Request By:
Mr. A. Jack May
Director
Division of Legal Services
Department of Justice
Bureau of Training
Box 608 E.K.U.
Richmond, Kentucky 40475
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General on the subject of disaster and emergency services. You asked particularly whether a peace officer is authorized to make an arrest when he is outside of his regular jurisdiction participating in a disaster or emergency situation.
The first statute involved in the question is KRS 39.429 which reads as follows:
"A peace officer, when in full and distinctive uniform or displaying a badge or other insignia of authority, may arrest without a warrant any person violating or attempting to violate in such officer's presence any order, rule, or regulation made pursuant to this chapter."
It is our opinion that your question is answered by KRS 39.417 which reads as follows:
"39.417. Powers of county, metropolitan government, and city employees.
Whenever the employes of any county, metropolitan government, or city are rendering outside aid pursuant to the authority contained in KRS 39.415 hereof, such employes shall have the same powers duties, rights, privileges, and immunities as if they were performing their duties in the jurisdiction in which they are normally employed."
This latter statute extends the jurisdiction of a peace officer to include any governmental territory in which he is operating under a mutual aid arrangement between his regular territory and another territory. The statute makes reference to KRS 39.415, the pertinent part of which reads as follows:
"(1) Each county, urban-county or metropolitan government, or city of this state shall establish a local organization for disaster and emergency preparedness, response and recovery consistent with a plan adopted in accordance with the provisions of this Act. The county judge/executive of each county and the chief executive of each city or urban-county or metropolitan government thereof shall appoint a director who shall have direct responsibility for the organization, administration and operation of such local organization for disaster and emergency response, subject to the direction and control of such appointing officer. The mayor of a city may appoint a director or by joint agreement provide for direction by the director named by the county judge/executive. . . .
"(2) Counties, urban-county or metropolitan governments, and cities may, in lieu of providing separate disaster and emergency response plans or programs, join in and adopt an areawide plan or program provided such program:
(a) Meets the criteria of the state disaster and emergency response plan; and
(b) Is consummated pursuant to KRS Chapter 147A or the inter-local cooperation act; and
(c) Is provided with sufficient manpower, equipment, and funding by each contracting party or the state planning committee so as to assure high quality planning and service to all of the parties."
In a second question you asked whether the power of arrest conferred by KRS 39.429 extends to a peace officer who voluntarily responds to a declared disaster or emergency outside of his regular territory. Our answer to this question is "No."
Unless a peace officer is operating outside of his regular territory under a mutual aid agreement he has no more authority than a private citizen. A private citizen has the authority to make an arrest of a person who has committed a felony in his presence, but he does not have authority to arrest for a misdemeanor without a warrant. KRS 431.005. The violation of an emergency regulation authorized under KRS Chapter 39 is a misdemeanor (KRS 39.990), and therefore a private citizen would not have authority to make an arrest without a warrant for a violation which occurred in his presence.
In summary, if a peace officer is serving outside of his regular territory under a mutual aid agreement between two governmental units, he has the same authority as he has within his regular territory; if he is not serving under a mutual aid agreement, he does not have the authority of a peace officer outside of his regular territory.