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STATE OF MICHIGAN 

COURT OF APPEALS 

MICHIGAN OPEN CARRY INC. and KENNETH 

HERMAN, 

 Plaintiffs-Appellees, 

FOR PUBLICATION 

December 15, 2016 

9:10 a.m. 

v No. 329418 

Genesee Circuit Court 

CLIO AREA SCHOOL DISTRICT, FLETCHER 

SPEARS, III, and KATRINA MITCHELL, 

LC No. 15-104373-CZ 

 Defendants-Appellants. 

Before: K. F. KELLY, P.J., and GLEICHER and SHAPIRO, JJ. 

PER CURIAM. 

 The issue presented is whether state law preempts Clio Area School District policies 

banning the possession of firearms in schools and at school-sponsored events. We hold that it 

does not, and reverse the judgment of the circuit court. 

I 

 On June 5, 1996, defendant, Clio Area School District (CASD), promulgated policy 

7217, which provides: 

 The Board of Education prohibits visitors from possessing, storing, 

making, or using a weapon in any setting that is under the control and supervision 

of the Board including, but not limited to, property leased, owned, or contracted 

for by the Board, a school-sponsored event, or in a Board-owned vehicle. 

* * * 

 The term “weapon” means any object which, in the manner in which it is 

used, is intended to be used, or is represented, is capable of inflicting serious 

bodily harm or property damage, as well as endangering the health and safety of 

persons. Weapons include, but are not limited to, firearms, guns of any type, 

including spring, air and gas-powered guns, (whether loaded or unloaded), that 

will expel a BB, pellet, or paint balls knives, razors, clubs, electric weapons, 

metallic knuckles, martial arts weapons, ammunition, and explosives or any other 

weapon described in 18 U.S.C. 921. 
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 This prohibition applies regardless of whether the visitor is otherwise 

authorized by law to possess the weapon, including if the visitor holds a 

concealed weapons permit. The following are the exceptions to this policy: 

A. weapons under the control of law enforcement personnel; 

B. items approved by a principal as part of a class or individual presentation 

under adult supervision, if used for the purpose of and in the manner approved 

(working firearms and ammunition shall never be approved); 

C. theatrical props that do not meet the definition of “weapon” above, used in 

appropriate settings; 

D. starter pistols used in appropriate sporting events. 

 These restrictions shall not apply in the following circumstances to 

persons who are also properly licensed to carry a concealed weapon: 

A. A parent or legal guardian of a student of the school may carry a concealed 

weapon while in a vehicle on school property, if s/he is dropping the student off at 

the school or picking up the student from the school and any person may carry a 

concealed weapon solely in the parking lot. 

B. A county corrections officer, a member of a Sheriff’s posse, a police or 

sheriffs reserve or auxiliary officer, or a State Department of Corrections parole 

or corrections officer, a private investigator, a Michigan State Police motor carrier 

officer or Capitol security officer, a State court judge, a security officer required 

by the employer to carry a concealed weapon while on the premises, a court 

officer 

C. A retired police or law enforcement officer, a retired Federal law enforcement 

officer, or a retired State court judge. 

Signs advising of this policy are placed at every CASD school and warn violators that they will 

be denied admittance. 

 In September 2013, plaintiff, Kenneth Herman, attempted to visit his child’s elementary 

school while openly carrying a pistol for which he possessed a concealed pistol license. Herman 

claimed he was thereafter denied access to the school on several occasions in 2013 and 2014 for 

his open pistol possession. Finally, in November 2014, the CASD threatened to summon 

authorities if Herman again attempted to enter the building with his weapon. 

 As a result of these incidents, Herman and plaintiff, Michigan Open Carry, Inc., filed suit 

against the district and certain district officials. Plaintiffs’ complaint asserts that Michigan law 

allows Herman to openly carry a pistol on school property because state law preempts a local 

unit of government from regulating the possession of firearms. According to plaintiffs, the 

CASD qualifies as a “local unit of government.” 
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 Defendants sought summary disposition, arguing that Michigan law confers on public 

school districts the right to address the safety and welfare of the students and prevent disruption 

to the educational environment by enacting policies such as that in question. Defendants also 

cited Davis v Hillsdale Community Sch Dist, 226 Mich App 375; 573 NW2d 77 (1997), for the 

proposition that a school district has plenary power to ban weapons from its premises. No state 

statute conflicts with this authority, the CASD urged, and caselaw governing preemption does 

not encompass the ability of school districts to regulate firearms on their premises. 

