Opn. No. ( 1980 )

Susan Marie Tatro, Esq. Town of Colonie

You inquire whether police officers of a town may carry weapons such as blackjacks, slapjacks, slapsticks and saps and if use of these weapons is proper.

Section 265.01 of the Penal Law makes it unlawful for a person to possess a firearm, electronic dart gun, gravity knife, switchblade knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub or slungshot. Police officers as defined in section 1.20 (34) of the Criminal Procedure Law are exempt from the provisions of section 265.01 (Penal Law, § 265.20 [a] [1b]). Sworn officers of an authorized town police department are police officers under section1.20 (34) of the Criminal Procedure Law. We conclude that it is not unlawful for town police officers to carry the weapons specified in section 265.01 of the Penal Law (we found no reference in the law to slapjacks, slapsticks and saps).

Conduct which would otherwise be an offense is justifiable and not criminal when performed by a public servant in the reasonable exercise of his official powers, duties, or functions (Penal Law, § 35.05 [1]). This provision was designed to exempt police officers and other public servants from criminal liability for conduct reasonably performed by them in the course of their duties. It is aimed at conduct such as use of weapons and possession of contraband by police officers in performing official functions of criminal investigation and maintaining public order (see A. Hechtman, Penal Law, § 35.05, Practice Commentary, pp 82, 83 McKinney [1975]).

The conditions when physical force may justifiably be used by police officers and others are specifically set forth in Article 35 of the Penal Law. Obviously, whether conduct by a police officer is justifiable will depend on the circumstances and must be determined in a case-by-case basis.

We conclude that it is not unlawful for a police officer of a town police department to possess a firearm, electronic dart gun, gravity knife, switchblade knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub or slungshot. These weapons may be used by town police officers in the reasonable exercise of their duties subject to the provisions of the Penal Law.