Michigan’s Secretary of State announced last week that the open carrying of firearms would be banned within 100 feet of polling locations across the state, but the head of the state’s association of police chiefs is warning that Jocelyn Benson’s edict is unenforceable because it doesn’t have the force of law.
Robert Stevenson, the executive director of the Michigan Association of Chiefs of Police, says that he’s hearing from many departments around the state who are reluctant or unwilling to enforce the administrative order.
“The Secretary of State issued these administrative rules, but in researching the issue, there’s nothing in the law that gives police the authority to enforce these rules,” Stevenson said. “Their theory is if people don’t follow the rules and don’t leave (the polling place), they’d have a trespassing situation where police would be able to take enforcement action.
“But the feedback I’ve been getting from our police agencies is that they’re uncomfortable trying to enforce something they clearly don’t have the authority to enforce,” Stevenson said. “Our hope is that this will get resolved and there’ll be some clear guidance.
“… But as it stands now, there’s nothing in the law that gives police the authority to enforce the Secretary of State’s edict.”
Rather than acknowledge the confusion, Tracy Wimmer, a spokeswoman for the Secretary of State, is doubling down and asserting that the state’s Attorney General has signed off on the legality of the order.
“The directive was the result of the attorney general, the state’s top law enforcement official, reviewing relevant laws and legal precedent and ruling, in her capacity as that law enforcement official, that the secretary has the authority,” Wimmer said in a Monday email. “It is within the scope of authority for executives to interpret relevant and applicable law and apply it appropriately, and is indeed based in law.”
The Detroit News points out that Benson’s order has become a political football, with many county sheriffs, Republican lawmakers, and pro-Second Amendment organizations criticizing the announcement and questioning both Benson’s authority to issue the rule and Attorney General Dana Nessel’s opinion that the rule is enforceable. At least one organization says it’s planning on suing the state over the order.
Democrats like Nessel are trying to claim that it’s just Republican obstructionism that’s at work here, but with the police chiefs association coming out and disputing the ability of local law enforcement to arrest those openly carrying near a polling place, it’s clear that the concerns run deeper than partisan politics.
It will likely take a lawsuit to clear things up, but with just two weeks left before Election Day, any organization that’s planning on filing a legal challenge to Benson’s order better get started. In the meantime, police chiefs and county sheriffs are likely to decide for themselves whether or not the Secretary of State’s administrative rule is going to be enforced.
The Michigan Sheriffs Association was advising elected sheriffs to consult with their counsels and local prosecutors about Benson’s decision, said Matt Saxton, CEO and executive director of the association.
On Monday, Saxton added: “This administrative order does cause concern because it puts law enforcement in the middle of the issue. In my opinion, the order was a solution in search of a problem. I’ve been in law enforcement for 28 years, and every year there’s some concern about safety in the polling places, and we’ve been able to handle those concerns with no issues.”
I think it’s likely that Benson, Nessel, and Gov. Gretchen Whitmer are playing politics with the decision. That’s not exactly surprising, given the recent arrest of more than a dozen people in connection with the planned kidnapping of Whitmer, but it doesn’t automatically make Benson’s rule applicable or enforceable across the state. By banning open carry, it’s actually likely that Benson has spurred some folks to carry who wouldn’t have otherwise. The “solution in search of a problem” may have created a problem instead of solving one that didn’t exist.