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Lawsuit to allow guns in foster homes will move forward

Aug 20, 2018

A lawsuit over whether foster parents can keep unsecured firearms in their homes is moving forward. Foster parents William and Jill Johnson say state rules requiring them to lock up their guns for storage are depriving them of their Second Amendment rights.

The plaintiffs in the case are William and Jill Johnson and Brian and Naomi Mason, all residents of Ontonagon, Michigan; and the Second Amendment Foundation, of which both couples are members.

 

The Johnsons became licensed by the Department of Health and Human Services as foster parents after serving as relative caregivers for their grandson. Foster care licensing is not required for relative care placement, but the Johnsons undertook licensing so that they could provide foster care for other children. They say that DHS rules for foster homes that require firearms to be locked in a gun safe or trigger-locked and stored separately from ammunition deprive them of their Second Amendment right to use their weapons for home protection.

U.S. District Judge Paul Maloney agreed the parents have a plausible claim and denied the state's motion to dismiss the case. In his opinion, he wrote: “Storing firearms in an inoperable condition makes them useless for the defense of hearth and home, which implicates the Second Amendment....The need for self-defense rarely comes with advance notice; it occurs spontaneously, often at times specifically chosen for the expected vulnerability of the intended victim.”

However, Maloney dismissed claims from Brian and Naomi Mason, who said they would become foster parents, but have not because they wouldn’t be able to possess loaded, unsecured firearms in their home. Maloney said because they were not foster parents, they lacked standing to bring a case.

He also dismissed some portions of the Johnson’s case related to due process and equal protection.

Several amicus briefs were filed supporting each side in the case. Vivek Sankaran is with the Child Advocacy Law Clinic at the University of Michigan. In his brief, he argues that children in the state's care have a constitutional right to a safe environment under the due process clause of the U.S. Constitution. These protections apply to anyone in custody of the state, including prisoners and children in foster care.

“If you're a parent in the system and your kid is somewhere, how would you feel if you knew the home the child was in had guns and your child could access those guns?” asks Sankaran.

Sankaran also pointed out that foster children come from backgrounds that could substantially increase their risk of being involved in an accident or crime related to firearms.

Michigan Attorney General Bill Schuette filed an amicus brief in support of the plaintiffs. His argument largely mirrored Maloney’s final written opinion. “As a practical matter, when a firearm is kept in a home for self-defense, it is always ‘in use.’ Criminals never take a day off, and they never call ahead. To serve its self-defense purpose, a gun must be readily accessible whenever its owner believes he might possibly need it,” Schuette wrote.