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 COUNTY CORRECTIONS OFFICERS: PEACE OFFICERS: STUN GUNS: Whether county corrections officers are exempt from the ban on use of
stun guns and similar devices in the Penal Code County corrections officers who are also "peace officers" have been
exempted from the ban on possession of stun guns and similar devices in sections
224a and 231 of the Michigan Penal Code, MCL 750.224a and MCL 750.231, but those
county corrections officers who are not "peace officers" have not been
so exempted. Opinion No. 7135 July 16, 2003 You have asked whether county corrections officers have been exempted from
the ban on possession of stun guns and similar devices in sections 224a and 231
of the Michigan Penal Code, MCL 750.224a and MCL 750.231. Section 224a(1) of the Michigan Penal Code, MCL 750.224a(1), prohibits the
possession and sale of devices commonly known as "stun guns" as
follows: A person who violates section 224a(1) is guilty of a felony punishable by
imprisonment for not more than four years or a fine of not more than $2,000 or
both. MCL 750.224a(4). Subsections (2) and (3) of section 224a, MCL 750.224a(2) and (3), allow for
the possession and use of electro-muscular devices1 by certain
authorized personnel and for the sale and delivery of those devices: In addition, section 231 of the Michigan Penal Code, MCL 750.231, identifies
certain exempt individuals to whom various sections of the Penal Code, including
section 224a, do not apply: The foremost rule of statutory construction is to discern and give effect to
the intent of the Legislature. Sun Valley Foods Co v Ward,
460 Mich 230, 236; 596 NW2d 119 (1999). If the language of the statute is
unambiguous, it must be enforced as written. Where the language is ambiguous,
however, the courts may properly go beyond the words of the statute to ascertain
legislative intent. Id. One of the means that may be utilized is to
examine legislative history. Luttrell v Dep't of Corrections, 421
Mich 93, 103-105; 365 NW2d 74 (1984). The plain text of sections 224a and 231 does not expressly refer to
"county corrections officers." Section 231(1)(b) refers to corrections
officers, but only those "employed by the state department of
corrections" who are "authorized in writing by the director of the
department of corrections to carry a concealed weapon." MCL 750.231(1)(b).
This language is unambiguous and, therefore, allows for no further
interpretation. While section 224a(2)(a) refers to "an employee of the department of
corrections authorized in writing by the director of the department of
corrections," the legislative history of this section makes clear that it
does not include county corrections officers within the scope of its exemption.
MCL 750.224a(2)(a). 2002 PA 709, which amended section 224a to include this
language, originated as House Bill 6028 and included a broad exemption for a
"corrections officer" in subsection 2(a) as originally introduced.
2002 Journal of the House 1435 (No. 42, May 8, 2002). A later substitute bill
narrowed the exemption from "corrections officer" to a
"corrections officer authorized in writing by the director of the
department of corrections." 2002 Journal of the House 2807 (No. 70,
December 4, 2002). When House Bill 6028 was considered in the Senate, subsection
(2)(a) was further clarified to provide the exemption for "an employee of
the department of corrections authorized in writing by the director of the
department of corrections," 2002 Journal of the Senate 2600 (No. 75,
December 13, 2002), which was the version ultimately adopted in 2002 PA 709.
This legislative history demonstrates that the Legislature clearly considered
exempting all corrections officers from the ban on the use of stun guns and
similar devices, but rejected that approach in favor of the narrower exemption
for authorized employees of the Department of Corrections. Another exemption of potential relevance is whether county corrections
officers are "peace officers" within the meaning of section 224a(2)(a)
or 231(1)(a) of the Penal Code. Neither section defines these words. When
interpreting a criminal statute, the clear wording must be accepted. People v
Barry, 53 Mich App 670, 676; 220 NW2d 39 (1974). Words and phrases in a
statute must be construed according to the common and approved usage of the
language. MCL 8.3a; People v McIntire, 461 Mich 147, 153; 599 NW2d 102
(1999). In common speech, the term "peace officer" is consistently
used as synonymous with the term "law enforcement officer." OAG,
1977-1978, No 5236, pp 252, 253 (October 20, 1977). The Michigan Commission on
Law Enforcement Standards Act, MCL 28.601 et seq, defines a law
enforcement officer interchangeably with a police officer as one "who is
responsible for the prevention and detection of crime and the enforcement of the
general criminal laws of this state." MCL 28.602(k)(i). In People v Bissonette, 327 Mich 349, 356-357; 42 NW2d 113
(1950), the Michigan Supreme Court considered the question of whether
conservation officers were peace officers and offered the following definitions
relating to "peace officers": This language from Bissonette was cited with approval in People v
Carey, 382 Mich 285, 293-294; 170 NW2d 145 (1969), and Michigan State
Employees Ass'n v Attorney General, 197 Mich App 528, 530-531; 496 NW2d 370
(1992). Thus, an individual is within the recognized and accepted usage of the term
"peace officer" if the individual has general responsibility for the
enforcement of the law and preservation of the public peace. I am informed that
the duties of local corrections officers may vary from county to county. In some
counties, for example, peace officers may also serve as corrections officers.
Whether a particular county's corrections officers fall within the exemption for
"peace officers" will depend upon the particular duties assigned to
corrections officers in that county. Those county corrections officers who are
charged with the enforcement of the general criminal laws of this state or the
enforcement and preservation of the public peace are "peace officers"
and, accordingly, fall within the exemption for "peace officers."
