Illegal Eastpointe City ordinances

scot623 · Oct 28, 2009

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664.03 DISORDERLY CONDUCT.
(a) Public Place Defined. As used in this section, "public place" means any street, alley, parking lot, park, public building, any place of business or assembly open to or frequented by the public, and any other place which is open to public view or to which the public has access.

(1973 Code Sec. 9.101; Ord. 649. Passed 5-8-84.)

(b) Disorderly Persons. No disorderly person shall be within the City. A person is a disorderly person if the person is any of the following:

(20) A person who transports any loaded firearm of any description within the City, except a law officer in the performance of his or her duties, and except a person with a valid concealed weapons permit who is in conformance with the restrictions set forth in such permit;

690.01 CARRYING OR CONCEALING DANGEROUS WEAPONS.
No person shall carry in any public street, highway, alley, park, building or any other place open to the public, or have concealed or otherwise in any vehicle operated or occupied by such person, an airpistol, BB gun, starter gun, pellet gun, blank cartridge gun, rifle, shotgun, handgun, blackjack, slingshot, sandclub, sap bag, metal or plastic knuckles, karate sticks, nightsticks or any other dangerous or deadly weapon, except as otherwise permitted by law.

(Ord. 657. Passed 12-18-84.)

I found this on the Eastpointe City website under their City Charter and Ordinances. I'd like to go forward in getting these two illegal ordinances removed and will happily speak to the City Council as a resident if need be. Any help in this matter would be much appreciated.

autosurgeon · Oct 29, 2009

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If you look around here there is a form letter you can use to point out the fact that this is unenforcable due to preemption.

Venator · Oct 29, 2009

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Start with a letter. You could modify this as needed.

I am member ofopencarry.org's Michigan forum.It has come to my attention that your township has an illegal ordinance in regards to firearm possession.The pertinent section is below.

PUT IN ORDINANCE OR LINK TO SAME.
[/i][/b]
As you may or may not know, in 1990 the State of Michigan passed 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.

In MCRGO v. Ferndale[/i], the Michigan Court of Appeals held that local units of government may not impose restrictions upon firearms possession.

THE MICHIGAN APPEALS COURT CONCLUDED: April 29, 2003 9:10 am. 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.

Myhope is that you amend this ordinance and any other ordinance that bans firearms. Michigan Open Carry, Inc. has contacted other municipalities and they have chosen to amend their ordinances to avoid any possible civil suits like the Federal suit in Grand Haven (see below). For further information on open carry and citizens rights see this newsletter published by the Law Enforcement Action Forum (LEAF) of the Municipal League of Michigan.

http://www.mml.org/insurance/shared/publications/leaf_newsletter/2009_04.pdf

Please update me on any action you undertake to correct this situation. I thank you for your time and consideration in this matter.

Respectfully,

May 12, 2009

FOR IMMEDIATE RELEASE:

The Law Offices of Steven W. Dulan, PLC announces federal civil rights suit against City of Grand Haven and Ottawa County over open-carry ordinance.

The suit, brought under Title 42, Section 1983 of the U.S. Code, was filed on behalf of Christopher Fetters, an off-duty Air Force Security Officer who was attending the Coast Guard Festival in Grand Haven last year. Mr. Fetters was openly carrying a holstered pistol, which is legal under Michigan law, as in most states. He was arrested and detained and charged with a violation of a Grand Haven city ordinance prohibiting open carry of firearms. His gun was initially seized, although it was later returned.

Michigan law prohibits local units of government from making any law with respect to firearms, (MCL 123.1102.) The public policy goal of the statute is to provide a uniform system of gun laws statewide so that citizens do not have to guess regarding what local rules might exist as they move from one locality to the next.

The complaint alleges, among other issues, violations of Mr. Fetters' civil rights under the 2d, 4th, and 14th , Amendments to the U.S. Constitution, and Article I, Section 6 of the Michigan Constitution, which reads, "Every person has a right to keep and bear arms for the defense of himself and the state," when he was physically restrained, disarmed, and subjected to verbal harassment and ridicule by law enforcement personnel.

Criminal charges were later dropped by the Grand Haven City Attorney's Office, after being informed of the unenforceability of their ordinance. No allegations were ever made that Mr. Fetters ever threatened anyone, or in any other way disturbed the peace on the day of his arrest. He is demanding damages for violation of his civil rights as a citizen of the United States and of Michigan.

The case has been filed in the U.S. Court, Western District of Michigan in Grand Rapids and has been assigned Case Number 1:09-CV-00190.

_DK_ · Oct 29, 2009

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Wouldn't the "except as otherwise permitted by law." phrase at the end of that section cover Open Carry?

Has anyone been charged or is this just an old law/ordnance that's been forgotten about.

I OC all over Eastpointe, Never had any issues.

Rob

edit: (nevermind, i just re-read the OP and see its on the Eastpointe city website)

scot623 · Oct 29, 2009

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The first ordinance makes it pretty clear you are considered disorderly if you are just transporting a loaded firearm. Now the definition of transporting is vague, just walking around can be considered transporting. Am I right in wanting this ordinance amended or removed?

