Lead Opinion
Wе granted leave in this case to decide whether under MCL 750.227c; MSA 28.424(3), knowledge that a firearm is loaded
We hold that the Legislature did not intend that knowledge that a firearm is loaded is an element of the offense. We reverse the decision of the Court of Apрeals and reinstate the defendant’s conviction.
I
On March 3, 1987, the defendant and several other persons were firing a variety of firearms on state game land in rural Oakland County approximately twenty-five to thirty miles from the defendant’s home. A neighbor, an off-duty police detective, heard the shooting and became concerned that, because there were so many shots, automatic weapons possibly were being fired. The off-duty officer drove to an area on the state-owned property where he saw several males shooting what appeared to him to be shotguns and automatic assault-type rifles. He also observed three four-wheel-drive vehicles that contained several rifles and shotguns laid out on the open tailgates. He asked one of the persons present to stop firing because the noise was scaring the livestock.
The detective returned to his home and telephoned the Michigan State Police. Before a trooper’s arrival, the detective observed the vehicles leaving the area and was able to jot down the license tag numbers of two of the vehicles.
These vehicles, a Chevrolet Blazer and a four-wheel-drive Toyota, were eventually stopped by an
Shortly after their arrival, the troopers looked into the rear windows of both vehicles and saw many firearms
After being apprised of his Miranda
Mr. Quinn was convicted by a jury of transporting or possessing a loaded firearm other than a
The premise of the Court of Appeals opinion was that MCL 750.227c; MSA 28.424(3), "is the counterpart” of Michigan’s statutory prohibition against carrying a concealed weapon, MCL 750.227; MSA 28.424,
A
While the defendant offers a passing reference to "due process” requirements, the respective parties’ analyses, like that of the Court of Appeals, actually focus on whether the Legislature intended to incorporate an element of knowledge into the statute. Thus, the defendant contends that, although scienter is not expressly mentioned in the statute, knowledge that the firearm is loaded should nonetheless be required "to limit the statute’s application to knowing, rather than innocent, violations of the statute’s provisions.” Lane,
Stressing that the рeople agree that knowledge that a firearm is present in the vehicle is an element of the offense,
We agree. The construction adopted today makes those who transport firearms responsible for their safe transportation, protecting those in
ii
We deal with this issue as a matter of statutory construction. We observe at the outset, however, that while the wisdom and efficiency of excluding elements of knowledge from the definition of a crime has been questioned,
In the seminal case of Morissette v United States,
Thus, where the offense in question does not codify a common-law offense and the statute omits the element of knowledge or intent, the United States Supreme Court examines the intent of the Legislature to determine whether it intended that knowledge be proven as an element of the offense, or whether it intended to hold the offender liable regardless of what he knew or did nоt know.
We are persuaded that our interpretation of the Legislature’s intent in enacting this statute falls comfortably within the parameters of federal authority holding that a state may decide under the police power that public policy requires that cer
In summary, the United States Supreme Court, in interpreting legislative intent regarding the element of fault, has applied an analytical framework that considers each separate element of the statute. Statutes creating strict liability regarding all their elements are not favored. However, where a statute requires a criminal mind for some but not all of its elements, it is not one of strict liability, United States v Freed,
in
That true strict liability crimes are proper under some circumstances is also well settled in Michigan. The Legislature may impose certain penalties regardless of the actor’s criminal intent and regardless of what the actor actually knew or did not know.
We have specifically acknowledged that, in some instances, requiring the prosecutor to prove knowledge would frustrate the regulatory purposes of .the statute. Thus, in People v Hatinger,
Contrary to the defendant’s assertion, it is clear under both federal and state authority that the Legislature, as part of its police powers, may de
IV
MCL 750.227c; MSA 28.424(3) provides:
(1) Except as otherwise permitted by law, a person shall not transport or possess in or upon a sailboat or a motor vehicle, aircraft, motorboat, or any other vehicle propelled by mechanical means, a firearm, other than a pistol, which is loaded.
(2) A person who violates this section is guilty of a misdemeanor, punishable by imprisonment for not more than 2 years, or a fine of not more than $2,500.00, or both.
(3) This section does not apply to a person who viоlates section 10(1)(g) of chapter II of Act No. 286 of the Public Acts of 1929, as amended, being section 312.10 of the Michigan Compiled Laws.
MCL 750.2; MSA 28.192 also provides:
The rule that a penal statute is to be strictly construed shall not apply to this act or any of the provisions thereof. All provisions of this act shall be construed according to the fair import of their terms, to promote justice and to effect the objects of the law.
