Michigan Criminal Attorneys Blog
Michigan has a regulatory scheme concerning firearms that places great limitations on how local governments are able to enforce alleged firearms violations. Michigan Compiled Law 123.1102 states that “[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, other firearms, or pneumatic guns, 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”. This means that local governments are not allowed to enact laws concerning firearms and pneumatic guns (bb guns or pellet guns), unless they are specifically allowed to under federal and/or state Law. The legal term for this practice is “preemption”. The doctrine of preemption is also supported by Michigan Court interpretation of the law (See Michigan Coalition for Responsible Gun Owners v. City of Ferndale, 256 Mich App 401 (2003)).
There are a few exceptions to preemption under state law that are contained in Michigan Compiled Law 123.1103. The local government is allowed to prohibit or regulate conduct that is a criminal offense in Michigan under state law. This means that local governments are allowed to adopt the language of state laws or state codes and enforce those codes. The local governments cannot adopt their own prohibitions that differ from state law (See MCL 123.1103(b)).
The state also allows local governments from preventing local government employees from transporting, carrying, and/or possessing pistols, firearms, and/or pneumatic guns in the course of their employment. In Michigan, local governments can also place restrictions on persons below the age of 16 from carrying pneumatic guns in public (See MCL 123.1103(c)).
Finally, local governments are allowed to prohibit an individual from pointing, waiving, or displaying a pneumatic gun in a threatening manner with the intent to induce fear in another individual (See MCL 123.1103(d)).
Even though their are prohibitions and limitations on local governments from enacting such laws, the same frequently occurs. A recent example occurred with one of my clients in the City of Troy.
The City of Troy has enacted several local laws that place prohibitions and limitations on the possession of pistols, firearms, and pneumatic guns in public (see Troy ordinances 98.13.01 through 98.13.05). The issue in my case concerned Troy ordinance 98.13.02 which concerning the carrying of any firearm in any public place unless it is unloaded in both barrel and magazine and in a case. This offense is a misdemeanor with a potential 90 day jail sentence and $500 fine. “Firearm” is defined by Troy ordinance 98.01.02.1 as any weapon from which a dangerous projectile may be propelled by using explosives, gas, or air as a means or propulsion.
The individual I represented was 20 years old and allegedly open carrying a bb gun in public. The gun was not pointed at anyone. He was not walking in a school safety zone or other location which can exclude the possession of bb guns. He complied with police officers in a non threatening manner when approached.
After an evidentiary hearing was conducted and the arguments of counsel were considered, Judge Hartig decided that the City of Troy was preempted from enforcing local ordinance 98.13.02 against my client. The case was dismissed.
This blog is not a substitute for seeking legal advice concerning your own particular circumstances. Firearms laws are complex. Local ordinances vary greatly. There are many federal, state, and local prohibitions and restrictions that can have both a positive and negative impact on you. With any alleged violation of firearms laws an experienced criminal lawyer is essential. For questions concerning your ability to open carry a pistol, firearm, or pneumatic gun in Michigan, Michigan Open Carry, Inc. is a great resource to consult.