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Criminal Appellate & Post-Conviction Services

Court of Appeals Extends Open Carry Rights

Today’s highlighted ruling focuses on the right to open carry in a public building. Michigan law imposes a higher standard on individuals to carry a concealed weapon than to carry it open for the world to see. This has created a situation where many people are carrying weapons in plain sight and often into places where individuals cannot carry a concealed weapon. Others find this public display of weaponry alarming and we have had many show downs. The opinion is available here and the dissent is available here.

The first battle came over the City of Ferndale’s right to ban concealed weapons from its parks. In
Coalition for Responsible Gun Owners v Ferndale, 256 Mich App 401, 662 NW2d 864 (2003), the Court of Appeals ruled that Ferndale did not have the power under either its home rule authority (MCL 117.1 et seq) or under the CCW statute. This was a pretty easy argument because the Michigan Legislature specifically passed a law stating that they didn’t want local control on the CCW requirements and wanted to create a standardized state-wide system telling people where they could concealed carry and where they couldn’t (MCL 123.1102).

Several years ago, the City of Royal tried to ban people from open carrying weapons at its family oriented city festival. After push back from the Open Carry movement and an adverse legal opinion from its City Attorney, Royal Oak backed down.
Click here for more information.

Today’s battle took place over the right to open carry weapons to the public library. Employees at the Capital Area District Library in Lansing attempted to stop patrons from open carrying at the downtown Lansing public library. This library was not a city or a municipal library, but rather a district library under the control of its open board appointed by Ingham County, the City of Lansing, and other Ingham County communities. Its Board created a bylaw attempting to ban open carrying of weapon.

When Michigan Open Carrying members went to he library with their weapons, the Library called the police. The police informed them that without a court order, the police would not get involved. The library brought a suit seeking a declaratory judgment about the enforceability of its bylaw and for a temporary restraining order. Michigan Open Carry argued that the bylaw was preempted.

The lower court granted the restraining order, but a divided panel of the Michigan Court of Appeals reversed. The majority found that the law had been preempted by state law and that Capital Area District Library’s unique state as a “district library” did not alter the analysis. (This is a point where the dissent disagreed). Following the Ferndale ruling, the Court of Appeals found that the City of Lansing could not bar open carrying of a firearm. The Court looked to
MCL 750.234d to note that a library was not a place where a person was statutorily barred from concealed carrying a firearm.

Politically, this will be interesting because the Second Amendment movement and the medical marijuana users should be on the same side of this issue. In
Ter Beek v City of Wyoming, ___ Mich App ___, ___ NW2d ___ (Docket No. 306240, July 31, 2012), the Michigan Court of Appeals used a similar legal analysis to overturn a City’s ban on the use or growing of medical marijuana. The preemption analysis is nearly identical, but the two groups have traditionally been on opposite ends of the political spectrum.

This case will probably be appealed. If it is, it will be noted on the
Court’s docket. Here is a link to the Michigan Open Carry’s pleading bank. Here is a link to the Detroit Free Press article on the subject. Police also have had a history of reacting poorly to individuals who open carry. If you are going to attempt this, please read this guide. Here is a link collecting the various Michigan Attorney General opinions in this area of law.