STATE OF MICHIGAN
THE 17TH CIRCUIT COURT FOR THE COUNTY OF KENT
STEPHEN M. HICKEL,
v File No. 0O-O5186-AS KENT COUNTY CONCEALED WEAPONS LICENSING
Its Members and Delegates,
MOTIONS FOR SUMMARY DISPOSITION BEFORE THE HONORABLE GEORGE S. BUTH,
CIRCUIT JUDGE ~ Grand Rapids, Michigan -Friday, October 20, 2000
For the Plaintiff: MR. STEPHEN M. HICKEL In Pro Per
8220 Piney Woods
Caledonia, MI 49316 (616) 361-3666
For the Defendant: MR. AARON LEAL (P58655)
Varnum, Riddering, Schmidt & Howlett Bridgewater Place
333 Bridge Street, N.W. Grand Rapids, MI 49504 (616) 336-6000
RECORDED! Patricia E. VanTil, PR-A, CER-5656 TRANSCRIBED BY:
Certified Electronic Reporter
:, PATRICIA E. VanTIL, PR-A, CER (616) 662-1815
-2- TABLE OF CONTENTS
WITNESSES: PLAINTIFF PAGE None
WITNESSES: DEFENDANT None
OTHER MATERIAL IN TRANSCRIPT: None
EXHIBITS: IDENTIFIED RECEIVED None
PATRICIA E. VanTIL, PR-A, CER (616) 662-1815
Grand Rapids, Michigan
Friday, October 20, 2000- 2:03 p.m. *****
THE PLAINTIFF: Good afternoon, your Honor. MR. LEAL: Good afternoon,
your Honor. I'm appearing on behalf of Kent County.
THE COURT: Okay. Where's Mr. Greenwald today? MR. LEAL: He had
several different hearings for today.
THE COURT: Okay.
MR. LEAL: He ran into some timing problems, so I volunteered to fill
in for him.
THE COURT: And I think, Mr. Hickel, you and Mr. Greenwald the last
time you were in here, which was about a month and a half ago, got
together and had some conversation about just how many motions you
had, et cetera?
THE PLAINTIFF: Yes, sir. Yes, your Honor, and they're all there.
THE COURT: Okay.
You've talked with Mr. Greenwald about this, then, I assume.
MR. LEAL: Yes, your Honor.
THE COURT: Okay. How do you spell your name? MR. LEAL: Leal, L-e-a-l.
THE COURT: Okay.
All right, go ahead, Mr. Hickel.
THE PLAINTIFF: Your Honor, when I was here last time you asked me
to prepare an agenda, which should have been submitted with the
response to the response.
THE COURT: I think I saw that somewhere.
THE PLAINTIFF: So, with your permission, I'll proceed through that.
THE COURT: Go ahead.
THE PLAINTIFF: My request is to upgrade my restricted license which
states for banking and business purposes, preceded by hunting and
target, to an unrestricted. And I also have an Open Meetings Act
summary disposition open.
And I would like the --as a remedy I would like the defendant to
in the future tape record and videotape all transcribe --or
transcribe all meetings, because I've discovered that they often
forget what was
said and merely put in the minutes what's convenient for them.
And as an issue, in the same submission, the last submission I gave
to you, there are the minutes of the meeting that I was issued the
license, your Honor. And you'll note that my name is completely
absent from there in the minutes. So, in other words, there's no
record of them
granting me that license on that day, even though I got the license.
So it would seem a practical matter for myself in the future, and
anybody else that goes before the Board, that they should probably
videotape it in order they don't forget things like that.
I also desire that the defendant follow open and fair licensing
procedures. Because it seems that basing it on need leaves it open
to what I would call unfettered discretion or an abuse of discretion.
Nobody is denying that they have discretion, it's just, where does
The defendant wrongly believes that it must limit access of
concealed pistols to qualified applicants. They cite cases
justifying this in both their response to myself and in response
to Dr. Duffin. They cite McFadden and Hanselman, and they cite People
--which cites People versus Brown. And all the cases they cite,
including People versus Swint, are either criminals in cases they
cite, including People versus Swint, in violations of felonies in
possession of Michigan concealed --or not in possession of Michigan
concealed weapons permits or in violation of the statute. The
language in these cases discuss how the State's right of reasonable
police power allows them to
limit access to criminals to weapons that are suited to criminal
use by criminals.
