Wade v. Univ. of Mich.

• Docket Number: 330555
• Decision Date: 20 July 2023
• Parties: JOSHUA WADE, Plaintiff-Appellant, v. UNIVERSITY OF MICHIGAN, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

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JOSHUA WADE, Plaintiff-Appellant, v. UNIVERSITY OF MICHIGAN, Defendant-Appellee

No. 330555

Court of Appeals of Michigan

July 20, 2023

LC No 15-000129-MZ

Before: CAVANAGH, P.J., and SAWYER and SERVITTO, JJ.

ON REMAND

PER CURIAM.

This matter is on remand from the Michigan Supreme Court for consideration in light of NY State Rifle &Pistol Ass'n, Inc v Bruen, __US__; 142 S.Ct. 2111; 213 L.Ed.2d 387 (2022) (Bruen).^[1] As explained in this Court's prior opinion, plaintiff, Joshua Wade, appeals as of right the order granting summary disposition in favor of defendant, University of Michigan (University), "and dismissing plaintiff's complaint seeking declaratory and injunctive relief from a University ordinance that prohibits firearms on any University property." Wade v Univ of Mich, 320 Mich.App. 1, 5; 905 N.W.2d 439 (2017), vacated and remanded __Mich __; 981 N.W.2d 56 (2022). We continue to affirm.

I. BACKGROUND

A. THE ORDINANCE

The ordinance at issue is titled "An Ordinance to Regulate Parking and Traffic and to Regulate the Use and Protection of the Buildings and Property of the Regents of the University of Michigan." When plaintiff's lawsuit was filed in 2015, Article X, titled "Weapons," provided:

Section 1. Scope of Article X

Article X applies to all property owned, leased or otherwise controlled by the Regents of the University of Michigan [sic] and applies regardless of whether the Individual has a concealed weapons permit or is otherwise authorized by law to possess, discharge, or use any device referenced below.

Section 2. Possession of Firearms, Dangerous Weapons and Knives

Except as otherwise provided in Section 4, no person shall, while on any property owned, leased, or otherwise controlled by the Regents of the University of Michigan: (1) possess any firearm or any other dangerous weapon as defined in or interpreted under Michigan law or (2) wear on his or her person or carry in his or her clothing any knife, sword or machete having a blade longer than four (4) inches, or, in the case of knife with a mechanism to lock the blade in place when open, longer than three (3) inches.

Section 3. Discharge or Use of Firearms, Dangerous Weapons and Knives

Except as otherwise provided in Section 4, no person shall discharge or otherwise use any device listed in the preceding section on any property owned, leased, or otherwise controlled by the Regents of the University of Michigan.

Section 4. Exceptions

(1) Except to the extent regulated under Subparagraph (2), the prohibitions in this Article X do not apply:

(a) to University employees who are authorized to possess and/or use such a device . . .;

(b) to non-University law enforcement officers of legally established law enforcement agencies . . .;

(c) when someone possess [sic] or uses such a device as part of a military or similar uniform or costume In [sic] connection with a public ceremony . . .;

(d) when someone possesses or uses such a device in connection with a regularly scheduled educational, recreational or training program authorized by the University; (e) when someone possess [sic] or uses such a device for recreational hunting on property . . .; or

(f) when the Director of the University's Department of Public Safety has waived the prohibition based on extraordinary circumstances. Any such waiver must be in writing and must define its scope and duration.

(2) The Director of the Department of Public Safety may impose restrictions upon individuals who are otherwise authorized to possess or use such a device pursuant to Subsection (1) when the Director determines that such restrictions are appropriate under the circumstances.

Section 5. Violation Penalty

A person who violates this Article X is guilty of a misdemeanor, and upon conviction, punishable by imprisonment for not less than ten (10) days and no more than sixty (60) days, or by a fine of not more than fifty dollars ($50.00) or both. [Wade, 320 Mich.App. at 6-7.^[2]

B. PROCEDURAL HISTORY

After plaintiff's request for a waiver under § (4)(1)(f) of Article X was denied, he filed this two-count action in the Court of Claims alleging that Article X violated the Second Amendment and was preempted by MCL 123.1102 (prohibiting local units of government from establishing their own limitations on the purchase, sale, or possession of firearms). Wade, 320 Mich.App. at 78. The University moved for summary disposition under MCR 2.116(C)(8), arguing that the Second Amendment does not reach "sensitive places," such as schools. And even if the Second Amendment applied, the University argued, Article X was constitutional because it was substantially related to important governmental interests; Article X did not violate the Michigan Constitution; and MCL 123.1102 did not apply to the University. Id. at 8. The Court of Claims agreed and granted the University's motion, finding that the University is a school, and thus, a sensitive place; therefore, the Second Amendment did not apply. The Court of Claims also concluded that MCL 123.1102 did not apply to the University. Id. at 9-10.

