The Open Carry Statutory Loophole
Questions and surprise often arise about the laws concerning firearms and where they may be carried open and concealed in Michigan. Of particular significance to local units of government is whether and when persons are authorized to carry open or concealed weapons at public meetings or on public property.
Private property owners have the right to refuse to allow individuals to carry firearms on their property, concealed or open, whether or not the individual possesses a valid Concealed Pistol License (“CPL”). Local units of governments do not enjoy the same authority. Section two of the Firearms and Ammunition Act, Act 319 of the Michigan Public Acts of 1990, as amended, MCL 123.1101, et seq. provides:
“A local unit of government shall not impose special taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols, other firearms, or pneumatic guns, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by federal law or a law of this state.”
State law preempts local regulation in two situations: (1) where a local regulation directly conflicts with a state law; or (2) where state law completely “occupies the field” to the exclusion of local regulation. Michigan Courts have held that the State has made a clear policy choice to occupy the field of firearm possession. Accordingly, local units of government are excluded from regulating in the area of firearm possession. For example, in Capital Area Dist Library v Michigan Open Carry Inc, the court held that the State has the sole authority to regulate firearm possession in all buildings established by one or more local units of government. The district library’s code of conduct containing a policy which banned all firearms from the library premises was, therefore, preempted by state law and invalid.
There are two primary statutes governing the carrying of firearms in Michigan. The first is located in the Michigan Penal Code, Act 328 of the Michigan Public Acts of 1931, as amended, MCL 750.1 et seq. Section 234d of the Penal Code restricts all persons, subject to limited exceptions, from possessing firearms on certain premises. The second is located in the Firearms Act, Act 372 of the Michigan Public Acts of 1927, as amended, MCL 28.421 et seq. Section 5o of the Firearms Act restricts licensed individuals from carrying concealed weapons on certain premises. The interaction of these two statutes has created a potentially unintended consequence.
Section 234d of the Penal Code makes it illegal to possess a firearm on the premises of depository institutions such as banks and credit unions, churches, courts, theatres, sports arenas, day care centers, hospitals and establishments licensed under the Michigan Liquor Control Act. (Additionally, Section 237a makes it illegal to possess a firearm in a “weapon free school zone.”) These restrictions do not apply to certain persons, including persons who are licensed to carry a concealed weapon by the State of Michigan or any other state.
Section 5o of the Firearms Act provides that a person with a valid CPL shall not carry a concealed pistol on certain premises such as schools or school property, day care centers, sports arenas, bars or taverns where sale and consumption of liquor by the glass is the primary source of income, churches or other places of worship unless authorized by the presiding official, entertainment facilities with seating capacity of 2,500 or more, hospitals, college dormitories and classrooms and casinos.
Read together, these statutes allow an individual who possesses a valid CPL to openly carry a firearm on premises where firearms are otherwise prohibited. This means that an individual in possession of a valid CPL may openly carry a firearm in a school, bank or any other premises listed in Section 234d of the Penal Code except for courts, which are not encompassed by the loophole. Administrative Order No. 2001-1 provides that weapons are not permitted in any courtroom, office, or other space used for official court business, though it is not clear whether this prohibition is a blanket ban or if it applies only when official court business is being conducted.
Whether a person is permitted to carry a firearm at a public meeting is therefore determined by the location of the meeting and whether the person possesses a valid CPL permit. If the meeting is being held at a location listed under Section 234d or Section 237a of the Penal Code, such as a school, a person may only carry a firearm if he or she possesses a valid CPL and the weapon must be carried openly. The same rules apply for meetings held at churches or other places of worship, except that a person with a valid CPL is also allowed to carry a concealed weapon if the presiding church officials permit the carrying of concealed weapons. If the meeting is held at a municipal building, such as a township hall, however, individuals are free to openly carry firearms and those with valid CPLs may carry concealed weapons.
In March, the Ann Arbor Public Schools were confronted with this statutory loophole when Ann Arbor police officers were called to a high school choir concert after an attendee was spotted openly carrying a firearm. As the individual possessed a valid CPL, he was within his rights to openly carry the firearm. Displeased, the Ann Arbor Public School Board subsequently adopted a policy prohibiting firearms on school property, and litigation ensued. The Washtenaw County trial court judge dismissed the suit against the Ann Arbor Public Schools, and the case is currently under appeal. The primary issue for the Court of Appeals to decide in that case will be whether or not a school district is a local unit of government within the meaning of Firearms and Ammunition Act.
In the meantime, lawmakers are working on a set of tie-barred bills, Senate Bills 442 and 561, that would, among other things, close the statutory loophole that allows the open carry of firearms by licensed persons in gun-free zones. However, as reported out of committee on Octo-ber 15, 2015, the Senate Bills would permit persons to obtain a CPL exemption indorsement that would permit the carrying of a concealed weapon in gun-free zones. We will keep our readers updated on this important development in firearm regulations.
If you have any questions regarding the local regulation of firearms or have questions as to how the law applies in relation to a specific situation, please contact your municipal attorney here at the firm.