Auburn Hills Inquiry

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I'm a resident of Auburn Hills, and one of their ordinances is questionable in regard to respecting lawful open carry. I'll let the following email trail currently between myself and city officials fill in detail. I am wondering if they respond that they will enforce this ordinance, are there pro bono attorneys whom I can contact to engage Auburn Hills along with me.

Email trail:


ViewFrom Dan* , Thursday, July 10, 2008

To:ttanghe@auburnhills.org
Cc:pauger@auburnhills.org; jbacon@secrestwardle.com
I am sincerely thankful for your kind and prompt response, Mr. Tanghe. To be clear, as well as beinga question from me as an individual resident of Auburn Hills, it is a question on behalf of many others as well. Many law-abiding folks, including myself, respect our cities, our law-makers and law-enforcers, and our fellow citizens as much as we want our individual rights to be respected. Both residents (like myself)and non-residents need to knowwhat to expect when they are in Auburn Hills. And if this helps clarify or improve any ambiguity or problem inAuburn Hills ordinances, then that's great too.

I remain in touch with organizations whose members share information about, protect, and exercise the right to lawful open carry. While I'm not a member or activist, I do support their position and contribute as I am wont to do. I will do Auburn Hills the courtesy of working to disseminate the information you provide, so please rest assured that your efforts on this issue will be appreciated by a wider public than just myself.


Respectfully,
Dan M*
248-***-****


----- Original Message ----
From: "Tanghe, Tom" <ttanghe@auburnhills.org>
To: Dan M* <dan*@*.com>
Sent: Thursday, July 10, 2008 9:07:49 AM
Subject: RE: Open carry of handgun in Auburn Hills

No problem. You aren't the first. I will make sure that I talk to Mr. Auger about your issue and one of us will get back to you shortly.

-----Original Message-----
From: Dan*[mailto:dan*@*.com]
Sent: Wednesday, July 09, 2008 10:32 PM
To: Tanghe, Tom
Cc: jbacon@secrestwardle.com; Auger, Peter
Subject: Re: Open carry of handgun in Auburn Hills

Mr. Tanghe,
I apologize for misspelling your name.
Regards,
Dan



----- Original Message ----
From: Dan*<dan*@*.com>
To: Peter Auger <pauger@auburnhills.org>; Thomas Tange <ttanghe@auburnhills.org>
Cc: jbacon@secrestwardle.com
Sent: Wednesday, July 9, 2008 1:10:36 PM
Subject: Fw: Open carry of handgun in Auburn Hills

Mr. Auger and Mr. Tange,
I spoke a few weeks ago with Ms. Bacon, the city's prosecutor,about the matter below. She tried to be as helpful as she could be, but shewasn't certain.She saidshe would need an OK from the city to spend time to review and respond.
Would your office be the one to approve her review and response? If so, I request that you please do so. I am a resident of Auburn Hills, but I am currently confused as to whether or not this would be enforced against a citizen lawfully openly carrying a handgun in a holster. Attached is general information pertaining to this subject and a Michigan State Police "Legal Update", which might be helpful for your and Ms. Bacon'sreview.
Respectfully,
Dan M*
248-***-****



----- Forwarded Message ----
From: Dan*<dan*@*.com>
To: jbacon@secrestwardle.com; bkudla@secrestwardle.com
Sent: Wednesday, November 21, 2007 12:47:27 PM
Subject: Open carry of handgun in Auburn Hills

Dear Ms. Bacon and Ms. Kudla,

Open carry of a handgun in a holster is not prohibited
in Michigan, as long as there is not unlawful intent.
Generally, city ordinances prohibiting such conduct
are invalid, unless they are specifically authorized
by state law.

The City of Auburn Hills has in its ordinances Sec.
46-212, "Hunting within city", which states:
"No person shall hunt nor shall any person carry, for
the purpose of hunting, firearms within the city. Any
person carrying a firearm within the city limits,
without a permit therefor, shall be deemed to be
hunting. This section shall not apply to a person
carrying an unloaded rifle, shotgun or pistol while
travelling through or from the city for the purpose of
hunting without the city limits."

For persons openly carrying a loaded handgun in a
holster for any lawful purpose, including preparedness
for self-defense, this ordinance plainly states that
all such persons "without a permit" are assumed,
entirely, to be hunting. Of course, then they would
be in violation of the ordinance prohibiting hunting.

Is this ordinance enforceable against a person openly
carrying a loaded handgun in a holster solely with
lawful intent, such as preparedness for self-defense,
in Auburn Hills? If not, are there any other Auburn
Hills ordinances under which your office would
prosecute such an act as a criminal act?

Respectfully,

Dan M*
248-***-****

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It's clearly unenforceable due to the pre emption law.

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So you received no response to your questions?

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It really doesn't matter what they tell you, State law is on your side. They can not legally enforce a ban on any type of firearm carry. Sounds like the typical stall job. Have them contact the Michigan AG's office on this issue the AG can explain the preemption law to them.

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Michigander,

Yes, except if the ordinance is specifically allowed under state law. I haven't found anything indicating this ordinance is, but out of prudence I'm seeing if Auburn Hills has something I'm not aware of.

