autosurgeon
Regular Member
imported post
Note below is the report on the AD at the SH Picnic as well as the proposed ordinance amendments.
Also note the last document is a resolution calling for the legislature to give the city back the ability to ban firearms from public places:cuss:.
Note this is all proposals at this time and will be discussed at the Nov 2nd meeting @7:00 PM
I know this is long but please read the whole thing before you comment....
This came from here http://www.south-haven.com/csh%20folder/csh/PDFs/Council%20Agendas%20PDF/Agendas2009/11-02-09%20Council%20Agenda.pdf
[align=left]Background Information:[/align]
[align=left]As part of the report provided to City Council in the October 19, 2009 agenda packet, it was[/align]
[align=left]noted by staff that the city’s adopted ordinances may require amendment, so as to comply[/align]
[align=left]with state law. For tonight’s meeting, staff is requesting the City Council consider taking[/align]
[align=left]action to amend two existing ordinances.[/align]
[align=left]At the October 19, 2009 regular meeting of the City Council, council received a staff report[/align]
[align=left]which related to the “Open Carry” picnic, which was held in South Haven and advocated for[/align]
[align=left]gun owner’s rights. As part of the report, it was noted by staff that the city’s adopted[/align]
[align=left]ordinances may require amendment, so as to comply with state law. Within the report staff[/align]
[align=left]notes that the City of South Haven has received complaints that existing ordinances violate[/align]
[align=left]adopted state law and should be amended to comply with the State of Michigan. The[/align]
[align=left]ordinances are Section 18.34 and Section 58.83; which address individuals carrying or[/align]
[align=left]using firearms within the city’s cemetery or within any of the city’s parks. An opinion was[/align]
[align=left]sought from the city’s attorney regarding the ordinances and the city’s right to regulate[/align]
[align=left]firearms within designated areas. Attorney Scott G. Smith references MCLA (Michigan[/align]
[align=left]Complied Laws Annotated) 123.1101, et seq, subsection 2 which states, “Section 2. A local[/align]
[align=left]unit of government shall not impose special taxation on, enact or enforce any ordinance or[/align]
[align=left]regulation pertaining to, or regulate in any other manner the ownership, registration,[/align]
[align=left]purchase, sale, transfer, transportation or possession of pistols or other firearms,[/align]
[align=left]ammunition for pistols or other firearms, or components of pistols or other firearms, except[/align]
[align=left]as otherwise provided by federal law or a law of this state.” This position was bolstered by[/align]
[align=left]Michigan Coalition for Responsible Gun Owners v. City of Ferndale in which the court ruled[/align]
[align=left]that the City of Ferndale could not establish certain prohibited areas wherein concealed[/align]
[align=left]weapons permit holders could not carry (if such area was not already designated by state[/align]
[align=left]statute). MCLA 28.425 specifically lists “no gun zones” in statute, city buildings and city[/align]
[align=left]parks or cemeteries are not included in the “no gun zones”.[/align]
[align=left]Staff has requested assistance from our local state representative, in acquiring an Attorney[/align]
[align=left]General’s opinion on this issue. Rep. Schuitmaker was contacted regarding this issue. Rep.[/align]
[align=left]Schuitmaker, although currently a member of the state house of representatives, is also a[/align]
[align=left]licensed attorney in the State of Michigan. Aside from researching the issue herself, she did[/align]
[align=left]make contact with the Attorney General, and they both concluded, absent a formal opinion,[/align]
[align=left]that MCLA 123.1101, et seq, subsection 2 is controlling on this issue. In essence, the City[/align]
[align=left]Ordinances/Codes are in violation of state statute and invalid.[/align]
[align=left]Therefore, it is my recommendation that Code of Ordinances for the City of South Haven,[/align]
[align=left]Section 18.34 (cemeteries) and Section 58.83 be amended to strike the “carry or use of any[/align]
[align=left]firearm” in those selected locations as a matter of law.[/align]
[align=left]City Council Agenda[/align]
[align=left]Manager’s Report[/align]
[align=left]November 2, 2009[/align]
[align=left]Clearly, the State of Michigan, through its elected representatives, has decided that local[/align]
[align=left]regulations concerning both “concealed carry” and “open carry” as it related to “no gun[/align]
[align=left]zones” is within their purview alone, and not subject to local control or option.[/align]
[align=left]Additionally, as staff has updated the City Council on the proposed amendments to the[/align]
[align=left]referenced ordinances, it was noted by both council and staff members that Section 58.83[/align]
[align=left]contains restrictive language related to freedom of speech and freedom of assembly. Based[/align]
[align=left]on those observations, the proposed ordinance amendment strikes the prohibitions on[/align]
[align=left]speech and assembly from the updated document.[/align]
[align=left]Finally, staff has noted in various reports to the City Council that the City of South Haven[/align]
[align=left]lacks the authority to restrict possession of firearms on property owned by the city. As a[/align]
[align=left]result, the following ordinances amendments are put forth for consideration. In addition to[/align]
[align=left]the ordinance amendments, staff has prepared the attached resolution, which encourages[/align]
[align=left]the Legislature for the State of Michigan to consider enacting legislation which grants[/align]
[align=left]authority to municipal corporations to restrict possession of firearms on property owned by[/align]
[align=left]the municipality.[/align]
[align=left]Recommendation:[/align]
[align=left]The city’s staff recommends that the Code of Ordinances for the City of South Haven,[/align]
[align=left]Section 18.34 (cemeteries) and Section 58.83 (parks) be introduced as presented, to allow[/align]
[align=left]an amendment which shall strike the “carry or use of any firearm” in those selected locations[/align]
[align=left]as a matter of law.[/align]
[align=left]The city’s staff recommends that the Code of Ordinances for the City of South Haven,[/align]
[align=left]Section 58.83 (parks) be introduced as presented, to allow an amendment which shall strike[/align]
[align=left]the “Speak publicly or deliver oration, address, speech, sermon or lecture,” and “Hold or[/align]
[align=left]participate in any public function other than those conducted by the city” so as to fully[/align]
[align=left]comply with freedom of speech and assembly rights.[/align]
[align=left]Further, the city’s staff recommends that the City Council consider adoption of Resolution[/align]
[align=left]2009-65: A Resolution urging the Legislature for the State of Michigan to enact legislation[/align]
[align=left]allowing municipal corporations to restrict the possession of firearms on property owned by[/align]
[align=left]municipal corporations.[/align]
[align=left]Thank you for your time and attention.[/align]
[align=left]Support Material:[/align]
[align=left]CPL Report[/align]
[align=left]Clark Hill Firearms Memo[/align]
[align=left]Proposed Ordinance Amendment: Section 18-34[/align]
[align=left]Proposed Ordinance Amendment: Section 58-83[/align]
[align=left]Proposed Resolution[/align]
[align=left]City Council Agenda[/align]
[align=left]Manager’s Report[/align]
[align=left]November 2, 2009[/align]
[align=left]Date: October 13, 2009[/align]
[align=left]To: City Manager Brian Dissette[/align]
[align=left]From: Chief Rod A. Somerlott[/align]
[align=left]Re: Review of Open Carry Picnic and pertinent City Code Issues[/align]
[align=left]As you are aware Open Carry of Michigan held a picnic near the South Beach (the[/align]
[align=left]pavilion near the South Beach Restrooms) on Sunday, September 13, 2009. This event[/align]
[align=left]was scheduled to run from approximately 1:00PM until 4:00PM. The organizers[/align]
[align=left]indicated that this was merely to attempt to educate the public regarding citizen’s right to[/align]
[align=left]keep and bear arms. More importantly, that under color of law, a citizen may “openly”[/align]
[align=left]carry a firearm within the State of Michigan except for designated areas as declared in[/align]
[align=left]statute by the Michigan Legislature.[/align]
[align=left]This event went on without much fanfare. A reasonable sized group attended the picnic,[/align]
