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The Michigan State Police (MSP) Legal Resources and Education Section (LRES) has received several inquiries regarding the regulation of “pneumatic guns” marketed and sold in Michigan, as well as inquiries regarding ammunition used with these devices, including “less lethal” plastic rounds similar to a “paintball” which contains certain chemicals presumably designed and intended for self-defense purposes.
As previously described n MSP Legal Update No. 117, the definition of a “firearm” under Michigan law was substantially revised in 2015 to expressly exclude any device that propelled a dangerous projectile by gas or air. At that same time, legal requirements and crimes were added for those devices meeting the new definition of a “pneumatic gun” found in MCL 750.222(g) and MCL 123.1101(d) as follows:
"Pneumatic gun" means any implement, designed as a gun, that will expel a BB or pellet by spring, gas, or air. Pneumatic gun includes a paintball gun that expels by pneumatic pressure plastic balls filled with paint for the purpose of marking the point of impact.
The MP cannot provide legal advice or offer an advisory opinion as to whether a particular device (e.g., “Byrna Less-Lethal Pistol”) is legal or illegal as a matter of law. Determining whether such a device is legal or illegal would necessarily depend on the articulable facts and circumstances surrounding the specific device in question, including how it was used, how it was carried or transported, and where it was possessed.
Nevertheless, if a particular device is determined to be a “pneumatic gun” as defined in MCL 750.222(g) and MCL 123.1101(d), then in addition to any laws applicable to assaultive crimes, such devices are subject to the following statutes intended to regulate specific conduct involving “pneumatic guns:”
Felony: 5-years and/or $2,500 fine
Felony: 2-year mandatory minimum consecutive sentence
Misdemeanor: 2-years and/or $2,500 fine
Note: For violations of this statute, the “pneumatic gun” must be one that only “expels a metallic BB or metallic pellet greater than .177 caliber.” MCL 750.227c(1)(b).
Misdemeanor: 90 days and/or $100 fine
Note: For violations of this statute, the “pneumatic gun” must be one that only “expels a metallic BB or metallic pellet greater than .177 caliber.” MCL 750.227d(1)(b).
Misdemeanor: 93-days and/or $2,000 fine
While any charging decision is necessarily left to the sound discretion of prosecuting officials, officers should be aware that carrying or possessing any “pneumatic gun,” including a BB or pellet gun, a “paint ball gun,” or a “pepper ball gun,” with the intent to use it unlawfully against the person of another is a felony under MCL 750.226. As such, if probable cause exists to believe a particular person carried or possessed any “pneumatic gun” of any type with the intent to commit even a simple assault and/or battery in violation of MCL 750.81, then probable cause likely exists to support the felony charge under MCL 750.226. Further, if probable cause exists to believe a particular person used a “pneumatic gun” to commit a felony under MCL 750.226 (carrying “pneumatic gun” with unlawful intent), then probable cause likely exists to support the additional charge of “felony firearm” under MCL 750.227b.
As a general matter, MCL 750.224(1)(e) prohibits the manufacture, sale, offer for sale, or possession of a “device, weapon, cartridge, container, or contrivance designed to render a person temporarily or permanently disabled by the ejection, release, or emission of a gas or other substance.” Unless a person is exempt under MCL 750.231, a person who violates this statute is guilty of a felony punishable by up to 5 years in prison and/or $2,500 fine.
However, this felony prohibition does not apply to the manufacture, sale, offer for sale, or possession of a “self defense spray or foam device” defined in MCL 750.224d(1) as follows:
Not more than 35 grams of any combination of orthochlorobenzalmalononitrile and inert ingredients.
A solution containing not more than 18% oleoresin capsicum (OC).
A solution containing an ultraviolet dye and not more than 18% OC.
Note: To avoid felony liability under MCL 750.224(1)(e), an allowable SDSFD under MCL 750.224d(1), must not eject, release, or emit any gas or substance that will temporarily or permanently disable, incapacitate, injure, or harm a person with whom the gas or substance comes in contact, other than one of the substances described above.
The MSP cannot provide legal advice or offer an advisory opinion as to whether a specific device, loosely described or marketed as a “pepper ball” for “lawful self-defense purposes,” is legal or illegal as a matter of law in Michigan. Such a determination would first depend on whether the particular device (i.e., “pepper ball”) was designed to render a person temporarily or permanently disabled by the ejection, release, or emission of a gas or other substance. If so, the manufacture, sale, offer for sale, or possession of that device would generally be lawful if the gas or other substance within it meets the definition of a SDSFD under MCL 750.224d(1), and constitute a felony under MCL 750.224(1)(e) if it does not.
While the MSP can make no representation as to the true contents of any device marketed or sold as a “pepper ball” by any manufacturer, it is worth noting that at least one distributor has identified certain “pepper ball” projectiles it will market, sell, and ship to the State of Michigan (i.e., “Byrna .68 Pepper Projectiles”), and others it will not (i.e., “Byrna Max”).
Misdemeanor: 2-years and/or $2,000 fine
Note: This statute does not prohibit the reasonable use of a SDSFD containing not more than 18% OC by a person who is employed by a county sheriff or a chief of police and who is authorized in writing by the county sheriff or chief of police to carry and use a self-defense spray or foam device and has been trained in the use, effects, and risks of the device, while in performance of his or her official duties. MCL 750.224d(5)(a).
Note: This statute does not prohibit the reasonable use of a SFSFD containing not more than 18% OC, or a SFSFD containing an ultraviolet dye and not more than 18% OC, by a person in the protection of a person or property under circumstances that would justify the person's use of physical force. MCL 750.224d(5)(b).
Misdemeanor: 90 days and/or $100 fine
Note: Although Michigan law prohibits the sale of a SDSFD to a minor, there is nothing that prohibits the otherwise lawful possession, carrying, transport, or use of a SDSFD by a minor.
