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Wednesday, January 5,2011

Open carry

The Capital Area District Library is reviewing its no-weapons policy after two people with guns were asked to leave in the past month

by Andy Balaskovitz

On Dec. 11, an unidentified man walked through the downtown Capital Area District Library with a shotgun strapped to his shoulder. After an alarmed patron called the police, the man was asked to leave and he did.


CADL has a no-weapons policy.


A similar incident happened again Monday when a man with a handgun strapped to his hip passed through. He was asked to leave, and he did.


But the incidents have prompted CADL’s legal counsel to investigate the legality of its no-weapons policy.


Vince Spagnuolo, an attorney with Murphy, Brenton and Spagnuolo in Lansing who is representing the library, said he is looking at two factors: Lansing has an ordinance that says no firearms or dangerous weapons can be carried in public places unless it is in a case
and is not loaded. Also, does the library qualify as a guns-free zone
because it leases property from the Lansing School District?


Spagnuolo
said Michigan Open Carry, a statewide chapter of the national gun
rights group, contends that state law preempts local units of
government. However, Spagnuolo added that the library may not fall into
that category, as it is an authority and not a unit of government.


He
said the downtown CADL’s long-term lease with the Lansing School
District may also qualify it as a gun-free zone. Schools are exempt
under the 1995 Federal Gun Free School Zone Act.


“There’s
an issue there,” he said.


The question now is not whether the two men
had a right to carry their guns— neither was arrested or charged with a
crime — but whether the library is allowed to ban guns. Spagnuolo said
he expects to have his legal opinion ready by Jan. 12, where he will
present it to the CADL Board at its Committee of the Whole Meeting.


Rob Harris, vice president of Michigan Open Carry, said his organization will wait to
hear from Spagnuolo Jan. 12. He said he hopes the policy is dropped,
but he would not say if the group will pursue legal action if it isn’t.


In the meantime, CADL director Lance Werner said the policy will remain in place.


“We’re sticking to our policy for now and we should have some resolution after (Jan. 12),” he said.


Werner said this is the first time he has seen a challenge to CADL’s policy.


Steven
Dulan, an attorney in East Lansing who also teaches Second Amendment
law at Cooley Law School, said there is some precedence in Michigan on
this issue.


The
Michigan Coalition for Responsible Gun Owners successfully sued the city
of Ferndale in 2003 for having a no-weapons-on-city-property ordinance.
The city of East Lansing, after learning of the Ferndale ruling by the
state Supreme Court, repealed a similar ordinance, said East Lansing
City Attorney Dennis McGinty.


However, the CADL case is different because it may qualify as a gun-free zone.


Dulan,
who is a member of Michigan Coalition of Responsible Gun Owners but
does not openly carry a gun, says state law is clear on it: “Open carry
is legal in Michigan. Every person has the right to keep and bear arms,
and there aren’t any statutes prohibiting that. The parameter for where they can is that they’re not a trespasser or on school property,” he said.


As for the school property issue, he could cite no precedent that dealt with another entity leasing space.


“So
far, we don’t have any case law clearly drawing the line on school
property. If the school district owns the property and the library is a
tenant there, I don’t know if that has any bearing,” he said.


Open carry is a different subject than carrying a concealed weapon because you don’t need a permit to do so, Dulan said.


“The
theory is that if you carry openly, fellow citizens are aware you’re
carrying a gun, so they can be alert of your behavior,” he said.
“Whereas, when you conceal the gun, you have the element of surprise.”


Dulan added that this uncertainty around gun rights is par for the course.


“It’s
often surprising to people that firearms law is constantly developing.
Attorneys will say it’s not well-settled because there aren’t a lot of
Supreme Court decisions for guidance,” he said.


McGinty agrees that what comes of the school issue could be interesting.


“That tie-in could make a difference,” he said.


The Dec. 11 incident has been a topic of discussion lately on Open Carry’s online forum.


The
man who allegedly open carried with his shotgun (who declined to be
interviewed) described it like this: “Then….Downtown Library,where i was
told to leave due to a no weapons policy,i told them that MCL 123.1102
supercedes that policy in regards to firearms but they didnt
listen,rather than cause a scene i got contact information for the head
of the library whom I will be emailing shortly regarding preemption and
they’re policy,this is a public library.”


Responses
on the forum ranged from supporting the man and questioning CADL’s
policy to claiming he misrepresented Open Carry by carrying a shotgun at
a library, as Open Carry generally focuses on handgun rights.


Spagnuolo
said that if he CADL decides to maintain its no-weapons policy, “There
is always the possibility of litigation” by opponents.


Two
days after the CADL account, the man with the shotgun had another local
open carry experience to share: “OC’d at jimmy johns,mikho’s party
store(have written permission)Lansing Police S. Precinct. and then
discount tire. But the night isn’t over yet either,and i plan to go more
places …”

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