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Michigan police chiefs' leader: Open carry ban at polling places not based in law

George Hunter Beth LeBlanc
The Detroit News

The head of the group that represents 385 Michigan police chiefs warned Monday that officers won't be able to enforce Secretary of State Jocelyn Benson's ban on openly carrying firearms at polling places on Election Day because the edict is not based in law.

Secretary of State Jocelyn Benson on Friday sent guidance to local election officials to explain that openly carrying firearms on Election Day in polling places, clerk’s offices and absent voter counting boards would be banned.

Michigan Secretary of State Jocelyn Benson has issued a guidance that banned the open carrying of firearms at Michigan's polling places, clerk's offices and absentee ballot counting boards.

But the edict has no legal basis, said Robert Stevenson, director of the Michigan Association of Chiefs of Police. 

“The Secretary of State issued these administrative rules, but in researching the issue, there’s nothing in the law that gives police the authority to enforce these rules," Stevenson said. "Their theory is if people don’t follow the rules and don’t leave (the polling place), they’d have a trespassing situation where police would be able to take enforcement action.

Robert Stevenson

"But the feedback I’ve been getting from our police agencies is that they’re uncomfortable trying to enforce something they clearly don’t have the authority to enforce," Stevenson said. “Our hope is that this will get resolved and there’ll be some clear guidance.

"... But as it stands now, there’s nothing in the law that gives police the authority to enforce the Secretary of State’s edict."

The Secretary of State's office consulted with Attorney General Dana Nessel before issuing the order, Benson spokeswoman Tracy Wimmer said. 

"The directive was the result of the attorney general, the state’s top law enforcement official, reviewing relevant laws and legal precedent and ruling, in her capacity as that law enforcement official, that the secretary has the authority," Wimmer said in a Monday email. "It is within the scope of authority for executives to interpret relevant and applicable law and apply it appropriately, and is indeed based in law."

Nessel said on the Sunday broadcast of Showtime's "The Circus" that Michigan State Police troopers would patrol polling spots if the state believed local sheriffs wouldn't enforce laws prohibiting voter intimidation.

Republican legislative leaders and gun rights groups have criticized the two Democratic officials about the guidance, which Senate Majority Leader Mike Shirkey, R-Clarklake, called "making up firearm policies." 

The attorney general made the comments after she was asked whether she could rely on elected local sheriffs to enforce voter intimidation and security laws. Barry County Sheriff Dar Leaf has made statements supporting militia groups, and other sheriffs have refused to enforce previous executive orders by Gov. Gretchen Whitmer because they said they were unconstitutional. 

"If you have a county sheriff that seems to be sympathetic to any of these organizations and we think they're not going to enforce the laws, then we'll get somebody else who will, the Michigan State Police," Nessel said. "Every place in the state of Michigan, there will be law enforcement that believe that voters need to be protected."

Michigan Attorney General Dana Nessel

The National Rifle Association has condemned the directive from Benson, while Michigan Open Carry indicated it is contemplating a lawsuit. 

Other law enforcement officials are mixed about whether they plan to enforce the edict.

Wayne County Sheriff Benny Napoleon, a fellow Democrat, expected the directive from Benson would be challenged in the coming days. Until then, he said he plans to comply.

“Until such time as a court of appropriate jurisdiction tells me that plan is unlawful, it is my plan to enforce,” Napoleon said Monday, but he didn’t expect there to be any issues in Wayne County.

People found to be in violation of the directive “will be asked to leave,” the Wayne County sheriff said. “If you refuse to leave, then you will be arrested.” 

Wayne County Sheriff Benny Napoleon

“I just think it’s unfortunate that the rhetoric surrounding this election is even putting us to this point where we are concerned about something as fundamental as people’s right to vote,” Napoleon said.

Napoleon expects to meet this week with the offices of Whitmer, Nessel and the Michigan State Police to discuss the upcoming election. He then plans to meet with the 43 local police chiefs to coordinate efforts. 

“I can’t control what the individual police chiefs do," Napoleon said. "That’s a decision that they have to make with their respective city leaders.”

Livingston County Sheriff Mike Murphy said Friday he would not enforce the ban, staying in line with his previous refusal to enforce Whitmer's executive orders.  

"An order is an order and, quite frankly, is unenforceable," he said. "They have no authority to supersede law.”

Murphy said he will have additional staff on hand in the case of disturbances at polling locations, but he didn't expect they would need to be used.

The Michigan Sheriffs Association was advising elected sheriffs to consult with their counsels and local prosecutors about Benson’s decision, said Matt Saxton, CEO and executive director of the association. 

On Monday, Saxton added: "This administrative order does cause concern because it puts law enforcement in the middle of the issue. In my opinion, the order was a solution in search of a problem. I've been in law enforcement for 28 years, and every year there's some concern about safety in the polling places, and we've been able to handle those concerns with no issues.

"Every polling place is in a different kind of building, and the laws dictate whether people can carry firearms there," he said. "Some are in churches, which are gun-free zones — but a church pastor can give permission for people to carry in that church, so someone could be coming in with permission to carry a gun.

Matt Saxton, head of the Michigan Sheriff's Association

"Every incident of a possible violation (of Benson's order) will have to be handled individually, which would've occurred regardless of this order," Saxton said.

Nessel's spokeswoman, Kelly Rossman-McKinney, told The News on Sunday that the Attorney Generals' department coordinated the issue with state police.

"But we have already met with them to discuss partnering on enforcement, and they have agreed to assist us," Rossman-McKinney said. "We are committed to ensuring that every voter feels safe and secure."

On Monday, Rossman-McKinney added in an email: "The Secretary of State issued guidance to all election clerks in the state to ensure uniformity when it comes to open carry, as many polling locations (e.g., schools and churches) already prohibit open carry."

State Police spokeswoman Shanon Banner was not working Monday, but told The News on Sunday: "I won’t get into speculation about enforcement action, but the Michigan State Police does have statewide jurisdiction."

State police spokeswoman Lori Dougovito on Monday referred questions about whether Benson's order was enforceable to the Attorney General's office.

The directive is similar to a prohibition on taking photos or video recording in polling places, Benson's spokeswoman Wimmer said. 

"Obviously the public has the right to take pictures in public, but the Department of State determined many years ago that they cannot take photos of others in polling places, because voters have the right to a private ballot," she said.

"The directive respects the right to bear arms, and in fact does not touch on concealed carry, but it does say that in the context of a voting location, open carry of a firearm can cause voter intimidation, and therefore is not allowable," Wimmer said.

What the Secretary of State's office is talking about is voter intimidation, and laws already exist to deal with that, Stevenson said. Circumstances matter, he said.

 "Just someone carrying a gun, or standing in a parking lot open-carrying would probably not be intimidation," Stevenson said.

"If a person is approaching people in a threatening manner, or if three to four people are blocking the road, that could be construed as intimidation. But simply having a gun is legal, since Michigan is an open carry state," he said.

The main issue is whether Benson can issue an administrative order "that supersedes state law," Stevenson said.

Additional guidance is "really needed," he added. "It's unfair to put police in the middle like this."

ghunter@detroitnews.com

(313) 222-2134

Twitter: @GeorgeHunter_DN