See also People v Hill,
MCL 750.227c; MSA 28.424(3) was enacted by the Legislature as part of
The statute was introduced to the Michigan House of Representatives as HB 4688 on May 14, 1981. 1981 Journal of the House 1250. It was amended on June 29, 1981, to add subsection 3, making the statute inapplicable to a person who violated then existing MCL 312.10(1)(g); MSA 13.1339(1)(g).
Unless otherwise specified, a person shall not do any of the following:
Transport, or have in possession, in or upon an automobile, aircraft, motorboat, sailboat, or any other vehicle propelled by mechanical means, while in an area frequented by wild birds and wild animals, a gun or other firearm, except a pistol or revolver, unless the gun or firearm is unloaded in both the barrel and magazine; or a bow, unless it is unstrung.
According to the House Legislative Analysis of HB 4688, June 3, 1981, and Corrected Analysis, February 10, 1982, MCL 312.10(1)(g); MSA 13.1339(1)(g) had itself been amended to add "while in an area frequented by wild birds and wild animals” as a result of court decisions holding enforcement of this provision unconstitutional. in nonwildlife areas. Because MCL 312.10(1)(g); MSA 13.1339(1)(g) now applied only in wildlife areas, HB 4688 was necessary to correct "a loophole in the law.”
The proposed language closely parallels the analogous sections of the Game Law except that the penalty for carrying a loaded rifle or shotgun is more severe — two years’ imprisonment and $2,500, rather than $100 and ninety days. . . .
Pistols are excluded from the language of the proposed sections because the transportation of pistols is already regulated under the concealed weapons statute, violation of which is a felony. [Emphasis in original.]
The аnalysis continued by stating the arguments for the bill.
The bill is needed if police agencies are to have statutory authority to regulate the transportation of firearms in urban areas as they have done in the past. There has been no real dispute about the appropriateness of forbidding the transportation of loaded or ready-for-use rifles and shotguns. The dangers of permitting such transportation are obvious. The present problems arise only from the impropriety of using the Game Law in areas where no hunting is done. While largely replicating the language of the Game Law, these amendments to the Penal Code can be said to be an improvement over that law in that they recognize a distinction between transporting a loaded gun and transporting one which is only readily available to be loaded аnd fired. The first of these offenses, while remaining a misdemeanor, could be punished more severely than the second. [Emphasis added.]_
When viewed together with § 227d, the Legislature’s concern for the public safety becomes obvious. Under § 227d, firearms must not only be unloaded, but must also be taken down, in a case in the trunk, or not readily accessible. Thus, the Legislature sought tо protect those in and outside the vehicle from the dangers associated with loaded firearms. We conclude that the end sought to be achieved by MCL 750.227c; MSA 28.424(3) is protection of both the public and the person carrying or possessing the firearm from the dangers inherent in a loaded firearm.
Clearly, then, the Legislature intended to hold a person liable for knowing transportation of a firearm that is in fact loaded, irrespective of whether the individual actually knew the fact that it is his duty to ascertain. A contrary interpretation would undermine the responsibility to determine that the firearm is unloaded, thus increasing the fortuity that "an errant child, or companion, or other person,” post, p 201, would have access to the firearm. The duty imposed by the statute is the duty to protect the public safety by guarding against the fortuity of accidental or intentional discharge. The person who transports a firearm in a vehicle, the person who possesses a firearm in a
V
When sister jurisdictions have been faced' with this question, they have decided the issue as we do today — where the Legislature did not require knowledge that the firearm being transported or possessed is loaded, knowledge is not an element of the offense. In People v Dillard, 154 Cal App 3d 261; 201 Cal Rptr 136 (1984), the California Court of Appeals held that a statute that prohibits carrying a loaded firearm in a vehicle
The court characterized the statute as "a quintessential public welfare statute . . . .” Id. at 266. According to the court, the legislature correctly placed the burden of avoiding harm on the person who is in the best position to avoid it.
*196 To avoid the sanction of the law, appellant need only have taken care to make certain that the weapon he carried was in fact unloaded — "no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.” [.Dillard at 267.]
The California Court of Appeals also addressed the mistake of fact defense that the defendant had attempted to use at trial. It said that since knowledge that the gun was loaded was not an element of the offense, mistake of fact regarding the firearm’s condition was not a defense. Moreover, the court, in dictum, noted that the defendant had not attempted to show that he had made an effort to determine whether the firearm was loaded or not. "A mere belief, unsupported by a showing of due care and bona fide, reasonable effort to ascertain the facts, is insufficient to constitute a mistake of fact defense.” Id. The court did, however, state that if the defendant did not know that he possessed the firearm, mistake with regard to that fact would be a defense. We agree with the California Court of Appeals.