 Primarily relying on this Court’s decision in Capital Area Dist Library v Michigan Open 

Carry, Inc, 298 Mich App 220; 826 NW2d 736 (2012) (CADL), contended that state law allows 

certain individuals to carry guns on school property in specific circumstances and preempts any 

attempts by local units of government to regulate firearms. Michigan’s statutory regulation of 

firearms is so pervasive, plaintiffs insisted, that the entire firearms field is preempted and school 

districts are foreclosed from any rule-making regarding firearms. More specifically, plaintiffs 

asserted that the CASD policy contradicted and therefore was preempted by MCL 123.1102, 

which provides: 

 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.[1]

 In resolving this case, the circuit court declared that “the outcome of this case is relatively 

simple.” US Const, Am 2 and Const 1963, art I, § 6 entitle citizens to bear arms. But, the court 

noted, that right “is not unlimited.” For example, in District of Columbia v Heller, 554 US 570, 

626; 128 S Ct 2783; 171 L Ed 2d 637 (2008), the United States Supreme Court held that 

“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the 

possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms 

in sensitive places such as schools and government buildings[.]”2 The court continued: 

 The Michigan [L]egislature has seen fit to pass certain laws limiting the 

right of individual[s] to possess firearms specifically with respect to the issue in 

this case, an individual shall not possess a concealed weapon in a weapons-free 

school zone, MCL [750.237a(1)]. An individual shall not possess a weapon in a 

weapons free school zone – that’s MCL [750.237a(4)] – unless that individual is 

licensed to carry a concealed weapon, MCL [750.237a(5)]. An individual 

licensed to carry a concealed pistol shall not carry a concealed pistol on school 

 

1

 The statute was amended to add pneumatic guns after CADL issued. See 2015 PA 29. 

2

 On appeal, defendants cite Heller and posit that citizens do not have an unlimited Second 

Amendment right to possess arms on school property. The circuit court accepted that 

proposition and we need not address it further. 
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property; that’s MCL [28.425o(1)(a)]; however, a parent or guardian licensed to 

carry a concealed pistol, may carry that pistol concealed while in a vehicle on 

school property either dropping the student off at school or picking the student up 

from school. 

 When you read this law as a whole and these statutes as a whole, these 

statutes do not prohibit an individual, who is licensed to carry a concealed pistol 

from openly possessing a pistol in a weapons free school zone. The Michigan 

Legislature evidently has not seen fit to completely prohibit individuals from 

possessing firearms on school property. 

 The circuit court distinguished the current case from Davis, noting that Davis permitted a 

school district to direct discipline of students possessing weapons, not to “do anything that it 

wants” to exclude pistols from its properties. And given the pervasive nature of the state 

statutes, the court rejected CASD’s challenge against preemption. 

 In relation to plaintiffs’ arguments, the court found CADL controlling. The court ruled 

that the school district was “a quasi-municipal corporation,” just like the district library in CADL, 

rendering the cases “virtually identical.” CADL “held that the Michigan Legislature has 

occupied the field of firearm regulation to such an extent that State law preempts a quasimunicipal corporation’s attempts to regulate in that same field.” Accordingly, the circuit court 

granted summary disposition and entered a declaratory judgment in plaintiffs’ favor, thereby 

invalidating CASD’s firearms ban. Defendants appeal that ruling. 

II 

 We first address plaintiffs’ contention that the CASD weapons policy directly contradicts 

MCL 28.425o, specifically subsection (1)(a), which provides in relevant part as follows: 

 (1) Subject to subsection (5), an individual licensed under this act to carry a 

concealed pistol, or who is exempt from licensure under [MCL 28.432a(1)(h)], 

shall not carry a concealed pistol on the premises of any of the following: 

(a) A school or school property except that a parent or legal guardian of a student 

of the school is not precluded from carrying a concealed pistol 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. As used in this section, “school” and “school 

property” mean those terms as defined in . . . MCL 750.237a. 