I'm not asking for permission from them, I'm asking for anything legitimately enforceableI may not be aware of right now.

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DanM wrote:

Michigander,

Yes, except if the ordinance is specifically allowed under state law. I haven't found anything indicating this ordinance is, but out of prudence I'm seeing if Auburn Hills has something I'm not aware of.

I'm not asking for permission from them, I'm asking for anything legitimately enforceableI may not be aware of right now.

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We try to keep informed on this very fact. So far the state has not given permission to any local municipality in this regard. If they should we will challenge it and inform our members.

You can be arrested for anything. They may say it's brandishing, disturbing the peace, etc. We don't know of any convictions under these guises for the lawful open carry of a handgun. We not even sure charges have been filed. Arrest, yes, detainment's, yes, editorializing yes, convictions no.

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DanM wrote:

Michigander,

Yes, except if the ordinance is specifically allowed under state law. I haven't found anything indicating this ordinance is, but out of prudence I'm seeing if Auburn Hills has something I'm not aware of.

I'm not asking for permission from them, I'm asking for anything legitimately enforceableI may not be aware of right now.

Click to expand...

Still doesn't matter. From another post Venator made:



(2) MSP Legal Update Newsletter: April 2007
Did You Know: It is not illegal under Michigan law to openly carry a pistol.

Preemption: In MCRGO v. Ferndale, the Michigan Court of Appeals held that local units of government may not impose restrictions upon firearms possession. Therefore, officers should check with their prosecutors before enforcing an ordinance that imposes a general ban on openly carrying a pistol.

THE MICHIGAN APPEALS COURT CONCLUDED: April 29, 2003 v No. 242237]

In sum, we conclude that § 1102 is a statute that specifically imposes a prohibition on local units of government from enacting and enforcing any ordinances or regulations pertaining to the transportation and possession of firearms, and thus preempts any ordinance or regulation of a local unit of government concerning these areas.

Further, we conclude that the specific language of the 2000 amendments to MCL 28.421 et seq., particularly §§ 5c and 5o, which were adopted more than a decade after the enactment of § 1102, do not repeal § 1102 or otherwise reopen this area to local regulation of the carrying of firearms.17 Accordingly, we hold that the Ferndale ordinance is preempted by state law and, consequently, we reverse.



[align=left]In 1990, the Michigan legislature enacted MCL 123.1102 which provides, in pertinent part: 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.
[/align]

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dougwg wrote:

So you received no response to your questions?

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It's only been a couple of days. I'm willing to give them a little time. I was just wondering, if it gets to where I'm not hearing back from them, what suggestions there are for prompting, or even forcing, them to respond.

One option I can't afford at this timeis to go ahead and open carry and be a "test case".

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Venator wrote:

It really doesn't matter what they tell you, State law is on your side. They can not legally enforce a ban on any type of firearm carry. Sounds like the typical stall job. Have them contact the Michigan AG's office on this issue the AG can explain the preemption law to them.

Click to expand...

Yes, I'm nearly certain what you say applies to Auburn Hills, and Auburn Hills isn't special. At this point, I don't feel AH is doing a stall job. The folks I've dealt with have pretty promptly returned my voicemails or emails, so far.

Thanks for the suggestion about having them contact the AG. That's great, and I'll pass it along!

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Venator wrote:

DanM wrote:

. . . I'm asking for anything legitimately enforceableI may not be aware of right now.

Click to expand...

We try to keep informed on this very fact. So far the state has not given permission to any local municipality in this regard.. . .

Click to expand...

That is what I expect to hear from them, and for them to inform me that their ordinance isn't enforceable, and all of their officers are aware it isn't enforceable. I'll keep you guys posted on their response.

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Greggy,

Thanks for the information. Actually, I'm aware of it and passed it along to themin one of theattachments in the email I sent to them. It would be strange to me for them to review the information I sent to them and for them to respond in any way other than that their ordinance is not enforceable.

I'll keep you guys posted on their response.

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It's an awefully sleazy thing to do, to regulate mere OC as hunting, since Michigan law allows a city to ban hunting. It's kind of like saying that talking on your cell phone while outside is regulated as having sex in public. It's obviously not, and it wouldn't hold up in court. Just like this.

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DanM wrote:

Venator wrote:

DanM wrote:

. . . I'm asking for anything legitimately enforceableI may not be aware of right now.

Click to expand...

We try to keep informed on this very fact. So far the state has not given permission to any local municipality in this regard.. . .

Click to expand...

That is what I expect to hear from them, and for them to inform me that their ordinance isn't enforceable, and all of their officers are aware it isn't enforceable. I'll keep you guys posted on their response.

Click to expand...

Any progress on this front?

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Venator wrote:

Any progress on this front?

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The police chief contacted me a couple of days agoto let me know the city managers requested her to review the matter. I forwarded the documents, along with adding your suggestion about contacting the AG as well.

You can see her email and my response in the "Auburn Hills Update" thread I posted, if you're curious. I'll post her response, once I get it, there as well.