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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. 6530 August 5, 1988 LAW ENFORCEMENT OFFICERS TRAINING COUNCIL: Authority over motor carrier enforcement officers STATE POLICE, DEPARTMENT OF: Status of motor carrier enforcement officers as peace officers WEAPONS: Licensing of motor carrier enforcement officers to carry concealed weapons WORDS AND PHRASES: "Peace officer" Motor carrier enforcement officers of the Department of State Police are not peace officers within the purview of MCL 28.432a; MSA 28.98(1), and are not exempt from concealed weapons licensing. Motor carrier enforcement officers of the Department of State Police are not subject to the provisions of the Michigan Law Enforcement Training Council Act of 1965. Honorable Francis R. Spaniola State Representative The Capitol Lansing, Michigan 48913 You have requested my opinion on three questions concerning officers of the motor carrier division of the Michigan Department of State Police. Your first question is: "Are Michigan State Police, Motor Carrier Officers "Peace Officers" within the intent of MCLA 28.432a and therefore exempt from concealed pistols licensing, even though they are not MLEOTC [Michigan Law Enforcement Officers Training Council] certified?" MCL 750.227; MSA 28.424, makes it a felony to carry a concealed weapon without having first obtained a license. In particular, MCL 750.227(2); MSA 28.424(2), provides: "A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license." MCL 750.231; MSA 28.428, provides in pertinent part: "Sections 224, 227, 227c, and 227d do not apply to any peace officer of a duly authorized police agency of the United States, of this state, or of any political subdivision of this state, who is regularly employed and paid by the United States, this state, or a political subdivision of this state;...." MCL 28.426; MSA 28.93, sets forth procedures for the obtention of a license to carry a concealed weapon. MCL 28.432a; MSA 28.98(1), exempts certain persons from the requirement of obtaining a license and includes in pertinent part: "(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 a subdivision of this state,...." The question thus becomes whether the Legislature intended that this exception would apply to motor carrier enforcement officers. As a preliminary matter, it is necessary to determine whether motor carrier officers are "peace officers" as that term is used in MCL 28.432a; MSA 28.98(1). The motor carrier division originated as the commercial vehicle enforcement unit of the Public Service Commission. Public service inspectors appointed by the Public Service Commission, in addition to the powers and duties conferred upon them by any other provision of law, were granted all the powers conferred upon peace officers by the general laws of the state, but only for the purposes of enforcing five specified public acts. MCL 460.41; MSA 22.120(1), (repealed, 1982 PA 531). By executive reorganization Order No. 1982-1, Governor William G. Milliken transferred all highway enforcement functions of the Public Service Commission to the Michigan Department of State Police. This order, which was effective October 1, 1982, was simply an interagency transfer and, of course, created no new authority or power in the unit. See Const 1963, art 5, Sec. 2. The Legislature thereafter adopted 1982 PA 531 to add Sec. 6d to 1935 PA 59, MCL 28.6d; MSA 4.436(4), which provides in pertinent part: "(1) The director may appoint officers with limited arrest powers for motor carrier enforcement. Such officers shall be officers of the motor carrier enforcement division of the department and shall have all powers conferred upon peace officers for the purpose of enforcing the general laws of this state as they pertain to commercial vehicles. The director may authorize officers of the motor carrier enforcement division to carry a firearm." (Emphasis added.) MCL 28.6d(2); MSA 4.436(4)(2), specifies five instances where a motor carrier enforcement officer, while on duty, may arrest a person without a warrant, including circumstances where the person commits an assault or an assault and battery against the officer or another person in the officer's presence, the officer has reasonable cause to believe that a felony has been committed and reasonable cause to believe that the person committed it, or the person commits the crime of malicious and willful mischief and destruction. The legislative history of amendatory 1982 PA 531 indicates that as originally introduced, 1982 HB 5912 made no reference to the authority of motor carrier enforcement officers to carry firearms. House Legislative Analysis, HB 5912 and HB 5924, September 22, 1982, in an argument against the bill, considered this to be a defect in the bill, and stated: "The inspectors should be empowered to carry firearms for their own protection. This would be consistent with the arrest powers which would be granted to them." The bill was thereafter amended to add the following language: "The director may authorize officers of the motor carrier enforcement division to carry a firearm while on duty." 1982 Journal of the House 2135-2136. The phrase "while on duty" was subsequently deleted, 1982 Journal of the Senate 2813, and did not appear in the bill as passed. In sum, MCL 28.6d; MSA 4.436(4), provides for motor carrier enforcement officers to exercise limited arrest powers, to enforce the general laws of this state as they pertain to commercial vehicles, and to carry firearms only if authorized by the Director of the Department of State Police. It is noted that a question may arise on whether this section violates Const 1963, art 4, Sec. 25, in that it may amend or alter MCL 28.432a; MSA 28.98(1), and MCL 750.227; MSA 28.424. Const 1963, art 4, Sec. 25, provides: "No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be reenacted and published at length." As was stated in OAG, 1981-1982, No 6034, p 540, 542 (January 27, 1982): "In Alan v Wayne County, 388 Mich 210, 285; 200 NW2d 628 (1972), the court recognized that where the Legislature enacts a law with the intent to amend a prior statute so that its operation is narrower or broader than previously stated, an unconstitutional statutory amendment occurs. However, the Supreme Court also held that if the intent of the Legislature is not to amend or alter another statute, the court would treat both acts as in existence, and 'interpret them as they are written unaffected by subsequent statutes.' " Furthermore, it has been held that where an act is complete within itself and does not confuse or mislead, it does not present one of the evils sought to be prevented by Const 1963, art 4, Sec. 25, and is thus not a violation of that constitutional provision. