Second Amendment and Landlords: Can landlords prevent tenants from possessing firearms in leased apartments?

The right to bear arms: The Constitution, as amended (Bill of Rights), provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Two general rules to remember, (1) as society changes, so too does our interpretation of the Constitution, and (2) the Constitution does not apply to the States unless the provision says it does, or the Supreme Court has found it does.

And a recent Supreme Court interpretation (2008) found that the second amendment encompass an individuals right to bear arms, not only when connected to militia (see District of Columbia v. Heller, 128 S. Ct. 2783 (2008); where the District of Columbia regulated handguns). The Supreme Court continued in 2010 and found this right extends not only to the Federal government but to the States as well (see McDonald v. Chicago, 130 S. Ct. 3020 (2010); “the Second Amendment right is fully applicable to the States”).

From those two recent cases, it is fair to conclude, an individuals right to possess and own firearms must not be interfered with, by State or Federal regulation or legislation, unless such legislation can pass the proper level of scrutiny necessary.

Although the Second and First Amendments are presently some of our Nation’s strongest, they generally do not apply, in any form, to private individuals. Rather, individuals are afforded protections to regulate or conduct themselves however they please, in particular, on their own private property; unless otherwise prohibited. Since landlords are private and not public actors, generally they may allow or disallow whatever they choose. A landlord may prevent you from posting signs in the windows of your apartment, wearing blue, lighting candles, keeping Christmas trees, or possessing firearms.

Therefore, yes, a landlord can prevent you from possessing firearms in your leased apartment.  That does not mean you have to lease from that landlord though, you may take your business elsewhere, or contact your representatives to change the law.

The Michigan Limited Liability Company Act (“LLC Act“) and the Michigan Business Corporations Act (“MBC Act“) afford limited protection of managers from historic breach of fiduciary duty claims brought by shareholders. Generally, three years is the statute of limitations accrual period for such claims, unless such claims are discovered or should reasonably have been discovered then the plaintiff is limited to two years after actual or constructive discovery (see MCL 450.4404(6); MCL 450.4515(1)(e); and, 450.1541a(4)).

A prudent plaintiff however, may toll this statute of limitations period by properly applying the Michigan Fraudulent Concealment Statute (see MCL 600.5855), whereby the LLC Act and MBC Act maybe tolled so long as the defendant has taken affirmative action of concealment. Note: this is a plaintiff’s only method of tolling a limitations period since the court in Trentadue v. Buckler Automatic Lawn Sprinkler Co., 479 Mich 378; 738 NW2d 664 (2007) decided Michigan no longer recognizes common law tolling.

Thus, so long as a plaintiff may establish a defendant fraudulently concealed his or her cause of action, the plaintiff may bring its claim, even if it exceeds a statute of limitations. Managers, members, officers, directors, and other company stakeholders with fiduciary duties to shareholders or members should not only ‘follow the law‘ but also (1) follow the operating agreement or corporate bylaws, (2) disclose as much as is reasonably prudent to extinguish a member or shareholders actual knowledge or constructive knowledge standard, and (3) review and supervise the actions of other manager, directors, and individuals with fiduciary duties to members or shareholders be certain that the actions taken are proper and allowed, and finally that those actions fall on the individual manager who is acting. Do not rely on the actions of others, unless the operating agreement or bylaws specifically allow such reliance.

Failure to follow these best practices may lead to imputed joint liability by a shareholder for stale claims made by a co-manager.

I. California
On Tuesday, October 6, 2015, California’s Governor Jerry Brown signed the Fair Pay Act into law, taking effect January 1, 2016. The Fair Pay Act amends California Labor Code (“CLC“) section 1197.5, and closes, what proponents have called, a loop-hole in the 66 year-old California Equal Pay Act.

Under the umbrella that sex-based differences are not grounds for disparate pay: This law will negatively affect businesses that (i) do not provide gender equal pay for substantially similar work, and (ii) cannot show the disparate pay is reasonable and based on either (a) length of employment (seniority) or (b) worker quality (merit, quantity/quality of product, education, training, experience). Employers must maintain records for 3-years of “wages and wage rates, job classifications, and other terms and conditions of employment of the persons employed by the employer”.

Framed in many media outlets as a progressive-leftist versus conservative-right issue, from our Michigan lawyer perspective this stop-gap law is following the intent and trends of the California legislature. California’s legislature intended to engage and eliminate disparate wages in prior legislation, but it appears as though the true intent was bypassed. This new piece of legislation seems to do a more effective job in executing its original intent. The legislature follows the democratic-majority of California’s people, with mindful respect of the democratic-minority.

II. Michigan
Michigan, like many other states, allow disparate wage claims to be made against employers for civil rights violations of certain protected persons. Alternatively, the Equal Pay Act amendment to the Fair Labor Standards Act, prohibits an employer from compensating an employee of one sex at a rate that is below what it pays another employee of the opposite sex “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” (29 USC 206)

III. National Conclusion
In light of this California amendment, debates we see in Michigan, and rhetoric in Washington, race, gender, and objective equal pay legislation is coming. Generally, though not always, legislation is passed to address an issue the democratic-majority believes is a problem. In present day America, all other factors being the same, nearly every person who is not a white-man earns less per dollar.

