only does the act not apply, it implies that school districts are essentially free to do as they wish. An amicus brief from the Michigan Association of School Boards even suggested that school districts are “more analogous to the state’s court system”, thus putting school districts on par with the state’s legislature, rather than subordinate to it.
Meanwhile, MOC, while agreeing that the actual preemption statute doesn’t apply, contends that long standing case law dictates that state law is superior to policies from lesser forms of government, and therefore local school districts must still comply with state law that allows for the possession of non-concealed pistols by CPL holders, under the doctrine of “field preemption”. MOC also points to Capital Area District Library v. MOC, a case MOC won in 2012 in which a district library was ruled to not be directly preempted by the preemption statute, but still subject to state law under field preemption.
After hearing initial arguments, Judge Archie L Hayman begrudgingly issued summary disposition in favor of MOC and Mr. Herman citing CADL v. MOC and People v. Llewellyn (1977), a Michigan Supreme Court ruling that every preemption case since has been based on. Basically, while he didn’t like it, Judge Hayman saw things for what they were and knew he was bound by prior case law. It is commendable when a judge rules based on the law, even if they don’t like the result.
As expected, the school district appealed to the Michigan Court of Appeals (CoA), and in December of 2016, a three-judge panel for the Court issued a ruling reversing the trial court. The CoA’s ruling came less than 36 hours after oral arguments, which were very quick to say the least. From the onset, it was clear to see that the CoA panel had reached a determination long before oral arguments, and that determination was not going to let any manner of facts or case law get in the way.
Despite glaring discrepancies, the CoA panel declared that the school district’s policy does not conflict with state law, and therefore is in compliance. Discrepancies like a 1,000-foot extension of the school’s weapons ban beyond the school’s property that does not exist anywhere in state law, and which should otherwise be entirely unenforceable. Or the school’s proclamation that their policy applies “regardless of whether or not the person is authorized by law” to possess the firearm.
As for case law, the panel rejected all of it, and even went so far as to suggest that some of it be overturned. For those not familiar, a court can’t simply reject prior precedent, especially when that precedent comes from a higher court and is so well established that it has been used for decades to decide hundreds of cases. This is likely why the Michigan Supreme Court decided to include this case among the less than 4 percent of cases they hear that are appealed to them.
You can read more detail on what the Court of Appeals panel got wrong from Michigan Open Carry, Inc. here.
While the case is ultimately about whether or not local school districts can make their own gun bans, the ramifications of what the Michigan Supreme Court decides go much farther.
If the school wins, then any real hope of enacting real school safety reform will be gone for probably a generation. Schools will be free to do as they wish, and it will be immensely difficult for any legislature to find the political will to curtail that authority.
If the gun group wins, then schools will be forced to accept lawfully possessed firearms on their campuses. The anticipation is that it will turn out just like every other state that allows firearms to be lawfully possessed in schools; no big deal. Additionally, if schools then want any change in the law, Michigan’s gun groups will be a great position to demand real reforms that will actually provide for safety.
We’re done with our children paying the price when schools lie about safety being their “number one” priority.
Tom Lambert is president of Michigan Open Carry, Inc.