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 476-477; 208 NW2d 469 (1973), Charter Twp of Meridian v City of East Lansing, 101 Mich App 805, 808; 300 NW2d 703 (1980), lv den 411 Mich 962 (1981), Lucas v Wayne Co Bd of Co Road Commissioners, 131 Mich App 642, 665; 348 NW2d 660, lv den 418 Mich 945 (1984). MCL 28.6d; MSA 4.436(4), is complete within itself, does not confuse or mislead, and was not intended to amend or alter MCL 28.432a; MSA 28.98(1), or MCL 750.227; MSA 28.424. It is my opinion, therefore, that there is no improper amendment in violation of Const 1963, art 4, Sec. 25. The phrase "peace officer" is not specifically defined by the statutes dealing with concealed weapons. However, it has been judicially construed. In People v Bissonette, 327 Mich 349, 356; 42 NW2d 113 (1950), the court, in discussing officers possessing some but not all of the general authority conferred upon peace officers, stated: "It does not follow that such special officers ... have the general powers of peace officers to search for and seize dangerous weapons, without reasonable ground or probable cause, and without a lawful warrant for arrest or a search warrant. The authority of such officers appointed for certain purposes is circumscribed by the statutory provisions which also define their duties. By statute, a conservation officer has limited authority. "Peace officers have general authority to operate in a broader field. Their powers have not been specifically defined by the statute law of this State. " 'Peace Officers. This term is variously defined by statute in the different States; but generally it includes sheriffs and their deputies, constables, marshals, members of the police force of cities, and other officers whose duty is to enforce and preserve the public peace. " 'Public Peace. The peace or tranquility of the community in general;....' " In People v Carey, 382 Mich 285; 170 NW2d 145 (1969), the court specifically addressed the issue of whether public service inspectors were "peace officers." In reviewing the constitutionality of MCL 479.13; MSA 22.578, which provided that public service inspectors shall have all the powers conferred upon peace officers by the general laws of the state, the court held as follows: "We hold the provision of article 5, Sec. 13 of the motor carrier act which reads: 'The inspectors so appointed by the commission shall have all the powers conferred upon peace officers by the general laws of this state,' to be unconstitutional for the reason above stated [that with its inclusion the motor carrier act embraced more than one object]. "We further hold that a public service commission inspector is not, and never was, a 'peace officer' as that term has been generally defined." 382 Mich at 297. There has been no substantial change in the powers granted to motor carrier enforcement officers since the Michigan Supreme Court specifically ruled that public service inspectors are not peace officers. MCL 28.6d; MSA 4.436(4), adopted after the Carey case, has conferred limited arrest powers only and not the general powers of a peace officer which could be construed to override the Carey holding. To the contrary, in addition to specifically limiting the powers of the officers, it provides that the officers can only carry firearms as authorized by the Director of the Department of State Police. Such authority has been given by Michigan State Police Order No 71, which provides: "[4] D. Motor carrier officers shall carry an issue or authorized handgun on duty. While enroute to or from their work assignment, motor carrier officers are authorized to: 1) carry these weapons while in uniform; or 2) transport these weapons in a vehicle while not in uniform. The Department does not authorize Motor Carrier officers to carry handguns at any other time." The important point, though, is that the Legislature felt it was necessary to add specific language to MCL 28.6d; MSA 4.436(4), to allow motor carrier officers to carry firearms. Such language would hardly be necessary if these officers were, in fact, "peace officers." It is noted that a specific attempt was made to expand motor carrier enforcement officers' authority through the introduction of 1985 HB 5110. The specific intention of this bill was to grant the officers full arrest powers and the same authority as duly appointed state police officers. The House bill was supported by the Michigan Department of State Police, House Legislative Analysis, HB 5110, March 10, 1986, indicating that the department recognized the less than complete peace officer authority of the motor carrier enforcement officers. However, HB 5110 was never enacted into law. It is my opinion, in answer to your first question, that Michigan State Police motor carrier enforcement officers are not peace officers within the purview of MCL 28.432a; MSA 28.98(1), and are, therefore, not exempt from concealed pistols licensing. Your second question is: "Part one: Can the Department of State Police invoke and enforce a rule prohibiting 'Authorized' Motor Carrier Officers from carrying personal firearms off duty, and have violation of this rule be a violation of the act and therefore a felony? Part two: What would the effect of such a rule be on those Officers who already hold 'general' concealed pistol licenses issued by their respective counties?" Since question two is predicated upon an affirmative answer to question one, no answer is required. Your third question is: "Are Michigan State Police, Motor Carrier Officers subject to the provisions of the Michigan Law Enforcement Training Council Act of 1965, 1965 PA 203; MCL 28.601 et seq; MSA 4.450(1) et seq?" This specific question was addressed in OAG, 1977-1978, No 5166, p 79 (March 25, 1977). In that opinion it was concluded that Public Service Commission inspectors are not subject to the Michigan Law Enforcement Officers Training Council Act of 1965, MCL 28.601 et seq; MSA 4.405(1) et seq. The only change in the law since that opinion was issued is that motor carrier enforcement officers have been renamed and administratively relocated into the Department of State Police. It is my opinion, in answer to your third question, that Michigan State Police motor carrier enforcement officers are not subject to the provisions of the Michigan Law Enforcement Officers Training Council Act of 1965. Frank J. Kelley Attorney General
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