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Thread: A question for folks more legal savvy than I...........

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    Regular Member Bikenut's Avatar
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    A question for folks more legal savvy than I...........

    I posted some of this in a different thread but the premise captured my attention... yet I'm not legal savvy enough to know if there is any weight or leverage in the concept............ help would be appreciated.

    In regards to illegal ordinances.......

    "Active enforcement" would be when a police officer arrested a person for violating an ordinance.

    "Passive enforcement" would be when a council intentionally allows an illegal ordinance to remain on the books where citizens can read it and after reading it obey it because they are unaware of MCL 123.1102.

    Now I underlined and put intentionally in bold for a reason... because if the council knows the ordinance is illegal yet refuses to change it to comply with State law then it is obvious the council's intention is to mislead folks into believing the ordinance is legal and must be obeyed.... which would be "passive enforcement".

    Ok... now my question... since

    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.

    would that part in bold only refer to "active enforcement" or would it also refer to "passive enforcement"?

    If it refers to "passive enforcement" and a council knows the ordinance is illegal yet refuses to change it... is there any actual legal recourse against a council that knowingly breaks State law?
    Gun control isn't about the gun at all.... for those who want gun control it is all about their own fragile egos, their own lack of self esteem, their own inner fears, and most importantly... their own desire to dominate others. And an openly carried gun is a slap in the face to all of those things.

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    Regular Member TheQ's Avatar
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    Dictionary.com says, in part:

    enforce (ɪnˈfɔːs) [Click for IPA pronunciation guide]

    — vb
    1. to ensure observance of or obedience to (a law, decision, etc)
    2. to impose (obedience, loyalty, etc) by or as by force
    3. to emphasize or reinforce (an argument, demand, etc)
    #2 seems to fit what you describe. There are penalties outlined for violating the ordinance, so that would serve to intimidate potential violators.

    MCL 123.1102 makes no list of recourse available to it's violators. Ergo, it'd be left for the courts to sort out. Good luck with that!

    ETA: Thanks for making a new thread versus hijacking my Lansing Thread

    ETA: I don't think I am more legal savvy than you, just another legal layman.
    Last edited by TheQ; 01-03-2011 at 06:47 PM.
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    Regular Member Bikenut's Avatar
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    Quote Originally Posted by TheQ View Post
    Dictionary.com says, in part:



    #2 seems to fit what you describe. There are penalties outlined for violating the ordinance, so that would serve to intimidate potential violators.

    ETA: Thanks for making a new thread versus hijacking my Lansing Thread

    MCL 123.1102 makes no list of recourse available to it's violators. Ergo, it'd be left for the courts to sort out. Good luck with that!
    Actually I was thinking that there may be other laws that would apply to council members actively and purposefully violating State law by intentionally engaging in "passive enforcement". But I'm not legally savvy enough to know about conspiracy's or malfeasance.. or any other stuff that might apply... or if it would apply.

    But I am wondering if a case can be made that a council that has been made aware of it's illegal ordinance yet refuses to change it is intentionally breaking the law. I just wonder if the "intentionally" part would have any legal recourse that had teeth...... unlike MCL 123.1102.
    Gun control isn't about the gun at all.... for those who want gun control it is all about their own fragile egos, their own lack of self esteem, their own inner fears, and most importantly... their own desire to dominate others. And an openly carried gun is a slap in the face to all of those things.

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    Regular Member eastmeyers's Avatar
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    Can you not file a PPO against the City? I know this sounds extreme, but its the only resource I can think of. I could be completely off base, but if someone wants to give it a try... This would let a judge know whats up in the least.

    ETA: This is all I could find, seems to be only against individuals.

    http://www.legislature.mi.gov/(S(zxr...e=mcl-600-2950 (bam)
    Last edited by eastmeyers; 01-03-2011 at 07:37 PM.
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    Enforcement is enforcement. If you get pulled for speeding, you get a ticket, you might not realise you were speeding so I guess you would be passively speeding, but you will still have to go pay your driving tax, er, ticket.

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    Regular Member sprinklerguy28's Avatar
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    Quote Originally Posted by eastmeyers View Post
    Can you not file a PPO against the City? I know this sounds extreme, but its the only resource I can think of. I could be completely off base, but if someone wants to give it a try... This would let a judge know whats up in the least.

    ETA: This is all I could find, seems to be only against individuals.

    http://www.legislature.mi.gov/(S(zxr...e=mcl-600-2950 (bam)
    PPOs are for individuals only. Why would one be needed? You can however file in circuit court to have a judge rule on the ordinances in question.