We are advising employers to get out in front of these laws, keep fair documents and records, define job duties, properly categorize employees, form a pay scale, create an objectively neutral merit system, and where all other things are the same pay the same. The dollars saved through paying any employee less, for a substantially similar job, is not worth the risk of losing lawsuit, the harm to public image, and certainly not worth the cost of paying a lawyer to defend frivolous allegations of perceived discrimination. Avoiding this today, could save millions in the future.

At the writing of this article, Zamzow PLLC does not employ California attorneys, interpretation of this California law is through the lens of licensed Michigan lawyers.

The 60-day comment period for the proposed changes to the Fair Labor Standards Act (“FLSA“) governing what has been commonly referred to as the “white collar” exemption is closed.

As a reminder, the FLSA guarantees a minimum wage and overtime pay at a rate at least one and one-half times the worker’s regular rate for hours worked (beyond 40 per week). These protections covered most workers, however, the FLSA provides a number of exceptions allowing employers to avoid the time and a half rule. On the President’s direction, the Department of Labor (“Department“) proposed an update and revision to those above FLSA regulations, effectively narrowing the minimum wage and overtime pay exception for executive, administrative, professional, outside sales, and computer employees.

Under current regulation, employees who meet certain minimum tests related to their primary job duties, including being paid on a salary basis, were exempt from the time and a half requirement, and therefore fell within the white-collar exception. Generally, the salary level required for exemption is at $455 a week ($23,660 for a full-year worker), this was last updated in 2004. Equivalent to approximately $30,000 in 2015 dollars.

As stated by the Department, the new proposed rules are designed to “update the salary level to ensure that the FLSA’s intended overtime protections are fully implemented, and to simplify the identification of nonexempt employees, thus making the EAP exemption easier for employers and workers to understand.” Further, the Department proposed a formulaic and automatic update to the salary requirement so that the rule would follow a natural trend avoiding lengthy legislation changes.

The closed comment period garnered nearly 5,000 comments per day over the 60-day window. Unfortunately for those who must read the comments, many commentaries are doomsday-writers who may have not read the proposal, however there are others that appear well drafted and clearly show their support or objection to the proposals. Ultimately the proposed changes do not appear dramatic, and with authorization or not, dialogue between both sides is positive and necessary.

“Just Mercy: A Story of Justice and Redemption” by Bryan Stevenson

It is great detriment to society when a system, that is supposed to hold no bias, and bring fair judgment and justice, fails. Bryan Stevenson’s book “Just Mercy: A Story of Justice and Redemption” is his account as a young lawyer fighting for the rights of convicted felons, the poor, and discriminated masses, and is written in a fashion that reveals a harsh world unfamiliar to many, yet far too familiar for others. Mr. Stevenson became passionate for helping convicted individuals whose punishment exceeded the crimes they committed after working as a law school intern for the Southern Prisoners Defense Committee. Of particular interest to Bryan was those on death row, and upon graduation from Harvard he moved to Montgomery, Alabama to form a non-profit organization, which became known as the Equal Justice Initiative.

The book follows a primary case, referred to as that of Walter McMillian, a middle-age black male, convicted of murdering a white female from a prominent family in Monroeville, Alabama. The account of the case, and trial, read as if a description from a movie: withheld evidence, forced testimonies, lying witnesses, failed judicial system, and racial bias. When Mr. Stevenson accepted the case, the death row inmate, Mr. McMillian, adamantly denied any involvement in the murder, and insisted on his innocence. The occurrences told throughout the book evoke images of the early 1920s or 1930s, so it is necessary to constantly remember that this trial and events surrounding it took place in 1988, and were not concluded until 1993, relatively recent in judicial history.

‘Just Mercy’ not only follows Mr. Stevenson through the trials and tribulations that accompanied taking on a controversial case such as Mr. McMillian’s, but also his pursuit to aid others whom the justice system failed. Not surprisingly, those people who needed the most assistance are categorized in the United States as minorities. The ratio of incarcerated minorities to the white population remains, disproportionate. Another area examined by this book is that of life imprisonment teenage and child criminals. Many states do not have a minimum age to be tried as an adult, so children as young as thirteen are tried and sentenced to life in prison without the chance of parole.

This book reveals more than injustices; it reveals raw emotion and pain that so often is overlooked, or ignored because it is uncomfortable. This book forces the reader to confront these issues headon—that for many are never faced—such as the realities of racism in the criminal justice system. The topics written about force an introspective conversation that is too often overlooked, and examines policies encouraged as being “tough on crime”. It encourages discussions to question why being reasonable with the criminal and instituting alternative remedies than prison is viewed as weak on crime. Recently (on July 15, 2015), former President Bill Clinton publicly admitted that he made the mistake of encouraging mass incarceration by signing the Violent Crime Control and Law Enforcement Act. Public representatives admitting to these problems gives hope to those who believe they have been forgotten, and gives hope to the public that we can show mercy as a nation. In the end, ‘Just Mercy’ is not a book to be recommended, and forgotten; rather, it is a book that should be pushed to the American public, so the conversation about what is ‘just’ can begin.

If you are interested in the Equal Justice Initiative visit its website (http://www.eji.org).

Stevenson, B. (2014). Just Mercy: A Story of Justice and Redemption. N.p.: Spiegel & Grau.