Well, your Honor, I'd like to point out that one of the purposes
of the Board is to determine if --the purpose of the Board is to
determine if an applicant is a threat, either based on past criminal
behavior or having a criminal record. And even if they were a past
criminal, the statute has an accommodation for eight years past a
felony conviction if they've served their time and all the other
requirements of that have been met, that after eight years even a
felon can get the statute. So it's clear that it wasn't just meant
for retired police officers or law enforcement related persons.
Next they cite other cases that show there is sufficient criteria
in 28.426 to thwart any arbitrary and capricious complaints owing
to a lack of standards. Next they cite cases that show they can
exercise their discretion according to local needs of each
community. From this they justify their unpromulgated -- and I say
unpromulgated because I've found out that they, in fact, do have
a policy manual that states, which you also have a copy of their
policy manual in the last submission to you, that states that they,
in fact, do only grant unrestricted or general licenses to just
retired law enforcement officers; and then they have a slew of other
criteria for restricted licenses.
In fact, there is really no dispute that I am a proper person to
be licensed, as I was, in fact, licensed with a for banking and
business purposes license, which, based on my determination, is the
highest level of license they've ever given to anybody other than
restricted --or unrestricted. The issue is, does he warrant --or
do I warrant obtaining a license class that has been heretofore
reserved to just law enforcement?
To answer that, one must obviously find the Board's discretion
--discretionary power does not abuse that power by limiting
unrestricted licenses to just law enforcement. I contend that they
are abusing their discretion by doing that. There has to be a limit
to their discretion. And as I will point out, they violated 11 due
process violations and four or five equal protection violations and
at least three or four Constitutional
issues. To answer that, one must obviously find that the Board's
discretionary power does not abuse that power by limiting
unrestricted licenses to just law enforcement.
All would likely agree that the defendant's discretionary powers
are limited. The question, then, is: What are those limitations?
The defendant would have us believe that they can make their local
rules that severely infringe a common citizen's ability to obtain
unrestricted license while making it extremely easy for retired law
And as point in contention --or to point that out, if you look at
the minutes, any series of minutes that they have, the first
paragraph is always these retired law enforcement applications are
reviewed, all pass. And the people are not there undergoing the same
scrutiny that general citizens have to undergo. The very cases that
they cite to justify the above are actual cases that if properly
read and cited would show that their discretion is limited to
determining who has a criminal- or mental-free history, background,
and who is a threat. This is true for all the cases they cite, either
by reference or direct statement.
In People versus Brown, which is the Michigan Supreme Court case
that their cases all cite, is widely published, and it's about a
person in possession of a blackjack.
And I have a paragraph taken from my last brief to you, and I would
request the Court to read the last three or four sentences that says
The court declared that the State's exercise of police power will
be upheld if it is reasonable and does not result in the prohibition
of the possession of those arms which, by the common opinion and
usage of law-abiding
people, are proper and legitimate to be kept upon private premises
for the protection of person and property. In this case, the People
versus Brown, a blackjack was not a weapon which by common usage
was considered legitimate for defense of person and property and,
therefore, could be Constitutionally prescribed. One would infer
by this, and, in fact, the whole purpose of the Board is to grant
concealed weapons licenses for pistols. If you look at the license,
it actually says --it doesn't say concealed weapons license, it says
concealed pistol license, which would infer that anything other than
a pistol is probably not okay to conceal, including rifles,
blackjacks, or anything else. If it said concealed weapons, then
a blackjack would be appropriate.
So by the Supreme Court of Michigan it says, in essence, that a pistol
is a, by common opinion and usage of law-abiding people, which the
legislature backed up by having a special law for pistols to ensure
that people who grant --or are given a concealed pistols license
are, in fact, not a threat, your Honor. In essence, pistols are part
of a deep-rooted heritage as the U.S. and state citizens are deeply
embedded in our common law and as preferred weapons of self-defense.
