Michigan's Mazi Smith pleads guilty to misdemeanor gun charge

Court of Appeals upholds halt to Benson's open carry ban at Michigan's polls

Beth LeBlanc
The Detroit News

The Michigan Court of Appeals has denied Attorney General Dana Nessel's appeal of a lower court decision that halted Secretary of State Jocelyn Benson's open carry ban at polling places, but Nessel immediately appealed to the Michigan Supreme Court.

While the briefs filed in the case raise "legitimate concerns," the Michigan Legislature already has given the state "important and necessary tools to prevent voter intimidation," according to the unanimous decision by a three-judge panel. 

There already is a law that bans voter intimidation and another that prohibits the brandishing of a firearm in public, the judges noted.

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

"Accordingly, anyone who intimidates a voter in Michigan by brandishing a firearm (or, for that matter, by threatening with a knife, baseball bat, fist, or otherwise menacing behavior) is committing a felony under existing law, and that law is — and remains — enforceable by our executive branch as well as local law enforcement," Court of Claims Judge Patrick Meter wrote in the brief order.

Meter is an appointee for Republican former Gov. John Engler. He was joined on the panel by Judges Michael Gadola and Brock Swartzle, both appointees of Republican former Gov. Rick Snyder. Swartzle is running for Michigan Supreme Court in Tuesday's election. 

Nessel's office appealed to the Michigan Supreme Court on Thursday night, asking it to rule on the issue by 10 a.m. Monday. The attorney general, a Democrat, noted the results of poll to push her legal argument for a higher court review.

"Just today, a poll released by The Detroit News and WDIV-TV indicated that 73% of Michigan voters say openly carried guns should be banned near polling places," said Ryan Jarvi, a spokesman for Nessel's office. "The merits of this issue — which impacts all Michiganders — deserves full and expedited consideration by our State’s highest court.” 

Serial litigant Robert Davis, one of the plaintiffs in the suit, celebrated the decision Thursday, calling it "another victory for the rule of law."

"I hope that the secretary of state and attorney general have learned their lesson, that they cannot unilaterally change the law, and they need to follow and enforce the law as it is written," Davis said. 

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 argues 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. 

After many law enforcement officials questioned the legality of the order and others refused to enforce it, Nessel said the Michigan State Police would enforce the ban in areas where local police refused to do so.

The Michigan State Police opted not to join Nessel's appeal to the Court of Appeals and  Michigan Supreme Court and instead will comply with state Court of Claims Judge Christopher Murray's original preliminary injunction.

Col. Joe Gasper, director for the Michigan State Police, is named as a defendant in one of the cases and remains so even if his department is not appealing.

"The Michigan State Police expresses no position on the merits of this case and is not involved in this appeals," according to a footnote in Attorney General Dana Nessel's Wednesday appeal in the Court of Appeals. "But it stands ready to fully comply with this court's decision."