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Thread: Auburn Hills Inquiry

  1. #1
    Regular Member DanM's Avatar
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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-***-****
    "The principle of self-defense, even involving weapons and bloodshed, has never been condemned, even by Gandhi . . ."--Dr. Martin Luther King Jr

    He who cannot protect himself or his nearest and dearest or their honor by non-violently facing death, may and ought to do so by violently dealing with the oppressor. He who can do neither of the two is a burden.--M. K. Gandhi

    "First they ignore you, then they ridicule you, then they fight you, then you win." --M. K. Gandhi

  2. #2
    Regular Member Michigander's Avatar
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    It's clearly unenforceable due to the pre emption law.
    Answer every question about open carry in Michigan you ever had with one convenient and free book- http://libertyisforeveryone.com/open-carry-resources/

    The complete and utter truth can be challenged from every direction and it will always hold up. Accordingly there are few greater displays of illegitimacy than to attempt to impede free thought and communication.

  3. #3
    Regular Member dougwg's Avatar
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    So you received no response to your questions?

  4. #4
    Anti-Saldana Freedom Fighter Venator's Avatar
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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.
    An Amazon best seller "MY PARENTS OPEN CARRY" http://www.myparentsopencarry.com/

    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

  5. #5
    Regular Member DanM's Avatar
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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.
    "The principle of self-defense, even involving weapons and bloodshed, has never been condemned, even by Gandhi . . ."--Dr. Martin Luther King Jr

    He who cannot protect himself or his nearest and dearest or their honor by non-violently facing death, may and ought to do so by violently dealing with the oppressor. He who can do neither of the two is a burden.--M. K. Gandhi

    "First they ignore you, then they ridicule you, then they fight you, then you win." --M. K. Gandhi

  6. #6
    Anti-Saldana Freedom Fighter Venator's Avatar
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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.
    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.


    An Amazon best seller "MY PARENTS OPEN CARRY" http://www.myparentsopencarry.com/

    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

  7. #7
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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.
    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.



    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.

  8. #8
    Regular Member DanM's Avatar
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    dougwg wrote:
    So you received no response to your questions?
    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".
    "The principle of self-defense, even involving weapons and bloodshed, has never been condemned, even by Gandhi . . ."--Dr. Martin Luther King Jr

    He who cannot protect himself or his nearest and dearest or their honor by non-violently facing death, may and ought to do so by violently dealing with the oppressor. He who can do neither of the two is a burden.--M. K. Gandhi

    "First they ignore you, then they ridicule you, then they fight you, then you win." --M. K. Gandhi

  9. #9
    Regular Member DanM's Avatar
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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.
    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!
    "The principle of self-defense, even involving weapons and bloodshed, has never been condemned, even by Gandhi . . ."--Dr. Martin Luther King Jr

    He who cannot protect himself or his nearest and dearest or their honor by non-violently facing death, may and ought to do so by violently dealing with the oppressor. He who can do neither of the two is a burden.--M. K. Gandhi

    "First they ignore you, then they ridicule you, then they fight you, then you win." --M. K. Gandhi

  10. #10
    Regular Member DanM's Avatar
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    Venator wrote:
    DanM wrote:
    . . . I'm asking for anything legitimately enforceableI may not be aware of right now.
    We try to keep informed on this very fact. So far the state has not given permission to any local municipality in this regard.. . .


    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.
    "The principle of self-defense, even involving weapons and bloodshed, has never been condemned, even by Gandhi . . ."--Dr. Martin Luther King Jr

    He who cannot protect himself or his nearest and dearest or their honor by non-violently facing death, may and ought to do so by violently dealing with the oppressor. He who can do neither of the two is a burden.--M. K. Gandhi

    "First they ignore you, then they ridicule you, then they fight you, then you win." --M. K. Gandhi

  11. #11
    Regular Member DanM's Avatar
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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.
    "The principle of self-defense, even involving weapons and bloodshed, has never been condemned, even by Gandhi . . ."--Dr. Martin Luther King Jr

    He who cannot protect himself or his nearest and dearest or their honor by non-violently facing death, may and ought to do so by violently dealing with the oppressor. He who can do neither of the two is a burden.--M. K. Gandhi

    "First they ignore you, then they ridicule you, then they fight you, then you win." --M. K. Gandhi

  12. #12
    Regular Member Michigander's Avatar
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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.
    Answer every question about open carry in Michigan you ever had with one convenient and free book- http://libertyisforeveryone.com/open-carry-resources/

    The complete and utter truth can be challenged from every direction and it will always hold up. Accordingly there are few greater displays of illegitimacy than to attempt to impede free thought and communication.

  13. #13
    Anti-Saldana Freedom Fighter Venator's Avatar
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    DanM wrote:
    Venator wrote:
    DanM wrote:
    . . . I'm asking for anything legitimately enforceableI may not be aware of right now.
    We try to keep informed on this very fact. So far the state has not given permission to any local municipality in this regard.. . .


    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.
    Any progress on this front?
    An Amazon best seller "MY PARENTS OPEN CARRY" http://www.myparentsopencarry.com/

    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

  14. #14
    Regular Member DanM's Avatar
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    Venator wrote:
    Any progress on this front?
    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.
    "The principle of self-defense, even involving weapons and bloodshed, has never been condemned, even by Gandhi . . ."--Dr. Martin Luther King Jr

    He who cannot protect himself or his nearest and dearest or their honor by non-violently facing death, may and ought to do so by violently dealing with the oppressor. He who can do neither of the two is a burden.--M. K. Gandhi

    "First they ignore you, then they ridicule you, then they fight you, then you win." --M. K. Gandhi

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