* * * 

 (5) Subsections (1) and (2) do not apply to any of the following: 

(a) An individual licensed under this act who is a retired police officer, retired law 

enforcement officer, or retired federal law enforcement officer. 

(b) An individual who is licensed under this act and who is employed or 

contracted by an entity described under subsection (1) to provide security services 
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and is required by his or her employer or the terms of a contract to carry a 

concealed firearm on the premises of the employing or contracting entity. 

(c) An individual who is licensed as a private investigator or private detective 

under the professional investigator licensure act, 1965 PA 285, MCL 338.821 to 

338.851. 

(d) An individual who is licensed under this act and who is a corrections officer of 

a county sheriff’s department or who is licensed under this act and is a retired 

corrections officer of a county sheriff’s department, if that individual has received 

county sheriff approved weapons training. 

(e) An individual who is licensed under this act and who is a motor carrier officer 

or capitol security officer of the department of state police. 

(f) An individual who is licensed under this act and who is a member of a sheriff’s 

posse. 

(g) An individual who is licensed under this act and who is an auxiliary officer or 

reserve officer of a police or sheriff’s department. 

(h) An individual who is licensed under this act and who is any of the following: 

(i) A parole, probation, or corrections officer, or absconder recovery unit member, 

of the department of corrections, if that individual has obtained a Michigan 

department of corrections weapons permit. 

(ii) A retired parole, probation, or corrections officer, or retired absconder 

recovery unit member, of the department of corrections, if that individual has 

obtained a Michigan department of corrections weapons permit. 

(i) A state court judge or state court retired judge who is licensed under this act. 

(j) An individual who is licensed under this act and who is a court officer. 

Plaintiffs argue that because MCL 28.425o(1)(a) addresses the right of concealed pistol license 

holders to carry a concealed pistol on school property in certain circumstances, CASD’s policy 

banning weapons is expressly preempted. 

 We resolved this very issue in the companion case placed before this Court, Michigan 

Gun Owners, Inc v Ann Arbor Public Schs, ___ Mich App ___; ___ NW2d ___ (Docket No. 

329632, issued _____), slip op at ___: 

 We read the statute differently. MCL 28.425o(1)(a) imposes a blanket 

prohibition on carrying a concealed pistol on school grounds (“shall not”) subject 

to certain specific and limited exceptions. The statute does not expressly forbid 

additional regulation, or declare that its subparts supersede any other school-
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related firearm rules. More to the point, AAPS policy 5420 specifically 

references and acknowledges that MCL 28.425o controls the ability of concealed 

pistol license holders to carry a concealed pistol under the distinct circumstances 

conforming to the statute. We find no conflict between the statute and the AAPS 

policies, and thus no express preemption. Moreover, as discussed in greater detail 

in the next section, this statute’s virtually categorical limitation of the presence of 

weapons in educational settings strongly implies that the Legislature intended this 

enactment to curtail the carrying of weapons in public schools.

 The CASD policy does not expressly reference MCL 28.425o. However, it does provide 

exceptions to its ban consistent with the statute. We discern no conflict between the district 

policy and statute in this case either. 

III 

 Defendants assert that its firearms policy is consistent with state law permitting school 

districts to make their schools “gun free zones.” For this reason, CADL is readily distinguishable 

from the current action. 

 As provided in Michigan Gun Owners, ___ Mich App at ___, slip op at ___: 

 As always, we begin with the language of the statute. In MCL 

123.1101(b), the Legislature defined the term “local unit of government” to mean 

“a city, village, township, or county.”4

 In CADL, this Court held that although a 

district library established pursuant to the District Library Establishment Act, 

MCL 397.171 et seq., is not “a city, village, township, or county,” a district 

library is “a quasi-municipal corporation” and therefore a “local unit of 

government.” CADL, 298 Mich App at 231-232, 236. CADL reasoned that 

because a district library is established by two local units of government, it is 

swept within the reach of MCL 123.1102, which expressly prohibits the 

enactment of any regulation relating to the possession of firearms by “local units 

of government.” Id. at 237. 

