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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 D ISTRICT, FLETCHER SPEARS, III, and KATRINA MITCHELL, LC No. 15-104373-CZ

Defendants-Appellants.

Before: K. F. K ELLY , P.J., and G LEICHER and S HAPIRO , JJ.

P ER C URIAM

. The issue presented is whether state law preempts Clio Area Sc hool District policies banning the possession of firearms in schools and at school-spo nsored events. We hold that it does not, and reverse the judgm ent of the circuit court.

I

On June 5, 1996, defendant, Clio Area School District (CASD), promulgated policy 7217, which provides:

The Board of Education prohibi ts visitors from possessing, sto ring, making, or using a weapon in any setting that is under the cont rol and supervision of the Board including, but not limited to, property leased, ow ned, or contracted for by the Board, a school-spons ored event, or in a Board-owned vehicle.

* * *

The term “weapon” means any object which, in the manner in whi ch 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 heal th and safety of persons. Weapons include, but are not limited to, firearms, gu ns of any type, including spring, air and gas-pow ered 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 explos ives or any other weapon described in 18 U.S.C. 921.-2- This prohibition applies regardle ss of whether the visitor is otherwise authorized by law to possess the weapon, including if the visit or 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 individ ual 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 circumstan ces to persons who are also properly licensed to carry a concealed wea pon:
A. A parent or legal guardian of a student of the school may c arry a concealed weapon while in a vehicle on schoo l property, if s/he is droppi ng the student off at the school or picking up the student from the school and any pe rson 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 Stat e Police motor carrier officer or Capitol security officer, a State court judge, a sec urity officer required by the employer to carry a concealed weapon while on the premis es, a court officer

C. A retired police or law enf orcement officer, a retired Fede ral law enforcement officer, or a retire d State court judge.

Signs advising of this policy ar e placed at every CASD school a nd warn violators that they will be denied admittance.

In September 2013, plaintiff, Kenneth Herman, attempted to vis it his child’s elementary school while openly carrying a pi stol for which he possessed a concealed pistol license. Herman claimed he was thereafter denied access to the school on severa l occasions in 2013 and 2014 for his open pistol possession. Finally, in November 2014, the CAS D threatened to summon authorities if Herman again att empted 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. Plaintiff s’ complaint asserts that Michigan law allows Herman to openly carry a pistol on school property becau se state law preempts a local unit of government from regula ting the possession of firearms. According to plaintiffs, the CASD qualifies as a “lo cal unit of government.”-3- Defendants sought summary disposition, arguing that Michigan l aw 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 tha t 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 wea pons from its premises. No state statute conflicts with this authority, the CASD urged, and case law governing preemption does not encompass the ability of school districts to regulate firea rms 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 specifi c circumstances and preempts any attempts by local units of government to regulate firearms. Mi chigan’s statutory regulation of firearms is so pervasive, plaintiffs insisted, that the entire firearms field is preempted and school districts are foreclosed from a ny rule-making regarding firearm s. More specifically, plaintiffs asserted that the CASD policy co ntradicted and therefore was pr eempted by MCL 123.1102, which provides:

A local unit of government shall not impose special taxation o n, enact or enforce any ordinance or regulat ion 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 p istols 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 cir cuit court declared that “the o utcome of this case is relatively simple.” US Const, Am 2 and Const 1963, art I, § 6 entitle cit izens 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 S upreme Court held that “nothing in our opinion should be taken to cast doubt on longst anding prohibitions on the possession of firearms by felons a nd 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 l imiting the right of individual[s] to possess firearms specifically with re spect to the issue in this case, an individual shall not possess a concealed weapon i n a weapons-free school zone, MCL [750.237a(1)]. A n individual shall not posses s a weapon in a weapons free school zone – that’ s MCL [750.237a(4)] – unless th at individual is licensed to carry a concealed weapon, MCL [750.237a(5)]. An in dividual licensed to carry a concealed pistol shall not carry a conceale d 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 circui t court accepted that proposition and we need not address it further.-4- property; that’s MCL [28.425o(1)(a)]; however, a parent or guar dian 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 pi cking the student up from school.