[align=left]most of which were openly carrying firearms. At the conclusion of the picnic, a number[/align]
[align=left]of attendees had parked their vehicles in the South Beach Parking area. Their vehicles[/align]
[align=left]were co-mingled with the usual beach going public enjoying the South Beach on a warm[/align]
[align=left]afternoon. At approximately 4:26PM, the South Haven Dispatch Center received reports[/align]
[align=left]of shots being fired on the South Beach. The on duty officers immediately responded to[/align]
[align=left]the location, in addition to the arriving oncoming shift officers whom also responded to[/align]
[align=left]the report. As soon as proper information was gathered, a radio message was sent[/align]
[align=left]regarding the suspect vehicle, direction of travel, and that it was occupied by more than[/align]
[align=left]one individual. Several officers remained at South Beach to process the scene, while[/align]
[align=left]other officers were alerted and attempting to locate the suspect vehicle.[/align]
[align=left]The suspect vehicle was located on LeGrange Street, near the old Movie Outpost[/align]
[align=left]business, and was subsequently stopped in that parking lot. The vehicle was occupied by[/align]
[align=left]four individuals. All four were questioned and gave permission for our officers to inspect[/align]
[align=left]their firearms.[/align]
[align=left]These individuals had all attended the Open Carry Picnic at South Beach. One of the[/align]
[align=left]individuals, Jonathan Wayne Sager, indicated that he is the one that had the “accidental”[/align]
[align=left]discharge of his firearm. Mr. Sager advised the officers that after attending the Open[/align]
[align=left]Carry picnic, he and his friends were returning to their parked vehicle (spot #24 on South[/align]
[align=left]Beach) wherein each of his friends unloaded their respective weapons one at a time and[/align]
[align=left]secured them in the appropriate weapons box in the back of their vehicle (a pickup truck).[/align]
[align=left]Mr. Sager advise he was the last to unload (each subject unloaded their weapon, one by[/align]
[align=left]one) and after removing the magazine, he attempted to pull back the slide to remove the[/align]
[align=left]ammunition from the breech, when the firearm discharged. He was able to secure the[/align]
[align=left]weapon and then they attempted to locate the police department to report the incident.[/align]
[align=left]First of all, the individuals did not have concealed pistol permits and entering a vehicle[/align]
[align=left]and leaving the south beach while still “carrying” a firearm, would have subjected them[/align]
[align=left]to criminal prosecution for carrying a concealed weapon without a permit. Therefore, the[/align]
[align=left]logic in unloading and securing the weapons was well conceived, the execution of such a[/align]
[align=left]plan was not. Secondly, the weapon, a Springfield XD handgun, upon inspection was[/align]
[align=left]found to be in sound working order. The weapon itself contains an internal safety that[/align]
[align=left]will not allow a discharge to occur without someone depressing the trigger to a firing[/align]
[align=left]position. Mr. Sager was allowed to leave of his own accord and his weapon was returned[/align]
[align=left]to him. The report was forwarded to the Van Buren County Prosecutor’s Office where a[/align]
[align=left]warrant was authorized for one count of Reckless Use of a Firearm (a misdemeanor). Mr.[/align]
[align=left]Sager turned himself into the court and was arraigned on the charge.[/align]
[align=left]Prior to all of this occurring, the City was put on notice concerning to City Codes that[/align]
[align=left]were thought to be in violation of current law. The ordinances Section 18.34 and Section[/align]
[align=left]58.83, speak to individuals carrying or using firearms in the city cemetery or in any city[/align]
[align=left]park. A legal opinion was requested from City Attorney Manning. In his opinion, he felt[/align]
[align=left]that the State of Michigan “grants municipalities the right to enact and enforce ordinances[/align]
[align=left]and regulations relative to the management and control of municipal property; this[/align]
[align=left]includes the discharge and use of firearms, including pistols, and may regulate “open[/align]
[align=left]carry” or “plain sight displays” of firearms, including pistols, in other public areas,[/align]
[align=left]including their own property.” In that statement, Attorney Manning concludes that the[/align]
[align=left]City can regulate “open carry”, but, cannot regulate those who have received a Concealed[/align]
[align=left]Pistol License (CPL). Therefore if a person is carrying a firearm in the cemetery or park,[/align]
[align=left]openly, without a Concealed Pistol License they would be subject to prosecution under[/align]
[align=left]our existing ordinance.[/align]
[align=left]Corporate Council Scott Smith’s view of the code/ordinances is strikingly opposite of[/align]
[align=left]Attorney Manning. Smith relies on MCLA (Michigan Complied Laws Annotated)[/align]
[align=left]123.1101, which states, “Section 2. A local unit of government shall not impose special[/align]
[align=left]taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any[/align]
[align=left]other manner the ownership, registration, purchase, sale, transfer, transportation or[/align]
[align=left]possession of pistols or other firearms, ammunition for pistols or other firearms, or[/align]
[align=left]components of pistols or other firearms, except as otherwise provided by federal law or a[/align]
[align=left]law of this state.” This position was bolstered by Michigan Coalition for Responsible[/align]
[align=left]Gun Owners v. City of Ferndale, 256 App 401 (2003), in which the court ruled that the[/align]
[align=left]City of Ferndale could not establish certain prohibited areas wherein CPL holders could[/align]
[align=left]not carry (if such area was not already designated by state statute). MCLA 28.425o[/align]
[align=left]specifically lists “no gun zones” in statute, city buildings and city parks or cemeteries are[/align]
[align=left]not included in the “no gun zones”. Further, as previously stated (MCLA 123.1101, et[/align]
[align=left]seq, subsection 2), the legislature made it very clear in the passing of that statute that[/align]
[align=left]City’s cannot regulate the carry of firearms, only the state can do that.[/align]
[align=left]Although Manning’s argument is clearly on an “open carry” issue, Smith’s argument, as[/align]
[align=left]backed up by further research, is that both “concealed carry “and “open carry” are[/align]
[align=left]regulated by state statute, not local ordinance. Although the question to the Attorney[/align]
[align=left]General was clearly on the “open carry” issue, the request must be made through our[/align]
[align=left]local legislator. Rep. Schuitmaker was contacted regarding this issue. Rep. Schuitmaker,[/align]
[align=left]although currently a member of the state house of representatives, is also a licensed[/align]
[align=left]attorney in the state of Michigan. Aside from researching the issue herself, she did make[/align]
[align=left]contact with the Attorney General, and they both concluded, absent a formal opinion, that[/align]
[align=left]MCLA 123.1101, et seq, subsection 2 is controlling on this issue. In essence, the City[/align]
[align=left]Ordinances/Codes are in violation of state statute and invalid.[/align]
[align=left]Therefore, it is my recommendation that Code of Ordinances for the City of South[/align]
[align=left]Haven, Section 18.34 (cemeteries) and Section 58.83 be amended to strike the “carry or[/align]
[align=left]use of any firearm” in those selected locations as a matter of law.[/align]
[align=left]Clearly, the State of Michigan, through its elected representatives, has decided that local[/align]
[align=left]regulations concerning both “concealed carry” and “open carry” as it related to “no gun[/align]
[align=left]zones” is within their purview alone, and not subject to local control or option.[/align]
[align=left]Attachments[/align]
[align=left]LEAF Newsletter[/align]
[align=left]SHPD Comp # 1913-09[/align]
[align=left]CONFIDENTIAL[/align]
[align=left]MEMORANDUM[/align]
[align=left]5927502.1 26369/105143[/align]
[align=left]TO: Mr. Brian Dissette[/align]
[align=left]City Manager[/align]
[align=left]City of South Haven[/align]
[align=left]FROM: Scott G. Smith[/align]
[align=left]Kenneth P. Lane[/align]
[align=left]DATE: July 9, 2009[/align]
[align=left]SUBJECT: Carrying of firearms in City parks and cemeteries[/align]
