imported post
Email sent, see below for text of email.
Mark Pollock, Interim City Manager
City of Clawson, MI
Dear Mark Pollock:
In looking through the Clawson City Ordinances, I discovered the "Civil Emergencies" Ordinance (ARTICLE III, Sec. 26-74 and Sec. 26-77) covering firearm and ammunition sales/distribution during times of Declared Civil Emergencies. Under the 1990 state preemption law, this ordinance is unenforceable in regards to firearm and ammunition carry/sales/distribution and is misleading to the people of Clawson and other citizens. I am requesting you amend this unlawful ordinance within 90 days. Failure to amend these ordinances would be considered an act of malfeasance, as it willfully misinforms the public of what is and is not allowed in the City of Clawson.
Thank you for your prompt attention to this matter.
Sincerely,
PDinDetroit
CITY ORDINANCE IN QUESTION (text in question listed in bold):
ARTICLE III. CIVIL EMERGENCIES
...
Sec. 26-74. Orders restricting certain activities. The mayor or his lawful designee, proclaiming a civil emergency in the interest of public safety and welfare, may also make any of the following orders:
...
(7) The discontinuance of selling, distributing, dispensing or giving away of any firearms, ammunition, explosives or other dangerous weapons of any character whatsoever;
(8) The closing of any or all establishments or portions of establishments, the chief activity of which is the sale, distribution, dispensing or giving away of firearms, ammunition, explosives or other dangerous weapons;
...
Sec. 26-77. Sample proclamation. The following is a sample proclamation for use under this article: PROCLAMATION I, ________________, Mayor of the City of Clawson, do hereby proclaim that a state of civil emergency exists within the corporate limits of the City of Clawson because of the rioting, disturbances, and the destruction of both public and private property which have occurred in our adjacent communities, and which lawless activity has suddenly and rapidly increased to the extent that it appears that a riot is imminent within the corporate limits of the City of Clawson, evidenced by the public disorder which occurred at ________ hour _________.m., Eastern Standard Time, on the ________ day of _________, A.D. 20________, at the Municipal Park of the City of Clawson. I designate all of the public parks and public streets in the City of Clawson to be in the area affected.
Pursuant to the powers granted to me under the Charter of the City of Clawson, section 4.05, as conservator of the peace, and the Code of Ordinances of the City of Clawson, section 26-71 et seq., I hereby proclaim the following orders, rules, and regulations to be effective as of the ________ day of _________, A.D. 20________, and continue in effect until I declare that a state of emergency no longer exists:
CURFEW
IT IS HEREBY ORDERED, effective forthwith and until further order, that no person, except duly authorized law enforcement officers, shall be, or shall be allowed to be, in or upon the public streets, thoroughfares or highways of the City of Clawson, or the public parks of said city, between the hours of 7:00 p.m. and 5:00 a.m., Eastern Standard Time, provided that this order shall not apply to persons directly proceeding to and from their homes and places of employment, nor to doctors, nurses, ambulance personnel, and clerics on emergency calls; and
CONGREGATING IN PUBLIC PLACES
IT IS HEREBY FURTHER ORDERED that no persons shall congregate within the corporate limits of the City of Clawson at any time for any purpose; and
POSSESSION OF OBJECTS OF DESTRUCTION
IT IS HEREBY FURTHER ORDERED that no person shall carry, at any time, any firearm, explosive, incendiary device, rock, stick, bottle, missile, or other object which can be used for the unlawful destruction of property; and
PENALTY FOR VIOLATION
IT IS HEREBY FURTHER ORDERED that, pursuant to section 1-7 of the Code of Ordinances of the City of Clawson, any violation of such provisions shall constitute a misdemeanor punishable by a fine not exceeding $500.00 or by imprisonment for not more than 90 days, or by both such fine and imprisonment, in the discretion of the court; and
IT IS HEREBY FURTHER ORDERED that copies of this order be forthwith posted in three conspicuous public places in the City of Clawson, and transmitted to newspapers of general circulation in the area, and notice thereof be forthwith given to members of the city council of the City of Clawson and to the governor of the State of Michigan
REFERENCE INFORMATION:
FIREARMS AND AMMUNITION (EXCERPT)
Act 319 of 1990
123.1102 Regulation of pistols or other firearms.
Sec. 2.
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.
History: 1990, Act 319, Eff. Mar. 28, 1991
EMERGENCY POWERS OF GOVERNOR (EXCERPT)
Act 302 of 1945
10.31 Proclamation of state of emergency; promulgation of orders, rules, and regulations; seizure of firearms, ammunition, or other weapons.
Sec. 1.
(1) During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled, either upon application of the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police or upon his or her own volition, the governor may proclaim a state of emergency and designate the area involved. After making the proclamation or declaration, the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control. Those orders, rules, and regulations may include, but are not limited to, providing for the control of traffic, including public and private transportation, within the area or any section of the area; designation of specific zones within the area in which occupancy and use of buildings and ingress and egress of persons and vehicles may be prohibited or regulated; control of places of amusement and assembly and of persons on public streets and thoroughfares; establishment of a curfew; control of the sale, transportation, and use of alcoholic beverages and liquors; and control of the storage, use, and transportation of explosives or inflammable materials or liquids deemed to be dangerous to public safety.
(2) The orders, rules, and regulations promulgated under subsection (1) are effective from the date and in the manner prescribed in the orders, rules, and regulations and shall be made public as provided in the orders, rules, and regulations. The orders, rules, and regulations may be amended, modified, or rescinded, in the manner in which they were promulgated, from time to time by the governor during the pendency of the emergency, but shall cease to be in effect upon declaration by the governor that the emergency no longer exists.
(3) Subsection (1) does not authorize the seizure, taking, or confiscation of lawfully possessed firearms, ammunition, or other weapons.
History: 1945, Act 302, Imd. Eff. May 25, 1945 ;-- CL 1948, 10.31 ;-- Am. 2006, Act 546, Imd. Eff. Dec. 29, 2006
THE MICHIGAN APPEALS COURT CONCLUDED:
April 29, 2003 9:10 am. v No. 242237 MCGRO vs Ferndale.
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.
