Justice: Bridget M. McCormack. Chief Justice Pro Tem: David
F. Viviano. Justices: Stephen J. Markman, Brian K. Zahra,
Richard H. Bernstein, Elizabeth T. Clement, Megan K.
Cavanagh. MCCORMACK, C.J. (dissenting). VIVIANO, J.
(dissenting). CLEMENT, J. (dissenting).
Mich. 559] BEFORE THE ENTIRE BENCH
these consolidated cases we consider whether defendants, who
were federal border patrol agents operating as part of a
joint task force enforcing Michigan law, are public officers
for purposes of the common-law offense of misconduct in
office. The crux of this question is how to categorize their
offices— solely as border patrol agents or as federal
agent task force members enforcing Michigan law. We hold that
the categorization depends on the duties exercised by [504
Mich. 560] defendants and the color of office under which
defendants acted. In these cases, because defendants
exercised duties of enforcement of Michigan law and acted
under authority granted to them by Michigan statute, they
acted as public officers. Accordingly, we reverse the Court
of Appeals and remand to that Court for consideration of
defendants' remaining issues.
FACTS AND PROCEDURAL HISTORY
Defendants, Terence Bruce and Stanley Nicholson, were federal
border patrol agents assigned to a Hometown Security Team
(HST) task force operating in Jackson County in December
2014. The HST is a " criminal intervention team"
assigned mostly to freeways and that focuses on drugs and
firearms. At the time, the HST consisted of Michigan State
Police troopers, border patrol agents, and other officers.
Defendants were " embedded" with the HST, meaning
that they did not have other duty assignments; they worked
with the HST every shift. They took orders from superiors in
the HST, and defendant Nicholson testified that he considered
himself to have " peace officer status," that he
adopted the authority of the HST, and that he participated in
the law enforcement duties the HST performed. If the HST
executed a search warrant, defendants took part.
evening of December 23, 2014, an HST patrol unit consisting
of a Michigan State Police trooper and a border patrol agent
executed a traffic stop against Benjamin Scott. The trooper
searched Scott's car and found marijuana trimmings and
proof of his residency. The investigation then incorporated
another task force, the Jackson Narcotics Enforcement Team
(JNET). HST and JNET obtained a search warrant for [504 Mich.
561] two residences Scott was renting and held a joint
briefing to prepare to execute the warrant.
Defendants attended the briefing, which addressed team member
assignments for the raid and contingencies such as where
to retreat if shots were fired and which hospital to use if
necessary. Defendants were assigned to ensure perimeter
security during the initial entry and then to help search the
homes and remove confiscated evidence. HST and JNET made
entry and spent most of the evening and early morning
disassembling and removing an elaborate marijuana-growing
operation from the basements of the homes. The task forces
seized grow lights, ballasts, netting, and marijuana plants.
A careful tabulation was kept of every item taken that noted
whether it was evidence of a crime or subject to forfeiture
as proceeds of a crime. But defendants took additional
property not included on the tabulation.
Defendant Nicholson took an antique thermometer and barometer
device. He said that it was rusty and dirty, and he insisted
that " it really was junk" when he removed it but
that he intended to clean it up. According to defendant
Nicholson, he took the device to his workshop where he tried
to clean the lens with a rotary tool, but he accidentally
burrowed through, making the device useless. After ruining
the device, he discarded it and " gave it no other
thought, it was trash." But it had not been trash to
Scott. The device had been given to Scott by his grandfather,
who had received it from his father. It was a family
Defendant Bruce took a wheeled stool with a leather seat home
with him and kept it until he was asked about it by the HST
team leader. When asked, Bruce admitted that he took the
stool. He then returned it to the Michigan State Police post
Mich. 562] Defendants were charged with common-law misconduct
in office as well as larceny in a building. Each moved for
pretrial dismissal and midtrial directed verdicts, arguing
that they were not public officers for purposes of the
misconduct-in-office offense. The trial court denied the
motions for pretrial dismissal and midtrial directed verdicts
in both cases. Ultimately the jury convicted defendants of
misconduct in office but acquitted them of larceny in a
Defendants appealed and challenged their convictions on
multiple grounds, including that they were not public
officers for purposes of the misconduct-in-office offense.