[align=left]Background[/align]
[align=left]Residents and others have recently contacted the City suggesting that two sections of the City’s code of[/align]
[align=left]ordinances impose an improper restriction on the carrying and possession of firearms in violation of state[/align]
[align=left]law. City ordinance Section 58-83(3) prohibits the carrying or use of any firearm in any City park.1 City[/align]
[align=left]ordinance Section 18-34 prohibits the possession of any firearm in any City cemetery.2 Accordingly, the[/align]
[align=left]question has become: does state law preempt the City from prohibiting the carrying or possessing of[/align]
[align=left]firearms in City parks and cemeteries?[/align]
[align=left]Analysis[/align]
[align=left]With limited exception,3 Michigan law prohibits a local unit of government4 from regulating by local[/align]
[align=left]ordinance the ownership, registration, purchase, sale, transfer, transportation or possession of pistols or[/align]
[align=left]other firearms.5 Michigan courts have interpreted this prohibition to mean that only the state has the[/align]
[align=left]authority to regulate the possession of firearms.6 “Possession” has been defined to include open7 and[/align]
[align=left]concealed carrying.8[/align]
[align=left]Michigan law requires an individual to obtain a license to possess and carry a pistol.9 Once the pistol is[/align]
[align=left]licensed, an individual may openly10 carry it anywhere in the state, except in those areas expressly[/align]
[align=left]1 Code of Ordinances, City of South Haven, Michigan, Section 58-83(3).[/align]
[align=left]2 Code of Ordinances, City of South Haven, Michigan, Section 18-34.[/align]
[align=left]3 Exceptions include: 1) prohibiting or regulating conduct with a pistol or other firearm that is a criminal offense under state law;[/align]
[align=left]e.g., possession without a license, possession with the intent to commit a criminal act, possession by a minor, or the[/align]
[align=left]“brandishing” of a firearm (“brandishing is defined as waving or flourishing a weapon in a menacing manner, See, Mich OAG[/align]
[align=left]7101, 2002); 2) prohibiting or regulating the transportation, carrying or possession of pistols or firearms by City employees; and[/align]
[align=left]3) prohibiting the discharge of a pistol or firearm (City Ordinance Section 54-181 prohibits the discharging of firearms within the[/align]
[align=left]City). MCL 123.1103, MCL 123.1104.[/align]
[align=left]4 A city, village, township or county. MCL 123.1101.[/align]
[align=left]5 MCL 123.1102.[/align]
[align=left]6 Subject to the exceptions listed above. See, Michigan Coalition for Responsible Gun Owners v Ferndale, 256 Mich App 401,[/align]
[align=left]418 (2003).[/align]
[align=left]7 “Open carrying” is recognized as within a holster that is in plain view. Mich OAG, No. 7113, 2002.[/align]
[align=left]8 People v Womack, 2009 Mich App LEXIS 158, citing, People v Green, 260 Mich App 392 (2004), Mich OAG, No. 7113, 2002,[/align]
[align=left]Mich OAG 7101, 2002.[/align]
[align=left]9 MCL 28.442. A “pistol” is defined as a loaded or unloaded firearm that is 30 inches or less in length, or a loaded or unloaded[/align]
[align=left]firearm that by its construction and appearance conceals it as a firearm. MCL 28.421(e). A “firearm” is defined as a weapon[/align]
[align=left]from which a dangerous projectile may be propelled by an explosive, or by gas or air, excluding a rifle or handgun designed and[/align]
[align=left]manufactured exclusively for propelling by a spring, or by gas or air, BB’s not exceeding .177 caliber. MCL 28.421(b).[/align]
[align=left]10 Again, it is important to note that “open carrying” is recognized as within a holster that is in plain view. Mich OAG, No. 7113,[/align]
[align=left]2002.[/align]
[align=left]CONFIDENTIAL MEMORANDUM PAGE 2[/align]
[align=left]5927502.1 26369/105143[/align]
[align=left]prohibited by state law.11 Additionally, an individual may obtain a separate license to carry a pistol[/align]
[align=left]concealed on their person anywhere in the state, except in those areas expressly prohibited by state law.12[/align]
[align=left]City parks, cemeteries and buildings are not recognized as prohibited areas.[/align]
[align=left]An individual without a license may not legally possess or carry a pistol.13[/align]
[align=left]Conclusion[/align]
[align=left]With limited exception, Michigan law preempts the City from regulating the carrying or possession of[/align]
[align=left]pistols and other firearms. Michigan law permits an individual to openly carry a licensed pistol on City[/align]
[align=left]property. Additionally, Michigan law permits a licensed individual to carry a pistol concealed on their[/align]
[align=left]person on City property. As such, state law does preclude the City from enforcing Ordinance Sections[/align]
[align=left]58-83(3) and 18-34 against individual who have obtained the required license. However, both sections[/align]
[align=left]may be enforced against individuals carrying a pistol in a City park or cemetery without the required[/align]
[align=left]license. Both sections can be modified to comply with state law by including the phrase “except as[/align]
[align=left]otherwise permitted by law”. We would be happy to assist you with the formal amendment of both[/align]
[align=left]sections upon your request.[/align]
[align=left]11 MCL 28.442. Prohibited areas are: banks, churches or other houses of worship, courts, theatres, schools and day care centers,[/align]
[align=left]sports arenas or stadiums, bars or taverns, and hospitals. MCL 750.234d.[/align]
[align=left]12 MCL 28.425c(2). Prohibited areas are: schools, day care centers, sports arenas or stadiums, bars or taverns, religious facilities[/align]
[align=left]owned or operated by a religious entity, entertainment facilities, hospitals, and college buildings. MCL 28.425o.[/align]
[align=left]13 MCL 28.422, MCL 28.422a, MCL 750.227, MCL 750.234d(2)(c).[/align]
[align=left]CITY OF SOUTH HAVEN[/align]
[align=left]VAN BUREN AND ALLEGAN COUNTIES, MICHIGAN[/align]
[align=left]ORDINANCE NO. ____[/align]
[align=left]AN ORDINANCE AMENDING SECTION 18-34 OF THE[/align]
[align=left]CITY OF SOUTH HAVEN CODE OF ORDINANCES[/align]
[align=left]WHEREAS, the Michigan Legislature has adopted MCLA 123.1102, which prohibits a[/align]
[align=left]municipality from enacting or enforcing any ordinance or regulation pertaining to, or regulate in[/align]
[align=left]any other manner the ownership, registration, purchase, sale, transfer, transportation, or[/align]
[align=left]possession of pistols or other firearms.[/align]
[align=left]THEREFORE, The City of South Haven Ordains:[/align]
[align=left]SECTION 1[/align]
[align=left]That Section 18-34 of the Code of Ordinances for the City of South Haven is hereby amended[/align]
[align=left]to read as follows:[/align]
[align=left]Sec. 18-34. Enumeration of forbidden acts.[/align]
[align=left]Within the cemetery, no person shall loiter, litter, use profane language, bring in or[/align]
[align=left]consume any alcoholic beverage or controlled substance, peddle or solicit the sale of any[/align]
[align=left]commodity unconnected to cemetery usage, place signs or notices, allow animals to run at[/align]
[align=left]large or otherwise beyond his control, or engage in any play or recreational activity.[/align]
[align=left]SECTION 2[/align]
[align=left]If any portion of this ordinance is for any reason held invalid, such decision shall not affect the[/align]
[align=left]validity of the remaining provisions of this ordinance.[/align]
[align=left]SECTION 3[/align]
[align=left]Any ordinance or part thereof in conflict with the provision of this ordinance is hereby repealed[/align]
[align=left]to the extent of such conflict.[/align]
[align=left]SECTION 4[/align]
[align=left]The effective date of this ordinance shall not be earlier than ten (10) days after enactment and[/align]
[align=left]not before publication in the South Haven Tribune.[/align]
[align=left]INTRODUCED by the City Council of the CITY OF SOUTH HAVEN, MICHIGAN on this ____[/align]
[align=left]day of _____________, 2009.[/align]
[align=left]ADOPTED by the City Council of the CITY OF SOUTH HAVEN, MICHIGAN on this ____ day of[/align]
[align=left]_______________, 2009.[/align]
[align=left]Ordinance No. ____[/align]
[align=left]-1-[/align]
[align=left]Ordinance No. ____[/align]
[align=left]-2-[/align]
[align=left]Dorothy Appleyard, Mayor[/align]
[align=left]Amanda Morgan, City Clerk[/align]
[align=left]CERTIFICATION[/align]
[align=left]I, Amanda Morgan, Clerk of the City of South Haven, Van Buren County, Michigan do hereby[/align]