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    Regular Member PDinDetroit's Avatar
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    Quote Originally Posted by sprinklerguy28 View Post
    PPOs are for individuals only. Why would one be needed? You can however file in circuit court to have a judge rule on the ordinances in question.
    IMO, IANAL.

    The filing would be for an Injunction, which part of the injunctive relief could result in a Temporary Restraining Order. Today, this is allowable but reimbursement may be an issue (probable several $1000's cost to an individual). With what has been proposed in the following link, reimbursement would be covered.

    http://forum.opencarry.org/forums/sh...=1#post1387590

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    Michigan Moderator DrTodd's Avatar
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    Quote Originally Posted by stainless1911 View Post
    Enforcement is enforcement. If you get pulled for speeding, you get a ticket, you might not realise you were speeding so I guess you would be passively speeding, but you will still have to go pay your driving tax, er, ticket.
    My impression is that they can have a law that is not enforced... ie they don't have to "take it off the books". The example I use for this is speed limitations on Michigan roads. In 2006, Michigan passed a law that the setting the speed limits on Michigan roads is to be based upon "vehicular access points" (driveways and business entrances) per half mile. In doing this, the Michigan legislature set the speed limits on all roads in Michigan, which up to this point had been determined by cities and counties. In effect, the speed limits on most roads is set arbitrarily too low. The cities and counties have balked at this and, with very few exceptions, have maintained and enforced the improper speed limits. See: http://theblogprof.blogspot.com/2010...imits-set.html
    The actual law: http://legislature.mi.gov/doc.aspx?mcl-257-627

    Basically, people are cited for exceeding an illegal speed restriction and the driver pays the fine... even though the limit itself is illegal. If you do get stopped for speeding, and if you know that the limit is too low and you did not exceed the "real" speed limit, your ticket must be thrown out. In the area where I live, I have checked using GoogleEarth the speed limits on roads that I drive most often and have found that about 3/4 of the roads' speed limits are too low. Having this knowledge, I drive what I know to be the speed limit and, if stopped, I will inform the officer of this. If he/she refuses to acknowledge the error, I will then take my ticket to court.

    This may not seem to be a huge issue, but it is illegal for the police to enforce incorrect speed limitations on our roads and one police chief, Dennis Edwards of Grand Haven PD, was ostensible placed on administrative leave because he refused to enforce the illegal laws.
    http://www.mlive.com/news/muskegon/i..._haven_ci.html

    So, is it "right" for the police to enforce illegal ordinances? No. Do they do it? Most certainly. Now, I am not sure what can be done to remedy such situations BUT the chief does say "Asking officers to ticket motorists on those streets puts the city at risk of legal trouble..." “A police officer cannot be ordered to violate a law or take any action which is unethical, immoral or illegal,” “To do so leaves the department, its officers and this city at risk from lawsuit and violations of civil rights.” Perhaps he learned his lesson with the lawsuit following the "attack" on an OCer at Grand Haven's Coast Guard Festival a few years ago... I don't know. But it appears that even the police are told that they must enforce an illegal law or face public humiliation/ being fired.

    Oh, by the way, adultery is also illegal in Michigan but that law, too, is "never" enforced.
    See: http://legislature.mi.gov/doc.aspx?mcl-750-30
    Last edited by DrTodd; 01-04-2011 at 11:34 AM. Reason: clarity
    Giving up our liberties for safety is the one sure way to let the violent among us win.

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    Quote Originally Posted by DrTodd View Post
    My impression is that they can have a law that is not enforced... ie they don't have to "take it off the books". The example I use for this is speed limitations on Michigan roads. In 2006, Michigan passed a law that the number of setting the speed limits on Michigan roads based upon "vehicular access points" (driveways and business entrances) per half mile. In doing this, the Michigan legislature set the speed limits on roads within a city, which up to this point had been determined by cities and counties. In effect, the speed limits on most roads is set arbitrarily too low. The cities and counties have balked at this and, with very few exceptions, have maintained and enforced the improper speed limits. See: http://theblogprof.blogspot.com/2010...imits-set.html
    The actual law: http://legislature.mi.gov/doc.aspx?mcl-257-627

    Basically, people are cited for exceeding an illegal speed restriction and the driver pays the fine... even though the limit itself is illegal. If you do get stopped for speeding, and if you know that the limit is too low and you did not exceed the "real" speed limit, your ticket must be thrown out. In the area where I live, I have checked using GoogleEarth the speed limits on roads that I drive most often and have found that about 3/4 of the roads' speed limits are too low. Having this knowledge, I drive what I know to be the speed limit and, if stopped, I will inform the officer of this. If he/she refuses to acknowledge the error, I will then take my ticket to court.

