[ Previous Page]  [ Home Page ]

The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5814

November 13, 1980

CRIMINAL LAW:

Concealed weapons carried or transported by private security guards

PRIVATE SECURITY GUARD ACT:

Guards carrying or transporting concealed weapons

A private security guard may not carry a concealed weapon on the job or transport a concealed weapon to and from work without being licensed to carry a concealed weapon.

A person not exempted from the concealed weapon licensing requirement may not, without a license, transport a pistol in his or her motor vehicle between his or her home and place of employment, even though the pistol is unloaded and placed within a wrapper in the trunk of the car.

Robert L. Kaczmarek

Prosecuting Attorney

Saginaw County

111 South Michigan Avenue

Saginaw, Michigan 48602

You have requested my opinion on the following questions:

1. May a private security guard carry a concealed pistol on the job and to and from work without a concealed weapons license?

2. May a person carry a pistol in his or her motor vehicle between his or her home and a place of business if the pistol is unloaded and stored in a wrapper in the trunk of the car?

The Michigan Penal Code, 1931 PA 328, ch 37, Sec. 227; MCLA 750.227; MSA 28.424, provides:

'A person who shall carry a dagger, dirk, stiletto, or other dangerous weapon except hunting knives adapted and carried as such, concealed on or about his person, or whether concealed or otherwise in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him; and a person who shall carry a pistol concealed on or about his person, or, whether concealed or otherwise, in a vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him, without a license to carry the pistol as provided by law or if licensed, carrying in a place or manner inconsistent with any restrictions upon such license, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $2,500.00.' [Emphasis supplied.]

Thus, 1931 PA 328, Sec. 227, supra, makes it a felony for a person to carry a concealed pistol (1) on his or her person or in a vehicle (whether concealed or not), operated or occupied by him or her, unless licensed to carry the pistol. Licensure to carry a concealed weapon is provided for in 1927 PA 372; MCLA 28.421 et seq; MSA 28.91 et seq.

In a letter opinion addressed to Colonel Gerald L. Hough, Director, Michigan Department of State Police, dated February 3, 1978, it was concluded:

'1968 PA 330, Sec. 19(3), supra, [MCLA 338.1069; MSA 18.185(19)] only provides that persons licensed to do business as . . . a private security guard . . . cannot carry a deadly weapon unless he or she is licensed to do so in accordance with the laws of this state. Thus, a licensed security guard must obtain a license to purchase a pistol as required by 1931 PA 328, Secs. 222 and 223, supra [MCLA 750.222, MCLA 750.223; MSA 28.422, MSA 28.423]. Also, if a licensed security guard carries a pistol as a concealed weapon or transports it in a motor vehicle even though it is no concealed, a license is required under 1927 PA 372, Sec. 1, supra [MCLA 28.421; MSA 28.91]. Conversely, if the licensed security guard carries the pistol without concealment, no licensure is required. OAG, 1945-46, No 0-3158, p. 237. Therefore, it is my opinion that 1968 PA 330, Sec. 19(3), supra, compels each person licensed as a private security guard under the Act to obtain a concealed weapons license before he or she may carry a concealed deadly weapon.' [Emphasis in original letter.]

This letter opinion also held that a private licensed security guard may carry a pistol openly on the premises of his or her employer, without a concealed weapons license to carry a pistol, provided the pistol is carried openly and remains with the employer when the employee is off duty. (2)

It is, therefore, my opinion that a private security guard may not carry a concealed weapon on the job or transport a concealed weapon to or from work without first being licensed to carry a concealed weapon pursuant to 1927 PA 372, supra.

Your second question asks whether 1931 PA 328, supra, Sec. 231a(1)(e), permits a person to transport a pistol, unloaded, and in a wrapper, in the trunk of a motor vehicle, between home and business. 1931 PA 328, supra, Sec. 231a, as last amended by 1978 PA 280 provides:

'(1) Section 227 does not apply to any of the following:

' (d) To a person while carrying a pistol unloaded in a wrapper or container in the trunk of the person's vehicle, while in possession of a valid Michigan hunting license or proof of valid membership in an organization having pistol shooting range facilities, and while en route to or from a hunting or target shooting area.