The Court of Appeals agreed that defendants were not public
officers and vacated the convictions. People v Bruce,
unpublished per curiam opinion of the Court of Appeals,
issued October 5, 2017 (Docket Nos. 331232 and 331233).
The prosecution sought leave to appeal in this Court, and we
granted the application to address " whether the
defendant federal border patrol agents were 'public
officers' for purposes of the common-law crime of
misconduct in office when they assisted— as members of
a law enforcement task force that included Michigan State
Police and Michigan motor carrier officers— in the
execution of a search warrant." People v Bruce,
501 Mich. 1026, 1026; 908 N.W.2d 301 (2018).
STANDARD OF REVIEW
Whether defendants are public officers is a question of law
that we review de novo. People v Coutu, 459 Mich.
348, 353; 589 N.W.2d 458 (1999). Interpretation and
application of statutes are also questions of law that we
review de novo. Id.
appellate consideration of the common-law offense of
misconduct in office has been a vertical [504 Mich. 563]
inquiry into whether a defendant's status was more than
that of an " employee," to the point of becoming a
" public officer." Defendants argue that although
they were executing a search warrant as HST team members,
their status as border patrol agents makes this a horizontal
problem that allows them to escape sideways from the
common-law responsibilities at issue. We hold that the proper
perspective of defendants' offices is determined by the
duties they exercised and the color of office under which
they acted. From that perspective, we see that defendants
were public officers.
idea that people who wield the power of the state are
required to do so responsibly is not new. More than 20 years
ago we observed that the common law describes the offense of
misconduct in office as " 'corrupt behavior by an
officer in the exercise of the duties of his office or while
acting under color of his office.'" Coutu,
459 Mich. at 354, quoting Perkins & Boyce, Criminal Law (3d
ed), p 543. Public officers had been held accountable under
the offense long before, and public officers in Michigan
have continued to be held accountable under the offense
Coutu, 459 Mich. 348; 589 N.W.2d 458, we considered
the question whether a deputy sheriff is a public officer.
There, we built on the foundation of People v
Freedland, 308 Mich. 449; 14 N.W.2d 62 (1944), in
constructing our understanding of who qualifies as an
officer. Freedland had considered many authorities,
including [504 Mich. 564] State v Hawkins, 79 Mont.
506; 257 P. 411 (1927), which defined " public office of
a civil nature" for purposes of Montana's
constitutional prohibition on legislators holding multiple
positions. The Hawkins court concluded that "
five elements are indispensable" in any such office:
(1) It must be created by the Constitution or by the
Legislature or created by a municipality or other body
through authority conferred by the Legislature; (2) it must
possess a delegation of a portion of the sovereign power of
government, to be exercised for the benefit of the public;
(3) the powers conferred, and the duties to be discharged,
must be defined, directly or impliedly, by the Legislature or
through legislative authority; (4) the duties must be
performed independently and without control of a superior
power, other than the law, unless they be those of an
inferior or subordinate office, created or authorized by the
Legislature, and by it placed under the general control of a
superior officer or body; (5) it must have some permanency
and continuity, and not be only temporary or occasional.
Freedland quoted these five factors, among other
considerations. Freedland, 308 Mich. at 457-458.
Coutu noted these same factors and also added that
oath and bond requirements are " of assistance" in
determining whether a defendant is a public officer.
Coutu, 459 Mich. at 355 . The parties in this matter
agree that Coutu identifies the relevant
[504 Mich. 565] The central problem of this case is how to
categorize defendants for purposes of the Coutu
analysis. Should we view defendants solely as border patrol
agents or as federal agent HST members enforcing Michigan
law? Again, defendants were charged with " 'corrupt
behavior by an officer in the exercise of the duties of his
office or while acting under color of his office.'"