The fact that I am before the Court today
speaks of substantive and procedural issues that need to be
resolved. But the crux of the matter is that the defendant, thinking
--thinking it is being reasonable in its local rule making that says
only retired law enforcement officers shall get an unrestricted
license, is simply prohibiting part-time and in many instances
full-time a person's ability to defend themselves with a pistol,
because somehow they got the mistaken nature -- notion that when
--that they must limit access to pistols because of their criminal
nature, when, in fact, the Supreme Court ruling states that by common
usage a pistol would not be such a weapon. The restricted license
is for someone who asks for --excuse me --the restricted license
for someone who asks for an unrestricted one and use self-defense
as a reason and is otherwise qualified is a part-time prohibition
and not a reasonable restriction. For as soon as one admits that
it is reasonable to restrict qualified applicants who are --who are
not police officers from the full time carrying of a concealed
weapon, then the question, Why? must be asked. The answer will always
be -- come back to be, it's safer to do so. Safer for whom?
Hickel --that's me --has already shown that the society benefits
from greater unrestricted carrying of concealed weapons through the
Mustard-Lott study that was
mentioned in the briefs and the statistics that were also brought
up. The State has no scientific evidence or backdrop to support a
safer-society claim. It is only a feeling or bias of an adjudicatory
and investigatory body that they have the society better off with
just police being armed, which completely contravenes the
Constitutional nature of a fundamental right, which I believe we're
dealing with here, your Honor. For that reason, a reasonable
restriction is the process --and I'll repeat that --for that reason,
a reasonable restriction is the process of licensing and not giving
out restricted licenses, unless somebody asks for a restricted
license, which is the case when perhaps a security guard for a
company purpose would go in and say, your Honor --or, excuse me --the
Board, you know, I just need it for my job. And then that would be
But to say that somebody like myself who said I would like an
unrestricted license for self-defense 24 hours per day --and they're
in the practice, if you --if you look at all the different types
of licensing they grant, every license that is restricted is very
restrictive as to who it applies to; for example, from or during
work as a psychotherapist, which means when you're not a
psychotherapist, I guess on your drive home or when you're with your
family, then it wouldn't apply.
But, then, the nature of violence is one that's random and
undetermined. How do you know when somebody is going to be shot?
And as I used as an example in one of my briefs, what about all the
people that were killed by violence of guns or knives? And if they
had come to the Board previous to their being killed and they
requested a license and they were told by the Board, which is their
practice, to say, well, you don't need it, and then they were killed
the next day, and the Board certainly isn't liable for that death,
as the Supreme Court has ruled in a brief that I mentioned. So wherein
is the logic of that, your Honor?
So I would support that strict scrutiny would apply to this case
and the issue of a concealed weapon having to do with the right to
keep and bear arms, both Michigan Article 1.6, which states that
the right of the people in Michigan to keep and bear arms for the
defense of themselves from the State.
And I would ask the Court that they rule judicial construction, that
when somebody is otherwise qualified by all the other non-vague
standards, that when they use self-defense for a good reason, that
that would be considered a good reason.
There are certain admissions in evidence which I think are fairly
clear, as I've pointed out several of
them already; the minutes, for example, that are missing me in their
records, the policy manual that states that it is their policy to
issue unrestricted to just law enforcement.
The defendant claims that the Duffin brief has no relevance to this
case. And I would say, your Honor, that in that case Mr. Duffin was
told that the writ of superintending control was the proper way to
address the issue, there was no appeal process. And, also, that is
the last known case that I'm aware of that has been brought before
the Kent County judicial system. And, so, what is in their brief
that I highlighted one of the submissions -- or one of the motions
that I gave you is certainly relevant and many of the same arguments
and court cases they came back to me on with their response to my
So I would say that the defendant has admitted that they only grant
unrestricted licenses to law enforcement. I would say that that
certainly is a biased point of view. It's illegal rule making of
legislative rules. It's also an equal protection issue. Because it
shows bias of an adjudicatory and investigatory body, which is a
common Fourteenth Amendment due process argument as well as a State
of Michigan due process argument. I would argue that they're in
violation of that as well. I also would point to the evidence of
affidavit as the plaintiff and the enclosures to the original
complaint, which in my affidavit state that these are my submissions
to the Board. Their response to the plaintiff's motion for summary
disposition, theyadmitted to partially prohibiting the right to
keep and bear arms.
