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. 6761

July 1, 1993

PEACE OFFICERS:

Use of tear gas canisters and other devices which emit gas or spray solutions

Peace officers may possess and use tear gas canisters and other devices which emit gas or spray solutions that exceed the volume limitations in section 224d of the Michigan Penal Code.

Mr. Arthur A. Busch

Prosecuting Attorney

Genesee County

100 Court House

Flint, Michigan 48502

You have asked whether peace officers may possess and use tear gas canisters and other devices which emit gas or spray solutions that exceed the volume limitations set forth in section 224d of the Michigan Penal Code, MCL 750.224d(1)(a)(i) and (ii); MSA 28.421(4)(1)(a)(i) and (ii).

The answer to your question requires analysis of the various state laws regulating the sale, use, and possession of weapons. The general prohibition on the use of disabling gases and sprays is found at section 224 of the Michigan Penal Code, MCL 750.224; MSA 28.421, which provides, in pertinent part:

(1) A person shall not manufacture, sell, offer for sale, or possess any of the following:

 

(e) A device, weapon, cartridge, container, or contrivance designed to render a person temporarily or permanently disabled by the ejection, release, or emission of a gas or other substance.

(2) A person who violates subsection (1) is guilty of a felony, punishable by imprisonment for not more than 5 years, or a fine of not more than $2,500.00, or both.

(3) Subsection (1) does not apply to any of the following:

(a) A self-defense spray device as defined in section 224d.

Section 224d of the Michigan Penal Code creates an exception to this prohibition with respect to a "self-defense spray device" which is defined and regulated in the statute, in pertinent part, as follows:

(a) The device is capable of carrying, and ejects, releases, or emits 1 of the following:

(i) Not more than 35 grams of any combination of orthochlorobenzalmalononitrile and inert ingredients.

(ii) A solution containing not more than 2% oleoresin capsicum.

(b) The device does not eject, release, or emit any gas or substance that will temporarily or permanently disable, incapacitate, injure, or harm a person with whom the gas or substance comes in contact, other than the substance described in subdivision (a)(i) or (ii).

(2) Except as otherwise provided in this section, a person who uses a self-defense spray device to eject, release, or emit orthochlorobenzalmalononitrile or oleoresin capsicum at another person is guilty of a misdemeanor, punishable by imprisonment for not more than 2 years, or a fine of not more than $2,000.00, or both.

(5) Subsection (2) does not prohibit either of the following:

(a) The reasonable use of a self-defense spray device by a law enforcement officer in the performance of the law enforcement officer's duty.

A gas or spray solution which exceeds the volume limitations of section 224d is by definition not a "self-defense spray device" but, rather, an offensive weapon normally prohibited by section 224. Consequently, in the absence of a statutory exception, a peace officer cannot possess such a weapon.

With respect to peace officers, the Legislature has provided an exception to the general prohibition against the possession of certain weapons. Section 231 of the Michigan Penal Code, MCL 750.231; MSA 28.428, states:

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....

It is a basic rule of statutory construction that when the language of a statute is clear and unambiguous, no further interpretation is necessary. Owendale-Gagetown School Dist v State Bd of Education, 413 Mich 1, 8; 317 NW2d 529 (1982). Here, in section 231, the Legislature has expressly exempted peace officers from the prohibition in section 224(1)(e) against possessing a weapon designed to disable a person by releasing a gas or other substance. This exemption is not altered by the statutory language in section 224d(5)(a) which merely authorizes a law enforcement officer to use a "self-defense spray device" in the performance of the officer's duties. There is nothing in the language of section 224d(5)(a) that prevents a peace officer from possessing a weapon pursuant to the exception in section 231 that private citizens may not possess under section 224(1)(e) of the Michigan Penal Code. This interpretation is in accord with the long-standing practice in this state that peace officers may use tear gas canisters to dislodge barricaded gunmen or for riot control.

It is my opinion, therefore, that peace officers may possess and use tear gas canisters and other devices which emit gas or spray solutions that exceed the volume limitations in section 224d of the Michigan Penal Code.

Frank J. Kelley

Attorney General