On October 16, 2020, Michigan Secretary of State Jocelyn Benson, as the chief election officer, issued directions to local election officials that the open carry of firearms on Election Day in locations where voting activity is occurring. Specifically, the following provisions apply within 100 feet of a polling place, clerk’s office(s), or absent voter counting board:
- “The open carry of a firearm is prohibited in a polling place, in any hallway used by voters to enter or exit, or within 100 feet of any entrance to a building in which a polling place is located.”
- “A person may leave a firearm inside a vehicle parked within 100 feet of the building when visiting these locations if otherwise permitted by law to possess the firearm within the vehicle.”
- “Concealed carry of a firearm is prohibited in any building that already prohibits concealed carry unless an individual is authorized by the building to do so.”
- “Election inspectors should contact law enforcement immediately if these prohibitions are violated.”
- “The prohibition on open carry does not apply to law enforcement officers acting in the course of their duties.”
Several pro-firearm groups immediately took legal action at the Michigan Court of Claims to protest these directives and won preliminary injunctions against the Michigan Secretary of State. On October 29, 2020, a three-judge panel of the Michigan Court of Appeals rejected the Secretary of State’s appeal of these preliminary injunctions and determined she exceed her authority. Any power to issue a law directing a ban of firearms at polling places belongs to the Michigan Legislature. Despite expressing concerns about possible voter suppression, the judges determined that there were already state laws in place to deal with those problems.
Although the Secretary of State’s directive cannot be enforced, Michigan residents should be aware that there are OTHER crimes that people can be arrested and prosecuted for if firearms are misused at election sites:
- A person shall not attempt, by means of bribery, menace, or other corrupt means or device, either directly or indirectly, to influence an elector in giving his or her vote, or to deter the elector from, or interrupt the elector in giving his or her vote at any election held in this state. A person who violates this section is guilty of a felony punishable by up to 5 years in prison or a fine up to $1,000.00, or both. MCL 168.932(a).
- A person shall neither disclose to any other person the name of any candidate voted for by any elector, the contents of whose ballots were seen by the person, nor in any manner obstruct or attempt to obstruct any elector in the exercise of his or her duties as an elector under this act. A person who violates this section is guilty of a felony punishable by up to 5 years in prison or a fine up to $1,000.00, or both. MCL 168.932(c).
- “A person who intentionally but without malice points or aims a firearm at or toward another person is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.” MCL 750.233(1).
- A person who willfully and knowingly brandishes a firearm in public 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. MCL 750.234e. “Brandish” means “to point, wave about, or display in a threatening manner with the intent to induce fear in another person.” MCL 750.222(c).
- A person shall not possess a firearm at a depository financial institution or a subsidiary or affiliate of a depository financial institution, a church or other house of religious worship, a court, a theatre, a sports arena, a day care center, a hospital or a establishment primarily serving alcohol. MCL 750.234d(1). A person is exempted for violating this law if he or she is a peace officer, a person hired to provide security services to that establishment, a person licensed to carry a concealed weapon, or otherwise has permission from the owner of that establishment to have a weapon. MCL 750.234d(2). A person who violates this law is guilty of a misdemeanor punishable by a fine up to $100.00, or up to 90 days in jail, or both. MCL 750.234d(3).
- A person shall not carry a pistol, pneumatic gun or other firearm with the intent to use the weapon unlawfully against the person of another (e.g. threatening another person not to cast a vote). MCL 750.226(1). A person who violates this law is guilty of a felony punishable by a fine up to $2,500.00 or up to 5 years in prison, or both. MCL 750.226(2).
- “An individual who commits or attempts to commit a crime that involves a violent act or a threat of a violent act against another person while wearing body armor is guilty of a felony punishable by a fine up to $2,000.00, or up to 4 years in prison, or both. MCL 750.227f(1). A term of imprisonment imposed for violating this section may be served CONSECUTIVELY to any term of imprisonment imposed for the crime committed or attempted. This law does not apply to peace officers or a security officer performing his or her duties as a security officer while on a scheduled work shift as a security officer. MCL 750.227f(2).
- A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony (e.g. voter intimidation) is guilty of a felony and shall be punished with 2 years in state prison. MCL 750.227b(1). Upon a second conviction for possessing a firearm while committing a felony, the person shall be punished with 5 years in state prison. Upon a third or subsequent conviction for possessing a firearm while committing a felony, the person shall be punished with 10 years in state prison. A term of imprisonment for possessing a firearm while committing a felony is in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony and shall be served CONSECUTIVELY with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony. MCL 750.227b(3).
- In addition to the penalties proscribed by law, “all pistols, weapons, or devices carried, possessed, or used contrary to [the Michigan Penal Code] are forfeited to the state and shall be turned over to the department of state police for disposition as determined appropriate by the director of the department of state police or his or her designated representative.” MCL 750.239.
Common sense is strongly urged at polling locations this year as tensions remain high due to the stakes of the presidential election and the effects of the COVID-19 pandemic. Police officers and prosecutors will aggressively pursue and prosecute any actions that appear to be efforts to intimidate voters. You need a skilled criminal defense lawyer in your corner to aggressively defend your rights and secure the best possible outcome in your case.
If you have questions about election law or you are charged with any criminal offense, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