In the interrogatories that I made copies of and submitted to the
Court, they stated that they partially prohibit it. In fact, on
Question No.71 they state that the right to keep and bear arms has
nothing to do with their process.
And I would claim, because their process is the only way that a
citizen can legally carry an arm in a car, which is some people four
hours a day, that that is a partial prohibition; and that because
they stand over a partial prohibition of a Constitutional right,
that certainly that means the Board does impact the right to keep
and bear arms and, therefore, strict scrutiny would apply. They also
admit that they restrict unrestricted licenses to just law
enforcement. Again, I'm repeating myself on that one. But that is
the same as saying they're biased; and it is a double standard for
a law enforcement officer who is retired, who goes into civilian
status, who is no longer carrying a policeman's card and saying he's
just a normal or she's just a normal citizen like anybody else.
I would point the Court to the standard which, in essence, is a
standard that creates nonstandard results, which is the phrase "good
reason or other proper reason," good reason to fear for their life
or other proper reason. The defendant basically ignores the other
proper reason. They have absolutely no regard for any other proper
reason. The only thing that the defendant ever tries to do is
maintain their appearance of not being arbitrary and capricious,
so they adhere very strictly to only granting unrestricted to law
Well, what is bias versus discretion, bias versus discretion? I
would say that discretion is where they treat each case --and they
do admit that in their interrogatories that they treat each case
based on their own merits. But when they already have a rule before
somebody goes before them that says that they're not going to get
it anyway, I would say that's bias. And I would say that the Board
has already predetermined who is going to get that license before
they even get there.
THE COURT: Mr. Leal, do they have such a rule?
MR. LEAL: As far as the issuance? Not that I'm aware of, your Honor.
I know that what Mr. Duffin has been citing to is arguments and --
THE COURT: Mr. Hickel.
MR. LEAL: Excuse me, your Honor?
THE COURT: Are you talking about --
THE PLAINTIFF: I'm not sure where he's coming from, your Honor.
THE COURT: You said Mr. Duffin. I mean, there's a Duffin --
MR. LEAL: I'm sorry. Mr. Hickel is referring to documents that were
prepared over four years ago that were used in an unrelated case
that have no bearing as to what the current policy and procedures
THE COURT: You're referring to Dr. Duffin's case?
MR. LEAL: Yes, your Honor. Most of the evidence he uses all comes
out of that case, and he's using it as being the Board's position
now. May have been so four years ago, but things --things change.
And using those kinds of --
THE COURT: So there is no position or policy now to that effect?
MR. LEAL: Not that I'm aware of, your Honor.
MR. HICKEL: Your Honor, this is their policy manual (indicating)
, which is dated 1994. And let me make sure I've got the right pages
here. Here's their policy manual. In there within the first three
pages you'll find where it states that unrestricted licenses only
go to retired law enforcement officers. And they don't --they
don't go to nonretired law enforcement officers because they already
have the permits to carry.
THE COURT: All right, they talk about two categories, general and
restricted. And you have a restricted.
THE PLAINTIFF: Yes, sir. Yes, your Honor. Here's my license, your
Honor (indicating) .Thank you.
THE COURT: All right. It says:
"Standards. Kent County Concealed Weapons Licensing Board limits
the issuance of general permits to those persons connected with the
criminal justice system where there is a legitimate threat of bodily
injury because of past, present, or future dealings with criminal
THE PLAINTIFF: I would point out, your Honor, that I obtained that
a month ago, way after the process I went through. That was never
offered to me or made known.
THE COURT: Mr. Leal, are you aware of this? I have no idea if this
is current or obsolete or what.
THE PLAINTIFF: That book is the discovery book, your Honor.
MR. LEAL: I cannot answer that since I'm just filling in for another
attorney, your Honor.
THE COURT: Well, continue, Mr. Hickel; although, be aware we have
a lot of people waiting here.
