PEOPLE OF MI V DEAN SCOTT YANNA (Authored Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
June 26, 2012
9:00 a.m.
Plaintiff-Appellant,
v
No. 304293
Bay Circuit Court
LC No. 10-10536-FH
DEAN SCOTT YANNA,
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 306144
Muskegon Circuit Court
LC No. 11-047813-AR
JOHN COLLIE,
Defendant-Appellant.
Advance Sheets Version
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
1
MCL 750.224a(1), as amended by 2006 PA 457, prohibits anyone other than law enforcement
officers from selling, offering to sell, 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.” 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), as amended by 2012 PA 122, effective
August 6, 2012. This opinion considers only the complete ban implemented by the statute under
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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, the Bay
City Police “received an anonymous telephone call stating that [defendant, Dean Yanna] was
working behind the counter at Old Town Party Store . . . with a Taser on his belt.” Officers
responded to the party store and observed Yanna working behind the counter. Upon request,
Yanna removed a stun gun 3 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-offense 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
incapacitate temporarily or injure but is generally nonlethal.” On April 21, 2011, the trial court
issued an opinion and order granting Yanna’s motion to dismiss.
The facts of Docket No. 306144 are equally undisputed. According to the police report,
on February 4, 2011, John 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 taken 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, which he called 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 that was what he wanted, but the officer took custody of it. In his report,
which defendant was arrested, not the partial ban of the new statute, and unless otherwise
indicated, refers only to that former version.
2
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. People v Yanna,
unpublished order of the Court of Appeals, entered March 29, 2012 (Docket Nos. 304293 and
306144). The Attorney General declined to do so.
3
The term “Taser,” although a trademark for a particular brand of device, is commonly applied
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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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.”
Collie was charged with possession of a stun gun and with being a fourth-offense habitual
offender. Collie filed a motion to dismiss in the district court, arguing that MCL 750.224a was
unconstitutional because 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. 4
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.” US Const, AM II. In District of Columbia v Heller,
554 US 570, 592; 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.” The Second Amendment is fully applicable to the states through the Fourteenth
Amendment. McDonald v Chicago, 561 US ___; 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, § 6,
which states, “Every person has a right to keep and bear arms for the defense of himself and the
state.” Both provisions grant individuals a right to keep and bear arms for self-defense. We will
refer only to the Second Amendment for simplicity.
There are several issues to be considered. The first question is whether the objects
banned by MCL 750.224a constitute “arms,” such that they come within the ambit of the Second
Amendment. This question must be answered in the affirmative.
The Court in Heller stated:
The 18th-century meaning is no different from the meaning today. The
1773 edition of Samuel Johnson's dictionary defined “arms” as “[w]eapons of
offence, or armour of defence.” 1 Dictionary of the English Language 106 (4th
ed.) (reprinted 1978) (hereinafter Johnson). Timothy Cunningham's important
1771 legal dictionary defined “arms” as “any thing that a man wears for his
defence, or takes into his hands, or useth in wrath to cast at or strike another.”
[Heller, 554 US at 581 (citation omitted)].
Stun guns may be used both for defense or “to cast at or strike another.” Therefore, MCL
750.224a does affect “arms.” “[T]he Second Amendment extends, prima facie, to all instruments
that constitute bearable arms, even those that were not in existence at the time of the founding.”
4
People v Collie, unpublished order of the Court of Appeals, entered October 25, 2011 (Docket
No. 306144).
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Id. at 582. The prosecution argues that Heller is strictly a gun-control case, but the broad nature
of the language used in Heller’s definition of “arms” clearly covers more than just firearms.
Heller did recognize certain limitations on the right to keep and bear arms. In some
respects, these limitations are consistent with each other. However, they are not identical, and
the United States Supreme Court neither fully harmonized them nor elevated one over another.
First, the Court stated that “the Second Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes.” Id. at 625. The Court further stated that
“the sorts of weapons protected were those ‘in common use at the time.’” Id. at 627 (citation
omitted). As noted, however, this included weapons that did not exist when the Second
Amendment was enacted. Id. at 582. Third, the Court referred to “the historical tradition of
prohibiting the carrying of ‘dangerous and unusual weapons.’” Id. at 627 (citation omitted).
The prosecution argues that stun guns are not suited for lawful defensive purposes and
that they can easily be used for torturing someone tied to a chair or incapacitating an
unsuspecting victim. This argument is unavailing. One could easily produce an even lengthier
list of criminal cases involving handguns, but the Supreme Court has determined that handguns
are within the ambit of the Second Amendment. Hundreds of thousands of Tasers and stun guns
have been sold to private citizens, with many more in use by law enforcement officers. Volokh,
Nonlethal self-defense, (almost entirely) nonlethal weapons, and the rights to keep and bear
arms and defend life, 62 Stan L Rev 199, 206 n 28, 212 (2009). 5 The prosecution fails to put
forth evidence that would give the Court reason to doubt that the vast majority of Tasers and stun
guns are possessed by law-abiding citizens for lawful purposes.