The second ordinance seems to be ok upon further review. The last part does seem to bring it in compliance with state law. This is why I brought this to the forums attention before any action on my part. Thanks for the help

Venator · Oct 29, 2009

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scot623 wrote:

The first ordinance makes it pretty clear you are considered disorderly if you are just transporting a loaded firearm. Now the definition of transporting is vague, just walking around can be considered transporting. Am I right in wanting this ordinance amended or removed?

The second ordinance seems to be ok upon further review. The last part does seem to bring it in compliance with state law. This is why I brought this to the forums attention before any action on my part. Thanks for the help

I would fight it tooth and nail. No where else in a disorderly ordinance does it relate to the lawful carry of a firearm. Seems they are trying to skirt the issue. There are already laws for illegal firearms.

Since there are lawful carry exemptions under the law, disorderly conduct is a BS charge for doing so.

Preemption applies.

scot623 · Oct 29, 2009

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Email to the Mayor has been sent.

Generaldet · Oct 29, 2009

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scot, If you need any help along the way let me know.

scot623 · Oct 29, 2009

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Indeed. The Mayor has already responded. She was very cordialthanking me for bringing this matter to her attention and indicating sheforwarded the email to the city attorney and police chief review. So far so good.

Wglide90 · Oct 29, 2009

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I have to say that per Michigan law,the lastlaw don't violate, Michigtan gun carry laws.

Now we may not agree with Michigan laws totally, so there is the issue.

The first one in the end contradicts the last one. This one is bad. It should have added "except as otherwise permitted by law," like the last one. Otherwise this one just adds disorderly persons to unlawful transport.

The last one says, "except as permitted by law." So there you go. They wanted to get all those other things in and still allow lawful gun carry. I got no problem with this one for gun carry. Some of the other things are over board maybe.

Got toread thesethings many times inside/out, upside/down etc. and remember it's legalize. That way we can pick the right fights for the rights to carry. I don't think either would hold up in court for lawful gun carry.

IMHO.

Don't get me wrong, I think they need to learn about the carry laws, and they should word the laws better.

scot623 · Oct 29, 2009

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I already agreed that the second ordinance is compliant. This first one clearly deems anyone who is transporting(carrying) a loaded gun disorderly. It is very clear in it's intention and this is the ordinance I emailed the mayor about.

Wglide90 · Oct 29, 2009

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Hi Scot,

Ya but, Michigan defines transport different than carry. So, my guess is that the mayors lawyers will say the same. Hopefully anyway.

JeffSayers · Oct 30, 2009

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I hate this "as otherwise permitted" crap. This is still misleading and we should not be accepting this. It is still in my opinion malfeasance. (Boy, I have really cometo love that word!)

If your initial contact doesn't get the desired results, let me know. We can get together and go to the next council meeting and show them where the bear $&!+$ in the woods. I can give them a perfect example of how this crap can cost the city moneythey definitely do not have.

scot623 · Nov 6, 2009

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The City Prosecutor called me today. He was very nice and said he was a supporter of all gun rights(ccw and oc). He agreed the ordinance wasn't enforecable. He has never had a case come before him using this ordinance and said if he did, he wouldn't prosecute it. The law firm he works with was retained as the City's attorney and has recently began rewriting ordinances to bring them inline with state laws. Looks like they are on the way to removing this ordinance form the city charter. Once something is concrete I will update the forum. So far so good.

scot623 · Jan 28, 2010

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How much time should I give the City before I follow up with them on this issue? What has been the experience with other cities as far as lenght of time before a change is put forth before the City Council?

conservative85 · Jan 28, 2010

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scot623 wrote:

The City Prosecutor called me today. He was very nice and said he was a supporter of all gun rights(ccw and oc). He agreed the ordinance wasn't enforecable. He has never had a case come before him using this ordinance and said if he did, he wouldn't prosecute it. The law firm he works with was retained as the City's attorney and has recently began rewriting ordinances to bring them inline with state laws. Looks like they are on the way to removing this ordinance form the city charter. Once something is concrete I will update the forum. So far so good.

Side Note:

Any one find this odd? just saying...

sprinklerguy28 · Jan 28, 2010

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All my letters request it be resolved within 90 days. I'll be more than happy to go to the next council meeting which is February 2.

scot623 · Jan 28, 2010

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90 days sounds about right. I'll send a follow up email to the Mayor. Thanks guys!

scot623 · Feb 10, 2010

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Iemailed the Mayor again along witheach council member. I also spoke with city attorney Richard Albright again. At the city attorney's suggestion I will be speaking on this matter at the February 16thcity council meeting. I believe it will begin at 7:00 pm.Fellow Eastpointe resident, VP Jeff Sayers will be joining me. I would like to invite our membership to join with us in a show of support.

T Vance · Feb 11, 2010

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Good job, and good luck guys!

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