CADL’s holding rested on a judgment that district libraries are so closely 

akin to the local units of government listed in MCL 123.1101(b) that the same 

regulatory scheme should apply. In essence, the CADL Court determined that

because the city and county that formed the Capital Area District Library were 

precluded from regulating firearms pursuant to MCL 123.1102, it made no sense 

to permit their stepchild—a library—from doing so. No corresponding parallels 

exist here. School districts are not formed, organized or operated by cities, 

villages, townships or counties, but exist independently of those bodies. 

“Leadership and general supervision over all public education, including adult 

education and instructional programs in state institutions, except as to institutions 

of higher education granting baccalaureate degrees, is vested in a state board of 

education.” Const 1963, art 8, § 3. While a district library enjoys a general 

ability to “supervise and control” its property, MCL 397.182(1)(f), the Legislature 

has specifically allocated to school districts very broad powers of self-
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governance, which specifically include “[p]roviding for the safety and welfare of 

pupils while at school or a school sponsored activity”: 

 A general powers school district has all of the rights, powers, and duties 

expressly stated in this act; may exercise a power implied or incident to a power 

expressly stated in this act; and, except as provided by law, may exercise a power 

incidental or appropriate to the performance of a function related to operation of 

the school district in the interests of public elementary and secondary education in 

the school district, including but not limited to, all of the following: 

(a) Educating pupils. In addition to educating pupils in grades K-12, this 

function may include operation of preschool, lifelong education, adult 

education, community education, training, enrichment, and recreation 

programs for other persons. 

(b) Providing for the safety and welfare of pupils while at school or a 

school sponsored activity or while en route to or from school or a school 

sponsored activity. [MCL 380.11a.] 

The close connection between district libraries and the cities or counties that 

established them informed CADL’s analysis of the Llewellyn[3] factors. The 

distinct differences between local units of government and school districts 

likewise influence our calculus and our conclusion that CADL does not govern 

this case. 

________________________________________________________________ 

4

 At the time CADL issued, the pertinent definition was located in subsection (a)

of the statute. 

__________________________________________________________________ 

IV 

 The circuit court also committed clear legal error in accepting plaintiffs’ claim that state 

law preempts school district policies against the possession of firearms. The Llewellyn 

framework guides our evaluation of this question, a framework the circuit court ignored in 

rendering judgment. And application of the Llewellyn factors counsels against a finding of field 

preemption. 

 

3 People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977). 
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 Again, as held by this Court in Michigan Gun Owners, ___ Mich App at ___: 

 The first Llewellyn factor asks whether the state law cited as preemptive 

“expressly provides that the state’s authority to regulate in a specified area of the 

law is to be exclusive[.]” Llewellyn, 401 Mich at 323. As we have stated, no 

such provision exists. It bears repeating that the statute on which plaintiffs rely 

does not reference schools or school districts in its list of “local units of 

government,” despite that for many other purposes, the Legislature has explicitly 

identified school districts as “local units of government.” See, e.g., MCL 

550.1951 (including “school districts” within the definition of “local unit of 

government” in an act providing that certain entities are subject to the patient’s 

right to independent review act); MCL 286.942(g) (including “school district[s]” 

within the definition of “local unit of government” for purposes of the Rural 

Development Fund Act); and MCL 123.381 (including “school district[s]” within 

the definition of “local unit of government” in an act concerning the construction 

of water and waste supply systems). 

 The second Llewellyn factor requires us to consider legislative history.5

 

Plaintiffs point to the House Legislative Analysis we cited in CADL, reciting that 

MCL 123.1102 “was designed to address the ‘proliferation of local regulation 

regarding firearm ownership, sale, and possession’ and the ‘concern that 

continued local authority to enact and enforce gun control ordinances may result 

in the establishment of a patchwork of ordinances.’ ” CADL, 298 Mich App at 

236. We find this fragment of legislative history useless, as it speaks to 

ordinances and local units of government rather than to schools. As no other 

legislative history has been presented to us, we conclude that this factor does not 

support preemption. 

 The third Llewellyn factor concerns “the pervasiveness of the state 

regulatory scheme.” Firearms are indeed pervasively regulated in Michigan. 