Whether approached with the guidance of federal courts and sister jurisdictions, the methodology of our own precedent, or the factor analysis distilled by LaFave and Scott, we conclude, that knowledge that a firearm is loaded is not an element of MCL 750.227c; MSA 28.424(3).
The legislative history "throw[s] some light on the matter.” LaFave & Scott, supra, § 3.8, p 244. The Legislature realized there was a loophole in the existing statutes. Furthermore, it realized the difficulty of proving the unlawful intent element under MCL 750.226; MSA 28.423, and noted that the proposed statute did not include that element. Finally, it realized the dangers associated with transporting a loaded firearm in a vehicle.
Section 227c "promote[s] justice and . . . effect[s] the objects of the law”
It is true that the people prеsented no evidence regarding who actually placed the Calico M-100 into the defendant’s Toyota. However, Kevin Quinn, the driver of the car transporting the firearm, certainly had an "opportunity to ascertain the true facts.” LaFave & Scott, supra at 244. By simply removing the clip and pulling back the slide of the Calico M-100 to ensure that it was not loaded, he was in the best position to protect against the dangers that the Legislature considered when it enacted MCL 750.227c; MSA 28.424(3). This involves " 'no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.’ ” Dillard at 267.
Accordingly, we reverse the decision of the Court of Appeals and reinstate the defendant’s conviction.
Notes
The prosecutor does not contest that the statute requires proof of knowledge of the presence of the firearm in the vehicle. We assume arguendo that proof of knowledge of the presence of the firearm is an element of the offense in question, recognizing that the question has not been decided by this Court or the Court of Appeals.
MCL 750.227c; MSA 28.424(3) provides:
(1) Except as otherwise permitted by law, a person shall not transport or possess in or upon a sailboat or a motor vehicle, aircraft, motorboat, or any other vehicle propelled by mechanical means, a firearm, other than a pistol, which is loaded.
(2) A person who violates this section is guilty of a misdemeanor, punishable by imprisonment for not more than 2 years, or a fine of not more than $2,500.00, or both.
(3) This section does not apply to a person who violates section 10(1)(g) of chapter- II of Act No. 286 of the Public Acts of 1929, as amended, being section 312.10 of the Michigan Compiled Laws.
Burks v United States,
In the Toyota, the officers found four firearms and a bayonet. The firearms found were: (1) a loaded Calico M-100 carbine .22 calibre assault rifle, (2) an unloaded Armalite AR-180 5.56 calibre assault rifle, (3) an unloaded FEG 7.62 calibre assault rifle, and (4) an unloaded Valmet M-76 5.56 calibre assault rifle. Six firearms were found in the Chevrolet Blazer: (1) a loaded Winchester Defender 12-gauge shotgun, (2) an unloaded Ithaca 12-gauge shotgun, (3) an unloaded H & K Model 94 9 mm assault rifle, (4) an unloaded Colt Model AR-15 .223 calibre assault rifle, (5) an unloaded Colt Model AR-15 9 mm assault rifle, and (6) аn unloaded Winchester Defender 12-gauge shotgun.
Miranda v Arizona,
MCL 750.227; MSA 28.424 provides:
(1) A person shall not carry a dagger, dirk, stiletto, a double-edged nonfolding stabbing instrument of any length, or any other dangerous weapon, except a hunting knife adapted and carried as such, concealed on or about his or her person, or whether concealed or otherwise in any vehicle operated or occupied by the person, except in his or her dwelling house, place of business or on other land possessed by the person.
(2) A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, placе of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license.
(3) A person who violates this section is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00.
We do not here express any opinion regarding the court’s statement in Lane that scienter is necessary to prevent overbreadth.
In light of the prosecutor’s concession, we do not deal with the more controversial issues involved in true strict liability crimes, i.e., statutes requiring no mens rea at all.
The Model Penal Code "is vigorously anti-strict liability, providing that there are no strict liability 'crimes’ within the Code, only strict liability 'violations’ . . . .” Singer, The resurgence of mens rea: III— The rise and fall of strict criminal liability, 30 BCL8 337, 381 (1989). Singer points out that, under the Model Penal Codе, a violation is an act for which imprisonment is not a penalty. Crimes, however, do involve imprisonment as a penalty.
According to LaFave and Scott, " 'The consensus can be summarily stated: to punish conduct without reference to the actor’s state of mind is both inefficacious and unjust.’ ” LaFave & Scott, Criminal Law (2d ed), § 3.8, p 248, quoting Packer, Mens rea and the Supreme Court, 1962 Sup Ct R 107, 109.
