Michigan Court of Appeals Denies Appeal, Says Open Carry at Polls Is Legal

October 30, 2020by Paul Egan, Detroit Free Press
Attorney General Dana Nessel, center, Secretary of State Jocelyn Benson, center left, applauds Gov. Gretchen Whitmer during the State of the State address at the State Capitol in Lansing, Michigan, on January 29, 2020. (Junfu Han/Detroit Free Press/TNS)

LANSING, Mich. — The open carry of firearms will be permitted at the polls on Election Day, under an order issued Thursday by the Michigan Court of Appeals.

A three-member panel of the court rejected Secretary of State Jocelyn Benson’s appeal of a ruling that struck down her directive banning the open carry of guns at or around polling places on Election Day.

In declining to hear the appeal, the panel said that although concerns about voter intimidation involving firearms are valid, the state already has laws to handle that.

“Voter intimidation is — and remains — illegal under current Michigan law,” the panel said.

Also, “brandishing a firearm in public is — and remains — illegal under current Michigan law.” Therefore, “anyone who intimidates a voter in Michigan by brandishing a firearm … is committing a felony under existing law, and that law is — and remains _enforceable by our executive branch as well as local law enforcement.”

Michigan Attorney General Dana Nessel filed an emergency appeal with the Michigan Supreme Court Thursday night.

“Just today, a poll released by the Detroit News and WDIV-TV indicated that 73% of Michigan voters say openly carried guns should be banned near polling places,” Nessel spokesman Ryanend nu Jarvi said. “The merits of this issue — which impacts all Michiganders — deserves full and expedited consideration by our state’s highest court.”

Although Benson’s directive remains without force under the Thursday order, existing state law could still prohibit some Michiganders from openly carrying firearms at some polling places. Schools are often used as polling places and guns are generally prohibited on school grounds, though concealed pistol license holders are allowed to open carry on school property.

There is no Michigan law that expressly permits the open carry of firearms. Rather, it is presumed to be legal anywhere it is not expressly prohibited. Those places include courthouses, hospitals, casinos and large sports arenas.

Benson’s directive, issued Oct. 16, banned the open carry of guns on Election Day not just at or near polling places, but around municipal clerks’ offices and places where ballots are counted.

On Thursday, Michigan Court of Claims Judge Christopher Murray issued a preliminary injunction against the directive, saying it amounted to an administrative rule and Benson did not take the proper steps to implement it, through the Administrative Procedures Act.

Activist Robert Davis and several gun rights groups had sued over the directive.

Davis called Thursday’s ruling a victory for the rule of law.

“I hope that the Secretary of State and attorney general learn their lesson and begin to follow the law rather than trying to change the law unilaterally,” Davis said.

The three judges on the panel — Patrick Meter, Michael Gadola, and Brock Swartzle — were all appointed to the court by Republican governors.

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Staff writer Dave Boucher contributed to this report.

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(c)2020 Detroit Free Press

Distributed by Tribune Content Agency, LLC

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