[align=left]certify that the above Ordinance was adopted by the South Haven City Council on the ___ day[/align]
[align=left]of ______, 2009; and the same was published in a paper of general circulation in the City, being[/align]
[align=left]the South Haven Tribune, on the ___ day of _____________, 2009.[/align]
[align=left]Amanda Morgan, City Clerk[/align]
[align=left]CITY OF SOUTH HAVEN[/align]
[align=left]VAN BUREN AND ALLEGAN COUNTIES, MICHIGAN[/align]
[align=left]ORDINANCE NO. ____[/align]
[align=left]AN ORDINANCE AMENDING SECTION 58-83 OF THE[/align]
[align=left]CITY OF SOUTH HAVEN CODE OF ORDINANCES[/align]
[align=left]WHEREAS, the Michigan Legislature has adopted MCLA 123.1102, which prohibits a[/align]
[align=left]municipality from enacting or enforcing any ordinance or regulation pertaining to, or regulate in[/align]
[align=left]any other manner the ownership, registration, purchase, sale, transfer, transportation, or[/align]
[align=left]possession of pistols or other firearms.[/align]
[align=left]THEREFORE, The City of South Haven Ordains:[/align]
[align=left]SECTION 1[/align]
[align=left]That Section 58-83 of the Code of Ordinances for the City of South Haven is hereby amended[/align]
[align=left]to read as follows:[/align]
[align=left]Sec. 58-83. Prohibited activities.[/align]
[align=left]No person or organization shall do any of the following activities in a park without the written[/align]
[align=left]consent of the city manager. The person or organization may appeal the city manager’s[/align]
[align=left]decision to the city council should they feel the need to do so.[/align]
[align=left](1) Carry or use air rifles or slingshots or discharge any fireworks or explosive devices of any[/align]
[align=left]nature.[/align]
[align=left](2) Erect any structure.[/align]
[align=left](3) Canvass, advertise, solicit, vend or rent any service, merchandise or object of any kind,[/align]
[align=left]except as allowed by City Ordinance Section 14-44.1, et seq.[/align]
[align=left](4) For any gatherings in excess of 500 people, chapter 42 of this Code shall apply.[/align]
[align=left](5) Consume or have in their possession, in an open or closed container, any vinous; malt,[/align]
[align=left]brewed, fermented, spirituous, or alcoholic liquors.[/align]
[align=left]SECTION 2[/align]
[align=left]If any portion of this ordinance is for any reason held invalid, such decision shall not affect the[/align]
[align=left]validity of the remaining provisions of this ordinance.[/align]
[align=left]SECTION 3[/align]
[align=left]Any ordinance or part thereof in conflict with the provision of this ordinance is hereby repealed[/align]
[align=left]to the extent of such conflict.[/align]
[align=left]SECTION 4[/align]
[align=left]Ordinance No. ____[/align]
[align=left]-1-[/align]
[align=left]Ordinance No. ____[/align]
[align=left]-2-[/align]
[align=left]The effective date of this ordinance shall not be earlier than ten (10) days after enactment and[/align]
[align=left]not before publication in the South Haven Tribune.[/align]
[align=left]INTRODUCED by the City Council of the CITY OF SOUTH HAVEN, MICHIGAN on this ____[/align]
[align=left]day of _____________, 2009.[/align]
[align=left]ADOPTED by the City Council of the CITY OF SOUTH HAVEN, MICHIGAN on this ____ day of[/align]
[align=left]_______________, 2009.[/align]
[align=left]Dorothy Appleyard, Mayor[/align]
[align=left]Amanda Morgan, City Clerk[/align]
[align=left]CERTIFICATION[/align]
[align=left]I, Amanda Morgan, Clerk of the City of South Haven, Van Buren County, Michigan do hereby[/align]
[align=left]certify that the above Ordinance was adopted by the South Haven City Council on the ___ day[/align]
[align=left]of ______, 2009; and the same was published in a paper of general circulation in the City, being[/align]
[align=left]the South Haven Tribune, on the ___ day of _____________, 2009.[/align]
[align=left]Amanda Morgan, City Clerk[/align]
[align=left]CITY OF SOUTH HAVEN[/align]
[align=left]VAN BUREN AND ALLEGAN COUNTIES, MICHIGAN[/align]
[align=left]RESOLUTION NO. 2009-65[/align]
[align=left]MUNICIPAL CORPORATION CONTROL OVER FIREARMS[/align]
[align=left]ON MUNICIPAL CORPORATION PROPERTY[/align]
[align=left]Minutes of a regular meeting of the City Council of the City of South Haven, Van Buren[/align]
[align=left]and Allegan Counties, Michigan, held in the City Hall, 539 Phoenix Street, South Haven,[/align]
[align=left]Michigan 49090 on November, 2, 2009 at 7:30 p.m. local time.[/align]
[align=left]PRESENT:[/align]
[align=left]ABSENT:[/align]
[align=left]The following preamble and resolution was offered by Member and[/align]
[align=left]supported by Member .[/align]
[align=left]WHEREAS, the Legislature of the State of Michigan has enacted the Firearms and Ammunition[/align]
[align=left]Act, Act 319 of 1990, relating to firearms and ammunition; and,[/align]
[align=left]WHEREAS, the Act removes local control over the carrying of firearms on property owned by[/align]
[align=left]municipal corporations; and,[/align]
[align=left]WHEREAS, property owned by municipal corporations includes areas not generally open to the[/align]
[align=left]public such as utility facilities, administrative offices and public safety facilities where security is[/align]
[align=left]important; and,[/align]
[align=left]WHEREAS, property owned by municipal corporations includes areas such as parks and[/align]
[align=left]recreation facilities which are typically governed by park rules and may have high[/align]
[align=left]concentrations of people in small areas; and,[/align]
[align=left]WHEREAS, private individuals and corporations are allowed to restrict the use and possession[/align]
[align=left]of firearms on private property; and,[/align]
[align=left]WHEREAS, the law creates a disparity between the rights of municipal corporations and the[/align]
[align=left]rights of private individuals and corporations; and,[/align]
[align=left]WHEREAS, Open Carry advocates have become increasingly more active; and,[/align]
[align=left]WHEREAS, at a recent Open Carry Picnic on a public beach in South Haven, one of the[/align]
[align=left]advocates had an accidental discharge of his weapon in a public place that was occupied by[/align]
[align=left]numerous people not associated with the Open Carry Picnic; and,[/align]
[align=left]WHEREAS, there are no training or marksmanship requirements for Open Carry; and,[/align]
[align=left]WHEREAS, local units of government desire to protect officials and employees from assault[/align]
[align=left]with firearms; and,[/align]
[align=left]Resolution 2009-65[/align]
[align=left]- 1 -[/align]
[align=left]Resolution 2009-65[/align]
[align=left]- 2 -[/align]
[align=left]WHEREAS, local units of government find it extremely difficult to protect their citizenry because[/align]
[align=left]of the restrictions in the Firearms and Ammunition Act, and,[/align]
[align=left]WHEREAS, the ability to restrict possession of firearms in certain areas should be restored to[/align]
[align=left]local units of government.[/align]
[align=left]BE IT RESOLVED THAT the City Council of the City of South Haven believes that it is in the[/align]
[align=left]public interest that a municipal corporation have the authority to restrict possession of firearms[/align]
[align=left]on property owned by the municipal corporation.[/align]
[align=left]BE IT FURTHER RESOLVED THAT the City Council urges the Legislature for the State of[/align]
[align=left]Michigan to enact legislation allowing municipal corporations to restrict the possession of[/align]
[align=left]firearms on property owned by municipal corporations.[/align]
[align=left]BE IT FURTHER RESOLVED, that this resolution shall take effect upon passage by the City[/align]
[align=left]Council.[/align]
[align=left]RECORD OF VOTE:[/align]
[align=left]Yeas:[/align]
[align=left]Nays:[/align]
[align=left]RESOLUTION DECLARED ADOPTED.[/align]
[align=left]Dorothy Appleyard, Mayor[/align]
[align=left]Amanda Morgan, City Clerk[/align]
[align=left]CERTIFICATION[/align]
[align=left]I hereby certify that the foregoing is a true and complete copy of a resolution adopted by the[/align]
[align=left]City Council at a meeting held on the ____ day of _________, 2009, at which meeting a quorum[/align]
[align=left]was present, and that this resolution was ordered to take immediate effect. Public notice of said[/align]
[align=left]meeting was given pursuant to and in compliance with the Open Meetings Act, Act No. 167 of[/align]
[align=left]the Public Acts of Michigan 1976 (MCL 15.261 et seq).[/align]
Amanda Morgan, City Clerk
Note below is the report on the AD at the SH Picnic as well as the proposed ordinance amendments.