THE PLAINTIFF: I'll try to move it along, your Honor.
THE COURT: Okay.
THE PLAINTIFF: The issues are that I believe that the County Board
has taken it upon themselves because of the good-reason,
other-proper-reason phrase to
interpret. And I use the word "interpret" very strictly, because
that's exactly what they have done. And, in fact, when you read my
last response to them, you probably saw in there where I pointed
out a number of instances where they even say that they interpreted.
And I would say that a standard that causes a board to interpret
something that has an impact over a Constitutional right is probably
So I would hold that the good reason, other proper reason is too
vague of a standard because it creates standardless responses. In
other words, every board in Michigan is free to decide what they
want as far as who can or cannot get a license.
THE COURT: Well, maybe that's a legislative problem.
THE PLAINTIFF: Well, your Honor, I've thought about that. And, in
fact, in the Dr. Duffin brief, the defendant --the defendant at that
time mentioned that as well.
THE COURT: In fact, isn't there some pending legislation or --
THE PLAINTIFF: It's sitting in -- THE COURT: --proposed?
THE PLAINTIFF: Well, it's just proposed. It's been --actually,
they've decided not to push it through. But, your Honor, when --it's
my understanding --and I'm certainly not an attorney and I wouldn't
want to tell the Court or the other attorneys here how to do their
business --but I would --from what I have been able to gather is
when a law is vague --and certainly good reason, other proper reason
is very vague --what does it mean? And when a board has the latitude
of unlimited discretion to determine, based on what they feel that
means, to who they give a license to, I would hold that that is vague.
And I don't know if this Court has the authority to say, well, we
could do judicial construction on a strict basis and say that good
reason really means self-defense because everybody that gets a
permit needs it for self-defense. That is the reason that they're
going for it. To summarize, basically, all the issues, you have the
agenda before your Honor; and I would point out merely that there
are 11 due process issues which I believe
they have violated because of their unfettered discretion. I believe
that the Second
Amendment they violated, but that, You know, that' s not in purv.iew
of this Court. I
just would like to mention that in case this goes further. The Ninth
Amendment of the United States also. The right to reasonable police
power versus the right to keep and bear arms. That's really what's
at stake here, your Honor, in my opinion, is the right of reasonable
police power versus the right to keep and bear arms. Which the right
to keep and bear arms should certainly have a higher latitude of
--the rule of lenity should apply to somebody who is qualified for
I would also like to point out the Schubert versus Debard case, which
is an Indiana appellate case that I believe is the case that is most
germane to this. And, your Honor, I'm sure you've read that. And
I pointed to it several times. And in that case, Schubert versus
Debard, it's pretty much the same situation. The court ruled that
if a person is otherwise qualified, that the --that the defendant
cannot look beyond the reason of self-defense for what underlies
that, such as why do you need it; they merely have to go based on
the fact that self-defense was the reason. And that has basically
turned the Indiana situation around, which was much like Michigan
I'd like to point out that sometimes people
say, well, you can carry a gun in the open. And I would suggest that
the Supreme Court upholds a strong ruling of privacy. And I believe
that if somebody has --is forced to carry a gun on their outside
wherever they go -- certainly they need a permit anyway to carry
it in a car -- but even if they didn't, you know, it would hurt their
reputation, people would be concerned today in this anti- gun --last
ten years of anti-gun environment or politics.
Your Honor, I would like to point out that at the time I applied
for the license, that I showed them my Florida license, which is
right here, your Honor (indicating) .And I showed them my military
ID card for the reserves; I'm a captain in the Navy. And, as you
know, a week ago there was a ship blown up, which has a commander
as the commanding officer, and I outrank him. And I told the Board
that one of the reasons I wanted it was because of the threat of
terrorism. And certainly we've seen that in the news.
And going back to the Florida license, this is an unrestricted
license, your Honor. I have that. I told the Board that I had it,
and they still denied me an unrestricted license. And I'd like to
point out the full-faith-and- credit clause of the United States
Constitution. I'm sure you're quite familiar with it. It basically
every state, when the seal of the state is on it --and I would point
out,' your Honor, that the seal of the state of Florida is on that
--that the state of Michigan needs to honor that. In fact, anybody
from Florida can come into Michigan and use their license and carry
a concealed weapon for six months until they become a resident. Then
lose the right when they go before the Board because they don't feel
they have a need for it.
