Guns in schools fight goes to Michigan Supreme Court

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — The Michigan Supreme Court next year will hear oral arguments in two cases testing whether public school districts can ban guns — including openly carried ones — despite a state law that generally limits local firearms rules.

Lawsuits filed by gun-rights groups have broad implications for school districts around the state but challenge specific policies enacted by Ann Arbor Public Schools and the Clio Area School District, whose officials say their rules are designed to protect students and avoid disruptions.

Ann Arbor banned all guns on school property and school-sponsored activities in 2015 after a resident openly carried a sidearm into a high school choir concert. Under the rules, bringing any gun into the school constitutes an emergency, triggering evacuation or other response strategies.

Michigan Gun Owners Inc. and parent Ulysses Wong quickly sued over the Ann Arbor rules, arguing state law pre-empts local gun regulations. Michigan statute prohibits most permit holders from carrying concealed pistols into schools, but it does not explicitly prohibit them from openly carrying their weapons.

Critics have urged legislators to close what they call an open carry “loophole,” but advocates say the statutory silence speaks for itself.

“Regardless of how you feel about the issue, a local school board does not have more authority that the state Legislature, period,” said Jim Makowski, an attorney for Michigan Gun Owners Inc. “State law totally regulates the field of firearms.”

Lower courts have so far sided with Ann Arbor, ruling the state’s gun pre-emption law does not prohibit the district rules. A three-judge Michigan Court of Appeals panel, in a unanimous decision, pointed to at least 26 state laws with specific language referencing “weapon free school zones.”

“These four words telegraph an unmistakable objective regarding guns and schools; indeed, we find it hard to imagine a more straightforward expression of legislative will,” the December 2016 opinion read. “The Legislature contemplated that this repeatedly invoked phrase would be interpreted to mean exactly what it says — no weapons are allowed in schools.”

On similar grounds and on the same day, the panel also reversed a Circuit Court decision that struck down an older gun ban enacted by the Clio Area School District. Michigan Open Carry Inc. and parent Kenneth Herman sued the district after Herman was repeatedly denied entrance to his child’s school while openly carrying a pistol in 2013 and 2014.

The Michigan Supreme Court has not said whether it will weigh in on the merits of either case, but justices have ordered attorneys to file additional legal briefs as they consider the gun groups’ applications for appeal. A hearing is expected in 2018 but a date has not been set.

The Ann Arbor lawsuit is a misguided attempt to allow guns in what should be gun-free zones, said school board president Christine Stead, who voted for the policy as vice president in 2014.

“We think there’s a reason to have gun-free zones, and we know we have an additional constitutional obligation to keep children safe that are in an educational environment,” Stead told The News.

“We don’t know the intent of anyone who’s bringing a gun into one of our events or our buildings. It’s hard to assess that, and we don’t even have the right to ask whether the person has a (concealed pistol) permit.”

While the battle plays out in court, Michigan’s Republican-led Legislature has contemplated various changes to state law. The state Senate in November approved a bill that would allow concealed guns in schools, which supporters argue would cause fewer disruptions than openly carried weapons. The House has not yet taken up the measure, which is opposed by GOP Gov. Rick Snyder.

Attorneys for Ann Arbor Public Schools say the district, through rules approved by its locally elected school board, “exercised its right, power and duty under the Revised School Code to educate students and provide for their safety and welfare by enacting policies that prohibit possession of firearms on school property.”

Michigan law generally prohibits a local unit of government from going beyond state or federal gun laws, but it defines a local unit of government as a city, village, township or county. The Court of Appeals previously applied the ban to district libraries but ruled it does not apply to school districts.

The Ann Arbor policy “ensures that the learning environment remains uninterrupted by the invocation of emergency procedures that would surely be required each and every time a weapon is openly carried by a citizen into a school building,” said the ruling.

The Court of Appeals panel included two judges appointed by former Democratic Gov. Jennifer Granholm. Open carry groups quickly appealed to the Michigan Supreme Court, where Republican nominees have a 5-2 advantage.

“The court of appeals has been operating under the absurd position that a locally elected school board is not a local unit of government, where it clearly is,” said Makowski, who called the ruling an example of “judicial activism.”

“I’m hoping the rule of law is going to prevail here.”

In their order last week, justices asked the school districts and gun rights groups to file legal briefs arguing whether the Court of Appeals panel properly analyzed pre-emption factors the Supreme Court established in a 1977 case regarding an “anti-obscenity” ordinance in East Detroit, now called Eastpointe.

In that case, the state’s highest court struck down the ordinance that had been used to convict a man and company for exhibiting “obscene” films, ruling state obscenity laws pre-empted any local rules.

The Court of Appeals had considered that case but rejected open carry arguments that allowing a “patchwork” of school district gun policies would create “confusion” for police or the public.