Did schools’ gun bans ‘subvert’ Michigan law?

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — Ann Arbor and Clio districts are “subverting and usurping” state law by enacting policies to ban firearms on school property, attorneys for gun rights groups argued Wednesday in the Michigan Supreme Court.

Amid a national debate over school safety and deadly shootings, the seven justices on the state’s highest court heard oral arguments in two cases that could decide the ability of districts across the state to regulate guns.

Ann Arbor and Clio policies, previously upheld by a Michigan Court of Appeals panel, are designed to prevent owners from openly carrying guns on school grounds. State law prohibits concealed weapons in schools but does not expressly prohibit permit holders from openly carrying.

Michigan Open Carry Inc. and Michigan Gun Owners Inc, which sued over the policies, argue state law pre-empts local units of government from banning firearms. But the districts maintain the law does not apply to schools and say they have the responsibility to ensure the safety of students.

“There’s a wide body of law that says we will keep our children safe,” Ann Arbor Superintendent Jeanice Swift told reporters after attorneys and justices debated the cases for more than an hour.

“So if we take the responsibility in the serious vain in which it is written into the law, we know that the presence of a gun in a school carried by anyone other than a sworn officer of the law is a disruption, it is dangerous and it is counter-productive to everything that we’re wired to do in education.”

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.

In a separate case, Michigan Open Carry Inc. and parent Kenneth Herman sued the Clio Area School District after he was repeatedly denied entrance to his child’s school while openly carrying a pistol in 2013 and 2014.

Herman told reporters after Supreme Court arguments that he carries a gun wherever he is legally allowed.

“If I was put in the position where I was picking my daughter up, I was at the school, and something were to happen and I didn’t have the tools to properly intervene … I’m not so sure I could live with that,” he said.

Both cases hinge on a series of seemingly conflicting state laws and whether they collectively pre-empt school districts from regulating firearms.

One state statute prohibits local units of government from enacting or enforcing any ordinance related to firearms, but the law defined a local unit of government as a city, village or township.

Attorney James Makowski, representing Michigan Gun Owners Inc. in the Ann Arbor case, said the Legislature did not include schools in that law because cities, townships and villages are the only local units that have the authority to enact ordinances.

“School districts do not in any way have such authority,” Makowski said. “Instead the school districts are not only direct state actors, but are also actors of the state.”

But multiple justices challenged Makowski, questioning why the pre-emption law should apply to schools, which are not specifically mentioned in the statute.

“The Legislature was very specific in terms of what it said, and so the challenge for this court is you’re asking for this court to go beyond the specific words of the legislation,” said Justice Richard Bernstein.

Attorneys for the Ann Arbor and Clio districts noted the Michigan school code tasks districts with providing for the safety and welfare of students, a provision they argued that should allow for local gun regulations.

But Chief Justice Stephen Markman, in a series of pointed exchanges, pointed out the school code provides schools with that authority “except as otherwise provided by law.” The Michigan penal code, he continued, exempts concealed pistol permit holders from a misdemeanor penalty for carrying a gun on school property.

“It seems to me the only logical implication from that — and I could be wrong — but the most likely and logical implication is that such individuals can indeed carry weapons in a gun-free zone,” Markman said.

The Supreme Court has not yet said whether it will rule on either case. Instead, justices are considering whether to grant the gun groups’ applications for appeal. A decision, and potentially a ruling, is expected later this year.

A three-judge appeals panel, in a pair of unanimous December 2016 decisions, sided with Ann Arbor and Clio. The opinion pointed to at least 26 state laws with specific language referencing “weapon free school zones.”

Herman told reporters he felt “very good” about the tenor of oral arguments and expects the Supreme Court to do “something the Court of Appeals didn’t: Follow the law.”

As a concealed permit holder who openly carried his gun into his daughter’s school without incident after a lower court ruling, Herman dismissed arguments that allowing guns in schools will inevitably create disruptions for students.

“I’d blame that on the parents,” Herman said. “It’s about how you’re raised. If you’re told to be scared of an inanimate object, then you’re going to be scared of an inanimate object.”

Swift, the Ann Arbor superintendent, said she was pleased to see the state’s top court take up the case as the district works to ensure “we do the very best and the very correct things for our students.”

Schools should not have to determine the motivation of a person carrying a gun, she said, even if that person is a parent or otherwise known at the school.

“The Newtown shooter was known by the school. He was a former student in that school,” Swift said. “…So I find that argument particularly troubling. We don’t know the state of mind of anybody that enters our school on any given day.”