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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. 5705 May 9, 1980 CONSTITUTIONAL LAW: Citizenship requirement for private security guards Const 1963, art 1, Sec. 2 (equal protection) PRIVATE SECURITY GUARD ACT: Citizenship requirement for private security guards The provision in the statute requiring a person to be a citizen of the United States in order to obtain a license to engage in the business of private security guard or agency or to be employed by a licensed private security guard, such person not possessing powers of peace officers pursuant to 1968 PA 330, Sec. 30, is unconstitutional as a denial of equal protection of the laws. A licensed private security police officer possessing limited police powers under 1968 PA 330, Sec. 30 must be a citizen of the United States. The Honorable Perry Bullard State Representative State Capitol Lansing, Michigan 48909 You have requested my opinion as to the constitutionality of the citizenship requirements for private security guards and employees of private security agencies. These requirements are contained in the private security guard act of 1968, 1968 PA 330, as last amended by 1978 PA 432, MCLA 338,1051 et seq; MSA 18.185(1) et seq. 1968 PA 330, supra, Sec. 6(1) (1), in pertinent part, provides: 'The department [of state police] shall issue a license to conduct business as . . . a private security guard or agency, if it is satisfied that the applicant is a person, or if a firm, partnership, company, or corporation, the sole or principal license holder is a person who meets all of the following qualifications: '(a) . . . is a citizen of the United States.' 1968 PA 330, supra, Sec. 17(2) extends the citizenship requirement of section 6(1)(a) to a private security guard or private security agency and their employees. Further, 1968 PA 330, supra, Sec. 18(1) prohibits a licensee from knowingly employing any person who fails to meet the requirements of section 17 of the act. Generally, statutory classifications based on alienage are 'inherently suspect and subject to close judicial scrutiny.' Graham v Richardson, 403 US 365, 372; 91 SCt 1848; 29 LEd2d 534 (1971). However, judicial scrutiny will not be so demanding where the classification deals with matters involving a State's constitutional authority and responsibility for the establishment and orderly maintenance of its own government and the qualifications of its important public office holders. Ambach v Norwick, 441 US 68; 99 SCt 1589, 1593; 60 LEd2d 49 (1979); Sugarman v Dougall, 413 US 634, 647-648; 93 SCt 2842; 37 LEd2d 853 (1973). In Foley v Connelie, 435 US 291; 98 SCt 1067; 55 LEd2d 287 (1978), the United States Supreme Court set forth the test to be applied in determining whether a classification based upon alienage will be subjected to 'strict judicial scrutiny' or the less stringent 'rational basis' test as follows: '. . . To effectuate this result [the choice, and right, of the people to be governed by their citizen peers], we must necessarily examine each position in question to determine whether it involves discretionary decision making, or execution of policy, which substantially affects members of the political community. 'The essence of our holdings to date is that although we extend to aliens the rights to education and public welfare, along with the ability to earn a livelihood and engage in licensed professions, the right to govern is reserved to citizens.' 435 US 291, 296-297. In applying this test to 'police officers', the Supreme Court in Foley, supra, utilized the rational basis analysis and upheld a New York citizenship requirement and stated: 'Clearly the exercise of police authority calls for a very high degree of judgment and discretion, the abuse or misuse of which can have serious impact on individuals. The office of a policeman is in no sense one of 'the common occupations of the community' that the then Mr. Justice Hughes referred to in Truax v Raich, 239 U.S. 33, 41, (1915). A policeman vested with the plenary discretionary powers we have described is not to be equated with a private person engaged in routine public employment or other 'common occupations of the community' who exercises no broad power over people generally. Indeed, the rationale for the qualified immunity historically granted to the police rests on the difficult and delicate judgments these officers must often make. See Pierson v Ray, 386 U.S. 547, 555-557, (1967), cf. Scheuer v Rhodes, 416 U.S. 232, 245-246, (1974). 