Request By:
Mr. A. Jack May
Director
Division of Legal Services
Department of Justice
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 concerning the emergency powers of police officers. We will answer your questions seriatim.
1. As used in KRS 189.910, what does "commandeer" mean?
All words and phrases used in the statutes shall be construed according to the common and approved usage of language. KRS 446.080(4). Webster's definition of "commandeer" is: "to take arbitrary or forceful possession of."
2. Does a police officer have the power and authority to order a citizen to transport a police officer in the citizen's private vehicle for the purpose of performing a law enforcement function?
We believe that in a true emergency situation a police officer has such power. KRS 70.060 provides:
"Any sheriff, deputy sheriff or other like officer may command and take with him the power of the county, or a part thereof, to aid him in the execution of the duties of his office, and may summon as many persons as he deems necessary to aid him in the performance thereof."
This statute is a carry-over of the common law phenomena of a posse comitatus. At common law, all able bodied male persons over 15 years of age could be summoned to act as members of a posse comitatus and refusal to act was deemed a misdemeanor. Commonwealth v. Martin, 7 Pa. Dist. R. The sheriff is a peace officer, and therefore, all policemen have the same power as the sheriff in regard to summoning by-standards to aid them in making an arrest. OAG 70-219.
3. Does a police officer have the power and authority to seize a privately owned vehicle and use the vehicle for the purpose of: (a) pursuit of a fleeing law violator, or (b) using the vehicle as a road block?
We find no Kentucky statute or case on this question. However, in a computer check of 19 other states we have found 15 cases where private vehicles were commandeered by policemen for the pursuit of suspects or for use as a road block. We have nowhere found that such a practice has been challenged. However, it appears that the authority of the officer is not to seize the personal property but rather to command the services of the one in possession of the vehicle. In other words, the authority is the posse comitatus. In an Ohio case,
Blackman v. City of Cincinnati, 86 Ohio App. 495 (1940), the Court said:
"It was the duty of Blackman to assist in all reasonable ways with whatever facilities were available. The temporary use of his automobile for this purpose was incidental to his duty to lend whatever assistance was within his power."
In
McCormick v. State of New York, 42 Misc. 2d 777 (1964), state troopers commandeered trucks in order to set up a road block to stop an approaching stolen car. Their authority to do so was not challenged in the case.
In summary, we believe that under the common law power of police officers, and particularly under KRS 70.060, police officers may call for assistance by any person available and such person has a duty to provide any reasonable assistance including the use of his truck or car.
4. If a police officer does commandeer a vehicle of a private citizen, uses it as an emergency vehicle, and it is damaged during such use, who is liable for such damages, assuming there was no negligence in the operation thereof? The officer and/or the city?
The only case discovered by our research indicates that neither the officer nor the city would be liable for any damages to the commandeered vehicle in the absence of negligence. In Blackman v. Cincinnati, cited above, the court held that there was no exercise of the power of eminent domain and no taking of private property for a public use. The court said:
"The use of the automobile resulted from authority over the owner and not from any ascertion of title over his property. We hold that the public acquired no title of any sort to this automobile, and, that therefore, there was no taking of property within the meaning of the constitutional provisions. It was a temporary interference incidental to the exercise of the primary purpose of government to preserve the peace and punish disturbers thereof - and not a taking."
Ohio has a constitutional provision similar to Kentucky Constitution § 13 which provides that no man's property shall be taken or applied to a public use without just compensation, but since the court found that there was no "taking" of the property, the citizen could not be compensated for damages to his vehicle.
If a commandeered vehicle is damaged due to the negligence of a state policeman, the owner of the vehicle could probably obtain payment of damages through the Kentucky Board of Claims. KRS 44.070-44.160. The Board of Claims statute provides a partial waiver of sovereign immunity for cases involving negligence by state employees. Cities can be sued for the negligence or wrong doing of city policemen. The owner of a commandeered vehicle which is damaged by the negligence or deliberate tort of a third person, could only seek damages from the third person or suffer the loss himself.