See Liparota v United States, 471 US 419;
Brennan, J., concurring. Thus, in Bailey, supra, the Court concluded that a federal statute punishing escape from custody required proof that defendants knew that they were leaving the jail without authorization, but not proof of intent to avoid confinement. And in Freed, supra, construing a statute punishing possession of unregistered firearms, the Court observed that lower court decisions held that the only knowledge to be proved was knowledge that the instrument was a firearm, not knowledge of the registration requirement.
See, e.g., People v Ward,
The Court of Appeals has also noted that it is the police powers of the Legislature that allow it. to define a crime without regard to criminal intent. "In areas subject to strong police regulation, the state may impose the burden of acting at hazard upon a person otherwise innocent but standing in a responsible relation to a public danger.” Berry v Michigan Racing Comm’r, n 12 supra at 169, citing Dotterweich, supra.
LaFave & Scott, supra, § 3.8, pp 244-245, in their treatise on Criminal Law, summarize a number of factors courts have considered important in interpreting statutes empty of words denoting fault, among them, (1) the statute’s legislative history or its title, (2)
MCL 312.10; MSA 13.1339 was repealed by
A memorandum from Robert M. Faulkner, Legal Counsel of the Legislative Service Bureau, acknowledged the gap in the existing statutes. On May 21, 1981, he wrote:
The section of the penal code concerning concealed weapons (MCL 750.227 [MSA 28.424]) has been adjudicated as not applying to rifles and shotguns generally. . . .
Section 226 pertains to carrying a firearm with "unlawful intent.” A person could be prosecuted under this section for carrying a firearm in a motor vehicle if the unlawful intent*193 element can be established. This additional element is extremely difficult to prove and is not a factor in your legislation. Therefore, this section of law serves a different purpose from your legislation. [Emphasis added.]
A recent news story which, fortuitously, did not end tragically for the humans involved, illustrates the scope of the accidental consequences that the statutory duty guards against. On April 16, 1992, Larry Lands, Jr., age sixteen, and his father, Larry Lands, Sr., were turkey hunting in Potosi, Missouri. They shot a turkey and placed it and their loaded Beretta 12-gauge automatic shotgun into the trunk of their car. Then as Larry, Jr., described it, "we left from the place where we killed the turkey. We drove directly to [a friend’s home]. I opened the trunk [and] the turkey was flopping around, the next thing the gun went off and shot my dad in the leg.” Had the shotgun been unloaded, the stunned, but not dead turkey would not have had its chance to get even with the hunters, and Lands, the Elder, would not have been injured. Washington County, Missouri, Sheriff’s Office, Report of Investigation, April 16,1992.
Cal Penal Code 12031, provides in pertinent part: "[E]very person who carries a loaded firearm on his or hеr person or in a vehicle while in any public place or on any public street ... is guilty of a misdemeanor.”
The court examined the statute’s legislative history to discern the intent of its legislature in enacting the statute. California’s legislature had declared the act " 'necessary for the immediate preservation of the public peace, health or safety.’ ” 154 Cal App 3d 266. The court noted that the "Legislature [had] cited the danger to the peace and safety of the people of this state from the increased incidence of
The court also stressed the dangers of accidental discharge of a weapon. It said, if a person truly does not know that the firearm is loaded, he poses an even greater danger to the public because he does not recognize the need for care. According to the court, the person who knows that the firearm is loaded is more likely to be careful with the firearm.
Similarly, the Washington Court of Appeals in State v Anderson, 54 Wash App 384;
Wash Rev Code 9.41.050(3) provides:
A person shall not carry or place a loaded pistol in any*197 vehicle unless the person has a license to carry a concealed weapon and: (a) The pistol is on the licensee’s person, (b) the licensee is within thе vehicle at all times that the pistol is there, or (c) the licensee is away from the vehicle and the pistol is locked within the vehicle and concealed from view from outside the vehicle.
The Washington Court of Appeals relied heavily on Dillard in deciding that knowledge was not an element. Commentary to this statute noted that the statute did not contain a mental element. Thus, the decisions of other courts that have decided this issue bolster the decision we have reached today.
The Legislature also provided guidance in another statute to assist the court in determining the Legislature’s intent — MCL 750.2; MSA 28.192. Requiring the state to prove that the defendant knew that the firearm was loaded would not "effect the objects of the law.” As the state argued, it would eviscerate the statute. Unless the state had a witness who actually saw а defendant loading a firearm, this knowledge would be extremely difficult to prove.
