LINCOLN PARK HOUSING COMM V DIANE ANDREW
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STATE OF MICHIGAN
COURT OF APPEALS
LINCOLN PARK HOUSING COMMISSION,
UNPUBLISHED
March 23, 2004
Plaintiff-Appellee,
v
No. 244259
Wayne Circuit Court
LC No. 02-201492-AV
DIANE ANDREW,
Defendant-Appellant.
Before: Cavanagh, P.J., and Gage and Zahra, JJ.
PER CURIAM.
Defendant appeals by leave granted an order issued by the circuit court, on appeal from a
district court jury verdict, affirming a judgment for possession in favor of plaintiff in this
landlord-tenant action. Defendant contests the constitutionality of a lease provision. We affirm.
Plaintiff owns and manages a government subsidized high-rise apartment complex in the
city of Lincoln Park. In addition to senior citizens, a limited number of low-income individuals
with disabilities also qualify to live in the complex. Defendant suffers from numerous physical
and emotional problems and is a tenant in plaintiff’s complex. At the time of trial, she had
resided in the complex for almost three years. Defendant’s lease, as did all other residents’
leases, prohibited the possession of firearms anywhere on the premises. In August 2001,
plaintiff’s staff contacted the Lincoln Park police because of concerns about defendant’s
emotional status. Apparently, defendant had contacted the staff and her behavior was interpreted
by the staff as suicidal in nature. Around this same time, a resident contacted the clinical social
worker at plaintiff’s complex and indicated that she had observed a gun in defendant’s
apartment. As a result, the Lincoln Park Police Department obtained a search warrant for
defendant’s apartment. When they arrived, defendant acknowledged that she possessed a
handgun and directed the officers to the trunk of her car where the gun was located.
Following the incident, plaintiff served defendant with a notice to quit for breach of her
lease agreement. Defendant requested and received an administrative hearing to challenge her
eviction, and following a hearing, the panel concluded that defendant was in breach of her lease
agreement with plaintiff. Plaintiff thereafter filed an action in the 25th District Court. Following
a jury trial, the district court entered an order of eviction and money judgment award on January
4, 2002. Defendant appealed to the circuit court, arguing that plaintiff’s prohibition on gun
possession, as a condition of residency in its government subsidized building, is unconstitutional
and cannot serve as the basis for defendant’s loss of her tenancy and associated benefits.
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Plaintiff, in response, argued that the prohibition of firearm possession as a condition of
residency in certain types of government-subsidized housing is based on a compelling state
interest and is constitutional. On April 15, 2002, the circuit court issued a written opinion
upholding the district court’s order of eviction and a written order was entered on May 3, 2002.
This Court initially denied defendant’s application for leave to appeal, Lincoln Park Housing
Comm v Andrew, unpublished order of the Court of Appeals, entered August 27, 2002 (Docket
No. 241787); however, by order dated October 8, 2002, the Michigan Supreme Court, in lieu of
granting leave to appeal, remanded the matter to this Court for consideration as on leave granted.
Lincoln Park Housing Comm v Andrew, 467 Mich 884; 653 NW2d 404 (2002).
Defendant asserts the Second Amendment, US Const Am II, provides an individual the
right to “keep and bear arms.” Defendant further asserts that the broad prohibition against the
possession of any weapon in plaintiff’s senior citizen complex is not sufficiently narrowly
tailored to serve a compelling state interest and discriminates against the elderly and disabled.
This Court reviews de novo the resolution of constitutional issues raised. Van Buren Charter
Twp v Garter Belt, Inc, 258 Mich App 594, 602; 673 NW2d 111 (2003).
The Supreme Court precedent regarding interpretation of Second Amendment issues was
established in United States v Miller, 307 US 174; 59 S Ct 816; 83 L Ed 1206 (1939). The Court
in Miller upheld provisions that regulated certain types of shotguns as not violative of the Second
Amendment and determined the Amendment applied only to the “preservation or efficiency of a
well regulated militia.” Id. at 178. Subsequently, lower federal courts “have uniformly
interpreted the decision as holding that the Amendment affords ‘a collective, rather than
individual, right’ associated with the maintenance of a regulated militia.” United States v Cole,
276 F Supp 2d 146, 149 (D DC, 2003), citing Love v Pepersack, 47 F3d 120, 124 (CA 4, 1995).
Miller is consistently read and interpreted as “demonstrating that the Supreme Court does not
view the Second Amendment as safeguarding a fundamental individual right.” Bach v Pataki,
289 F Supp 2d 217 (ND NY, 2003).
While recently the Fifth Circuit has determined the Second Amendment “does protect
individual rights” of persons not engaged in military service or members of a militia, restrictions
on those rights is not precluded. United States v Emerson, 270 F3d 203, 260 (CA 5, 2001). It is
well recognized that laws prohibiting felons, infants and those of unsound mind from possessing
weapons are not violative of the Second Amendment. Emerson, supra at 261; United States v
Waller, 218 F3d 856, 857 (CA 8, 2000).
