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

MIKE COX, ATTORNEY GENERAL

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


Honorable Doug Spade
State Representative
The Capitol
Lansing, MI 48909

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:

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.

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:

(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

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:

(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).]

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":

"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.

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
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).]

2For the purposes of this opinion, it is assumed that the corrections officer is employed in that position and does not simultaneously hold one of the exempt positions identified in MCL 224a(2) or (3).

3
This 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."