Also note the last document is a resolution calling for the legislature to give the city back the ability to ban firearms from public places:cuss:.
Note this is all proposals at this time and will be discussed at the Nov 2nd meeting @7:00 PM
I know this is long but please read the whole thing before you comment....
This came from here http://www.south-haven.com/csh%20folder/csh/PDFs/Council%20Agendas%20PDF/Agendas2009/11-02-09%20Council%20Agenda.pdf
[align=left]Background Information:[/align]
[align=left]As part of the report provided to City Council in the October 19, 2009 agenda packet, it was[/align]
[align=left]noted by staff that the city’s adopted ordinances may require amendment, so as to comply[/align]
[align=left]with state law. For tonight’s meeting, staff is requesting the City Council consider taking[/align]
[align=left]action to amend two existing ordinances.[/align]
[align=left]At the October 19, 2009 regular meeting of the City Council, council received a staff report[/align]
[align=left]which related to the “Open Carry” picnic, which was held in South Haven and advocated for[/align]
[align=left]gun owner’s rights. As part of the report, it was noted by staff that the city’s adopted[/align]
[align=left]ordinances may require amendment, so as to comply with state law. Within the report staff[/align]
[align=left]notes that the City of South Haven has received complaints that existing ordinances violate[/align]
[align=left]adopted state law and should be amended to comply with the State of Michigan. The[/align]
[align=left]ordinances are Section 18.34 and Section 58.83; which address individuals carrying or[/align]
[align=left]using firearms within the city’s cemetery or within any of the city’s parks. An opinion was[/align]
[align=left]sought from the city’s attorney regarding the ordinances and the city’s right to regulate[/align]
[align=left]firearms within designated areas. Attorney Scott G. Smith references MCLA (Michigan[/align]
[align=left]Complied Laws Annotated) 123.1101, et seq, subsection 2 which states, “Section 2. A local[/align]
[align=left]unit of government shall not impose special taxation on, enact or enforce any ordinance or[/align]
[align=left]regulation pertaining to, or regulate in any other manner the ownership, registration,[/align]
[align=left]purchase, sale, transfer, transportation or possession of pistols or other firearms,[/align]
[align=left]ammunition for pistols or other firearms, or components of pistols or other firearms, except[/align]
[align=left]as otherwise provided by federal law or a law of this state.” This position was bolstered by[/align]
[align=left]Michigan Coalition for Responsible Gun Owners v. City of Ferndale in which the court ruled[/align]
[align=left]that the City of Ferndale could not establish certain prohibited areas wherein concealed[/align]
[align=left]weapons permit holders could not carry (if such area was not already designated by state[/align]
[align=left]statute). MCLA 28.425 specifically lists “no gun zones” in statute, city buildings and city[/align]
[align=left]parks or cemeteries are not included in the “no gun zones”.[/align]
[align=left]Staff has requested assistance from our local state representative, in acquiring an Attorney[/align]
[align=left]General’s opinion on this issue. Rep. Schuitmaker was contacted regarding this issue. Rep.[/align]
[align=left]Schuitmaker, although currently a member of the state house of representatives, is also a[/align]
[align=left]licensed attorney in the State of Michigan. Aside from researching the issue herself, she did[/align]
[align=left]make contact with the Attorney General, and they both concluded, absent a formal opinion,[/align]
[align=left]that MCLA 123.1101, et seq, subsection 2 is controlling on this issue. In essence, the City[/align]
[align=left]Ordinances/Codes are in violation of state statute and invalid.[/align]
[align=left]Therefore, it is my recommendation that Code of Ordinances for the City of South Haven,[/align]
[align=left]Section 18.34 (cemeteries) and Section 58.83 be amended to strike the “carry or use of any[/align]
[align=left]firearm” in those selected locations as a matter of law.[/align]
[align=left]City Council Agenda[/align]
[align=left]Manager’s Report[/align]
[align=left]November 2, 2009[/align]
[align=left]Clearly, the State of Michigan, through its elected representatives, has decided that local[/align]
[align=left]regulations concerning both “concealed carry” and “open carry” as it related to “no gun[/align]
[align=left]zones” is within their purview alone, and not subject to local control or option.[/align]
[align=left]Additionally, as staff has updated the City Council on the proposed amendments to the[/align]
[align=left]referenced ordinances, it was noted by both council and staff members that Section 58.83[/align]
[align=left]contains restrictive language related to freedom of speech and freedom of assembly. Based[/align]
[align=left]on those observations, the proposed ordinance amendment strikes the prohibitions on[/align]
[align=left]speech and assembly from the updated document.[/align]
[align=left]Finally, staff has noted in various reports to the City Council that the City of South Haven[/align]
[align=left]lacks the authority to restrict possession of firearms on property owned by the city. As a[/align]
[align=left]result, the following ordinances amendments are put forth for consideration. In addition to[/align]
[align=left]the ordinance amendments, staff has prepared the attached resolution, which encourages[/align]
[align=left]the Legislature for the State of Michigan to consider enacting legislation which grants[/align]
[align=left]authority to municipal corporations to restrict possession of firearms on property owned by[/align]
[align=left]the municipality.[/align]
[align=left]Recommendation:[/align]
[align=left]The city’s staff recommends that the Code of Ordinances for the City of South Haven,[/align]
[align=left]Section 18.34 (cemeteries) and Section 58.83 (parks) be introduced as presented, to allow[/align]
[align=left]an amendment which shall strike the “carry or use of any firearm” in those selected locations[/align]
[align=left]as a matter of law.[/align]
[align=left]The city’s staff recommends that the Code of Ordinances for the City of South Haven,[/align]
[align=left]Section 58.83 (parks) be introduced as presented, to allow an amendment which shall strike[/align]
[align=left]the “Speak publicly or deliver oration, address, speech, sermon or lecture,” and “Hold or[/align]
[align=left]participate in any public function other than those conducted by the city” so as to fully[/align]
[align=left]comply with freedom of speech and assembly rights.[/align]
[align=left]Further, the city’s staff recommends that the City Council consider adoption of Resolution[/align]
[align=left]2009-65: A Resolution urging the Legislature for the State of Michigan to enact legislation[/align]
[align=left]allowing municipal corporations to restrict the possession of firearms on property owned by[/align]
[align=left]municipal corporations.[/align]
[align=left]Thank you for your time and attention.[/align]
[align=left]Support Material:[/align]
[align=left]CPL Report[/align]
[align=left]Clark Hill Firearms Memo[/align]
[align=left]Proposed Ordinance Amendment: Section 18-34[/align]
[align=left]Proposed Ordinance Amendment: Section 58-83[/align]
[align=left]Proposed Resolution[/align]
[align=left]City Council Agenda[/align]
[align=left]Manager’s Report[/align]
[align=left]November 2, 2009[/align]
[align=left]Date: October 13, 2009[/align]
[align=left]To: City Manager Brian Dissette[/align]
[align=left]From: Chief Rod A. Somerlott[/align]
[align=left]Re: Review of Open Carry Picnic and pertinent City Code Issues[/align]
[align=left]As you are aware Open Carry of Michigan held a picnic near the South Beach (the[/align]
[align=left]pavilion near the South Beach Restrooms) on Sunday, September 13, 2009. This event[/align]
[align=left]was scheduled to run from approximately 1:00PM until 4:00PM. The organizers[/align]
[align=left]indicated that this was merely to attempt to educate the public regarding citizen’s right to[/align]
[align=left]keep and bear arms. More importantly, that under color of law, a citizen may “openly”[/align]
[align=left]carry a firearm within the State of Michigan except for designated areas as declared in[/align]
[align=left]statute by the Michigan Legislature.[/align]
[align=left]This event went on without much fanfare. A reasonable sized group attended the picnic,[/align]
[align=left]most of which were openly carrying firearms. At the conclusion of the picnic, a number[/align]