    This may not seem to be a huge issue, but it is illegal for the police to enforce incorrect speed limitations on our roads and one police chief, Dennis Edwards of Grand Haven PD, was ostensible placed on administrative leave because he refused to enforce the illegal laws.
    http://www.mlive.com/news/muskegon/i..._haven_ci.html

    So, is it "right" for the police to enforce illegal ordinances? No. Do they do it? Most certainly. Now, I am not sure what can be done to remedy such situations BUT the chief does say "Asking officers to ticket motorists on those streets puts the city at risk of legal trouble..." “A police officer cannot be ordered to violate a law or take any action which is unethical, immoral or illegal,” “To do so leaves the department, its officers and this city at risk from lawsuit and violations of civil rights.” Perhaps he learned his lesson with the lawsuit following the "attack" on an OCer at Grand Haven's Coast Guard Festival a few years ago... I don't know. But it appears that even the police are told that they must enforce an illegal law or face public humiliation/ being fired.

    Oh, by the way, adultery is also illegal in Michigan but that law, too, is "never" enforced.
    See: http://legislature.mi.gov/doc.aspx?mcl-750-30
    I guess I'm lucky to live in a good township. The police/township changed the speed signs and follow state law in this regard. But not before some bitching from the public where the speed signs/limits on their roads got increased.

    The city of Lansing still has the signs up downtown and have had several people get the ticket dismissed. They don't seem to care.
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    *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.

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    Regular Member PDinDetroit's Avatar
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    Quote Originally Posted by DrTodd View Post
    My impression is that they can have a law that is not enforced... ie they don't have to "take it off the books". The example I use for this is speed limitations on Michigan roads. In 2006, Michigan passed a law that the setting the speed limits on Michigan roads is to be based upon "vehicular access points" (driveways and business entrances) per half mile. In doing this, the Michigan legislature set the speed limits on all roads in Michigan, which up to this point had been determined by cities and counties. In effect, the speed limits on most roads is set arbitrarily too low. The cities and counties have balked at this and, with very few exceptions, have maintained and enforced the improper speed limits. See: http://theblogprof.blogspot.com/2010...imits-set.html
    The actual law: http://legislature.mi.gov/doc.aspx?mcl-257-627

    Basically, people are cited for exceeding an illegal speed restriction and the driver pays the fine... even though the limit itself is illegal. If you do get stopped for speeding, and if you know that the limit is too low and you did not exceed the "real" speed limit, your ticket must be thrown out. In the area where I live, I have checked using GoogleEarth the speed limits on roads that I drive most often and have found that about 3/4 of the roads' speed limits are too low. Having this knowledge, I drive what I know to be the speed limit and, if stopped, I will inform the officer of this. If he/she refuses to acknowledge the error, I will then take my ticket to court.

    This may not seem to be a huge issue, but it is illegal for the police to enforce incorrect speed limitations on our roads and one police chief, Dennis Edwards of Grand Haven PD, was ostensible placed on administrative leave because he refused to enforce the illegal laws.
    http://www.mlive.com/news/muskegon/i..._haven_ci.html

    So, is it "right" for the police to enforce illegal ordinances? No. Do they do it? Most certainly. Now, I am not sure what can be done to remedy such situations BUT the chief does say "Asking officers to ticket motorists on those streets puts the city at risk of legal trouble..." “A police officer cannot be ordered to violate a law or take any action which is unethical, immoral or illegal,” “To do so leaves the department, its officers and this city at risk from lawsuit and violations of civil rights.” Perhaps he learned his lesson with the lawsuit following the "attack" on an OCer at Grand Haven's Coast Guard Festival a few years ago... I don't know. But it appears that even the police are told that they must enforce an illegal law or face public humiliation/ being fired.

    Oh, by the way, adultery is also illegal in Michigan but that law, too, is "never" enforced.
    See: http://legislature.mi.gov/doc.aspx?mcl-750-30
    IIRC, the local Police Chiefs serve at the pleasure of the local Mayor. I believe that this could possibly be a conflict of interest and could lead to the situations described above. I know it would be a PIA, but I believe that Local Police Chiefs should be an Elected Position, not appointed.

