MI: Appellate Court Issues Mixed Ruling on Right to Carry at DeVos Place

In March of 2016, members of Michigan Open Carry (MOC) and Michigan Gun Owners (MGO) were manning a booth they had rented in the DeVos Place Convention Center. They were openly carrying holstered pistols, which has never been against the law in Michigan, except for a small number of restricted areas.

While people with concealed carry permits may not carry a concealed firearm into a school, they may openly carry a holstered pistol in Michigan.  They can openly carry holstered pistols into the State Capitol.

On Friday, May 26, 2017, Judge Joseph Rossi of the Kent County Circuit found for Michigan Open Carry (MOC) and Michigan Gun Owners (MGO). DeVos Place appealed to the Michigan Appeals Court.

On November 27, 2018, The Michigan Appeals Court ruled the Circuit Court erred and needed to make more findings of fact. From mlive.com:

"We conclude that the trial court erred when it ruled that the concealed carry of firearms was not prohibited by statute at DeVos Place because the trial court did not make a finding about seating capacity," the appeals panel wrote.

"The trial court found that the concealed carry and open carry of firearms was 'normally permitted' at DeVos Place and DeVos Performance Hall. Therefore, the trial court disagreed with the CAA's statement that the open carry of firearms was 'rarely' permitted, and it concluded that that the CAA's current firearms policies were unenforceable," the appeals panel said.

You can read the entire appellate decision here.

A description at the devosplace.org website states the largest venue there has a 2,404 seating capacity.

DeVos Place offers flexible space for meetings, conventions and trade shows as well as performing arts and touring events, and has the capability of hosting a variety of events simultaneously. The convention center features an exhibit hall with 162,000-square-foot of uninterrupted space, a 40,000 square foot ballroom, 26 sub-dividable meeting rooms with over 32,000 square feet of space, a 2404-seat performing arts theater that is home to four performing arts groups, accessible and spacious loading docks and on-site parking.

If a judge rules the the seating capacity is over 2,500, then DeVos place could ban the concealed carry of firearms there. The law is very specific in that it bans concealed carry.

The appellate court did not differentiate between open carry and concealed carry. It says nothing about open carry, which is odd, because the plaintiffs were openly carrying in the original incident.

The law relevant to entertainment facilities bans concealed carry, not open carry. The statue in question is 28.425o. Here are the relevant parts:

(1) Subject to subsection (5), an individual licensed under this act to carry a concealed pistol, or who is exempt from licensure under section 12a(h), shall not carry a concealed pistol on the premises of any of the following:

(f) An entertainment facility with a seating capacity of 2,500 or more individuals that the individual knows or should know has a seating capacity of 2,500 or more individuals or that has a sign above each public entrance stating in letters not less than 1-inch high a seating capacity of 2,500 or more individuals.

The differentiation is important, because in the Heller Supreme Court decision, a differentiation is made between open carry and concealed carry.  From Heller:

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.

Many disagree with Heller on this point. The Second Amendment does not differentiate between open carry and concealed carry. It is mere precedent that restrictions on concealed carry have been tolerated since 1833, more than 40 years after the Bill of Rights was ratified.

The appeals Court found a government entity could enforce private bans on the carry of firearms. That much is obvious. Local police enforce trespass laws regularly.

More interesting is the question of whether public venues can pressure private entities to create private bans on firearms. For example, DeVos employees, when interacting with prospective clients, might "recommend" a ban on firearms.

DeVos' attorney will likely argue the performing arts theater has 2,404 seats; that separate meeting rooms have more seats, bringing the total to over 2,500.

It seems an easy way to overcome the letter of the law. Simply count every seat in a very large, subdivided facility. Add them all together, then count it as one entity.  If you do not have enough seats in a venue, count how many temporary seats could be set up outside.

The case goes back to the original judge to determine what the seating capacity of DeVos Place is.

DeVos may tread a fine line. There may be other regulation related to seating capacity, such as zoning codes and safety codes. Claiming capacity over 2,500 may trigger other enforcement or contractual actions.

Open carry activists assert that rights unused are lost. If people are afraid to assert their rights, they do not truly have those rights.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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