The Due Process Clause of the Fourteenth Amendment, however, does not incorporate
the Second Amendment. Miller v Texas, 153 US 535, 538; 14 S Ct 874; 38 L Ed 812 (1894);
People v Swint, 225 Mich App 353, 359-360; 572 NW2d 666 (1997). Thus, the Second
Amendment is not applicable to the states. Swint, supra. With regard to defendant’s due process
rights, clear warnings exist against use of the Constitution, and substantive due process, to
supplant laws already in place and administered by the states. Galdikas v Fagan, 342 F3d 684,
691 (CA 7, 2003). Substantive due process has been determined to safeguard against only the
most arbitrary and conscience shocking intrusions by the government into personal matters. ATC
Partnership v Town of Windham, 251 Conn 597, 606; 741 A2d 305 (1999). As such, even if
applicable, plaintiff’s prohibition against weapons fails to “shock the conscience” or exceed the
“decencies of civilized conduct.” Co of Sacramento v Lewis, 523 US 833, 846; 118 S Ct 1708;
140 L Ed 2d 1043 (1998).
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Plaintiff asserts the prohibition against weapons is tied to a legitimate state interest to
protect and assure the safety and welfare of its residents. By analogy, tenant evictions by public
housing authorities have been upheld as not violative of the right of free association when such
action by the housing association was part of their efforts to control crime1 based upon the
recognized and legitimate interest of public housing authorities to maintain safe, decent housing
for its residents. McKenna v Peekskill Housing Authority, 647 F2d 332, 335 (CA 2, 1981). The
weapons prohibition has a real and substantial relationship to plaintiff’s stated goal. Coleman v
Dept of Personnel Admin, 52 Cal 3d 1102, 1125; 278 Cal Rptr 346; 805 P2d 300 (1991). As
such, defendant has failed to demonstrate the restriction on weapons violates the substantive due
process rights afforded by the Fourteenth Amendment.
Finally, defendant asserts that even if the weapons prohibition by plaintiff is
constitutional under the federal constitution, it is violative of Const 1963, art 1, § 6. While the
right to possess arms is acknowledged within the Michigan Constitution, this right is subject to
limitation. Jurisprudence in this state has consistently maintained the right to keep and bear arms
is not absolute. People v Brown, 253 Mich 537, 538, 541; 235 NW 245 (1931); Swint, supra at
375; Bay Co Concealed Weapons Licensing Board v Gasta, 96 Mich App 784, 788; 293 NW2d
707 (1980); People v McFadden, 31 Mich App 512, 516; 188 NW2d 141 (1971); Kampf v
Kampf, 237 Mich App 377, 383; 603 NW2d 295 (1999). This Court has determined that “the
constitutionally guaranteed right to bear arms is subject to a reasonable exercise of the police
power.” Swint, supra at 363, citing Gasta, supra at 788. The state has a legitimate interest in
limiting access to weapons. McFadden, supra at 540-543.
It is recognized that public housing authorities have a legitimate interest in maintaining a
safe environment for their tenants. Turner v Chicago Housing Auth, 969 F2d 461, 463 (CA 7,
1992); McKenna, supra at 335. Infringements on legitimate rights of tenants can be justified by
regulations imposed to serve compelling state interests which cannot be achieved through less
restrictive means. Roberts v United States Jaycees, 468 US 609, 623; 104 S Ct 3244; 82 L Ed 2d
462 (1984). Restrictions on the right to possess weapons in the environment and circumstances
described by plaintiff are both in furtherance of a legitimate interest to protect its residents and a
reasonable exercise of police power. This is particularly true given defendant’s failure to make
any allegation she feels physically threatened or in danger as a resident of plaintiff’s complex
necessitating her possession of a weapon to defend herself.
Defendant further asserts the prohibition on weapons by plaintiff violates substantive due
process under Const 1963, art 1, § § 2, 17. The “essence of a substantive due process claim is
the arbitrary deprivation of property or liberty interests.” Landon Holdings, Inc v Grattan Twp,
257 Mich App 154, 176; 667 NW2d 93 (2003). If a fundamental right is not involved, a
regulation must “only be rationally related to a legitimate governmental interest.” Landon
Holdings, Inc, supra at 173, citing Electronic Data Sys Corp v Flint Twp, 253 Mich App 538,
549; 656 NW2d 215 (2002).
1
Chavez v Housing Auth of El Paso, 973 F2d 1245, 1248 (CA 5, 1992); Turner v Chicago
Housing Authority, 969 F2d 461, 463 (CA 7, 1992).
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A legitimate governmental interest is based in the police power and is defined as
encompassing “protection of the safety, health, morals, prosperity, comfort, convenience and
welfare of the public, or any substantial part of the public.” Hecht v Nile Twp, 173 Mich App
453, 460; 434 NW2d 156 (1988). Restrictions imposed by ordinances or statutes are deemed
violative of due process if they comprise an unreasonable means of advancing a legitimate
governmental interest. Id. at 461. Defendant has failed to demonstrate plaintiff’s lease
restriction lacks a real or substantial relation to the health, safety and general welfare of its
tenants. It is not unreasonable to restrict access to weapons within this specific environment.
Further, plaintiff’s imposition of the lease provision is not arbitrary or capricious. Plaintiff has
evaluated the physical setting, the concerns of its tenants, the potential dangers evident and
determined a means to reduce the risk to tenants with minimal infringement of their rights.
Defendant also asserts, for the first time on appeal to this Court, that plaintiff’s lease
prohibition against weapons violates the Fair Housing Amendments Act, 42 USCA 3601 et seq.
As this issue was not properly preserved, and is not necessary to an adjudication of this matter, it
need not be addressed by this Court.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Hilda R. Gage
/s/ Brian K. Zahra
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