MCL 750.2; MSA 28.192.
Concurrence Opinion
(concurring in the reversal of the Court of Appeals). The statute proscribes as a ninety-day misdemeanor transporting or possessing a loaded firearm other than a pistol in a motor vehicle.
I agree with the majority that the statute imposes on a person who would so transport or possess a firearm the obligations both to so render the firearm inaccessible and to unload the firearm. Before transporting or possessing a firearm other than a pistol in a motor vehicle a citizen is thus obliged to see to it that the firearm is "taken down,” or enclosed in a case, or placed in the trunk of the vehicle, or in a place inaccessible from the interior of the vehicle, and also to assure that it is unloaded.
Consistent with the statutory purpose to impose such obligations, a prima facie case of violation of the statutory proscriptions is made on evidence tending to show that the accused transported or possessed a loaded firearm in a vehicle. So far, the majority and I agree._
The law does not impose on the plaintiff, in a civil or criminal case, an impossible burden of proof. It aids the plaintiff by permitting the trier of fact to infer knowledge or scienter from evidentiary facts that reasonably permit such an inference to be drawn.
On the facts of this case, this is somewhat academic. The evidence was overwhelming that Kevin Quinn, who was sentenced to serve a term of forty-five days, committed the lesser offense by transporting, loaded or unloaded, a large quantity of firearms readily accessible from the interior of the vehicle.
In another case, however, the accused might
Unless the duty imposed by the statute requires a person to recheck the firearm to determine whether it is still unloaded every time he enters the vehicle, the trier of fact would, if persuaded by such an exculpatory factual recital, be justified in finding that the statute was not violated. Under the majority’s construction, the judge is obliged to instruct the jury that it must find the defendant guilty even if it believes the exculpatory recital.
The trier of fact, the jury in many cases, is bright enough to see through a defense asserting lack of knowledge where such defense is unwarranted. There is no need to eliminate knowledge as an element of the offense in order to effectively enforce this legislation, which was not aimed at a problem confronting prosecutors in establishing knowledge, but rather at the absence of any legislation proscribing the carrying of loaded firearms other than pistols in motor vehicles in urban areas.
(1) Except as otherwise permitted by law, a person shall not transport or possess in or upon a motor vehicle or any self-propelled vehicle designed for land travel a firearm, other than a pistol, unless the firearm is unloaded and is 1 or more of the following:
(a) Taken down.
(b) Enclosed in a case.
(c) Carried in the trunk of the vehicle.
(d) Inaccessible from the interior of the vehicle.
*199 (2) A person who violates this section is guilty of a misdemeanor, punishable by imprisonment for not more than 90 days, or a fine of not more thаn $100.00, or both. [MCL 750.227d; MSA 28.424(4).]
(1) Except as otherwise permitted by law, a person shall not transport or possess in or upon a sailboat or a motor vehicle, aircraft, motorboat, or any other vehicle propelled by mechanical means, a firearm, other than a pistol, which is loaded.
(2) A person who violates this section is guilty of a misdemeanor, punishable by imprisonment for not more than 2 years, or a fine of not more than $2,500.00, or both.
(3) This section does not apply to a person who violates section 10(1)(g) of chapter II of Act No. 286 of the Public Acts of 1929, as amended, being section 312.10 of the Michigan Compiled Laws. [MCL 750.227c; MSA 28.424(3).]
See n 5 for text of § 10(1)(g) referred to in § 227c(3).
A jury finding that the accused did not ascertain that the firearm was unloaded before it was stored in the vehicle, would tend to discredit a claim that the accused did not know, when the firearm was transported or possessed, that it was loaded.
See, generally, People v Morrin,
See majority ante, pp 191-194, discussing § 10(1)(g) of the Game Law (MCL 311.1 et seq.; MSA 13.1321 et seq., which provided that it is a ninety-day misdemeanor to transport, or have in possession, in a motor vehicle a loaded firearm in an area frequented by wild birds or wild animals, and the legislative purpose to proscribe transporting or possessing loaded firearms in motor vehicles in an urban area. Section 10(1)(g) provides:
Unless otherwise specified, a person shall not do any of the*202 following:
Transport, or have in possession, in or upon an automobile, aircraft, motorboat, sailboat, or any other vehicle propelled by mechanical means, while in an area frequented by wild birds and wild animals, a gun or other firearm, except a pistol or revolver, unless the gun or firearm is unloaded in both the barrel and magazine; or a bow, unless it is unstrung. [MCL 312.10(1)(g); MSA 13.1339(1)(g).]