[align=left]of attendees had parked their vehicles in the South Beach Parking area. Their vehicles[/align]
[align=left]were co-mingled with the usual beach going public enjoying the South Beach on a warm[/align]
[align=left]afternoon. At approximately 4:26PM, the South Haven Dispatch Center received reports[/align]
[align=left]of shots being fired on the South Beach. The on duty officers immediately responded to[/align]
[align=left]the location, in addition to the arriving oncoming shift officers whom also responded to[/align]
[align=left]the report. As soon as proper information was gathered, a radio message was sent[/align]
[align=left]regarding the suspect vehicle, direction of travel, and that it was occupied by more than[/align]
[align=left]one individual. Several officers remained at South Beach to process the scene, while[/align]
[align=left]other officers were alerted and attempting to locate the suspect vehicle.[/align]
[align=left]The suspect vehicle was located on LeGrange Street, near the old Movie Outpost[/align]
[align=left]business, and was subsequently stopped in that parking lot. The vehicle was occupied by[/align]
[align=left]four individuals. All four were questioned and gave permission for our officers to inspect[/align]
[align=left]their firearms.[/align]
[align=left]These individuals had all attended the Open Carry Picnic at South Beach. One of the[/align]
[align=left]individuals, Jonathan Wayne Sager, indicated that he is the one that had the “accidental”[/align]
[align=left]discharge of his firearm. Mr. Sager advised the officers that after attending the Open[/align]
[align=left]Carry picnic, he and his friends were returning to their parked vehicle (spot #24 on South[/align]
[align=left]Beach) wherein each of his friends unloaded their respective weapons one at a time and[/align]
[align=left]secured them in the appropriate weapons box in the back of their vehicle (a pickup truck).[/align]
[align=left]Mr. Sager advise he was the last to unload (each subject unloaded their weapon, one by[/align]
[align=left]one) and after removing the magazine, he attempted to pull back the slide to remove the[/align]
[align=left]ammunition from the breech, when the firearm discharged. He was able to secure the[/align]
[align=left]weapon and then they attempted to locate the police department to report the incident.[/align]
[align=left]First of all, the individuals did not have concealed pistol permits and entering a vehicle[/align]
[align=left]and leaving the south beach while still “carrying” a firearm, would have subjected them[/align]
[align=left]to criminal prosecution for carrying a concealed weapon without a permit. Therefore, the[/align]
[align=left]logic in unloading and securing the weapons was well conceived, the execution of such a[/align]
[align=left]plan was not. Secondly, the weapon, a Springfield XD handgun, upon inspection was[/align]
[align=left]found to be in sound working order. The weapon itself contains an internal safety that[/align]
[align=left]will not allow a discharge to occur without someone depressing the trigger to a firing[/align]
[align=left]position. Mr. Sager was allowed to leave of his own accord and his weapon was returned[/align]
[align=left]to him. The report was forwarded to the Van Buren County Prosecutor’s Office where a[/align]
[align=left]warrant was authorized for one count of Reckless Use of a Firearm (a misdemeanor). Mr.[/align]
[align=left]Sager turned himself into the court and was arraigned on the charge.[/align]
[align=left]Prior to all of this occurring, the City was put on notice concerning to City Codes that[/align]
[align=left]were thought to be in violation of current law. The ordinances Section 18.34 and Section[/align]
[align=left]58.83, speak to individuals carrying or using firearms in the city cemetery or in any city[/align]
[align=left]park. A legal opinion was requested from City Attorney Manning. In his opinion, he felt[/align]
[align=left]that the State of Michigan “grants municipalities the right to enact and enforce ordinances[/align]
[align=left]and regulations relative to the management and control of municipal property; this[/align]
[align=left]includes the discharge and use of firearms, including pistols, and may regulate “open[/align]
[align=left]carry” or “plain sight displays” of firearms, including pistols, in other public areas,[/align]
[align=left]including their own property.” In that statement, Attorney Manning concludes that the[/align]
[align=left]City can regulate “open carry”, but, cannot regulate those who have received a Concealed[/align]
[align=left]Pistol License (CPL). Therefore if a person is carrying a firearm in the cemetery or park,[/align]
[align=left]openly, without a Concealed Pistol License they would be subject to prosecution under[/align]
[align=left]our existing ordinance.[/align]
[align=left]Corporate Council Scott Smith’s view of the code/ordinances is strikingly opposite of[/align]
[align=left]Attorney Manning. Smith relies on MCLA (Michigan Complied Laws Annotated)[/align]
[align=left]123.1101, which states, “Section 2. A local unit of government shall not impose special[/align]
[align=left]taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any[/align]
[align=left]other manner the ownership, registration, purchase, sale, transfer, transportation or[/align]
[align=left]possession of pistols or other firearms, ammunition for pistols or other firearms, or[/align]
[align=left]components of pistols or other firearms, except as otherwise provided by federal law or a[/align]
[align=left]law of this state.” This position was bolstered by Michigan Coalition for Responsible[/align]
[align=left]Gun Owners v. City of Ferndale, 256 App 401 (2003), in which the court ruled that the[/align]
[align=left]City of Ferndale could not establish certain prohibited areas wherein CPL holders could[/align]
[align=left]not carry (if such area was not already designated by state statute). MCLA 28.425o[/align]
[align=left]specifically lists “no gun zones” in statute, city buildings and city parks or cemeteries are[/align]
[align=left]not included in the “no gun zones”. Further, as previously stated (MCLA 123.1101, et[/align]
[align=left]seq, subsection 2), the legislature made it very clear in the passing of that statute that[/align]
[align=left]City’s cannot regulate the carry of firearms, only the state can do that.[/align]
[align=left]Although Manning’s argument is clearly on an “open carry” issue, Smith’s argument, as[/align]
[align=left]backed up by further research, is that both “concealed carry “and “open carry” are[/align]
[align=left]regulated by state statute, not local ordinance. Although the question to the Attorney[/align]
[align=left]General was clearly on the “open carry” issue, the request must be made through our[/align]
[align=left]local legislator. Rep. Schuitmaker was contacted regarding this issue. Rep. Schuitmaker,[/align]
[align=left]although currently a member of the state house of representatives, is also a licensed[/align]
[align=left]attorney in the state of Michigan. Aside from researching the issue herself, she did make[/align]
[align=left]contact with the Attorney General, and they both concluded, absent a formal opinion, that[/align]
[align=left]MCLA 123.1101, et seq, subsection 2 is controlling on this issue. In essence, the City[/align]
[align=left]Ordinances/Codes are in violation of state statute and invalid.[/align]
[align=left]Therefore, it is my recommendation that Code of Ordinances for the City of South[/align]
[align=left]Haven, Section 18.34 (cemeteries) and Section 58.83 be amended to strike the “carry or[/align]
[align=left]use of any firearm” in those selected locations as a matter of law.[/align]
[align=left]Clearly, the State of Michigan, through its elected representatives, has decided that local[/align]
[align=left]regulations concerning both “concealed carry” and “open carry” as it related to “no gun[/align]
[align=left]zones” is within their purview alone, and not subject to local control or option.[/align]
[align=left]Attachments[/align]
[align=left]LEAF Newsletter[/align]
[align=left]SHPD Comp # 1913-09[/align]
[align=left]CONFIDENTIAL[/align]
[align=left]MEMORANDUM[/align]
[align=left]5927502.1 26369/105143[/align]
[align=left]TO: Mr. Brian Dissette[/align]
[align=left]City Manager[/align]
[align=left]City of South Haven[/align]
[align=left]FROM: Scott G. Smith[/align]
[align=left]Kenneth P. Lane[/align]
[align=left]DATE: July 9, 2009[/align]
[align=left]SUBJECT: Carrying of firearms in City parks and cemeteries[/align]