'In short, it would be as anomalous to conclude that citizens may be subjected to the broad discretionary powers of noncitizen police officers as it would be to say that judicial officers and jurors with power to judge citizens can be aliens. It is not surprising, therefore, that most States expressly confine the employment of police officers to citizens, whom the State may reasonably presume to be more familiar with and sympathetic to American traditions. Police officers very clearly fall within the category of 'important nonelective . . . officers who participate directly in the . . . execution . . . of broad public policy.' Dougall, 413 U.S. at 647, (emphasis added). In the enforcement and execution of the laws the police function is one where citizenship bears a rational relationship to the special demands of the particular position. A State may, therefore, consonant with the Constitution, confine the performance of this important public responsibility to citizens of the United States.' 435 U.S. 291, 298-300 (Emphasis supplied, footnotes omitted.) See also County of Los Angeles v Chavez-Salido, 436 US 901; 98 SCt 2228; 56 LEd2d 398 (1978), vacating the judgment of a three judge, federal district court which held unconstitutional a citizenship requirement for probation officers. (2) This case was remanded to the District Court for further consideration in light of Foley v Connelie, supra. In Michigan, one class of private security guards--private security police officers--is granted limited powers of peace officers. 1968 PA 330, supra, Sec. 30 provides: 'Any private security police officer, as defined in section 29, who is properly licensed under this act shall have the authority to arrest a person without a warrant as set forth for public peace officers in section 15 of chapter 4 of Act No. 175 of the Public Acts of 1927 (3) being section 764.15 of the Compiled Laws of 1948 when such security police officer is on his employer's premises. Such authority shall be limited to his hours of employment as a private police officer and shall not extend beyond the boundaries of the property of his employer, and while such officer is in the full uniform of his employer.' (Emphasis supplied, footnote 3 added,) This statutory authorization extends only to those prive security police officers, defined under 1968 PA 330, supra, Sec. 29, (4) and otherwise exempt from licensure, who may voluntary apply for and become licensed under the act. Once licensed pursuant to 1968 PA 330, Secs. 29 and 30, supra, a private security police officer, as distinguished from an unlicensed private security officer, has authority as a police officer to make a warrantless arrest so long as the arrest takes place on the employer's premises, during the private security police officer's hours of employment and while the officer is in the full uniform of the employer. Further, the limited warrantless arrest authority conferred upon private security police officers, pursuant to the requirements of 1968 PA 330, Sec. 30, supra, does not extend beyond the property lines of the officer's employer. Voluntary licensure of this group of private security guards is further conditioned upon compliance with specified training requirements of the Department of State Police, 1968 PA 330, supra, Sec. 31 (5). The Court of Appeals in People v Eastway, 67 Mich App 464, 467; 241 NW2d 249 (1976), equated the functions of private security police officers with those of public police officers, thereby subjecting their conduct to the same legal and constitutional limitations: 'The search and seizure in this case was conducted by private security guards licensed by the state. By statute, any such licensed private security [police] officer in Michigan has the authority to arrest without a warrant in the same manner as a public police officer. MCLA 338.1080; MSA 18.185(30). We are inclined to agree with defendant that his constitutional rights of due process and freedom from unreasonable searches and seizures should be no less when arrested or searched by a private security guard with police powers than when he is arrested or searched by a public police officer. The degree to which private security guards today supplement public police protection and the fact that they are permitted to carry deadly weapons and exercise broad powers of arrest, supports the argument that their conduct should be subject to the same limitations as public officers.' (Emphasis supplied.) While the opinion in People v Eastway, supra, refers to 'licensed private security officer', it is apparent the Court of Appeals, by its reference to 1968 PA 330, Sec. 30, supra, (MCLA 338.1080; MSA 18.185(30)) was referring to licensed private security police officers, as defined in section 29 of the act. OAG, 1977-1978, No 5126, p ___ (April 27, 1977), which issued following the decision in People v Eastway, supra, and which construed 1968 PA 330, Sec. 