Llewellyn, 401 Mich at 323. In MCL 28.425a(5), the Legislature commanded that 

the legislative service bureau “compile the firearms laws of this state, including 

laws that apply to carrying a concealed pistol, and . . . provide copies of the 

compilation in an electronic format to the department of state police.” That 

compilation is available to all at <https://www.legislature.mi.gov/Publications/ 

Firearms.pdf> (accessed November 30, 2016). The statutes referencing firearms 

consume almost 200 pages of paper. Included are several provisions in the 

revised school code, MCL 380.1 et seq. For example, MCL 380.1163 requires 

schools to develop “model gun safety instruction program[s].” MCL 380.1311(2) 

permits a school board to expel a pupil who “possesses in a weapon free school 

zone a weapon that constitutes a dangerous weapon[.]” MCL 380.1313(2) 

authorizes a school official to confiscate a dangerous weapon in the possession of 

a pupil. And the full compilation includes MCL 28.425o(1)(a), which we cited 

above, as well as penal statutes such as MCL 750.234d, which provides: 

 (1) Except as provided in subsection (2), a person shall not possess a 

firearm on the premises of any of the following: 
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(a) A depository financial institution or a subsidiary or affiliate of a 

depository financial institution. 

(b) A church or other house of religious worship. 

(c) A court. 

(d) A theatre. 

(e) A sports arena. 

(f) A day care center. 

(g) A hospital. 

(h) An establishment licensed under the Michigan liquor control act, [MCL 

436.1 to MCL 436.58]. 

 (2) This section does not apply to any of the following: 

(a) A person who owns, or is employed by or contracted by, an entity 

described in subsection (1) if the possession of that firearm is to provide 

security services for that entity. 

(b) A peace officer. 

(c) A person licensed by this state or another state to carry a concealed 

weapon. 

(d) A person who possesses a firearm on the premises of an entity described 

in subsection (1) if that possession is with the permission of the owner or an 

agent of the owner of that entity. 

 (3) A person who violates this section is guilty of a misdemeanor 

punishable by imprisonment for not more than 90 days or a fine of not more 

than $100.00, or both.6

 Yet another penal statute relevant to this case addresses “weapon free 

school zones,” which are defined as “school property and a vehicle used by a 

school to transport students to or from school property.” MCL 750.237a(6)(e). 

This statute sets out penalties for individuals who engage in firearm offenses in a 

weapon free school zone, and specifically provides that “an individual who 

possesses a weapon in a weapon free school zone is guilty of a misdemeanor[.]” 

MCL 750.237a(4). This subsection does not apply, however, to individuals 

licensed to carry a concealed weapon, a “peace officer,” or certain designated 

others. MCL 750.237a(5). 
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 Given this panoply of firearm laws, we most certainly agree that firearms 

are pervasively regulated in Michigan. But this fact, standing alone, does not 

compel us to imply preemption. “While the pervasiveness of the state regulatory 

scheme is not generally sufficient by itself to infer pre-emption, it is a factor 

which should be considered as evidence of preemption.” Llewellyn, 401 Mich at 

324. Here, relevant segments of a multifaceted statutory framework evince the 

Legislature’s intent to prohibit weapons in schools, rather than to rein in a 

district’s ability to control the possession of weapons on its campuses. 

 Among the statutes regulating firearms complied by the legislative service 

bureau are 26 different laws specifically referencing “weapon free school zones.” 

These four words telegraph an unmistakable objective regarding guns and 

schools; indeed, we find it hard to imagine a more straightforward expression of 

legislative will. The Legislature contemplated that this repeatedly invoked phrase 

would be interpreted to mean exactly what it says—no weapons are allowed in 

schools. Viewing the AAPS policies against this statutory backdrop, we infer that 

firearm policies consistent with the “weapon free school zone” concept are 

unobjectionable. Field preemption analysis does not permit us to ignore this 

statutory language simply because there are many statutes regulating firearms. To 

the contrary, the pervasiveness of the Legislature’s use of the phrase “weapon free 

school zones” presses against the preemption of a district policy affirming that its 

schools will remain “weapon-free”. 