I'm skipping by a lot of these issues because I know you've read
all these things, your Honor. And I'm just going to go to my closing
I would move that the Court upgrade my restricted license to an
unrestricted. And if the Court is going to need time to consider
this decision, which I would certainly respect that if you needed
it, that you temporarily grant the unrestricted licenses while you
decide on that.
And I would also point out to you a conversation that I had with
Mr. Greenwald in the back room when I went back there, which he said
that, should I prevail on the Open Meetings Act, he said then my
license would be null and void. And that's because, in essence, that
particular meeting that they failed to take minutes on with my name
in it means they would have to revoke my license and I'd have to
go through this process again. I
would ask the Court not to put me through that procedure.
I would move to have the defendant comply with the Open Meetings
Act plus the following, including:
Publishing and handing out a policy manual, which, as I've shown
you, exists, but it is not published. It was not given to me or any
other applicant that I've ever talked to.
And that whatever you decide as far as superintending control over
the Board as far as future behavior, that that also be put into the
policy manual and promulgated accordingly.
And I would also ask the Court that transcripts or recordings or
videotapes of each applicant be made because of the Board's
propensity to not do that and because every time you go to talk to
them about what happened they seem to forget.
I would move to have the defendant upgrade all restricted licenses
to unrestricted where applicants originally requested unrestricted
licenses. And I would move to have the defendant actually limit
discretion to threat assessment and other standards
as set forth in MCL 28.426, 6.1, and, where reason is self-defense
and an applicant is otherwise qualified and not a threat by virtue
of past performance or criminal record or a mental history record,
to grant an unrestricted license
when requested by the applicant.
And I would move to have good reason, other proper reason to be
constructed to mean self-defense, your Honor, as was done in the
Schubert versus Debard case in Indiana.
And I would request the Court to rule on all counts on the plaintiff's
And I would submit that I have submitted sufficient evidence, based
on the record under the terms of a writ of superintending control,
which states that the Court has the option of putting out an order
as to why the request should not be granted, putting out --or
granting the request or denying the request.
I would ask the Court to grant my request for an unrestricted
I would assume that because this is superintending control, that
were you to grant the unrestricted license, that all my counts, other
than the Open Meetings Act, would be null and void, because with
superintending control, in essence, the Board is issuing me the
license; and, therefore, I would no longer have any claim against
all of those counts because I got what I asked for. And I would submit
that that would seem to be the most expedient and most fair means.
And I would also ask that the Court publish
this opinion such that any future applicants coming before the Board
be treated in an open and fair manner in "' accordance with the
standards that you set here today, your Honor.
THE COURT: All right, Mr. Leal, response. MR. LEAL: I'll try to keep
it short, your Honor.
I'd like to begin with, that Mr. Hickel has already alluded to that
this is a writ of superintending control or a complaint filed under
3.302. Now, as your Honor is aware, this rule is available when there
is no appellate remedy provided by a statute or --in this case the
statute that covers, the MCL 28.426, and the other ones that also
follow it in conjunction with the issuance of licenses do not --does
not provide appellate remedy.
So we have no disagreement with Mr. Hickel when it comes to this
--the jurisdiction of the Court is proper and under writ of
What we do disagree is that --Mr. Hickel has started filing
--backtrack. Under write of superintending control the Court looks
at it to see what has happened, what is the record. It's very similar
to a regular appellate procedure. Yet, Mr. Hickel is continuing to
file motions for summary disposition as well as requests for
interrogatories, things that would not be allowed under a regular
appellate procedure. That's one thing that we would like to know,
how this Court intends to treat this, whether as an appellate remedy
or whether as a full-scale lawsuit where discovery is available to
Since this is a writ of superintending control, I will proceed under
that route. And, basically, these briefs that we've filed on both
sides can act as a sort of pseudo-public briefs for the Court to
make a decision. We feel that under what we've responded to, Mr.