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    Michigan Moderator DrTodd's Avatar
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    Quote Originally Posted by PDinDetroit View Post
    IIRC, the local Police Chiefs serve at the pleasure of the local Mayor. I believe that this could possibly be a conflict of interest and could lead to the situations described above. I know it would be a PIA, but I believe that Local Police Chiefs should be an Elected Position, not appointed.
    So... if that's the case, how can we expect LEOs to NOT enforce a city ordinance that prohibits or controls firearms and/or ammunition? Perhaps a logical way to deal with this is to talk with PD Chiefs if city boards/councils fail to remove the illegal ordinances. At least the incentive for police chiefs would be to avoid possible civil rights prosecutions against them and their officers; they may be open to talking with us if other means fail.
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer – I am not a lawyer! Please do not consider anything you read from me to be legal advice.

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    Regular Member PDinDetroit's Avatar
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    Quote Originally Posted by DrTodd View Post
    So... if that's the case, how can we expect LEOs to NOT enforce a city ordinance that prohibits or controls firearms and/or ammunition? Perhaps a logical way to deal with this is to talk with PD Chiefs if city boards/councils fail to remove the illegal ordinances. At least the incentive for police chiefs would be to avoid possible civil rights prosecutions against them and their officers; they may be open to talking with us if other means fail.
    Good idea.

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    Quote Originally Posted by DrTodd View Post
    My impression is that they can have a law that is not enforced... ie they don't have to "take it off the books". The example I use for this is speed limitations on Michigan roads. In 2006, Michigan passed a law that the setting the speed limits on Michigan roads is to be based upon "vehicular access points" (driveways and business entrances) per half mile. In doing this, the Michigan legislature set the speed limits on all roads in Michigan, which up to this point had been determined by cities and counties. In effect, the speed limits on most roads is set arbitrarily too low. The cities and counties have balked at this and, with very few exceptions, have maintained and enforced the improper speed limits. See: http://theblogprof.blogspot.com/2010...imits-set.html
    The actual law: http://legislature.mi.gov/doc.aspx?mcl-257-627

    Basically, people are cited for exceeding an illegal speed restriction and the driver pays the fine... even though the limit itself is illegal. If you do get stopped for speeding, and if you know that the limit is too low and you did not exceed the "real" speed limit, your ticket must be thrown out. In the area where I live, I have checked using GoogleEarth the speed limits on roads that I drive most often and have found that about 3/4 of the roads' speed limits are too low. Having this knowledge, I drive what I know to be the speed limit and, if stopped, I will inform the officer of this. If he/she refuses to acknowledge the error, I will then take my ticket to court.

    This may not seem to be a huge issue, but it is illegal for the police to enforce incorrect speed limitations on our roads and one police chief, Dennis Edwards of Grand Haven PD, was ostensible placed on administrative leave because he refused to enforce the illegal laws.
    http://www.mlive.com/news/muskegon/i..._haven_ci.html

    So, is it "right" for the police to enforce illegal ordinances? No. Do they do it? Most certainly. Now, I am not sure what can be done to remedy such situations BUT the chief does say "Asking officers to ticket motorists on those streets puts the city at risk of legal trouble..." “A police officer cannot be ordered to violate a law or take any action which is unethical, immoral or illegal,” “To do so leaves the department, its officers and this city at risk from lawsuit and violations of civil rights.” Perhaps he learned his lesson with the lawsuit following the "attack" on an OCer at Grand Haven's Coast Guard Festival a few years ago... I don't know. But it appears that even the police are told that they must enforce an illegal law or face public humiliation/ being fired.

    Oh, by the way, adultery is also illegal in Michigan but that law, too, is "never" enforced.
    See: http://legislature.mi.gov/doc.aspx?mcl-750-30

    Local Governments that Enact laws with disregard to MCL 123.1102
    Local Governments are in violation of, Shall Not Enact, whether they enforce or not enforce.

    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.
    Thats the way i read it, jmo

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    Quote Originally Posted by Gort View Post
    Local Governments that Enact laws with disregard to MCL 123.1102
    Local Governments are in violation of, Shall Not Enact, whether they enforce or not enforce.

    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.
    Thats the way i read it, jmo
    +1

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    Michigan Moderator DrTodd's Avatar
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    Most laws have the "punishment" listed... what is the punishment? Is it a felony, misdemeanor....or a civil infraction? Umm... I think they left that part out. So, in a nutshell, it is illegal for a "local unit of government" to enact or enforce a restriction on firearms or ammunition other than those listed in the state law BUT the ONLY way that a "local unit of government" can be punished is for those effected to pursue a charge of denial of rights under color of law? At the very least, the wrongful arrest/ prosecution requires that those so charged spend their own money to get justice. What a crock!
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer – I am not a lawyer! Please do not consider anything you read from me to be legal advice.

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