Incident Triggers Questions

By: Kendall Hitch and Meghan Flynn

Can a parent bring a loaded handgun into a Michigan public school, during school hours?

The answer could be a surprising and confusing “yes” and has Birmingham Public Schools administrators concerned, after a parent entered a school in October, peacefully, with a weapon.

According to Deputy Superintendent Paul DeAngelis, school officials dealt with a situation “where a parent was in possession of a firearm while in an elementary school’s main office.”

DeAngelis declined to name the school and the name of the alleged parent, on the advice of the district’s legal counsel.  No further detail was provided, however, Board Policy #7217 prohibits visitors, “including a parent, from possessing a weapon on any Birmingham Public Schools’ property.”

DeAngelis said, in an e-mail to the Highlander, this only excludes properly licensed parents with concealed firearms picking or dropping their children off at school from the seclusion of their own car. DeAngelis told the Highlander this policy is consistent with state and federal laws.

After the incident, DeAngelis said the Board of Education notified the parent, in writing, of its concerns.  The following was given to the undisclosed parent:

“A [further] violation of this Policy will result in a referral to law enforcement officials for immediate removal of the person from the premises, as well as a request from criminal prosecution,” the letter said. “A violation may further result in exclusion of the person from the future visits to our schools and District-sponsored events.”

However, the district may be in a bind.  According to DeAngelis, the district’s outside legal counsel told them recent court rulings may invalidate the district’s policy.

The Michigan Court of Appeals, found in the court case Capital Area District Library v Michigan Open Carry that “…the Michigan Firearms and Ammunition Act prohibits a local unit of government from regulating the possession licensing or transportation of pistols or other properly licensed firearms”. Possession includes both open and concealed weapons.

Due to this case, Clark Hill PLC,  the district’s legal counsel, issued a statement entitled “Right to Open Carry Firearms Cannot be Restricted.”

“Under this Act, properly licensed firearms may be openly carried anywhere in the state, expect in those areas specifically prohibited by Act 319 and other applicable law (although the list of prohibited areas includes “school property” the prohibition does not apply to individuals licensed by Michigan or another state to carry a concealed weapon),” the act says.

With this court ruling, under Michigan Law, the Birmingham school district does not appear to have the authority of stopping someone from bringing a gun onto school grounds.

However, that ruling appears to conflict with US federal law.

The Gun Free Zone Act prohibits anyone to knowingly have a firearm that has moved into a school zone.  A “school zone” is defined as on private or public school grounds or 1,000 feet from the grounds of a public, private school.

According to Assistant U.S. Attorney Susan E. Gillooly, the Deputy Chief of the General Crimes Unit (Eastern District, Michigan), the penalty for violating the law is “not more than $5000, up to five years’ imprisonment, or both”.

“A conviction under this statute will cause an individual to then become a ‘prohibited person’ under the Gun Control Act of 1968, which will bar them from legally owning firearms the rest of their life,” Gillooly told the Highlander.

In order to enforce the federal law and pursue a federal case, federal resources – ranging from federal law enforcement officials to federal prosecutors – would need to be allocated.

Federal assistance, in these situations, appears to be unlikely. For the policy to change at the local level, it will need to occur first at the state. According to the Clark Hill PLC report, school districts are encouraged to “consider contacting your area legislatures” to change policy.

The Highlander contacted a spokesperson for the Brady Campaign, a gun control advocacy group that has previously been in support of gun regulations, and briefed the group on the incident. The spokesperson declined comment and instead directed the Highlander to Smartgunlaws.com.  This site only confirmed Michigan does not allow local government to regulate firearms or to enforce discretion or deny a concealed handgun license.

The Highlander also contacted The National Rifle Association, a Second Amendment advocacy group. The NRA declined comment, despite multiple phone calls and e-mails from the Highlander.

According to BPS School Board Secretary Robert Lawrence, this issue goes beyond the Second Amendment.

“I fully support Second Amendment rights,” Lawrence said in an email to the Highlander. “But I also fully support common sense in applying regulatory powers vested at the state level.”

Despite the confusion, according to DeAngelis, the district will continue to enforce policy #7217.

“It remains our position as a district that we will contact the police anytime we see anyone carrying a gun on school property,” DeAngelis said in an e-mail. “We will be communicating with our stakeholders and reps in Lansing to advocate for a change in this interpretation of the law.”

17 thoughts on “Incident Triggers Questions

  1. Policy #7217 is illegal. School districts cannot make their own rules regarding the possession of firearms by the public. State law is clear on this. Every Michigan Supreme Court decision since MCRGO v. Ferndale has been clear on this. The federal Gun-Free School Zone Act does not conflict with state law as it exempts Michigan CPL holders under subsection (B)(ii). It reads (in-part):

    (A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

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

    (i) on private property not part of school grounds;

    (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;

  2. The federal gun free school zone provides an exemption for legally licensed firearms, so pursuing this from a federal level will yield zero.