This Court affirmed, concluding that during the historically relevant period universities were understood to be schools, and schools are sensitive places to which Second Amendment protections do not extend; thus, Article X did not burden conduct protected by the Second Amendment and plaintiff failed to state a cognizable Second Amendment claim. Wade, 320 Mich.App. at 15. This Court also concluded that MCL 123.1102 is not applicable to the University, and thus, does not preempt Article X. Id. at 15-22. Accordingly, the Court of Claims properly granted summary disposition under MCR 2.116(C)(8). Id. at 22. In a dissenting opinion, Judge SAWYER opined that it was not necessary to reach the constitutional issue and that this case could be resolved on the basis of preemption. Id. at 22 (SAWYER, J., dissenting). Judge SAWYER would have concluded that the Legislature preempted the regulation of the field of firearm possession and the University exceeded its authority by enacting Article X. Id. at 25-28.

C. MICHIGAN SUPREME COURT REMAND ORDER

On July 18, 2017, plaintiff applied for leave to appeal. Our Supreme Court twice held the application in abeyance-on December 20, 2017 and May 22, 2019. On November 6, 2020, our Supreme Court granted the application, specifically directing the parties to brief three issues related to the Second Amendment. On November 10, 2022, our Supreme Court entered an order vacating its November 6, 2020 order, vacating this Court's opinion, and remanding for consideration in light of Bruen.^[3]

Justice VIVIANO issued a concurring statement in which he offered his thoughts about how Bruen might apply to this case. Wade, __Mich at__; 981 N.W.2d at 56 (VIVIANO, J., concurring). He opined that, in Bruen, the United States Supreme Court rejected the two-part inquiry applied by this Court in its prior opinion and instead replaced it with a test that required courts to examine any historical analogues of the modern regulation. Id. at __; 981 N.W.2d at 57. Justice VIVIANO set forth two historical investigations that he believed would need to be done to determine whether Article X is constitutional. First, this Court should consider "whether there were any analogous firearm regulations on university and college campuses in the relevant historical period." Id. Second, this Court should consider whether large modern campuses, like the University's, are "so dispersed and multifaceted that a total campus ban would now cover areas that historically would not have had any restrictions[.]" Id. at__; 981 N.W.2d at 58. Justice VIVIANO offered in response to those inquiries that he found no campus-wide ban generally prohibiting open or concealed carry during the colonial period and that "large, modern university campuses differ from their historical antecedents." Id. at __; 981 N.W.2d at 57-59.

D. SUPPLEMENTAL BRIEFS ON REMAND

On remand, this Court granted the parties' joint motion to file supplemental briefs. Wade v Univ of Mich, unpublished order of the Court of Appeals, entered January 12, 2023 (Docket No. 330555).

1. PLAINTIFF'S SUPPLEMENTAL BRIEF ON REMAND

In his supplemental brief, plaintiff argues that, under the Bruen framework, his proposed conduct was to openly carry a lawfully-owned pistol on University property, which is presumptively protected by the Second Amendment. Next, he argues that the University could not fulfill its burden to establish that Article X is consistent with this Nation's tradition of firearm regulation because history shows that, in all relevant periods, firearm regulations analogous to Article X were inconsistent with the Second Amendment. The Court in Bruen expressed its preference for the interpretation of the Second Amendment following its adoption in 1791, and to a slightly lesser degree, following the adoption of the Fourteenth Amendment in 1868.

With regard to the "sensitive places" analysis, plaintiff argues that the Michigan Legislature has distinguished between schools and universities, and a large university has more in common with a city than a school; therefore, the University cannot be considered a "school" for purposes of identifying it as a "sensitive place." Plaintiff argues that the "sensitive places" dicta in Dist of Columbia v Heller, 554 U.S. 570; 128 S.Ct. 2783; 171 L.Ed.2d 637 (2008), was not intended to encompass public universities. According to plaintiff, while some parts of the University's campus may be "sensitive areas," the entire campus is not.

Plaintiff contends that colleges in the colonial period often prohibited students from hunting, but did not totally prohibit firearms possession, and the regulations were limited to students. Plaintiff further...