Activist, foster parent: Legal, legislative paths moving forward for Ontonagon man in gun-rights case
ONTONAGON — Legislation prompted in part by an Ontonagon man who says the state unfairly took his grandson out of his foster care for carrying a concealed weapon is closer to passage.
The Senate bill, SB 527, was approved by a 26-11 vote on Nov. 8. The House bill, HB 4955, was referred to the Judiciary committee in December.
Bill Johnson, of Ontonagon, is suing the state Department of Health and Human Services, as represented by Secretary Nick Lyon, in an effort to nullify department policy restricting the firearms rights of foster parents, as well as barring the state from enforcing any such policy.
In his complaint, filed in U.S. District Court, Johnson argues the MDHHS’s policy violates his Second and Fourteenth Amendment rights through a functional ban on having firearms for self-defense. Johnson’s suit was filed with aid by the Second Amendment Foundation, a national gun-rights group.
The MDHHS has filed a motion seeking to have the case dismissed. Johnson and the other plaintiffs lack standing to file the suit, Lyon said in the motion. Additionally, he said, the court could wait until the bills go through the Legislature.
“Because the present case raises issues related to difficult and important questions of state law and a decision by this Court would disrupt state efforts to establish a coherent policy, it should abstain from exercising jurisdiction …” Lyon said, He cited the abstention carved out in Burford v. Sun Oil Co., in which federal courts can defer to state courts’ expertise in an area where the state law is especially complex or unique.
The MDHHS declined to comment on the case, citing the ongoing legal proceedings.
A hearing on the motion to dismiss is scheduled for December.
The issue began in April, Johnson said, when the state required he and his wife, Jill, to become licensed as foster parents to take care of their then-5-year-old grandchild, who had been taken away from his mother.
In the complaint, Johnson described conflicts with state workers and a circuit court judge over his firearms. After caseworkers asked for the serial numbers of his guns, Johnson said in the complaint, they told him, “If you want to care for your grandson, you will have to give up some of your constitutional rights.”
“The first words out of their mouth were, ‘We’re not going to have a power struggle here,'” he said Friday. “That’s sort of a strange comment to start out any conversation.”
State rules for foster care parents require guns to be stored in a locked metal or solid wood gun safe, or trigger-locked and stored without ammunition in a locked area. Ammunition must be locked up separately. Handguns must be registered, and documentation of its history must be available for review.
Johnson said he did not object to the language on its own, but said the MDHHS, by also requiring Johnson to remove guns from his home, had violated his rights.
“Their policy, as written, is fine,” he said. “But they don’t follow their own policy.”
The policy violates Johnson’s right to carry firearms to defend himself and his family, he said in the complaint. He said it also violates his Fourteenth Amendment right to due process and equal rights.
The day after Johnson filed his complaint, he said, the state removed his grandson and gave temporary custody to his mother for an overnight visit. Johnson said the child was returned back to him with stitches in his head. Custody was returned to his daughter on Aug. 1, he said.
“Everyone we talked to said they’ve never seen a child returned within a month,” he said.
Johnson said he and his wife are now serving as foster parents for another child, although he said he is licensed through U.P. Kids, not DHHS.
The Senate bill, sponsored by Sen. Tom Casperson, R-Escanaba, would allow people to possess guns in a foster home if they were otherwise allowed to do so under state law. Foster children would also be able to handle guns in the presence of a licensed gun owner.
Supervising agencies would also be barred from requiring a foster parent to provide confidential firearm information, which Johnson said had happened when DHHS asked him to physically turn over his concealed-carry permit and to provide registration and serial numbers for all of his guns. While Johnson’s handgun is registered, long guns are not required to be registered in Michigan.
The House bill prevents supervising agencies from considering the legal ownership of a firearm or concealed carry license when deciding placement of a foster child.
Johnson said he currently has seven guns at his home, including a handgun, hunting rifles, shotguns and an AR-15 — “I have a spinal condition, and it doesn’t kick me,” he said.
It also includes his grandson’s BB gun, which he said DHS had required to be locked up as well.
“He just turned 6, and that was his big thing: for his sixth birthday, he was going to get to fire his BB gun for the first time,” Johnson said. “Then we’re told, ‘He can’t touch it. He’s a foster child.’ On his sixth birthday, I took him out and he shot his BB gun. And he’s very good. Tells everyone he wants to be a Marine like Grandpa.”
Johnson said his lawsuit will go forward regardless of the bill.
“That doesn’t excuse the fact that you already violated my constitutional rights,” he said. “You can’t go, ‘OK, I robbed a bank, but they made a new law and bank robbery’s legal now.'”
Johnson said he would also be active in seeking a bill on grandparents’ rights.