MI school districts pass "gun ban"

[ezkl2230]

At least two school districts in Michigan, Clio and, just recently, Ann Arbor, have passed and are seeking to enforce their own gun bans.

Michigan Open Carry (MOC) has already brought suit against Clio Schools, and the school district recently answered the charges by first claiming that they are not a unit of government, and then arguing later in their response that they are immune from being sued because they are carrying out a government function.

Anyone else see the problem with their response?

Well, the news media across the state are (surprise, surprise) supporting these school districts, so I recently submitted the following response:

There is growing debate regarding our right in Michigan to openly carry firearms on school property when in possession of a concealed pistol license.

There shouldn't be.

Michigan's law is very clear: open carry onto school property by one holding a concealed pistol license is expressly protected (note that I do not say "permitted - it is a RIGHT, not a privilege), and the federal Gun Free School Zones Act (18 USC 922) also contains a specific exemption for concealed pistol license holders:

"B) Subparagraph (A) does not apply to the possession of a firearm—

[…] (ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;"

For further discussion of Michigan's law, I refer you to MSP legal update 86, which states,

"The above section does not apply to any of the following:
[…] A person with a valid concealed pistol license (CPL) issued by any state "
https://www.michigan.gov/documents/msp/MSP_Legal_Update_No._86_2_336854_7.pdf

That public schools are government entities and therefore subject to Michigan's firearms pre-emption law is clearly established under both federal and state laws and guidelines.

Under IRS definitions, public schools are "instrumentalities," agencies (branches) of governments:

"An instrumentality is an organization created by or pursuant to state statute and operated for public purposes. Generally, an instrumentality performs governmental functions…
In Revenue Ruling 57-128, the IRS addressed the question of whether an organization is wholly-owned by one or more states or political subdivisions. In making this determination, the following factors are taken into consideration:

• Whether it is used for a governmental purpose and performs a governmental function
• Whether performance of its function is on behalf of one or more states or political subdivisions
• Whether there are any private interests involved, or whether the states or political subdivisions involved have the powers and interests of an owner
• Whether control and supervision of the organizations is vested in public authority or authorities
• Whether express or implied statutory or other authority is necessary for its creation and/or use of the instrumentality, and whether such authority exists
• The degree of financial autonomy and the source of operating expenses"

According to census.gov, with only a few exceptions, school districts are counted as government entities.

Under MCL 380.501, "A public school academy is a body corporate and is a governmental agency."

Under MCL 380.1311d, "...the strict discipline academy corporation is a governmental entity."

MCL 380.552"...the school of excellence is a governmental entity."

In Michigan, school districts have the power of taxation through the levy of property taxes, making them government subdivisions.

By all objective measures, school districts in Michigan are local units of government and are covered under MCL 123.1102,

"A local unit of government shall not impose special taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols or other firearms, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by federal law or a law of this state."

Schools are trying to argue to argue that as a government agencies they are immune from prosecution. This argument holds up only in so far as the policies and actions of the government agency are lawful. Government immunity does not provide blanket immunity against unlawful policies or activities; policies that violate Michigan's pre-emption law are clearly illegal, therefore invalidating any claim to immunity.

 

[topgun47]

Kudos for the very nice presentation of the current situation, ezkl2230.

 

[ezkl2230]

Now a group from Clio is trying to change Michigan's law to make schools gun free zones. Currently, a CPL holder can OC on school property. There are other efforts that would change the law to prohibit OC in exchange for permitting CC on campuses. Gov. Snyder has said he would support such an exchange, but only if schools are also given the right to prohibit ALL carry on campus if they so choose.

Link Removed

 

[ezkl2230]

The judge ruled in favor of the father and our right to carry on school property with a CPL. In fact, the judge asked the attorney for MOC to write the opinion for the court!

Judge's ruling allows open carry of guns in elementary school | MLive.com

Officials for the school district have said that, despite the ruling, they will continue to lock down schools any time a firearm carrier is observed on school property.

 

[TroutKing]

The problem I see is that there is no wording stating that state law prevails notwithstanding local provisions, rules and mandates.

Some states have verbiage in their licensing provisions that say something like "any license issued in the state shall be valid throughout the state notwithstanding provisions, rules, mandates, regulations or laws of any county, city, village, town or other government entity." Such a provision trumps the school's ability to set it's own rule.

 

[Wild Dog]

Schools.

I could go on and on about the inadequacies of the american public school system, and their reckless inability to protect our children. You better believe if I was principal of a school, every classroom would be stocked with a full arsenal capable of arming each student in the room. The weapons would be locked up when not in use (only the teacher possessing the key), and when a school shooter shows up, the weapons will be deployed and the students would then be capable of putting everything five by five.

 

[nogods]

In fact, the judge asked the attorney for MOC to write the opinion for the court!.

Where did you get that "fact" from? Judges might adopt a party's brief as their opinion, but I've never heard of a judge asking a litigant to write their opinion for the judge.

Perhaps you meant to say the judge directed counsel to submit an order, which is the common practice - the winning side submits the proposed order of the court subject to any objections to be raised b the opponent.

But an order is not the opinion - it is simply the effectuating document of the court reflecting the results reached in the court's opinion.