[align=left]Background[/align]
[align=left]Residents and others have recently contacted the City suggesting that two sections of the City’s code of[/align]
[align=left]ordinances impose an improper restriction on the carrying and possession of firearms in violation of state[/align]
[align=left]law. City ordinance Section 58-83(3) prohibits the carrying or use of any firearm in any City park.1 City[/align]
[align=left]ordinance Section 18-34 prohibits the possession of any firearm in any City cemetery.2 Accordingly, the[/align]
[align=left]question has become: does state law preempt the City from prohibiting the carrying or possessing of[/align]
[align=left]firearms in City parks and cemeteries?[/align]
[align=left]Analysis[/align]
[align=left]With limited exception,3 Michigan law prohibits a local unit of government4 from regulating by local[/align]
[align=left]ordinance the ownership, registration, purchase, sale, transfer, transportation or possession of pistols or[/align]
[align=left]other firearms.5 Michigan courts have interpreted this prohibition to mean that only the state has the[/align]
[align=left]authority to regulate the possession of firearms.6 “Possession” has been defined to include open7 and[/align]
[align=left]concealed carrying.8[/align]
[align=left]Michigan law requires an individual to obtain a license to possess and carry a pistol.9 Once the pistol is[/align]
[align=left]licensed, an individual may openly10 carry it anywhere in the state, except in those areas expressly[/align]
[align=left]1 Code of Ordinances, City of South Haven, Michigan, Section 58-83(3).[/align]
[align=left]2 Code of Ordinances, City of South Haven, Michigan, Section 18-34.[/align]
[align=left]3 Exceptions include: 1) prohibiting or regulating conduct with a pistol or other firearm that is a criminal offense under state law;[/align]
[align=left]e.g., possession without a license, possession with the intent to commit a criminal act, possession by a minor, or the[/align]
[align=left]“brandishing” of a firearm (“brandishing is defined as waving or flourishing a weapon in a menacing manner, See, Mich OAG[/align]
[align=left]7101, 2002); 2) prohibiting or regulating the transportation, carrying or possession of pistols or firearms by City employees; and[/align]
[align=left]3) prohibiting the discharge of a pistol or firearm (City Ordinance Section 54-181 prohibits the discharging of firearms within the[/align]
[align=left]City). MCL 123.1103, MCL 123.1104.[/align]
[align=left]4 A city, village, township or county. MCL 123.1101.[/align]
[align=left]5 MCL 123.1102.[/align]
[align=left]6 Subject to the exceptions listed above. See, Michigan Coalition for Responsible Gun Owners v Ferndale, 256 Mich App 401,[/align]
[align=left]418 (2003).[/align]
[align=left]7 “Open carrying” is recognized as within a holster that is in plain view. Mich OAG, No. 7113, 2002.[/align]
[align=left]8 People v Womack, 2009 Mich App LEXIS 158, citing, People v Green, 260 Mich App 392 (2004), Mich OAG, No. 7113, 2002,[/align]
[align=left]Mich OAG 7101, 2002.[/align]
[align=left]9 MCL 28.442. A “pistol” is defined as a loaded or unloaded firearm that is 30 inches or less in length, or a loaded or unloaded[/align]
[align=left]firearm that by its construction and appearance conceals it as a firearm. MCL 28.421(e). A “firearm” is defined as a weapon[/align]
[align=left]from which a dangerous projectile may be propelled by an explosive, or by gas or air, excluding a rifle or handgun designed and[/align]
[align=left]manufactured exclusively for propelling by a spring, or by gas or air, BB’s not exceeding .177 caliber. MCL 28.421(b).[/align]
[align=left]10 Again, it is important to note that “open carrying” is recognized as within a holster that is in plain view. Mich OAG, No. 7113,[/align]
[align=left]2002.[/align]
[align=left]CONFIDENTIAL MEMORANDUM PAGE 2[/align]
[align=left]5927502.1 26369/105143[/align]
[align=left]prohibited by state law.11 Additionally, an individual may obtain a separate license to carry a pistol[/align]
[align=left]concealed on their person anywhere in the state, except in those areas expressly prohibited by state law.12[/align]
[align=left]City parks, cemeteries and buildings are not recognized as prohibited areas.[/align]
[align=left]An individual without a license may not legally possess or carry a pistol.13[/align]
[align=left]Conclusion[/align]
[align=left]With limited exception, Michigan law preempts the City from regulating the carrying or possession of[/align]
[align=left]pistols and other firearms. Michigan law permits an individual to openly carry a licensed pistol on City[/align]
[align=left]property. Additionally, Michigan law permits a licensed individual to carry a pistol concealed on their[/align]
[align=left]person on City property. As such, state law does preclude the City from enforcing Ordinance Sections[/align]
[align=left]58-83(3) and 18-34 against individual who have obtained the required license. However, both sections[/align]
[align=left]may be enforced against individuals carrying a pistol in a City park or cemetery without the required[/align]
[align=left]license. Both sections can be modified to comply with state law by including the phrase “except as[/align]
[align=left]otherwise permitted by law”. We would be happy to assist you with the formal amendment of both[/align]
[align=left]sections upon your request.[/align]
[align=left]11 MCL 28.442. Prohibited areas are: banks, churches or other houses of worship, courts, theatres, schools and day care centers,[/align]
[align=left]sports arenas or stadiums, bars or taverns, and hospitals. MCL 750.234d.[/align]
[align=left]12 MCL 28.425c(2). Prohibited areas are: schools, day care centers, sports arenas or stadiums, bars or taverns, religious facilities[/align]
[align=left]owned or operated by a religious entity, entertainment facilities, hospitals, and college buildings. MCL 28.425o.[/align]
[align=left]13 MCL 28.422, MCL 28.422a, MCL 750.227, MCL 750.234d(2)(c).[/align]
[align=left]CITY OF SOUTH HAVEN[/align]
[align=left]VAN BUREN AND ALLEGAN COUNTIES, MICHIGAN[/align]
[align=left]ORDINANCE NO. ____[/align]
[align=left]AN ORDINANCE AMENDING SECTION 18-34 OF THE[/align]
[align=left]CITY OF SOUTH HAVEN CODE OF ORDINANCES[/align]
[align=left]WHEREAS, the Michigan Legislature has adopted MCLA 123.1102, which prohibits a[/align]
[align=left]municipality from enacting or enforcing any ordinance or regulation pertaining to, or regulate in[/align]
[align=left]any other manner the ownership, registration, purchase, sale, transfer, transportation, or[/align]
[align=left]possession of pistols or other firearms.[/align]
[align=left]THEREFORE, The City of South Haven Ordains:[/align]
[align=left]SECTION 1[/align]
[align=left]That Section 18-34 of the Code of Ordinances for the City of South Haven is hereby amended[/align]
[align=left]to read as follows:[/align]
[align=left]Sec. 18-34. Enumeration of forbidden acts.[/align]
[align=left]Within the cemetery, no person shall loiter, litter, use profane language, bring in or[/align]
[align=left]consume any alcoholic beverage or controlled substance, peddle or solicit the sale of any[/align]
[align=left]commodity unconnected to cemetery usage, place signs or notices, allow animals to run at[/align]
[align=left]large or otherwise beyond his control, or engage in any play or recreational activity.[/align]
[align=left]SECTION 2[/align]
[align=left]If any portion of this ordinance is for any reason held invalid, such decision shall not affect the[/align]
[align=left]validity of the remaining provisions of this ordinance.[/align]
[align=left]SECTION 3[/align]
[align=left]Any ordinance or part thereof in conflict with the provision of this ordinance is hereby repealed[/align]
[align=left]to the extent of such conflict.[/align]
[align=left]SECTION 4[/align]
[align=left]The effective date of this ordinance shall not be earlier than ten (10) days after enactment and[/align]
[align=left]not before publication in the South Haven Tribune.[/align]
[align=left]INTRODUCED by the City Council of the CITY OF SOUTH HAVEN, MICHIGAN on this ____[/align]
[align=left]day of _____________, 2009.[/align]
[align=left]ADOPTED by the City Council of the CITY OF SOUTH HAVEN, MICHIGAN on this ____ day of[/align]
[align=left]_______________, 2009.[/align]
[align=left]Ordinance No. ____[/align]
[align=left]-1-[/align]
[align=left]Ordinance No. ____[/align]
[align=left]-2-[/align]
[align=left]Dorothy Appleyard, Mayor[/align]
[align=left]Amanda Morgan, City Clerk[/align]
[align=left]CERTIFICATION[/align]
[align=left]I, Amanda Morgan, Clerk of the City of South Haven, Van Buren County, Michigan do hereby[/align]
