STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

A local unit of government may not require an applicant for a license to purchase a pistol to provide his or her fingerprints before issuing the license. Where an applicant's identity is reasonably called into question, a local law enforcement official who is unable for that reason to determine that the applicant has demonstrated the existence of all the circumstances necessary to deem that applicant "qualified" may deny the application. If the applicant chooses to provide his or her fingerprints, the local law enforcement official may accept them to attempt to resolve the matter.

Opinion No. 7152

March 29, 2004

Honorable John Garfield
State Representative
The Capitol
Lansing, Michigan

You have asked whether a local unit of government may require an applicant for a license to purchase a pistol to provide his or her fingerprints before issuing the license.

(a) The person is not subject to an order or disposition for which he or she has received notice and an opportunity for a hearing, and which was entered into the law enforcement information network pursuant to [seven specified statutes].

(b) The person is 18 years of age or older or, if the seller is licensed pursuant to section 923 of title 18 of the United States Code, 18 U.S.C. 923, is 21 years of age or older.

(c) The person is a citizen of the United States and is a legal resident of this state.

(d) A felony charge against the person is not pending at the time of application.

(e) The person is not prohibited from possessing, using, transporting, selling, purchasing, carrying, shipping, receiving, or distributing a firearm under section 224f of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being section 750.224f of the Michigan Compiled Laws.

(f) The person has not been adjudged insane in this state or elsewhere unless he or she has been adjudged restored to sanity by court order.

(g) The person is not under an order of involuntary commitment in an inpatient or outpatient setting due to mental illness.

(h) The person has not been adjudged legally incapacitated in this state or elsewhere. This subdivision does not apply to a person who has had his or her legal capacity restored by order of the court.

(i) The person correctly answers 70% or more of the questions on a basic pistol safety review questionnaire approved by the basic pistol safety review board and provided to the individual free of charge by the licensing authority. . . . [MCL 28.422(3)(a)-(i).]

Applications for licenses must be signed by the applicant under oath on forms provided by the Department of State Police. MCL 28.422(4). Under MCL 28.422(11), a person who forges any matter on an application for a license under this section is guilty of a felony. As you observe in your letter, however, no provision of MCL 28.422 requires that an applicant provide his or her fingerprints in order to receive a license to purchase a pistol or authorizes a local law enforcement officer to impose such a requirement.¹

MCL 28.422 differs in this respect from section 5b of the Firearms Law, MCL 28.425b, which describes the process for obtaining a license to carry a concealed pistol. Section 5b(9), MCL 28.425b(9), states in pertinent part: "An individual, after submitting an application and paying the fee prescribed under subsection (5), shall request and have classifiable fingerprints taken by the county sheriff or a local police agency if that local police agency maintains fingerprinting capability. . . . The county sheriff or local police agency shall take the fingerprints within 5 business days after the request." The fingerprints must be taken on forms and in a manner prescribed by the Department of State Police. MCL 28.425b(10). They are then forwarded to the Department of State Police for comparison with fingerprints already on file with the department, which then forwards the fingerprints to the Federal Bureau of Investigation. MCL 28.425b(10). Under this section, the concealed weapon licensing board may deny a license if an individual's fingerprints are not "classifiable" by the Federal Bureau of Investigation. MCL 28.425b(10).²

In construing a statute, the primary task is to discern and give effect to the intent of the Legislature. Dan De Farms Inc v Sterling Farm Supply Inc, 465 Mich 872; 633 NW2d 824 (2001). Provisions that the Legislature did not include may not be added into a statute. In re Wayne County Prosecutor, 232 Mich App 482, 486; 591 NW2d 359 (1998). In the absence of a statutory provision authorizing a local law enforcement agency to impose such a requirement, as here, one cannot be read into the statute.

Further support for this conclusion is found in MCL 123.1102, which provides:

A local unit of government shall not impose special taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols or other firearms, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by federal law or a law of this state. [Emphasis added.]

While this section refers to a "local unit of government" and not individual local officers, its meaning is plain. The Legislature has occupied the field of firearm regulation and has authorized local regulation in this area only to the extent expressly provided by law. Michigan Coalition for Responsible Gun Owners v City of Ferndale, 256 Mich App 401, 418; 662 NW2d 864 (2003).

It is important to emphasize, however, that section 2(3) of the Firearms Law, MCL 28.422(3), confers discretion on the law enforcement officials specified in that section to deny an application for a license to purchase a pistol where he or she has probable cause to believe the applicant would be a threat to himself or herself or to other individuals, or would commit an offense with the pistol that would violate the law. Moreover, if the official processing an individual's application reasonably believes the applicant has falsified his or her identity such that the official cannot adequately determine that the applicant has demonstrated the existence of all the necessary circumstances establishing that the applicant is "qualified," such a belief would also justify denying the application. Under these circumstances, if the applicant chooses to provide his or her fingerprints, the local law enforcement official may accept them to attempt to resolve the matter.

It is my opinion, therefore, that a local unit of government may not require an applicant for a license to purchase a pistol to provide his or her fingerprints before issuing the license. Where an applicant's identity is reasonably called into question, a local law enforcement official who is unable for that reason to determine that the applicant has demonstrated the existence of all the circumstances necessary to deem that applicant "qualified" may deny the application. If the applicant chooses to provide his or her fingerprints, the local law enforcement official may accept them to attempt to resolve the matter.


MIKE COX
Attorney General

¹A review of the current form the Department of State Police provides law enforcement officers for their use in processing applications for a license to purchase a pistol reveals no provision requiring an applicant to provide fingerprints or authorizing a law enforcement officer to impose such a requirement. This opinion should not be read to foreclose the state police from making a change in the form to add such a requirement. This opinion only addresses the authority of a local unit of government or its officers to impose such a requirement in the absence of such a form.

In addition, administrative rules promulgated by the Department of State Police, 1979 AC, R 28.91 and R 28.92, do not apply here. Each of these rules was adopted pursuant to authority in MCL 28.422 and MCL 28.426. The latter of these statutes was repealed by 2000 PA 381. The rules, while they remain in effect, appear to address circumstances that do not apply to your question.

²For other statutes in which the Legislature has expressly authorized or required the taking of fingerprints under certain circumstances, see, e.g., MCL 207.1056 (application for license under Motor Fuel Tax Act); MCL 256.604(1) (application for license to engage in driver training school business); MCL 257.248f(2) (applications for vehicle dealer or salvage vehicle agent license under Michigan Vehicle Code); MCL 257.307 (application for operator's or chauffeur's license under Michigan Vehicle Code); MCL 338.1710 (application for license under Forensic Polygraph Examiners Act); MCL 451.602 (application for registration under Uniform Securities Act); MCL 600.949 (application for admission to state bar); and MCL 711.1 (petition for name change under Probate Code).