Opinion No. ( 1997 )

The Honorable Barbara Horn State Representative Post Office Box 64 Foreman, Arkansas 71836-0064

Dear Representative Horn:

This is in response to your request for an opinion regarding the following question:

Does the sheriff and/or constable have the authority to carry and display his or her badge and wear their firearm outside the county or township in which they are duly sworn?

In my opinion, a sheriff and a constable, as law enforcement officers, are authorized to carry a weapon "in the course and scope of their official duties." If their official duties carry them outside their county or township, possession of a firearm is not prohibited.

Law enforcement officers acting in the course and scope of their official duties are authorized by statute to carry weapons. A.C.A. §§ 5-73-104, 119, and 120 (Repl. 1993 Supp. 1995); see also Op. Att'y Gen. No.93-098. For purposes of the criminal code, a law enforcement officer is defined as "any public servant vested by law with a duty to maintain public order or to make arrests for offenses." A.C.A. § 5-1-102(12) (Supp. 1995).

The law enforcement related duties of constables are set out generally at A.C.A. § 16-19-301 and § 16-19-503 (Repl. 1994). Section 16-19-301 specifically provides that "each constable shall be a conservator of the peace in his township and shall suppress all riots, affrays, fights, and unlawful assemblies, and shall keep the peace and cause offenders to be arrested and dealt with according to law." In Opinion No. 91-394, I opined that a constable was a "peace officer" and was within the purview of A.C.A. §§ 5-73-104 and 120. Further, I opined that where the official duties of a constable carry him outside his township, possession of a firearm is apparently not prohibited under A.C.A. §§ 5-73-104, 119, and 120. See Op. Att'y Gen. Nos. 93-040, 93-017, and 91-394 (generally discuss authority of constable outside township).

Similarly, "each sheriff shall be a conservator of the peace in his county and shall cause all offenders against the laws of this state, in his view or hearing, to enter into recognizance to keep the peace and appear . . ." A.C.A. § 14-15-501 (1987). Further, "it shall be the general duty of each sheriff to quell and suppress all assaults and batteries, affrays, insurrections, and unlawful assemblies." A.C.A. §14-14-1301(a)(5) (1987). Consequently, it is also my opinion that a sheriff falls within the statutory definition of law enforcement officer pursuant to A.C.A. § 5-1-102 and is authorized to carry a weapon when acting in the course and scope of his or her official duties. See also Op. Att'y Gen. No. 93-098. Again, if the official duties of a sheriff carry him outside his county, possession of a firearm is apparently not prohibited under A.C.A. §§ 5-73-104, 119, and 120. See Op. Att'y Gen. Nos.95-344, 93-361, 92-021, 91-262, and 91-091 (generally discuss authority of local peace officer or sheriff outside his jurisdiction).

It should be noted that some constables and sheriffs, depending on the circumstances, may also be authorized by statute to carry a concealed handgun. Arkansas Code Annotated § 12-15-202(a) (Repl. 1995) provides:

Any certified law enforcement officer:

(1) Who is presently in the employ of a public law enforcement department, office, or agency; and

(2) Who is authorized by the public law enforcement department, office, or agency to carry a firearm in the course and scope of his or her duties; and

(3) Who is not subject to any disciplinary action by the public law enforcement department, office, or agency; and

(4) Who is carrying appropriate written identification issued by the public law enforcement department, office, or agency identifying him or her as a certified law enforcement officer; and

(5) Who is not otherwise prohibited under state or federal law;

may carry a concealed handgun.

"Certified law enforcement officer" means any appointed or elected law enforcement officer or sheriff employed by a public law enforcement department, office, or agency: (A) Who works forty or more hours per week; (B) Who is responsible for the prevention and detection of crime and the enforcement of the criminal, traffic, or highway laws of Arkansas; and (C) Who has met the selection and training requirements for certification set by the Arkansas Commission on Law Enforcement Standards and Training. A.C.A. § 12-15-201(1) (Repl. 1995). Further, "Public law enforcement department, office, or agency" means any public police department, sheriff's office, or other public agency, force, or organization whose primary responsibility as established by law, statute, or ordinance is the enforcement of the criminal, traffic, or highway laws of Arkansas. A.C.A. § 12-15-201(2) (Repl. 1995). Thus, depending on the circumstances, a specific constable or sheriff may be authorized pursuant to A.C.A. § 12-15-202 to carry a concealed handgun.See also § 5-73-304 (Supp. 1995) (Certified law enforcement officers, chiefs of police, and sheriffs shall be exempt from the licensing requirements of this section [concealed handgun license], if otherwise authorized to carry a concealed handgun).

I have found no statutory restrictions regarding the authority of a sheriff or constable to carry and display his or her badge.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Warren T. Readnour.

Sincerely,

WINSTON BRYANT Attorney General

WB:WTR/cyh