[align=left]certify that the above Ordinance was adopted by the South Haven City Council on the ___ day[/align]
[align=left]of ______, 2009; and the same was published in a paper of general circulation in the City, being[/align]
[align=left]the South Haven Tribune, on the ___ day of _____________, 2009.[/align]
[align=left]Amanda Morgan, City Clerk[/align]
[align=left]CITY OF SOUTH HAVEN[/align]
[align=left]VAN BUREN AND ALLEGAN COUNTIES, MICHIGAN[/align]
[align=left]ORDINANCE NO. ____[/align]
[align=left]AN ORDINANCE AMENDING SECTION 58-83 OF THE[/align]
[align=left]CITY OF SOUTH HAVEN CODE OF ORDINANCES[/align]
[align=left]WHEREAS, the Michigan Legislature has adopted MCLA 123.1102, which prohibits a[/align]
[align=left]municipality from enacting or enforcing any ordinance or regulation pertaining to, or regulate in[/align]
[align=left]any other manner the ownership, registration, purchase, sale, transfer, transportation, or[/align]
[align=left]possession of pistols or other firearms.[/align]
[align=left]THEREFORE, The City of South Haven Ordains:[/align]
[align=left]SECTION 1[/align]
[align=left]That Section 58-83 of the Code of Ordinances for the City of South Haven is hereby amended[/align]
[align=left]to read as follows:[/align]
[align=left]Sec. 58-83. Prohibited activities.[/align]
[align=left]No person or organization shall do any of the following activities in a park without the written[/align]
[align=left]consent of the city manager. The person or organization may appeal the city manager’s[/align]
[align=left]decision to the city council should they feel the need to do so.[/align]
[align=left](1) Carry or use air rifles or slingshots or discharge any fireworks or explosive devices of any[/align]
[align=left]nature.[/align]
[align=left](2) Erect any structure.[/align]
[align=left](3) Canvass, advertise, solicit, vend or rent any service, merchandise or object of any kind,[/align]
[align=left]except as allowed by City Ordinance Section 14-44.1, et seq.[/align]
[align=left](4) For any gatherings in excess of 500 people, chapter 42 of this Code shall apply.[/align]
[align=left](5) Consume or have in their possession, in an open or closed container, any vinous; malt,[/align]
[align=left]brewed, fermented, spirituous, or alcoholic liquors.[/align]
[align=left]SECTION 2[/align]
[align=left]If any portion of this ordinance is for any reason held invalid, such decision shall not affect the[/align]
[align=left]validity of the remaining provisions of this ordinance.[/align]
[align=left]SECTION 3[/align]
[align=left]Any ordinance or part thereof in conflict with the provision of this ordinance is hereby repealed[/align]
[align=left]to the extent of such conflict.[/align]
[align=left]SECTION 4[/align]
[align=left]Ordinance No. ____[/align]
[align=left]-1-[/align]
[align=left]Ordinance No. ____[/align]
[align=left]-2-[/align]
[align=left]The effective date of this ordinance shall not be earlier than ten (10) days after enactment and[/align]
[align=left]not before publication in the South Haven Tribune.[/align]
[align=left]INTRODUCED by the City Council of the CITY OF SOUTH HAVEN, MICHIGAN on this ____[/align]
[align=left]day of _____________, 2009.[/align]
[align=left]ADOPTED by the City Council of the CITY OF SOUTH HAVEN, MICHIGAN on this ____ day of[/align]
[align=left]_______________, 2009.[/align]
[align=left]Dorothy Appleyard, Mayor[/align]
[align=left]Amanda Morgan, City Clerk[/align]
[align=left]CERTIFICATION[/align]
[align=left]I, Amanda Morgan, Clerk of the City of South Haven, Van Buren County, Michigan do hereby[/align]
[align=left]certify that the above Ordinance was adopted by the South Haven City Council on the ___ day[/align]
[align=left]of ______, 2009; and the same was published in a paper of general circulation in the City, being[/align]
[align=left]the South Haven Tribune, on the ___ day of _____________, 2009.[/align]
[align=left]Amanda Morgan, City Clerk[/align]
[align=left]CITY OF SOUTH HAVEN[/align]
[align=left]VAN BUREN AND ALLEGAN COUNTIES, MICHIGAN[/align]
[align=left]RESOLUTION NO. 2009-65[/align]
[align=left]MUNICIPAL CORPORATION CONTROL OVER FIREARMS[/align]
[align=left]ON MUNICIPAL CORPORATION PROPERTY[/align]
[align=left]Minutes of a regular meeting of the City Council of the City of South Haven, Van Buren[/align]
[align=left]and Allegan Counties, Michigan, held in the City Hall, 539 Phoenix Street, South Haven,[/align]
[align=left]Michigan 49090 on November, 2, 2009 at 7:30 p.m. local time.[/align]
[align=left]PRESENT:[/align]
[align=left]ABSENT:[/align]
[align=left]The following preamble and resolution was offered by Member and[/align]
[align=left]supported by Member .[/align]
[align=left]WHEREAS, the Legislature of the State of Michigan has enacted the Firearms and Ammunition[/align]
[align=left]Act, Act 319 of 1990, relating to firearms and ammunition; and,[/align]
[align=left]WHEREAS, the Act removes local control over the carrying of firearms on property owned by[/align]
[align=left]municipal corporations; and,[/align]
[align=left]WHEREAS, property owned by municipal corporations includes areas not generally open to the[/align]
[align=left]public such as utility facilities, administrative offices and public safety facilities where security is[/align]
[align=left]important; and,[/align]
[align=left]WHEREAS, property owned by municipal corporations includes areas such as parks and[/align]
[align=left]recreation facilities which are typically governed by park rules and may have high[/align]
[align=left]concentrations of people in small areas; and,[/align]
[align=left]WHEREAS, private individuals and corporations are allowed to restrict the use and possession[/align]
[align=left]of firearms on private property; and,[/align]
[align=left]WHEREAS, the law creates a disparity between the rights of municipal corporations and the[/align]
[align=left]rights of private individuals and corporations; and,[/align]
[align=left]WHEREAS, Open Carry advocates have become increasingly more active; and,[/align]
[align=left]WHEREAS, at a recent Open Carry Picnic on a public beach in South Haven, one of the[/align]
[align=left]advocates had an accidental discharge of his weapon in a public place that was occupied by[/align]
[align=left]numerous people not associated with the Open Carry Picnic; and,[/align]
[align=left]WHEREAS, there are no training or marksmanship requirements for Open Carry; and,[/align]
[align=left]WHEREAS, local units of government desire to protect officials and employees from assault[/align]
[align=left]with firearms; and,[/align]
[align=left]Resolution 2009-65[/align]
[align=left]- 1 -[/align]
[align=left]Resolution 2009-65[/align]
[align=left]- 2 -[/align]
[align=left]WHEREAS, local units of government find it extremely difficult to protect their citizenry because[/align]
[align=left]of the restrictions in the Firearms and Ammunition Act, and,[/align]
[align=left]WHEREAS, the ability to restrict possession of firearms in certain areas should be restored to[/align]
[align=left]local units of government.[/align]
[align=left]BE IT RESOLVED THAT the City Council of the City of South Haven believes that it is in the[/align]
[align=left]public interest that a municipal corporation have the authority to restrict possession of firearms[/align]
[align=left]on property owned by the municipal corporation.[/align]
[align=left]BE IT FURTHER RESOLVED THAT the City Council urges the Legislature for the State of[/align]
[align=left]Michigan to enact legislation allowing municipal corporations to restrict the possession of[/align]
[align=left]firearms on property owned by municipal corporations.[/align]
[align=left]BE IT FURTHER RESOLVED, that this resolution shall take effect upon passage by the City[/align]
[align=left]Council.[/align]
[align=left]RECORD OF VOTE:[/align]
[align=left]Yeas:[/align]
[align=left]Nays:[/align]
[align=left]RESOLUTION DECLARED ADOPTED.[/align]
[align=left]Dorothy Appleyard, Mayor[/align]
[align=left]Amanda Morgan, City Clerk[/align]
[align=left]CERTIFICATION[/align]
[align=left]I hereby certify that the foregoing is a true and complete copy of a resolution adopted by the[/align]
[align=left]City Council at a meeting held on the ____ day of _________, 2009, at which meeting a quorum[/align]
[align=left]was present, and that this resolution was ordered to take immediate effect. Public notice of said[/align]
[align=left]meeting was given pursuant to and in compliance with the Open Meetings Act, Act No. 167 of[/align]
[align=left]the Public Acts of Michigan 1976 (MCL 15.261 et seq).[/align]
Amanda Morgan, City Clerk