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Wednesday, February 23,2011

Who makes the rules?

The attorney for the Capital Area District Library says the library has a case to back its weapons policy

by Andy Balaskovitz
Illustration by Vince Joy

The duel between the Capital Area District Library and gun rights advocates has moved to a new venue: Ingham County Circuit Court.


CADL was granted a temporary restraining order last week against members of the gun rights advocacy group Michigan Open Carry, whose members have repeatedly challenged the library’s weapons policy by openly carrying pistols and even a shotgun into the downtown branch. The library wants an injunction against group members and affiliates, barring them from openly carrying guns in any one of CADL’s 13 branches.


Since Dec. 11, there have been at least six incidences of people openly carrying guns in the downtown CADL branch. The library’s weap- ons policy allows valid Concealed Pistol License holders to carry concealed their weapons, but it does not allow any weapons to be out in the open. The issue in court will be whether CADL can have such a policy. Michigan Open Carry contends that a 1990 state law prevents local units of government from instituting such policies.


But under that law, CADL’s attorney Gary Bender says that, as an “authority,” the library is exempt.


Bender says the library is a qualified “authority” under the state’s 1989 District Library Establishment Act, which allows it to “create our own board, pass rules and regulations, raise revenue by assessing taxes and enter into agreements with municipalities.”


“Because we are deemed an authority by the Michigan Legislature, the Michigan Firearms and Ammunitions Act does not apply to us,” he said.


The Firearms and Ammunitions Act of 1990 is: “An act to prohibit local units of government from imposing certain restrictions on the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols or other firearms … .”


A local unit of government is defined in the act as a “city, village, township, or county.”


“That definition of local unit of government does not include authorities. If the Legislature intended to include authorities, it would have,” Bender said. “(The law) does not pre-empt authorities from having its own weapons policy.”


A hearing is scheduled for Thursday before Ingham County Circuit Judge Rosemarie Aquilina. No one has filed an appearance representing Michigan Open Carry in court as of Tuesday afternoon.


In 2002, the city of Ferndale adopted an ordinance that banned weapons on city property. The Michigan Coalition for Responsible Gun Owners sued the city. The case made it to the state Supreme Court, which ruled the city’s ordinance was illegal. Michigan Open Carry members cite the case as precedence.


But Bender says the Ferndale case doesn’t apply here in Lansing.


“That was a city, and they do fall under the Firearms and Ammunitions Act,” he said. “We are not a city, township, village or county.”


Mike Stollenwerk, co-founder of the nationwide “Internet community” OpenCarry.org, said via e-mail from Fairfax County, Va. that he has never seen a temporary restraining order against a group of open carriers.


“Usually there is some resistance, then the governmental units finally accept reality,” he said. “I am surprised that the court issued the temporary restraining order without a hearing since even the Authority admits that there is a clear preemption statute which potentially bars the authority from banning gun carry — courts are usually cautious in overruling legislative acts.”


“I think they (the library) are looking to get the issue resolved in a way that lets them save face,” he added.


Meanwhile, within 24 hours after CADL received the restraining order, an 18-year-old Lansing man tested it by openly carrying what he said was a Hi-Point C-9 pistol into a library board meeting on the third floor of the downtown branch. He said it was the same pistol he had carried into the library the week before, when he had identified himself only by his first name of Tyler. He said he had carried a shotgun into the library on Dec. 11.


Whether he brought a real pistol into the board meeting was challenged by a witness, who said it was a plastic Airsoft Pistol that shoots plastic BBs that he had colored over to make it look like a real pistol. Airsoft guns cost between $2 and $45.


“That’s entirely false,” Tyler said, responding to allegations that his gun was fake. “I don’t own any air guns.”


Initial media reports said the Lansing Police Department recognized the gun as an Airsoft Pistol at the board meeting. The LPD did not return calls for comment.


CADL Director Lance Werner, who was at the board meeting, is sure it was a plastic gun.


“Normally they have an orange ring around the tip of them. It was all blacked out. We realized it was an Airsoft Pistol and not a firearm,” Werner said.


Nonetheless, the LPD arrived at the scene and held Tyler in custody for about 30 minutes in the basement, Tyler said.


“Then they let me go,” he said. Tyler added that he was unaware of the restraining order when he went to the board meeting openly carrying. “As long as the TRO is in place I do not intend to go there while armed.”


In most of the instances of openly carried guns at the downtown library, the LPD was called and asked the members to leave, and they did.


Lansing Mayor Virg Bernero called Michigan Open Carry members’ protests of the library’s no-weapons policy “ridiculous.”


“If my kids were there, it doesn’t provide a great deal of comfort (to me),” he said of people openly carrying guns. “In fact, just the opposite. I find it hard to believe they are creating an atmosphere of safety.”


Bernero added: “I’d love to be able to legally prevent it,” acknowledging that the city can’t institute a ban on guns in public.

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