'(e) To a person while carrying a pistol unloaded in a wrapper or container in the trunk of the person's vehicle from the place of purchase to his or her home or place of business, or to place of repair or back to his or her home or place of business, or in moving goods from one place of abode or business to another place of abode or business. (3)

'(f) To a person while carrying an unloaded pistol in the passenger compartment of a vehicle which does not have a trunk, if the person is otherwise complying with the requirements of subdivision (d) or (e) and the wrapper or container is not readily accessible to the occupants of the vehicle.' [Fn 3 added.]

The Court of Appeals in People v Bailey, 10 Mich App 636; 160 NW2d 380 (1968) construed 1931 PA 328, Sec. 231a as it then provided. (4) The court stated:

'. . . It can be clearly seen by a perusal of the statute that the transportation exceptions (home from a purchase, to and from a repair shop, and from abode to abode) allowing a private individual to transport a pistol in the passenger compartment of an automobile, apply only when the weapon is unloaded and in a wrapper. . . .

'. . . The basic intent of the legislature as indicated in the concealed weapons statute was that weapons should not be carried where they might be used to take lives. . . .' 10 Mich App 636, 639-640.

Further, it must be noted that 1931 PA 328, Sec. 231a, supra, fn 4, as it existed at the time of the decision in People v Bailey, supra, provided pertinently, by way of exception, that the concealed weapon licensure provision of 1931 PA 328, Sec. 227, supra, did not apply to '. . . a person while carrying a pistol unloaded in a wrapper or container in the trunk of his vehicle. . . .' This language of exception was deleted from 1931 PA 238, Sec. 231a supra, by amendatory 1973 PA 191, and does not presently appear in 1931 PA 328, Sec. 231a, supra, as last amended by 1978 PA 280. The intent of the legislature in deleting the language of exception is clear. Michigan Transportation Co v Secretary of State, 41 Mich App 654; 201 NW2d 83 (1972), lv den 389 Mich 767 (1973).

Where a person is charged with carrying a dangerous weapon without a license to do so, contrary to 1931 PA 328, Sec. 277, supra,

'. . . the burden is on the prosecution to prove that the instrument carried by the defendant is a dangerous weapon per se or that the instrument was used, or intended for use, as a weapon for bodily assault or defense.' People v Brown, 406 Mich 215, 222; 277 NW2d 155 (1979).

The paraphrase of 1931 PA 328, Sec. 231a, supra, by the Court of Appeals in People v Bailey, supra, indicates that the exception to the general prohibition against the unlicensed transportation of a pistol in a vehicle, permits movement of a pistol only from place of purchase to home or to business, to and from repair shops, or from abode to abode, or business to business. 1931 PA 328, Sec. 231a(1)(e), supra, does not authorize transportation of a pistol in a vehicle between home and business or vice versa.

It is, therefore, my opinion that a person not exempted from the licensing requirement may not, without a license, transport a pistol in his or her motor vehicle between his or her home and place of employment, even though the pistol is unloaded and placed within a wrapper in the trunk of the car.

Frank J. Kelley

Attorney General

(1) 1931 PA 328, supra, Sec. 222(a), as last amended by 1978 PA 564, defines 'pistol' as '. . . a firearm, loaded or unloaded, 30 inches or less in length or any firearm, loaded or unloaded, which by its construction and appearance conceals it as a firearm.'

(2) It is noted that 1927 PA 372, supra, Secs. 12 and 12a, which sets forth those persons who are not required to be licensed to carry a concealed weapon, does not refer to private security guards.

(3) 1931 PA 328, Sec. 231a(1)(e), supra, is substantively identical to 1927 PA 372, Sec. 12a(h), supra, as last amended by 1978 PA 519. See fn 2.

(4) 1931 PA 328, Sec. 231a, as added by 1964 PA 215, stated at the time of the decision in People v Bailey, supra:

'Section 227 does not apply to a person holding a license to carry a pistol concealed upon his person issued by another state, nor to the regular and ordinary transportation of pistols as merchandise by an authorized agent of a person licensed to manufacture firearms, nor to a person while carrying a pistol unloaded in a wrapper or container in the trunk of his vehicle or while carrying a pistol unloaded and in a wrapper from the place of purchase to his home or place of business, or to a place of repair or back to his home or place of business, or in moving goods from one place of abode or business to another place of abode or business.' [Emphasis supplied.]

 


[ Previous Page]  [ Home Page ]