Hickel's main arguments, warrants a decision in favor of the Board.
Now, Mr. Hickel's thrust of his complaint/ appeal has two main
themes, your Honor; one is that, as he's alluded to, violation of
his federal and state Constitutional right to keep and bear arms.
Also, he's also alleged a violation of the open Michigan --Open
Now, I'll address the Open Meetings Act violation. Under that there
are certain procedures that a board or city council and other types
of legislative bodies must follow when they're actually having a
meeting. In addition to those actual procedures, one of the things
that --if one is going to be claiming that there is a violation,
that person has to come forward to say that the rights of the public
-- any decisions made, that the rights
of the public were affected by that decision based on improper
procedures that were followed.
In this case the rights of the public haven't been --haven't been
affected. An example of what rights of the public means is when,
let's say, a township board decides to meet behind closed doors to
approve a sewer assessment and not let in anybody. Well, in that
case the public that has been affected are the actual property owners
who are going to be assessed as a result of that decision. We don't
have that here. The only person involved is Mr. Hickel.
Further, he can't even show that his rights were really affected,
because he was issued a license ultimately; albeit it was a
restricted license, but he still got a license.
Second, you must also be able to bring forth some kind of factual
allegations to show that the Board did this intentionally. And
there's nothing like that either in the briefs or the record. Based
on this, there can -- he's failed to show any type of proof to show
that the Open Meetings Act was actually violated by the Kent County
Concealed Weapons Licensing Board.
Now, as far as his Constitutional rights to
keep and bear arms, it's been held repeatedly by the state courts,
especially our Michigan Supreme Court, that the
State may reasonably regulate one's right to bear arms. It can't
completely prohibit it, but it can reasonably regulate it.
This issue came up --or this holding came up when the Michigan
Supreme Court addressed the validity of MCL 28.426, specifically
(1) , which deals with the other-proper-reasons clause that Mr.
Hickel has referred to. There, as long as the State is not completely
prohibiting one's right to keep and bear arms, and not being applied
by the local boards also in that same manner, then it passes
Mr. Hickel has a license. It's a restricted, but he still has a
license. Have his rights been violated? We think not, your Honor.
Finally, all of the evidence that Mr. Hickel has brought forward
before this Court deals with, again, evidence that was used in the
Duffin appeal that was heard before this court, I believe before
Judge Soet. Again, that case was four years old. Any type of position
the Board may have had does not reflect the position that is in this
case. Any types of statistical information he may have used four
years ago is at most unreliable and outdated and cannot be really
used effectively by this Court in making its determination. So we
feel that under the appellate --under
writ of superintending control, Mr. Hickel simply doesn't have any
basis for his claims. And we'd request that the Court simply dismiss
the complaint under 3.302(E) (3) (a) (iii) .
If this Court does feel that this is a full- scale civil action with
discovery as proper, then, again, we feel that Mr. Hickel has not
been able to support his burden of proof to show that there is a
genuine issue of material fact for us to be able to respond to his
arguments. Again, there is no evidence.
Therefore, this Court cannot grant his motions for summary
disposition, should the Court decide to go the other route of the
non-appellate route. That's basically it, your Honor.
THE COURT: Okay.
Mr. Hickel, any brief response you want to make?
MR. HICKEL: Duly noted, your Honor. Yes, your Honor.
I'd just like to point out that a board of police officers who have
been given the discretion to determine who has a need for a license,
and then who has to interpret the Michigan Court Rules that all cite
the People versus Brown case, which states that clearly people have
a right to keep and bear arms, and that only blackjacks can
be reasonably restricted, and that pistols cannot be reasonably
--excuse me, that pistols cannot be prohibited, and I would contend
that we're dealing a little bit of semantics here, your Honor.
