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Can I Open Carry on School Grounds with a CPL?

Sep 11th, 2018 Gun Laws Can I Open Carry on School Grounds with a CPL?

Yes, unless the school specifically has a policy against open carry, a person with a valid CPL may open carry on school grounds. However, the multitude of laws addressing this topic is so nuanced that a person wishing to open carry on school grounds should consider contacting the school and the local police agency prior to open carrying on school grounds.

The issue of open carry on school grounds has been extensively litigated finally resolved by at the end of July 2018 Michigan Supreme Court opinion by the name of Michigan Gun Owners, Inc v. Ann Arbor Public Schools. In this case, the plaintiffs, Michigan Gun Owners and Michigan Open Carry, Inc., set forth Michigan law supporting open carry on school grounds as follows:

  • MCL § 750.237a(4) generally prohibits possession of a firearm within a “weapon free school zone”.
  • MCL § 750.237a(5)(c) exempts “an individual who is licensed by this state or another state to carry a concealed weapon”.
  • MCL § 28.425o(1)(a) generally prohibits the carrying of a “concealed weapon” at a school or school property. However, this statute specifically provides an exception for a concealed pistol licensee while in a vehicle on school property, if he or she is dropping the student off at the school or picking up the student from the school.
  • 18 USC §922(q)(2)(A) restricts knowingly possessing a firearm in a school zone. An exception exists for an individual licensed to do so by the State in which the school zone is located. 18 USC §922(q)(2)(B)(ii).

It was the Michigan Gun Owner and Michigan Open Carry, Inc.’s position in this case that because of the interplay between the above sections of Michigan law, open carry is allowed, for CPL holders only, and that Michigan Public Schools were precluded from modifying this law in any way by the law of preemption.  This second argument was based on MCL § 123.1102, which preempts local units of government from adopting firearm ordinances or regulations.

Prior cases addressing this issue, and discussed by the parties, included People v Llewellyn, 401 Mich 314 (1977) (holding that an ordinance is preempted if “the ordinance is in direct conflict with the state statutory scheme, and even if the local ordinance does not directly conflict with state law, the ordinance is preempted if “the state statutory scheme . . . occup[ies] the field of regulation which the municipality seeks to enter . . . .”) and Capital Area Dist Library v Michigan Open Carry, Inc, 298 Mich App 220 (2012) (CADL) (holding that the district library could not enact a firearms ban).

In the instant case, the trial court granted summary disposition in favor of the school district, ruling that there was no express preemption under MCL § 123.1102, no legislative history supporting preemption, no single body of law or cohesive scheme regulating guns such that preemption could be implied, and that the nature of firearms regulation did not demand exclusive state regulation (the Llewellyn factors).

The Michigan Supreme Court affirmed the Trial Court and the Michigan Court of Appeals, and in so ruling the Supreme Court looked at the “panoply” of gun laws in Michigan, covering “200 pages” which collectively created “pervasive regulations” of firearms in the State.  Also, that included among these 200 pages of laws, are “26 different laws” specifically referencing “weapon free school zones.” The Supreme Court majority concluded that the repeated use of these four words by Michigan’s gun laws telegraphed “an unmistakable objective” on the part of the State Legislature, regarding guns and schools. The majority opinion indicated further “indeed, we find it hard to imagine a more straightforward expression of legislative will.”  Thus, the Court found that a school is within its rights to enact a policy which prohibits open carry on school grounds.

This opinion has, of course, created something of a dilemma for a person wishing to open carry on school grounds, especially because law enforcement has not historically had one uniform way of interpreting or enforcing these laws. Mr. Joel Gerring, Assistant Legal Counsel for Michigan Association of School Boards has indicated that some policing agencies have definitively stated that they recognize the right of a CPL holder to openly carry on school grounds and therefore would not eject anyone for such.  Even without a specific policy addressing open carry other agencies had been willing, upon the request of the district, to eject anyone from school grounds for possessing a weapon and did so based on the various weapon free school zone laws that exist. The new Supreme Court’s ruling regarding the ability of a district to develop policies may not have changed this “difference in interpretation” between law enforcement agencies. While it remains true that there is no violation of law to openly carry at a school so long as one possesses a CPL, this fact does not necessarily mean that local law enforcement won’t continue to eject individuals at the request of a district, regardless of whether a policy exists.

Mr. Gerring suggests that the best way to prevent unwanted and unwelcome police contact is through due-diligence. Accordingly, private citizens wishing to open carry should contact the subject school and ask them about their open carry policy.  If they find that there is no policy, such individual should further confirm that CPL holders will be allowed to open carry on school grounds without interference by the school.  Additionally, private citizens should also contact local law enforcement and find out how they would handle the matter.  Armed with this information the citizen could then choose to challenge the issue while avoiding the inadvertent ejection from school property or even arrest.

It is worth noting that Chief Justice Markman would have would have reversed the judgment of the Court of Appeals in both cases based on the law of preemption, which the majority opinion did not address.  In his dissenting opinion, he sets forth his contrary opinion which is based in part on MCL § 380.11a(3) which gives school districts the authority to enact policies that provide for the safety and welfare of pupils while at school “except as otherwise provided by law.” Even though state law does “otherwise provide,” MCL § 750.237a(4) does expressly exempt individuals licensed by this state to carry a concealed pistol from this prohibition, leaving the open carry question open. Specifically, Markman’s opinion indicates that “Plaintiffs have cited and called to the attention of this Court and the lower courts the two statutes I view as dispositive: MCL § 380.11a(3) and MCL § 750.237a. Given that I conclude it is unnecessary to look beyond these statutes, this opinion does nothing out of the ordinary in relying upon these statutes and reaching the conclusion, exclusively on the basis of these statutes, that the school districts’ policies are clearly void.”