Those county corrections officers who are not charged with those
responsibilities, however, are not "peace officers" within the common
and accepted meaning of those terms and accordingly fall outside the scope of
that exemption.3 It is my opinion, therefore, that those county corrections officers who are
also "peace officers" have been exempted from the ban on possession of
stun guns and similar devices in sections 224a and 231 of the Michigan Penal
Code, MCL 750.224a and MCL 750.231, but those county corrections officers who
are not "peace officers" have not been so exempted. MIKE COX 2
MIKE COX, ATTORNEY GENERAL
Honorable Doug Spade
State Representative
The Capitol
Lansing, MI 48909
Except as otherwise provided in this section, a person shall not sell, offer
for sale, or possess in this state a portable device or weapon from which an
electrical current, impulse, wave, or beam may be directed, which current,
impulse, wave, or beam is designed to incapacitate temporarily, injure, or
kill.
(2) This section does not prohibit any of the following:
(a) The possession and reasonable use of a device that uses
electro-muscular disruption technology by a peace officer, an employee
of the department of corrections authorized in writing by the director
of the department of corrections, probation officer, court officer, bail
agent authorized under section 167b, licensed private investigator,
aircraft pilot, or aircraft crew member, who has been trained in the
use, effects, and risks of the device, while performing his or her
official duties.
(b) Possession solely for the purpose of delivering a device described
in subsection (1) to any governmental agency or to a laboratory for
testing, with the prior written approval of the governmental agency or
law enforcement agency and under conditions determined to be appropriate
by that agency.
(3) A manufacturer, authorized importer, or authorized dealer may
demonstrate, offer for sale, hold for sale, sell, give, lend, or deliver a
device that uses electro-muscular disruption technology to a person
authorized to possess a device that uses electro-muscular disruption
technology and may possess a device that uses electro-muscular disruption
technology for any of those purposes.2
(1) Except as provided in subsection (2), sections 224, 224a, 224b, 226a,
227, 227c, and 227d do not apply to any of the following:
(a) A peace officer of an authorized police agency of the United States,
of this state, or of a political subdivision of this state, who is
regularly employed and paid by the United States, this state, or a
political subdivision of this state.
(b) A person who is regularly employed by the state department of
corrections and who is authorized in writing by the director of the
department of corrections to carry a concealed weapon while in the
official performance of his or her duties or while going to or returning
from those duties.
(c) A person employed by a private vendor that operates a youth
correctional facility authorized under section 20g of 1953 PA 232, MCL
791.220g, who meets the same criteria established by the director of the
state department of corrections for departmental employees described in
subdivision (b) and who is authorized in writing by the director of the
department of corrections to carry a concealed weapon while in the
official performance of his or her duties or while going to or returning
from those duties.
(d) A member of the United States army, air force, navy, or marine corps
or the United States coast guard while carrying weapons in the line of
or incidental to duty.
(e) An organization authorized by law to purchase or receive weapons
from the United States or from this state.
(f) A member of the national guard, armed forces reserve, the United
States coast guard reserve, or any other authorized military
organization while on duty or drill, or in going to or returning from a
place of assembly or practice, while carrying weapons used for a purpose
of the national guard, armed forces reserve, United States coast guard
reserve, or other duly authorized military organization.
(2) As applied to section 224a(1) only, subsection (1) is not applicable
to an individual included under subsection (1)(a), (b), or (c) unless he
or she has been trained on the use, effects, and risks of using a portable
device or weapon described in section 224a(1). [MCL 750.231(1) and (2).]
"Peace Officers. This term is variously defined by statute in
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; the good order and repose of the people composing a State or
municipality." Blacks Law Dictionary (3rd ed), p 1341.
"Peace officer. Law. A civil officer whose duty it is to
preserve the public peace, as a sheriff or constable." Webster�s New
International Dictionary (2d ed), p 1798.
Attorney General
1The Legislature has defined "a device that uses
electro-muscular disruption technology" to mean:
[A] device to which all of the following apply:
(a) The device is capable of creating an electro-muscular disruption and is
used or intended to be used as a defensive device capable of temporarily
incapacitating or immobilizing a person by the direction or emission of
conducted energy.
(b) The device contains an identification and tracking system that, when the
device is initially used, dispenses coded material traceable to the
purchaser through records kept by the manufacturer.
(c) The manufacturer of the device has a policy of providing the
identification and tracking information described in subdivision (b) to a
police agency upon written request by that agency. [MCL 750.224a(5).]
3This conclusion is further supported by reference to other statutes in
which the Legislature has distinguished a "peace officer" from a
"corrections officer" and included both within the scope of a
particular statute. See, e.g., MCL 18.361(5)(b) (crime victims compensation
award shall be reduced by amount of insurance payments received but not
including benefits paid to "a peace officer or a corrections
officer"); MCL 750.316(1)(c) (making the murder of "a peace officer or
a corrections officer" punishable as first degree murder); MCL 750.479b
(making the taking of a weapon other than a firearm from the lawful possession
of a "peace officer or a corrections officer" a felony); MCL
777.36(1)(a) (in determining sentences, assigning 50 points to the scoring of
offense variable 6 involving the murder of a "peace officer or a
corrections officer"). In contrast with these examples, as pertinent to our
analysis, the Legislature chose to include certain employees of the Department
of Corrections authorized in writing by the Director of the Department of
Corrections and "peace officers" within the scope of MCL 750.224a and
750.231, as opposed to "corrections officers."