When you read this law as a whole and these statutes as a whol e, these statutes do not prohibit an indi vidual, 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 s een fit to completely prohibit i ndividuals from possessing firearms on school property.

The circuit court distinguished the current case from Davis , noting that Davis permitted a school district to direct discip line of students possessing weapons, not to “do anything that it wants” to exclude pistols from its properties. And given the p ervasive nature of the state statutes, the court rejected CAS D’s challenge against preemptio n.
In relation to plaintiffs’ arguments, the court found CADL controlling. The court ruled that the school district was “a quasi-municipal corporation,” j ust 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 thatState 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 ba n. Defendants appeal that rulin g.

II

We first address plaintiffs’ contention that the CASD weapons policy directly contradicts MCL 28.425o, specifically subsectio n (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 pist ol on the premises of any of th e following:

(a) A school or school property except that a parent or legal g uardian 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, “schoo l” and “school property” mean those terms as defined in . . . MCL 750.237a.

* * *

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

(a) An individual licen sed under this act who is a retired poli ce officer, retired law enforcement officer, or retired f ederal law enforcement officer

. (b) An individual who is licensed under this act and who is emp loyed or contracted by an entity described under subsection (1) to provi de security services-5- and is required by his or her employer or the terms of a contra ct to carry a concealed firearm on the premises of the employing or contracti ng 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 c orrections officer of a county sheriff’s department o r who is licensed under this act and is a retired corrections officer of a county sheriff’s department, if that i ndividual has received county sheriff approved weapons training.

(e) An individual who is license d under this act and who is a m otor carrier officer or capitol security officer of t he department of state police.

(f) An individual w ho is licensed under thi s act and who is a m ember of a sheriff’s
posse.
(g) An individual who is license d under this act and who is an auxiliary officer or reserve officer of a police or sheriff’s department.

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

( i ) A parole, probation, or correc tions officer, or absconder rec overy unit member, of the department of corrections, if that individual has obtain ed a Michigan department of corrections weapons permit.

( ii ) A retired parole, probation, or corrections officer, or retir ed absconder recovery unit member, of the dep artment of corrections, if that individual has obtained a Michigan department of corrections weapons permit.

(i) A state court judge or sta te court retired judge who is lic ensed under this act.

(j) An individual who is licen sed under this act and who is a c ourt officer.

Plaintiffs argue that because MCL 28.425o(1)(a) addresses the r ight of concealed pistol license holders to carry a concealed pis tol on school property in certa in circumstances, CASD’s policy banning weapons is expressly preempted.

We resolved this very issue in the companion case placed befor e 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 n ot expressly forbid additional regulation, or declare that its subparts supersede a ny other school--6- related firearm rules. More to the point, AAPS policy 5420 spe cifically references and acknowledges that MCL 28.425o controls the abili ty of concealed pistol license holders to carry a concealed pistol under the di stinct circumstances conforming to the statute. We find no conflict between the sta tute and the AAPS policies, and thus no express pr eemption. Moreover, as discuss ed in greater detail in the next section, this statu te’s virtually categorical limitation of the presence of weapons in educational settings s trongly implies that the Legis lature intended this enactment to curtail the carrying of weapons in public schools.

The CASD policy does not expressly reference MCL 28.425o. How ever, it does provide exceptions to its ban consistent with the statute. We discern no conflict between the district policy and statute i n 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 rea son, 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 go vernment” 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 E stablishment 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 “loc al unit of government.” CADL , 298 Mich App at 231-232, 236. CADL reasoned that because a district library is est ablished by two local units of government, it is swept within the reach of MCL 123.1102, which expressly prohibi ts the enactment of any regulation relating to the possession of firea rms by “local units of government.” Id. at 237.