Id. at 354, quoting Perkins & Boyce, p 543. The
relevant office to analyze must be determined by which duties
defendants [504 Mich. 566] were exercising and the color of
office under which defendants were acting.
some ways the categorization problem here is similar to that
in People v Perkins, 468 Mich. 448; 662 N.W.2d 727
(2003). In Perkins, the defendant was a deputy
sheriff who was prosecuted for acts arising from his sexual
relationship with a 16-year-old girl. Id. at 450 .
The charged offenses included misconduct in office.
Id. at 449 . By then we had already decided that a
deputy sheriff was a public officer for purposes of the
offense. Id. at 457, citing Coutu, 459
Mich. at 357-358. But in Perkins we held that
because there was " no evidence correlating that conduct
with defendant's public office," there was no "
nexus between defendant's alleged conduct and
defendant's status as a sheriff's deputy."
Id. at 457-458 . Said another way, although the
defendant was a public officer in another context, he was not
acting under the color of that office when he allegedly
committed the offense.
Defendants have not argued that they were off duty from the
HST or at Scott's home solely as border patrol agents.
have defendants argued that they were enforcing a federal
statute or acting under their power as border patrol agents.
There is no dispute that defendants were at Scott's home
as federal agent HST members authorized to assist in the
execution of the search warrant under MCL 764.15d. Under this
section, under certain circumstances, federal law enforcement
officers may " enforce state law to the same extent as a
state or local officer," MCL 764.15d(1), and enjoy all
the " privileges and immunities of a peace officer of
this state," MCL 764.15d(2). Defendants were
functioning as federal agent HST members enforcing [504 Mich.
567] Michigan law, and that is the relevant perspective under
Coutu . See Bruce (Borrello, J.,
dissenting), unpub op, Id. *8.
Mich. 568]Application of the Coutu factors shows
that defendants, as federal agent members of the HST
enforcing Michigan law, are public officers for purposes of
the common-law offense of misconduct in office. The first
factor is satisfied by MCL 764.15d. As described earlier, the
Legislature provided for positions, such as those defendants
held with the HST, in which federal law enforcement officers
" may enforce state law to the same extent as a state or
local officer . . . ." MCL 764.15d(1). Federal law
enforcement officers are vested with this authority if they
are authorized under federal law with arrest powers and to
carry a firearm, MCL 764.15d(1)(a) and (b), and when they are
participating in a joint investigation with a state or local
law enforcement agency or acting pursuant to the request of
local law enforcement, MCL 764.15d(1)(c)(iii) and (iv).
Defendants acknowledged at oral argument that they were
operating under the authority of MCL 764.15d in assisting
with the execution of the warrant. But for this statute,
there would be no federal law enforcement officers who have
authority to participate in these types of investigations.
The Legislature created their positions, which authorized
them to be in Scott's home.
Mich. 569] Analysis of the second factor is similar to that
of Coutu 's analysis of deputy sheriffs because
defendants were empowered to " enforce state law to the
same extent as a state or local officer . . . ." MCL
764.15d(1). The second factor is satisfied because police
officers discharging their duties act for the state in its
sovereign capacity, Coutu, 459 Mich. at 355, citing
Tzatzken v Detroit, 226 Mich. 603, 608; 198 N.W. 214
(1924), so necessarily defendants, who were empowered to
" enforce state law to the same extent as a state or
local officer," MCL 764.15d(1), possessed power
delegated by the Legislature that was exercised for the
benefit of the public.
third factor is also satisfied. Again, in Coutu we
stated that " 'the powers conferred, and the duties
to be discharged, must be defined, directly or impliedly, by
the legislature or through legislative
authority[.]'" Coutu, 459 Mich. at 354,
quoting Freedland, 308 Mich. at 458. Authorized
officers " may enforce state law to the same extent as a
state or local officer," MCL 764.15d(1), and they are
granted the " privileges and [504 Mich. 570] immunities
of a peace officer of this state," MCL 764.15d(2). That
defendants were vested with broad " powers" is
obvious enough. MCL 764.15d also directly or impliedly
describes their " duties." A " duty" is
commonly understood to be " something that one is
expected or required to do by moral or legal
obligation." Random House Webster's College
Dictionary (2001). In Coutu, we held that this
factor was satisfied because " the Legislature defined
in part the powers and duties of deputy sheriffs,"
citing MCL 51.75, MCL 51.76(2), and MCL 51.221.