    Additionally, the bit about parents dropping off/picking up their children and “seclusion of their vehicle” is incorrect. Licensed parents are allowed in the parking lot and do not have to stay in their vehicles. The “premises” has been deemed not to include the parking lot.

    I, for one, don’t have any problem with parents having legal, registered, HOLSTERED firearms in schools. If that firearm comes out of the holster for ANY reason besides defending life and limb, that person needs to lose their firearm rights.

    Bad guys don’t abide by laws, so even if there was a gun ban at schools, for someone who is blood thirsty for murder, a gun ban is MEANINGLESS. Why disarm good and law abiding people? Gun control laws don’t stop the bad eggs, so why does EVERYONE have to lose freedoms and liberty?

  3. State of Michigan preemption law makes the district’s policy illegal (the recent court rulings just confirm this). And “Federal Assistance” won’t come because the Federal Gun Free Zone Act has clear exemptions for people with a CPL license “does not apply to the possession of a firearm if the individual possessing the firearm is licensed to do so by the State in which the school zone is located”.

    The right of the people to keep and bear arms shall not be infringed.

  4. The federal Gun Free School Zone Law of 1990 was struck down by the Supreme Court. In 1995, Congress revised it but in the revision, the Federal Law clearly states that it does not apply to a Licensed carrier if the school is in the state that issued the license.

  5. I love how you make it out like it’s a FEDERAL CRIME to posses a firearm within 1000ft of a school yet you TOTALLY ignore the rest of the law that states if a person has a Concealed Pistol License they are EXEMPT from the Federal Gun Free School Act.
    Here’s a good read http://gunowners.org/fs9611.htm

  6. The Gun Free Zone Act 1996 has exemptions in it so that a person can carry on school grounds or within the 1,000 ft radius. Specfically that the person must be licensed by the State in which the school district lies, to possess a handgun on school grounds. So if you are licensed to carry a concealed handgun by your state then you meet the exemption but again ONLY in the state in which the license to carry was issued. For example you have a Michigan CPL then that’s only good [on a Federal level] for standing on school grounds in the state of Michigan, not in Ohio or any other state.

  7. The editors of this paper and the Law Firm of Clark Hill PLC need to perform further research before speaking out on this matter. Michigan State Police Legal Update #86 clearly states that an MI CPL Holder can Openly Carry a Pistol in the Michigan Pistol Free Zones defined under MCL 28.425o. The Federal Gun Free School Zone Act, 18 U.S.C. § 922 (q)(2)(B)(ii), expressly exempts a person possessing the firearm from prosecution if they are licensed by the State. The Michigan Court of Appeals did in fact, in the court case Capital Area District Library v Michigan Open Carry, establish that the State of Michigan Occupies the Field of Firearm Regulation such that a School District cannot regulate Firearms. If the City of Birmingham was smart, they would issue an immediate apology to the parent and a retraction of the letter, lest they be subject to Civil Legal Action like they are now facing from Sean Combs (The M1 Garand Rifle Open Carry Case). They likely face a Deprivation of Civil Rights Case if they do not act soon.

  8. The assistant attorney is wrong on her understanding of the Federal Gun Free Schoo Zone.Act of 1995. Any person with a legally registered firearm in the state the school is in is exempt from that law.See section B part (ii) of the law and you will see how wrong she is.

  9. I have absolutely no issue with any law abiding parent carrying a sidearm to a school. I dispisethe fact that our or my children are sitting ducks inside school. Law Enforcement can carry everywhere, so whats the difference?? Between a officer of the law and a citizen? Training? Nope! Background?Nope!A uniform and a badge?Yep!lol the fact is that citizen went thru the same background check,psych test as that Officer.

  10. There is one major inaccuracy in this article regarding the Federal GFSZA. You need to read down a little further in the Federal law to the exemptions, specifically (B)(ii).

    “(A)It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

    (B)Subparagraph (A) does not apply to the possession of a firearm—
    (i)on private property not part of school grounds;

    (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; ”

    Michigan’s Concealed Pistol License (CPL) (MCL 28.425b) law meets all of the listed requirements for exemption listed in the GFSZA, as does Michigan’s License to Purchase, Possess, Transport a Pistol (MCL 28.422) that all non-CPL holders must obtain before purchasing a pistol, even from a private sale, in MI. In short, ANY Michigan resident that LEGALLY owns a pistol is exempt from the Federal GFSZA.