CADL ’s holding rested on a judgment that district libraries are so clo sely akin to the local units of gove rnment 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 Distri ct Library were precluded from regulating firearms pursuant to MCL 123.1102, it made no sense to permit their stepchild—a lib rary—from doing so. No correspo nding parallels exist here. School districts are not formed, organized or oper ated by cities, villages, townships or counties, but exist independently of tho se bodies. “Leadership and general supervis ion over all public education, including adult education and instructional programs in state institutions, exc ept as to institutions of higher education granting bac calaureate degrees, is vested i n a state board of education.” Const 1963, art 8, § 3. While a district library enjoys a general ability to “supervise and cont rol” its property, MCL 397.182(1) (f), the Legislature has specifically allocated to sc hool districts very broad power s of self--7- governance, which specifically include “[p]roviding for the saf ety and welfare of pupils while at school or a s chool sponsored activity”:

A general powers school distric t has all of the rights, power s, and duties expressly stated in this act; may exercise a power implied or i ncident to a power expressly stated in this act; a nd, except as provided by law, m ay exercise a power incidental or appropriate to the performance of a function rela ted to operation of the school district in the intere sts of public elementary and s econdary education in the school district, includ ing but not limited to, all of the f ollowing:

(a) Educating pupils. In addition to educating pupils in grade s K-12, this function may include operation of preschool, lifelong education , adult education, community education, t raining, enrichment, and recre ation programs for other persons.

(b) Providing for the safety and welfare of pupils while at sc hool or a school sponsored activity or while en route to or from school o r 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 scho ol districts likewise influence our calcu lus and our conclusion that CADL does not govern this case.

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4 At the time CADL issued, the pertinent definition was located in subsection (a) of the statute.

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IV

The circuit court also committe d clear legal error in acceptin g 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 t he circuit court ignored in rendering judgment. And application of the Llewellyn factors counsels agains t a finding of field preemption.

3 People v Llewellyn , 401 Mich 314; 257 NW2d 902 (1977).-8- Again, as held by this Court in Michigan Gun Owners , ___ Mich App at ___:

The firstLlewellyn 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 sch ool districts in its list of “ local units of government,” despite that for many other purposes, the Legislat ure has explicitly identified school districts as “local units of government.” Se e, e.g., MCL 550.1951 (including “school distric ts” within the definition of “local unit of government” in an act providing th at certain entities are subje ct to the patient’s right to independent review act ); MCL 286.942(g) (including “sc hool district[s]” within the definition of “local unit of government” for purpose s of the Rural Development Fund Act); and MCL 123.381 (including “school distr ict[s]” within the definition of “local unit of government” in an act concerni ng the construction of water and waste supply systems).

The second Llewellyn factor requires us to consider legislative history. 5 Plaintiffs point to the House Le gislative Analysis we cited in CADL , reciting that MCL 123.1102 “was designed to address the ‘proliferation of loc al regulation regarding firearm ownership, s ale, and possession’ and the ‘con cern that continued local authority to enac t and enforce gun control ordi nances 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 pre sented 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. I n MCL 28.425a(5), the Leg islature commande d that the legislative service bureau “compile the firearms laws of th is state, including laws that apply to carrying a concealed pistol, and . . . provi de 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 refer encing firearms consume almost 200 pages of paper . Included are several provis ions 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 wea pon free school zone a weapon that constitutes a dangerous weapon[.]” MCL 380. 1313(2) authorizes a school official to confiscate a dangerous weapon i n the possession of a pupil. And the full compilation includes MCL 28.425o(1)(a), which we cited above, as well as penal stat utes such as MCL 750.234d, which pr ovides:

(1) Except as provided in subs ection (2), a person shall not possess a firearm on the premises of any of the following:-9- (a) A depository financial inst itution or a subsidiary or affil iate of a depository financial institution.