This Court previously upheld the prohibition of stun gun possession and ownership found
in MCL 750.224a in People v Smelter, 175 Mich App 153, 155; 437 NW2d 341 (1989),
apparently concluding that the weapons covered by the statute were customarily employed to
violate the law. However, the only fact cited in Smelter was the capacity of the weapon seized
from the defendant to temporarily incapacitate or even temporarily paralyze someone. Smelter
did not cite any evidence that Tasers or stun guns are regularly used by criminals. Smelter cited
People v Brown, 253 Mich 537; 235 NW 245 (1931), but the Brown Court specifically noted that
the statute at issue prohibited “a partial inventory of the arsenal of the ‘public enemy,’ the
‘gangster.’” Brown, 253 Mich at 542. Discussing blackjacks, the Court cited the Encyclopaedia
Britannica, which described blackjacks as “’a characteristic weapon of urban gangsters and
rowdies.’” Id. Aside from the lack of factual support cited for Smelter’s conclusion, the legal
and factual landscape has altered in the last 23 years. By some reports, nearly 95 percent of
police departments in America use Tasers. 6 Further, Smelter predated Heller. While the Smelter
5
Volokh’s article cited a newspaper article from 1985 reporting that more than 300,000 stun
guns had already been sold to police and civilians.
6
Hardy, Taser’s Latest Police Weapon: The Tiny Camera and the Cloud, NY Times, February
21, 2012 (indicating that Taser International’s cofounder and chief executive, claimed that tasers
“are used by 17,000 of the 18,000 law enforcement agencies in the United States”), available at,
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decision is entitled to some deference, it is not binding on this Court. MCR 7.215(J)(1).
Because we have no reason to doubt that the majority of Tasers and stun guns are used only for
lawful purposes, we decline to follow Smelter.
The prosecution also argues that stun guns and Tasers are so dangerous that they are not
protected by the Second Amendment. However, it is difficult to see how this is so since Heller
concluded that handguns are not sufficiently dangerous to be banned. Tasers and stun guns,
while plainly dangerous, are substantially less dangerous than handguns. Therefore, tasers and
stun guns do not constitute dangerous weapons for purposes of Second Amendment inquiries.
The prosecution also argues that Tasers and stun guns are “unusual” or rare weapons.
However, they are legal in 43 states, and in Michigan are routinely used by law enforcement
officers. They have been in use for several decades. Though far less prevalent than handguns,
we do not think that stun guns or Tasers may be fairly labeled as unusual weapons.
Because Tasers and stun guns do not fit any of the exceptions to the Second Amendment
enumerated in Heller, we find that they are protected arms. Heller held unconstitutional a law
that completely banned the possession of protected arms in the home. Heller, 554 US at 628629. We therefore hold that a complete ban on Tasers and stun guns in the home violates the
Second Amendment.
The next question is whether the protected status of these arms makes unconstitutional a
complete ban on carrying them in public. Heller specifically addressed only a full ban of
protected weapons inside the home, not in public. Further, the analysis in Heller focused in part
on the unmatched popularity of handguns for self-defense and did not make clear to what extent
greater restrictions could be applied to less popular weapons.
On the other hand, Heller stated that concealed weapons may be banned, but made no
such statement regarding openly carried arms. Id. at 626-627. Indeed, Heller cited with
approval two state cases that struck down laws prohibiting the public carrying of handguns. Id.
at 629. The Second Amendment explicitly protects the right to “carry” as well as the right to
“keep” arms. Likewise, the Michigan Constitution specifically allows citizens to “bear” arms for
self-defense. We therefore conclude that a total prohibition of the open carrying of protected
arms such as a Taser or stun gun is unconstitutional.
Statutes are presumed to be constitutional unless their unconstitutionality is clearly
apparent and must be construed as constitutional if possible. City of Owosso v Pouillon, 254
Mich App 210, 213; 657 NW2d 538 (2002). However, MCL 750.224a completely bans
possession of Tasers and stun guns by private citizens in public and in the home and cannot be
read as containing exceptions. We conclude that the statute is unconstitutional.
<http://www.nytimes.com/2012/02/21/technology/tasers-latest-police-weapon-the-tiny-cameraand-the-cloud.html?pagewanted=1&ref=stunguns> (accessed June 5, 2012).
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We therefore affirm the Bay Circuit Court’s decision dismissing the charges against
Yanna, and we reverse the order of the Muskegon Circuit Court and reinstate the district court’s
order dismissing the charges against Collie.
/s/ Douglas B. Shapiro
/s/ Michael J. Kelly
/s/ Kurtis T. Wilder
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