    Also, Michigan’s own law (MCL 750.237a) on possession of a NON-CONCEALED firearm on school grounds specifically exempts any person that is licensed to carry a concealed weapon.

    “(4) Except as provided in subsection (5), an individual who possesses a weapon in a weapon free school zone is guilty of a misdemeanor punishable by 1 or more of the following:
    . . .
    (5) Subsection (4) does not apply to any of the following:

    (a) An individual employed by or contracted by a school if the possession of that weapon is to provide security services for the school.

    (b) A peace officer.

    (c) An individual licensed by this state or another state to carry a concealed weapon.”

    In Michigan law the ONLY time a person with a CPL is restricted from carrying their firearm on school grounds is when that firearm is CONCEALED (MCL 28.425o).

    “(1) Subject to subsection (5), an individual licensed under this act to carry a concealed pistol, or who is exempt from licensure under section 12a(1)(f), shall not carry a CONCEALED pistol on the premises of any of the following:

    (a) A school or school property except that a parent or legal guardian of a student of the school is not precluded from carrying a concealed pistol while in a vehicle on school property, if he or she is dropping the student off at the school or picking up the child from the school. As used in this section, “school” and “school property” mean those terms as defined in section 237a of the Michigan penal code, 1931 PA 328, MCL 750.237a.”

    Since the above law is specifically written to restrict CONCEALED carry, if the firearm is not CONCEALED MCL 28.425o does NOT apply.

    Michigan also has a law (MCL 750.234d) that regulates where a person may not, in general, possess a firearm. Since these areas are not concealed carry specific they are often colloquially referred to as “open carry free zones,” “OC PFZs,” or Firearm Free Zones (FFZs). However this law also specifically exempts anybody that is licensed to carry a concealed firearm (2c), but this law does NOT restrict possession of a firearm in schools as that is regulated by MCL 750.237a which I quoted earlier.

    “(1) Except as provided in subsection (2), a person shall not possess a firearm on the premises of any of the following:

    (a) A depository financial institution or a subsidiary or affiliate of a depository financial institution.

    (b) A church or other house of religious worship.

    (c) A court.

    (d) A theatre.

    (e) A sports arena.

    (f) A day care center.

    (g) A hospital.

    (h) An establishment licensed under the Michigan liquor control act, Act No. 8 of the Public Acts of the Extra Session of 1933, being sections 436.1 to 436.58 of the Michigan Compiled Laws.

    (2) This section does not apply to any of the following:

    (a) A person who owns, or is employed by or contracted by, an entity described in subsection (1) if the possession of that firearm is to provide security services for that entity.

    (b) A peace officer.

    (c) A person licensed by this state or another state to carry a concealed weapon.

    (d) A person who possesses a firearm on the premises of an entity described in subsection (1) if that possession is with the permission of the owner or an agent of the owner of that entity.”

    In short, a person in MI that is licensed to carry a concealed firearm but carries their fiream openly is exempt from most of the concealed carry AND the open carry pistol free zones (Federal zones, MI courts, sterile areas of airport, secure areas of jail/prisons, and several others are still no-carry zones).

    In Oct. 2010 the Michigan State Police released Legal Update 86 that covers much of this information. It may be read here: http://www.michigan.gov/documents/msp/MSP_Legal_Update_No._86_2_336854_7.pdf

    Michigan laws may be researched here: http://www.legislature.mi.gov/(S(aihxw155mtqz3d452krw5h55))/mileg.aspx?page=Home

    I would encourage the author to contact the MI firearms right organizations for information on MI firearm law. I would recommend either Michigan Gun Owners (MGO) or Michigan Open Carry (MOC).

  11. The article is incorrect in regards to the Federal law. The Federal law specifically exempts those licenses by there home state to purchase, possess, or carry firearms, Michigan’s CPL, as well as our purchase permit meet the requirement thus the Federal law does not apply in this case.

    As far as reaching the NRA, try again Monday, it seems most of the office is on Holiday break until then. That could be why no one was answering, no one was there TO answer.

  12. A very well written article actually better written than most written by proffessional journalists. There is one quote that should be clarified if possible though. If possible ask US Attorney Susan E Gillooly about the exemption Part B (ii) in the Gun Free School Zone that she somehow failed to include in her explaination. The exemption makes it legal to have a firearm as long as the person is licensed. Anyone in the State of Michigan with a legally registered pistol has that exemption.

  13. I wanted to also add that despite the oversight on the Federal gun free school zone and the inaccuracy on the michigan CPL law regarding license holders and school parking lots, I thought this was a VERY well written article.

    Nice work, but please print corrections!

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