Michigan judge halts Benson's ban on open carry of guns at polling places

Beth LeBlanc
The Detroit News

Michigan Court of Claims Judge Christopher Murray issued a preliminary injunction Tuesday that effectively halts Secretary of State Jocelyn Benson's directive banning the open carry of guns near polling locations on Election Day.

Attorney General Dana Nessel announced almost immediately after the decision was issued that her office would appeal to the Court of Appeals "as this issue is of significant public interest and importance to our election process."

The edict by Benson "smacks of an attempt at legislation" and lacks public input instead of following the regular rule-making process, Murray said during a Tuesday emergency hearing. Further, the state already has a law prohibiting voter intimidation, said Murray, an appointee of Republican former Gov. John Engler. 

"The Legislature has said: Here are the places you cannot carry a weapon," Murray said during the hearing. "The secretary has expanded that. And so how is that in accordance with state law?"

A woman wears a custom Kimber .45 pistol in a black leather holster.

Murray argued Benson could have implemented such a rule over a months-long process, but Nessel's office pushed back. 

The need for this directive has grown during the last several weeks, specifically after the details of the alleged plot against Gov. Gretchen Whitmer were revealed, Nessel's representatives argued.

"There's no inconsistency," Assistant Attorney General Heather Meingast said. "There is no affirmative right to open carry in all places at all times.”

House Speaker Lee Chatfield, R-Levering, welcomed the decision, which he framed as a repudiation of administrative overreach. 

"Time after time the courts have struck down this administration when it overreaches," Chatfield wrote on Twitter. "Firearms. Line 5. Redistricting. Vaping. Emergency powers. Nobody is above the law. It can’t be sidestepped. We have a democratic process. It needs to be followed."

In his decision, Murray noted that the Democratic secretary of state's prohibition on the open carry of firearms at polling places appeared to be more than an interpretation of existing statute. It was a rule that should be subjected to the rule-making process, he wrote. 

"The directive itself covers a substantive policy area — where a resident can openly carry a firearm — and applies to every resident of this state," and implies that law enforcement will be expected to enforce it, Murray wrote. 

While state law doesn't grant the right to open carry a firearm, the Second Amendment does in some form and state law provides some prohibitions, the judge said. 

"Even if defendant can place additional restrictions on where people can open carry a firearm beyond those contained in statute, it must be done through compliance with the (Administrative Procedures Act)," wrote Murray, noting the rule-making process would require public notice and public comment. 

Without an injunction, Murray said, a "single state officer" would effectively be able "to circumvent (and essentially amend) a valid and enforceable state law on the same subject."

"This is certainly not in the public interest, which expects its public officials to follow the rule of law," he wrote. 

The decision is unlikely to hurt voters, Murray wrote, because voter intimidation already is banned, open carry already is prohibited in some voting locations, such as churches, and concealed carry is banned in both churches and schools. 

State laws passed by the Legislature and signed by the governor "already provide law enforcement with the tools to stop those whose goal it would be to intimidate voters, whether with or without a firearm," Murray wrote. 

Serial litigant Robert Davis and Michigan Open Carry, Michigan Gun Owners and Michigan Coalition for Responsible Gun Owners filed suit against Benson's order banning open carry near polling places, arguing that it conflicts with state law, conflates open carry with voter intimidation and "is conjured without any legal basis or authorization under Michigan law."

The lawsuit alleges the edict creates an ultimatum, the lawsuit said: Either individuals give up a Second Amendment right to bear arms for self-protection or give up their right to vote. 

Benson cited her authority as the administrator of elections when she announced Oct. 16 that the open carry of firearms within 100 feet of a polling location, clerk's office or absent voter counting board was prohibited Nov. 3. She is a former dean of the Wayne State University School of Law.

After some police questioned the enforceability of the directive, Nessel said Michigan State Police troopers would enforce the ban where other police departments refused.