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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v DEAN SCOTT YANNA, Defendant-Appellee.

FOR PUBLICATION June 26, 2012 9:00 a.m. No. 304293 Bay Circuit Court LC No. 10-10536-FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JOHN COLLIE, Defendant-Appellant. No. 306144 Muskegon Circuit Court LC No. 11-047813-AR

Before: M. J. KELLY, P.J., and WILDER and SHAPIRO, JJ. SHAPIRO, J. In docket no. 304293, the prosecution appealed the Bay Circuit Court's decision holding unconstitutional MCL 750.224a, which prohibits possession of tasers and stun guns by private individuals.1 In docket no. 306144, we granted the defendant's application for leave to appeal

The statute prohibits anyone other than law enforcement officers from selling or possessing "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." MCL 750.224a(1). However, the Legislature recently passed a new version of this statute that would allow the possession of a taser or stun gun by anyone with a valid license to carry a concealed pistol who has received training in the "use, effects, and risks of the device." MCL 750.224a(2)(b), effective August 6, 2012. This opinion considers only the complete ban

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from the Muskegon Circuit Court's order holding the same statute constitutional. Given the identical questions posed by these cases, we have consolidated them.2 We hold that the version of MCL 750.224a at issue in these cases is unconstitutional. The Michigan and United States Constitutions protect a citizen's right to possess and carry tasers or stun guns for self-defense, and the state may not completely prohibit their use by private citizens. I. FACTS The facts of docket no. 304293 are not disputed. On Saturday June 5, 2010, Bay City Police "received an anonymous telephone call advising them that defendant was working behind the counter at Old Town Party Store with a taser in his belt." Officers responded to the party store and observed defendant Yanna working behind the counter. Upon request, Yanna removed a stun gun3 from his belt and turned it over to the police. The stun gun was transported back to the police department where it was tested. The stun gun appeared to be fully operational and was tagged and secured into evidence. Yanna was charged with possession of a stun gun in violation of MCL 750.224a, and with being a third habitual offender. Yanna filed a motion to dismiss, arguing that MCL 750.224a violated his right to keep and bear arms as provided for in both the federal and Michigan constitutions. The parties stipulated "for the purposes of arguing and deciding the constitutional issues . . . that the stun gun discharges an electrical current that could temporarily incapacitate or incapacitate but is generally nonlethal." On April 21, 2011, the trial court issued an opinion and order granting defendant's motion to dismiss. The facts of docket no. 306144 are equally undisputed. According to the police report, on February 4, 2011, defendant Collie called the Muskegon Police Department and said that he needed his insulin medication but his wife would not let him in the house. A police officer arrived to assist Collie in getting his insulin and some other personal belongings. When the officer arrived, Collie informed the officer that his wife had told him that she wanted a divorce and took his house key. After the officer spoke to Collie's wife, she opened the door and Collie began gathering his things. Collie then said he needed one more thing, and he called it a "toy." He began looking for the item and his wife held up a stun gun and asked if that was what he was looking for. He said it was what he wanted, but the officer took custody of it. In his report, the officer stated that "[t]he Stun Gun when activated, displayed an approximately 1 inch long white/blue electrical current with a loud, intimidating crackling sound." implemented by the statute under which defendant was arrested, not the partial ban of the new statute. Because this case involves the constitutionality of a state statute, following oral argument we issued an order inviting the Attorney General to file a brief on that issue. The Attorney General declined to do so. The term taser generally applies to a device that delivers an electric charge through barbs that can be propelled several feet away and penetrate clothing or skin. By contrast, a stun gun must be held in direct contact with the target.
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Collie was charged with possession of a stun gun and with being a fourth habitual offender. Collie filed a motion to dismiss in the district court, arguing that MCL 750.224a was unconstitutional. He argued that possession of a stun gun within one's home was protected under the Second Amendment. The district court agreed and dismissed the charges, but the circuit court reversed this decision on appeal. Collie applied for and received leave to appeal the circuit court's decision. II. ANALYSIS This Court reviews de novo issues of constitutional construction. Dep't of Transp v Tomkins, 481 Mich 184, 190; 749 NW2d 716 (2008). The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In DC v Heller, 554 US 570; 128 S Ct 2783; 171 L Ed 2d 637 (2008), the court held that the Second Amendment "guarantee[s] the individual the right to possess and carry weapons in case of confrontation." 554 US at 592. The Second Amendment is fully applicable to the states through the Fourteenth Amendment. McDonald v City of Chicago, 130 S Ct 3020, 3050; 177 L Ed 2d 894 (2010). Further, Heller's formulation appears to be equivalent to the provision in Const 1963, art 1,

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