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BOC Opts to Heed Prosecutor's Guidance Re: Sanctuary County

Resolution requests ‘fly in face’ of law

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HARRISON – At its Feb. 17 meeting, the Clare County Board of Commissioners heard from Gordy Mason, who sought adoption of a resolution declaring Clare County a Second Amendment Sanctuary County. He spoke of the sanctuaries movement as gaining popularity around the country, with some counties adopting resolutions and ordinances. Mason even stated that some states are considering it, adding that three states are proposing a law so that their individual states are not bound to obey or enforce federal laws that are done by executive order.

After his presentation, and questions and comments and from commissioners which were at the very least somewhat dubious, the board agreed to seek a legal opinion from Clare County Prosecutor Michelle Ambrozaitis.

At the BOC’s March 17 meeting, the board packet contained that review of the proposed resolution wherein Ambrozaitis meticulously detailed what the resolution verbiage consisted of. She noted that there were five preemtory clauses (“Whereas,”) which have no legally binding effect, and five operative clauses which she said generally force action.

This is a more abbreviated form but, basically, Ambrozaitis described the Preemtory Clauses as follows: Clauses 1-2 were accurate recitations of portions of the U.S. and Michigan constitutions; Clauses 3-4 declared the general desires of the BOC to support those constitutions as they relate to individual rights (noting the citation of Article IX was incorrect, and should have been Article XI; and Clause 5 was described as poorly worded and containing a misleading legal conclusion. She said the Michigan Constitution supported the clause’s conclusion, but that “the landmark case of Heller v. District of Columbia (2008) specifically outlines the bounds of the 2nd Amendment. Heller does not hold that a citizen has an unequivocal right to keep and bear arms without restriction. It does hold that a citizen has an unequivocal right to utilize a handgun for self-defense inside of his or her own home.”

The Operative Clauses descriptions included: Clause 1 is a statement that Clare County will be what was defined as a Constitutional Sanctuary County in Preemptory Clause 5; Operative Clause 2 contains troubling language, as neither the prosecutor nor the sheriff has legal authority to “NOT enforce any statute or law.” She said the clause’s language suggests the prosecutor, sheriff and BOC have more constitutional authority than the Supreme Court of Michigan, the Governor and the Legislature. “Officials in an individual county cannot unilaterally declare a statute unconstitutional – there are appropriate, legal ways to have statutes deemed unconstitutional, this is not one of them.” Also troubling was Operative Clause 3 which stated that the county will not authorize or appropriate funds for the purpose of enforcing any law or assisting any state or federal agency that restricts a law abiding citizen’s right to be armed. “Who is making the decision that the enforcement of certain laws or that state or federal agencies are acting unconstitutionally? The Board? No local authority has the legal ability to declare a statute/law unconstitutional.” Ambrozaitis described the remaining Operative Clauses 4-5 as simply “political statements.”

The prosecutor then reminded that the commissioners took an oath of office to uphold the Constitutions of the United States and Michigan, an oath which supports the commissioners’ position as a board. She also noted that MCL 46.11 sets the powers of the county board of commissioners, and that many requests in the proposed resolution don’t fall within the powers given therein. Ambrozaitis also noted that MCL 123.1102 restricts a local unit of government from taking certain actions regarding firearms or ammunition that would be contrary to laws or regulations already enacted by the state or federal government, adding that many of the resolution requests “fly in the face of that statute.”

Ambrozaitis then stated her opinion would be “that the Board should not adopt this resolution as presented … however, the decision to adopt the resolution is yours alone to make.”

Some commissioners had previously stated their desire to state support for the Second Amendment rights of their fellow citizens, reaffirming their rights under the law. Ambrozaitis suggested that could be done by: 1) Affirming BOC support of the oath taken upon entering office; 2) Affirm their support of Clare County citizens to keep and bear arms pursuant to the United States and Michigan constitutions; and 3) Affirm their support of the prosecutor and sheriff to carry out the duties of their office in accordance with law.

The commissioners, having reviewed the prosecutor’s opinion prior to the meeting, voiced their own opinion that her recommendation was a solid one.

“Even with Michelle’s recommendation, we’re still staying to the oath that we’re supporting the Second Amendment,” said commissioner Rick Fancon, which drew an “Absolutely!” from commissioner Sandra Bristol.

Fancon said he thought it was important the board follow the prosecutor’s recommendation, and other commissioners voiced their agreement.

“I don’t think the Second Amendment needs any commitment from us,” Bristol said. “If it came right down to it where the federal government said we had to turn in our guns, unless they change the Second Amendment, we would be breaking the law by not.”

Commissioner Dale Majewski note there are things the government can do, such as enhanced background checks, ammunition magazines.

“But as far as confiscating a firearm from you, the Second Amendment protects you,” he said.

Fancon added that by following the prosecutor’s recommendation, she and the sheriff would know they would have support from the BOC to back the Second Amendment.

Chair Jeff Haskell then recommended the board go on record as saying it supports the Second Amendment, but would not be taking steps to make Clare County a Second Amendment Sanctuary County – and it did.

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