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

JENNIFER M. GRANHOLM, ATTORNEY GENERAL

 

CONCEALED WEAPONS:

FIREARMS:

LAW ENFORCEMENT:

PEACE OFFICERS:

POLICE:

Application of Concealed Pistol Licensing Act's licensing requirement to police officer and reserve police officer

Application of Concealed Pistol Licensing Act's gun-free zone restrictions to police officer and reserve police officer

A police officer, including a reserve police officer, is exempt from the licensing requirements of the Concealed Pistol Licensing Act if the officer possesses the full authority of a peace officer and is regularly employed and paid by a police agency of the United States, this state, or a political subdivision of the state.

A police officer who is exempt from the licensing requirements of the Concealed Pistol Licensing Act, but who voluntarily obtains a concealed pistol license under that act, is not subject to the act's gun-free zone restrictions unless the officer is off-duty and is relying solely on the authority of that license.

Opinion No. 7098

January 11, 2002

Honorable Christopher D. Dingell                             Honorable Ruth Johnson
State Senator                                                                 State Representative
The Capitol                                                                    The Capitol
Lansing, MI 48913                                                        Lansing, MI 48913

You have asked two questions regarding the treatment of police officers under the Concealed Pistol Licensing Act as most recently amended by 2000 PA 381.

Your first question asks whether a police officer, including a reserve police officer, is required to obtain a concealed pistol license under section 6 of the Concealed Pistol Licensing Act in order to lawfully carry a concealed pistol.

The Concealed Pistol Licensing Act (Act), 1927 PA 372, MCL 28.421 et seq, regulates the possession and carrying of certain firearms. As originally enacted, section 6 of the Act created a county concealed weapon licensing board and granted to that board considerable discretion in determining whether to issue a license to carry a concealed pistol to individual residents of the county. 2000 PA 381 made substantial amendments to the Act and added numerous new provisions. Among these new provisions is a new section 5b(7) that now sets forth the specific qualifications a person must possess in order to receive a concealed pistol license and further provides that the county concealed weapon licensing board "shall issue" licenses to persons meeting all of those qualifications.

Section 12a of the Act, as added by 1964 PA 216, has long provided that the licensure provisions of section 6 do not apply to various classes of persons, including peace officers who are regularly employed and paid by a police agency of the United States, this state, or a political subdivision. That exemption is continued in the current version of the Act. As most recently amended by 2000 PA 381, section 12a of the Act provides, in pertinent part, that:

The requirements of this act for obtaining a license to carry a concealed pistol do not apply to any of the following:

(a) A peace officer of a duly authorized police agency of the United States or of this state or a political subdivision of this state, who is regularly employed and paid by the United States or this state or of a subdivision of this state, except a township constable. [Emphasis added.]

Thus, in order to come within the scope of this exemption, a person must be a "peace officer" and must be "regularly employed and paid" by a qualifying unit of government.

The term "peace officer" as used in the Concealed Pistol Licensing Act refers to members of police forces of governmental units who have been given broad, general authority by law to enforce and preserve the public peace. People v Bissonette, 327 Mich 349, 356; 42 NW2d 113 (1950). Police officers of a police department of a political subdivision of this state possess such authority and are, therefore, "peace officers." 1 OAG, 1955, No 1891, p 72 (February 24, 1955); 2 OAG, 1958, No 3212, p 60 (February 21, 1958). Conversely, police officers who possess only restricted or special enforcement authority do not meet this standard and therefore do not qualify as "peace officers." People v Bissonette, supra; OAG, 1987-1988, No 6530, p 362 (August 5, 1988).

The phrase "regularly employed" as used in section 12a of the Act has not been defined by the Legislature. The meaning of this phrase, however, was addressed in OAG, 1973-1974, No 4792, p 78 (August 27, 1973), which concluded that in order to be considered "regularly employed," a peace officer's work should be "substantial rather than merely occasional" and should form "at least a large part of his daily activity." Id, at 79. See also OAG, 1979-1980, No 5806, p 1055 (October 28, 1980). Under this standard, a regular police officer who is employed on a full-time basis clearly is "regularly employed" for purposes of section 12a of the Act.

A more difficult problem is presented in the case of reserve police officers who are typically employed on less than a full-time basis. In such cases, it is necessary to address the factual issue of whether the individual officer in question is "regularly employed and paid" within the meaning of section 12a of the Act. OAG No 5806, supra, at 1054, considered the status of such reserve officers and concluded that, in order to be exempt from the Act's licensing requirement, a reserve police officer must first apply to the county concealed weapon licensing board to obtain a determination by the board whether the individual officer qualifies for the section 12a exemption. The board must determine, inter alia, whether the individual officer is "regularly employed," i.e., whether the officer performs substantial work that constitutes a large part of the officer's daily activity. OAG No 4792, supra. If the board finds that a particular reserve police officer is "regularly employed and paid" by a police agency of the United States, this state, or a political subdivision of this state, the officer is exempt from the Act's licensing requirements for carrying a concealed pistol. If, however, the licensing board finds that the reserve officer is not regularly employed and paid by one of such police agencies, licensure is required under the Act before the officer may carry a concealed pistol. OAG No 4792, supra, reached the same conclusion with respect to constables.