(b) A church or other hous e 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 a pply to any of the following:

(a) A person who owns, or is employed by or contracted by, an e ntity described in subsection (1) if the possession of that firearm i s 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 enti ty 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 misdem eanor 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 vehi cle 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 f irearm offenses in a weapon free school zone, and spec ifically provides that “an ind ividual who possesses a weapon in a weapon free school zone is guilty of a misdemeanor[.]” MCL 750.237a(4). This subsection doe s not apply, however, to i ndividuals licensed to carry a concealed weapon, a “peace officer,” or cer tain designated others. MCL 750.237a(5).-10- Given this panoply of firearm laws, we most certainly agree th at firearms are pervasively regulated in Mic higan. But this fact, standing alone, does not compel us to imply preemption. “While the pervasiveness of the state regulatory scheme is not generally suffici ent by itself to infer pre-empti on, it is a factor which should be considered as evidence of preemption.” Llewellyn , 401 Mich at 324. Here, relevant segments of a multifaceted statutory frame work 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 legisla tive service bureau are 26 different laws specifically referencing “weapon f ree school zones.” These four words telegraph an u nmistakable objective regarding guns and schools; indeed, we find it hard to imagine a more straightforw ard expression of legislative will. The Legislature contemplated that this repea tedly invoked phrase would be interpreted to mean exactly what it says—no weapons ar e allowed in schools. Viewing the AAPS policie s against this statutory back drop, 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 regul ating firearms. To the contrary, the pervasiveness of the Legislature’s use of the phrase “weapon free school zones” presses against th e preemption of a district poli cy affirming that its schools will remain “weapon-free”.

Llewellyn ’s fourth factor asks whether “the nature of the regulated subj ect matter may demand exclusive state regulation to achieve the uni formity necessary to serve the state’s purpose or interest.” Id . at 324. Given that the Legislature has never expressly reserved to itse lf the ability to regulate fire arms in schools, our evaluation of this factor requi res us to weigh policy choices.

Plaintiffs insist that a “patc hwork” of differing school polic ies will create “confusion” and will “burden” the police and the public. We fi nd no merit in this argument. The Legislature has b roadly empowered school distric ts to “[p]rovid[e] for the safety and welfare of pupils while at scho ol or a school sponsored activity or while en route to or from school or a sch ool sponsored activity.” Indisputably, the Legi slature recognized that diffe rent school districts would employ different methods and strategies to accomplish thi s goal. Most parents of school-age children send those children to schools l ocated 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 “conf usion” or burdening of law enfor cement. To the contrary, the AAPS policy ensures that the learning environment remains uninterrupted by the invocation of emergency procedures which w ould surely be required each and every time a w eapon is openly carried by a ci tizen into a school building.

_______________________________________________________________ __-11- 5 We note that in the almost 40 years that have passed since ou r 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 pr eferring judicial interpretati on of legislative history to a plain reading of the unambiguous text,” and expres sed a decided preference for “historical facts” about “the Legislature’s affi rmative acts” rather than “staff analyses of legislation.” Id. “[R]esort to legislat ive 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 no t otherwise exist.” In re Certified Questi on from US Court of A ppeals 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 holde rs to carry concealed weapons in “[a] court,” our Supreme Court has promulg ated an administrative order barring the presence of all weapons in court facilities unless approved by the chief judge. Mic higan Supreme Court Administra tive Order 2001-1. Many circuit courts have issued their own policies ban ning the presence of weapons. See, e.g., <https://www.oakgov.com/courts/circuit/ Documents/ao/ 2012-06J.pdf> (accessed November 30, 2016).

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V

However, we must note our agreem ent with the circuit court’s c onclusion 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 g uns fell within the district policy’s definition of “weapon” or “dangerous weapon.” Id . at 378. Two students expelled for BB gun possession filed suit, compl aining that the policy confl icted 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, butdid 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 C ourt 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 prec edent establishing a-12- school district’s inherent power t o direct the behavior of nons tudent 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