Llewellyn’s fourth factor asks whether “the nature of the regulated subject 

matter may demand exclusive state regulation to achieve the uniformity necessary 

to serve the state’s purpose or interest.” Id. at 324. Given that the Legislature has 

never expressly reserved to itself the ability to regulate firearms in schools, our 

evaluation of this factor requires us to weigh policy choices. 

 Plaintiffs insist that a “patchwork” of differing school policies will create 

“confusion” and will “burden” the police and the public. We find no merit in this 

argument. The Legislature has broadly empowered school districts to 

“[p]rovid[e] for the safety and welfare of pupils while at school or a school 

sponsored activity or while en route to or from school or a school sponsored 

activity.” Indisputably, the Legislature recognized that different school districts 

would employ different methods and strategies to accomplish this goal. Most 

parents of school-age children send those children to schools located within a 

single school district. Most parents easily learn and adapt to the policies and 

procedures applicable to their children’s schools and district. We discern no 

possibility of meaningful “confusion” or burdening of law enforcement. To the 

contrary, the AAPS policy ensures that the learning environment remains 

uninterrupted by the invocation of emergency procedures which would surely be 

required each and every time a weapon is openly carried by a citizen into a school 

building. 

_________________________________________________________________ 
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5

 We note that in the almost 40 years that have passed since our Supreme Court’s 

decision in Llewellyn, the Supreme Court’s views regarding the propriety of 

judicial reliance on legislative history have changed considerably. For example, 

in People v Gardner, 482 Mich 41, 57; 753 NW2d 78 (2008), the Court discussed 

the many “problems inherent in preferring judicial interpretation of legislative 

history to a plain reading of the unambiguous text,” and expressed a decided 

preference for “historical facts” about “the Legislature’s affirmative acts” rather 

than “staff analyses of legislation.” Id. “[R]esort to legislative history of any 

form is proper only where a genuine ambiguity exists in the statute. Legislative 

history cannot be used to create an ambiguity where one does not otherwise 

exist.” In re Certified Question from US Court of Appeals for Sixth Circuit, 468 

Mich 109, 115, n 5; 659 NW2d 597 (2003) (emphasis in original).

6

 Despite that MCL 750.234(2)(c) permits concealed weapon holders to carry 

concealed weapons in “[a] court,” our Supreme Court has promulgated an 

administrative order barring the presence of all weapons in court facilities unless 

approved by the chief judge. Michigan Supreme Court Administrative Order 

2001-1. Many circuit courts have issued their own policies banning the presence 

of weapons. See, e.g., <https://www.oakgov.com/courts/circuit/Documents/ao/ 

2012-06J.pdf> (accessed November 30, 2016). 

________________________________________________________________ 

V 

 However, we must note our agreement with the circuit court’s conclusion that Davis is 

not applicable to the current matter. In Davis, 226 Mich App at 377-378, the Hillsdale 

Community School District (HCSD) implemented a policy requiring expulsion of students found 

in possession of a “weapon in a weapon free school zone.” BB guns fell within the district 

policy’s definition of “weapon” or “dangerous weapon.” Id. at 378. Two students expelled for 

BB gun possession filed suit, complaining that the policy conflicted with and therefore was 

preempted by MCL 380.1311. Davis, 226 Mich App at 378-379. The statute mandated 

expulsion of students possessing weapons on school grounds, but did not specifically include BB 

guns within the definition of subject weapons. Id. at 379 and n 3. 

 The circuit court accepted the preemption argument, but this Court reversed. Id. at 379, 

381. In doing so, this Court reasoned that local school boards have “ ‘inherent power to define 

disciplinable acts . . . .’ ” and manage student behavior. Id. at 382, quoting Widdoes v Detroit 

Pub Schs, 218 Mich App 282, 287; 553 NW2d 688 (1996). There is no precedent establishing a 
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school district’s inherent power to direct the behavior of nonstudent citizens. Given the vastly 

different interests at play, we cannot adopt defendants’ claim that Davis controls the preemption 

question in this case. 

 We reverse. 

/s/ Kirsten Frank Kelly 

/s/ Elizabeth L. Gleicher 

/s/ Douglas B. Shapiro