It is my opinion, therefore, in answer to your first question, that a police officer, including a reserve police officer, is exempt from the licensing requirements of the Concealed Pistol Licensing Act if the officer possesses the full authority of a peace officer and is regularly employed and paid by a police agency of the United States, this state, or a political subdivision of the state.

Your second question asks if a police officer who is exempt from the licensure requirements of the Concealed Pistol Licensing Act, by voluntarily obtaining a license under that Act, becomes subject to the Act's gun-free zone restrictions, either while on or off duty.

As noted in the answer to your first question, the Act clearly and unambiguously exempts regularly employed peace officers from its licensing requirements. Accordingly, such officers need not obtain a license under the Act in order to lawfully carry a concealed pistol. Nothing in the Act, however, prohibits a police officer from voluntarily applying for and obtaining a concealed pistol license if that officer chooses to do so. Moreover, assuming that the officer meets all of the statutory requirements specified in section 5b(7) of the Act, the county licensing board "shall issue" a license to that individual. In these circumstances, the officer would then possess two separate and independent sources of authority for carrying such a concealed pistol: (1) the officer’s authority as a regularly employed peace officer; and (2) the authority conferred by the license issued under the Act. Your questions asks, in effect, whether the statutory restrictions attached to the latter source of authority might somehow modify or restrict the officer's separate authority as a peace officer. Specifically, you inquire about the effect of section 5o of the Act, as added by 2000 PA 381, which creates certain gun-free zones as follows:

(1) An individual licensed under this act to carry a concealed pistol . . . shall not carry a concealed pistol on the premises of any of the following:

(a) A school or school property except that a parent or legal guardian of a student of the school is not precluded from carrying a concealed pistol while in a vehicle on school property, if he or she is dropping the student off at the school or picking up the child from the school. As used in this section, "school" and "school property" mean those terms as defined in section 237a of the Michigan penal code, 1931 PA 328, MCL 750.237a.

(b) A public or private day care center, public or private child caring agency, or public or private child placing agency.

(c) A sports arena or stadium.

(d) A dining room, lounge, or bar area of a premises licensed under the Michigan liquor control code of 1998, 1998 PA 58, MCL 436.1101 to 436.2303. This subdivision shall not apply to an owner or employee of the premises.

(e) Any property or facility owned or operated by a church, synagogue, mosque, temple, or other place of worship, unless the presiding official or officials of the church, synagogue, mosque, temple, or other place of worship permit the carrying of concealed pistol on that property or facility.

(f) An entertainment facility that the individual knows or should know has a seating capacity of 2,500 or more individuals or that has a sign above each public entrance stating in letters not less than 1-inch high a seating capacity of 2,500 or more individuals.

(g) A hospital.

(h) A dormitory or classroom of a community college, college, or university.

The first step in ascertaining legislative intent is to look to the text of the statute. Piper v Pettibone Corp, 450 Mich 565, 571; 542 NW2d 269 (1995). Where the language of the statute is clear and unambiguous, the Legislature's intent must be carried out according to its plain meaning. Dean v Dep't of Corrections, 453 Mich 448, 454; 556 NW2d 458 (1996). In such instances, statutory construction is neither required nor permitted; rather, the court must apply the statutory language as written. Piper, supra, at 572.

The gun-free zone restrictions described in section 5o of the Act, by their express terms, apply only to a person who is carrying a concealed pistol under the authority of a license issued under the Act. Nothing in the Act in any way indicates or suggests that the gun-free zone restrictions are to be extended to a police officer acting under his or her authority as a regularly employed peace officer, even if that officer has elected to apply for and obtain a concealed pistol license under the Act. Thus, as a practical matter, the application of these gun-free zone restrictions to a police officer would depend upon the facts and circumstances of the incident. If the officer is off-duty and chooses to rely solely on his or her concealed pistol license under the Act, the Act's gun-free zone restrictions applicable to that license would apply. But those restrictions plainly do not apply if the police officer, whether on or off duty, can and does rely on his or her independent authority to carry a concealed pistol as a peace officer regularly employed and paid by a police agency of the United States, this state, or a political subdivision.

It is my opinion, therefore, in answer to your second question, that a police officer who is exempt from the licensing requirements of the Concealed Pistol Licensing Act, but who voluntarily obtains a concealed pistol license under that Act, is not subject to the act's gun-free zone restrictions unless the officer is off-duty and is relying solely on the authority of that license.

JENNIFER M. GRANHOLM
Attorney General