Coutu, 459 Mich. at 355 . To the extent that those
statutes impose obligations, they impose them on the sheriff
and the department, but not on any particular
deputy. Additionally, MCL 51.221
states that a deputy " may serve or execute
civil or criminal process issued by a court of this state,
and have and [504 Mich. 571] exercise all the powers and
duties of constables." (Emphasis added.) In
Coutu, we held that a deputy's duties were the
obligations of the sheriff, MCL 51.75, the obligations of the
sheriff's department, MCL 51.76(2), and other duties a
deputy may have, MCL 51.221. Coutu, 459
Mich. at 355. We see little difference in this case, in which
the duties of defendants were the obligations of the HST, MCL
764.15d(1)(c)(iii) and (iv), and other duties authorized
officers may have, MCL 764.15d(1) (" A federal law
enforcement officer may enforce state law to the same extent
as a state or local officer . . . ." ).
fourth factor is also comparable to Coutu . There,
we reasoned that although deputy sheriffs do not operate
without a superior control other than the law, they are under
the control of the sheriff, a " superior officer."
Coutu, 459 Mich. at 355. In this case, the situation
is much the same. Defendants were operating under MCL
764.15d(1)(c)(iii) and (iv), so they were empowered to act
only insofar as they were participating [504 Mich. 572] in a
joint investigation or acting at the request of state
officers. They were under the general control of the HST.
Defendant Nicholson testified that border patrol agents
embedded in the HST deferred to the knowledge and expertise
of the Michigan State Police troopers, followed their lead,
and took orders from them.
permanence requirement of the fifth factor is satisfied from
multiple perspectives. First, the statutory delegation of the
state's police power to qualifying federal agents used by
defendants has been codified since 1999. 1999 PA 64. There is
nothing " temporary or occasional" about the
delegation. We think that almost 20 years of delegated
authority easily crosses the threshold of " some
permanency and continuity." Second, the HST is an
ongoing invocation of the delegated authority. The record
does not reveal precisely when the HST was established, but
the team leader, a Michigan State Police sergeant, had led
the team continuously from December 2012 until this trial in
September 2015. Therefore, we know that the team was in
operation for nearly three years. Third, defendants were on
long-term assignments, being " embedded" with the
HST. Defendants did not have any other duty assignments. They
worked with the HST every shift. Accordingly, there was [504
Mich. 573] permanency and continuity to defendants'
assignment to the HST.
Lastly, we note that whether a defendant has taken an oath is
" of assistance" in this
determination. Coutu, 459 Mich. at 355.
The delegation of the state's [504 Mich. 574] police
power used by these defendants, MCL 764.15d, is not available
to everyone. Rather, the delegation may only be used by a
" federal law enforcement
officer." MCL 764.15d(1). Because federal law
enforcement officers take oaths to defend the federal
Constitution, MCL 764.15d(1) contemplates an oath as well. At
any rate, this factor is not dispositive. Under
Coutu, defendants are public officers.
Court of Appeals majority concluded that the relevant
perspective was that defendants were mere border patrol
agents and then observed that the authority that allowed
defendants to enforce Michigan law had no bearing on the
authority that created the border patrol. Bruce, unpub
op, Id. *7. This same argument is offered by defendants,
who assert that the position of federal border patrol agent
was created by Congress, not the Michigan Constitution or
Michigan Legislature. For further support, defendants point
out that MCL 15.181(e) defines " public officer" in
a way that does not allow for creation of such a public
office by Congress. These arguments all err in that they
focus on defendants' status as mere border patrol agents
rather than on their status as federal agent HST members
enforcing Michigan law. If defendants had been operating
only as federal border patrol agents, the body which created
that position would be [504 Mich. 575] relevant. But it was