In their response to my motions, they continually said, at least
eight or ten times, that Mr. Hickel's rights are not completely being
prohibited but merely reasonably restricted. Well, I would like to
just slightly change that and say they're being restricted, your
Honor, but unreasonably. And pointing that the Supreme Court and
the Michigan Constitution clearly state that the people have a right
to keep and bear arms for self-defense. And that, because the Board
stands over those people who can carry a gun in a car, otherwise
they're committing a felony, that they do indeed control the right
to keep and bear arms. And I would contend that because of that that
my rights have been violated, because my rights have been partially
prohibited, your Honor. Certainly, it is semantics, but, again,
we're dealing with a strict scrutiny Constitutional issue, one that
is equally important as the right of freedom of speech or the right
of freedom of press. And I would ask the Court to consider that in
your decision. And, secondly, the Open Meetings Act, one of
the reasons why the Board, in my opinion, gets away with unfettered
discretion and creates local rules that state that only retired law
enforcement officers get licenses is because they are able to carry
that duty or that charter, as they put upon themselves because of
the way they interpret the law, is because they do it behind closed
doors. And they can say that it only affects me, but in reality it
affects everybody. Because, because they are not open to the
scrutiny of the people, they basically don't hear what the public
opinion is of that when they make a decision because they're not
in the room to hear it. And I believe that the intent, whether it's
the verbiage of the Opening Meetings Act law or not, is that similar
to a sunshine law, if you've heard of those, which I'm sure you have,
is that it has to be open, as this Court is, where minutes are taken
and videotapes perhaps are made and everybody can see the decision,
not only the applicant's arguments but the decision that is made
and the votes that are made.
And I would hold that I wasn't privy to the votes, I wasn't there;
I was told in a public lobby that my right to keep and bear arms
at the time was completely restricted. Because only after I hired
a lawyer and spent $4,500 was I able to get the license that I had;
otherwise, I would have been like everybody else that goes for an
unrestricted license and told that, we're sorry, but you don't need
it, you're not qualified. And they don't tell you why, other than
the fact that you don't need it.
And I would hold, your Honor, that they have violated the Open
Meetings Act on at least three counts and that, as I have pointed
out in my briefs, and that they have violated the Michigan
Constitution, 11 due process violations, and on numerous
Constitutional issues, including equal protection amongst other
So, again, I go back to what I've requested of the Court, your Honor.
THE COURT: All right.
The Court has had the opportunity over the last few weeks to review
the entire file and everything that's been --all the pleadings that
have been filed in the case. It's heard the arguments here today.
And, of course, this entire case arises, Mr. Hickel, out of your
essentially an appeal from the local licensing board. And you have
a restricted rather than an unrestricted license, which you want.
I mean, this is based upon alleged violations of your Constitutional
rights and the Open Meetings Act.
It's this Court's opinion that, since your rights have not been
completed prohibited under Michigan Statute 28.426 but only
restricted, the counts based on
that, which I believe are Counts I, II, III, IV, and VII, must fail.
Your count on conspiracy is not applicable here because it's a
criminal provision; it does not provide a civil remedy. The Open
Meetings Act violation, Count VIII I believe it is, that must be
denied because you haven't shown that the public's rights have been
violated or that the Board's acts were intentional or willful. So
I'm going to deny all your motions for summary disposition, Mr.
Hickel, and exercise my discretion here and enter a judgment in favor
of the defendant here and dismiss this case. I understand where
you're coming from, Mr. Hickel, but under the law as I see it, I
don't see where you're entitled to any relief.
THE PLAINTIFF: Okay. Thank you, your Honor. THE COURT: Thank you.
MR. LEAL: Thank you, your Honor.
(At 2:45 p.m., proceedings concluded)
-34- CERTIFICATE OF REPORTER
STATE OF MICHIGAN ) )
COUNTY OF KENT )
I, Patricia E. VanTil, do hereby certify that this transcript, consisting of pages 1 through 34,
inclusive, is a complete, true, and correct transcript of the proceedings and testimony taken in
the matter of
Stephen M. Hickel v Kent County Concealed Weapons Licensing Board, Its Members and Delegates, File
No. 00-05186-AS, on October 20, 2000.
~1j~: ~fl, PR-A, CER-5656
Certified Electronic Reporter 1736 Stonegate Drive
Hudsonville, MI 49426 (616) 662-1815
January 25, 2001
PATRICIA E. VanTIL, PR-A, CER (616) 662-1815