Possession of Tasers, Constitutionality of Ban

Criminal Law Update
By F. Martin Tieber, Kristoffer Tieber
Tieber Law Office
Oct 30, 2012

People v Yanna, __ Mich App __; __ NW2d __ (2012 WL 2401400, No. 306144, decided June 26, 2012)(june’12). Consolidating cases involving MCL 750.224a “Possession or Sale of a Taser” arising out of Bay and Muskegon Circuit Courts, the Michigan Court of Appeals held that the state and federal constitutions prevent the state from completely prohibiting the possession and use of tasers by private citizens. The statute states that no one besides law enforcement may sell or possess, “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.” In both lower court cases, Defendants had possession of a taser or stun gun – one while working behind the counter at a party store, and the other in his own home. Both parties argued that the 2nd Amendment allowed them to carry these “weapons” and their rights were violated by charges under MCL 750.224a. The court, looking to DC v Heller, 554 US 570; 128 S Ct 2783; 171 Led2d 637(2008), declared that tasers are protected arms because they do not fit into any of the Heller exceptions. Because tasers are protected arms, it would be unconstitutional to ban them from private citizens’ homes. The court used the Second Amendment to decipher whether or not private citizens could open carry tasers as protection outside of their homes. The court surmised that total prohibition on open carrying of a taser or a stun gun would go against the Second Amendment’s declaration that citizens can carry and keep arms and the Michigan Constitution’s declaration that citizens may “bear” arms for self-defense.