30, supra, must be interpreted in this context and must be read, accordingly, as applying only to private security police officers who voluntarily become licensed under the act. See also People v Holloway, 82 Mich App 629, 641; 267 NW2d 454 (1978) where Kaufman, N. J., concurring, stated; ('. . . [A]t least some security guards [licensed private security police officers] have the same arrest powers as do police officers. . . .') [Emphasis original.] In light of the limited authority and arrest powers vested by 1968 PA 330, Sec. 30, supra, in licensed private security police officers, they must be viewed as falling within the category of persons exercising broad public policy powers in a limited field of activity. Sugarman v Dougall, supra, 413 US 634, 647. Like police officers, therefore, the police function to make warrantless arrests limited in time, location and scope by 1927 PA 175, ch IV, Sec. 15, supra, fn 3, which is vested in licensed private security police officers, is one 'where citizenship bears a rational relationship to the special demands of the particular position' thereby allowing the State to 'confine the performance of this important responsibility to citizens of the United States.' Foley v Connelie, supra, 435 US 291, 300. As to private security police officers, as defined in 1968 PA 330, Sec. 29, supra, and who are voluntarily licensed, it is my opinion that the State of Michigan may constitutionally require citizenship as a condition of their licensure. 1968 PA 330, supra, Sec. 2(1)(g) defines those private security guards or agencies who are subject to licensure under section 3(1) of the act as follows: "Private police, special police, watchmen, patrol service agencies, private security guards and private security guard agencies' means, separately or collectively, as [sic] an individual or an employer of employees in the business of furnishing, for hire, fee or reward, private police, special police, watchmen, patrol service, private security guards, or other persons hired to prevent the theft or the misappropriation or concealment of goods, wares or merchandise, money, bonds, stocks, notes, choses in action or other valuable documents, papers and articles of value.' Unlike licensed security police officers vested with limited police power under 1968 PA 330, Secs. 29 and 30, supra, this class of private security guards, although licensed, is not vested with any powers of peace officers, nor do they receive the training required by 1968 PA 330, Sec. 31, supra, for in-house licensed private security police officers. They act individually and in a wholly private capacity. People v Harry James Smith, 31 Mich App 366; 188 NW2d 16 (1971); People v Holloway, supra. Thus, the Foley v Connelie, supra, rationale upholding a citizenship requirement for public police officers is not applicable to this class of security guards, i.e., those required to be licensed under 1968 PA 330, supra. Accordingly, 'strict judicial scrutiny' of the citizenship requirement as applied these private security guards is appropriate. It is, therefor, my opinion that the provisions of 1968 PA 330, Sec. 6(1)(a), supra, which makes citizenship a requirement for the licensing of private security guards or private security agencies, and their employees, not possessing powers of peace officers pursuant to section 30 of the act, is unconstitutional as a denial of equal protection of the law in violation of US Const, Am XIV, and Const 1963, art 1, Sec. 2. It is also my opinion that the citizenship requirement for licensed private security police officers, who exercise limited police powers to make warrantless arrests, is constitutional and consistent with equal protection. Frank J. Kelley Attorney General (1)
(2)
The District Court decision is published at 427 F Supp 158 (CD Cal, 1977).(3)
1927 PA 175, ch IV, Sec. 15; MCLA 764.15; MSA 28.874.(4)
1968 PA 330, Sec. 29, supra, provides:'This act shall not require licensing of any private security police employed for the purpose of guarding the property and employees of their employer and generally maintaining plant security for their employer, provided however, that any person, firm or corporation maintaining a private security police organization may voluntarily apply for licensing under this act. . . . All such private security people shall be subject to the provisions of section 19, subsection (1) of this act.' [Providing uniform and insignia requirements].
(5)
The Department of State Police has advised that, to date, only two employer groups with in-house security forces have applied for and received voluntary licenses pursuant to 1968 PA 330, Secs. 29, 30 and 31, supra.
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