Request By:
Hon. Eugene Senters
Constable, Rockcastle County District 5
Post Office Box 165
Livingston, Kentucky 40445
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; Gerard R. Gerhard, Assistant Attorney General
In a letter to this office you asked, in substance, whether a constable may equip a vehicle with a "fixed or stationary" blue light (one that does not flash, rotate, or oscillate). As we understand it, the light would be used by you in your capacity as constable to attempt to cause motorists to stop or yield the right-of-way.
In our view a constable may not lawfully equip a vehicle with a fixed or stationary blue light for use in attempting to cause motorists to stop or yield the right of way. Discussion follows.
You explained that you are an elected constable in Rockcastle County, that you have obtained insurance conforming with the requirement expressed in Kentucky Revised Statutes (KRS) 189.950, and that you have asked the fiscal court to authorize you, pursuant to KRS 189.950, to equip your vehicle with a flashing, rotating, or oscillating blue light, and a siren. You also indicated you have appeared before the fiscal court on a number of occasions to request such approval, and the court has neither approved nor denied your request.
People who violate the law, you state, will not stop for any color light other than blue. There are five constables in Rockcastle county, you indicate, doing their duties as peace officers as much or as often as the State Police or Sheriff's Department.
You ask what you should do now, and whether, in our opinion, a constable may operate a fixed or stationary blue light [understood to mean on a vehicle for the purpose of causing motorists to yield the right of way or stop].
Your question is a novel one concerning a constable equipping a vehicle with a blue light. The typical question involves a constable's use of a flashing, rotating or oscillating blue light. It appears this office has not previously addressed whether a constable may equip a vehicle with a fixed or stationary blue light. Your question is an important one given the implications not only for constables, but for motorists and counties state wide.
KRS 189.950(5), mentioned in your letter, provides, in part, that constables must obtain approval of the fiscal court in order to equip a vehicle with a flashing, rotating or oscillating blue light. That statute, however, does not expressly address a constable equipping a vehicle with a fixed or stationary blue light.
The statute provides:
Any constable may, upon approval of the fiscal court in the county of jurisdiction, equip vehicles used by said officer as emergency vehicles with one (1) or more flashing, rotating or oscillating blue lights, visible under normal atmospheric condition from a distance of five hundred (500) feet to the front of such vehicle, and a siren, whistle or bell, capable of emitting a sound audible under normal conditions from a distance of five hundred (500) feet. This equipment shall be in addition to any other equipment required by the motor vehicle laws. Any constable authorized by the fiscal court to utilize blue lights and a siren pursuant to this section shall maintain at least the insurance described by KRS 304.39-110.
Presumably out of concern for the dangers of operation of emergency vehicles, the legislature has placed certain restrictions on the use of blue lights (and other vehicular emergency warning equipment). Perhaps being aware of varying levels of training and capability of elected constables, the varying nature of vehicles they may use, and the potential liability a county might face in relation to its officers use of such vehicles, the legislature vested in the fiscal court the authority to determine whether a given constable may utilize certain emergency warning equipment on a vehicle.
Your question involves not the penal or punitive application of KRS 189.950, but the question of what a county officer - a constable - is authorized to do.
It is well recognized that counties may only do that which is expressly authorized. Cf., Fiscal Court, Etc. v. City of Louisville, Ky., 559 S.W.2d 478 (1977). That same principle accordingly governs county officers - including constables - as extensions of the county. Additionally, we believe the legal maxim "expressio unius est exclusio alterius" applies here - the enumeration of particular things excludes the idea of something else not mentioned. Cf., Smith v. Wedding, Ky., 303 S.W.2d 322 (1957), and, Wade v. Commonwealth, Ky., 303 S.W.2d 905, 907 (1957).
The listing of the types of lights that may be used by a constable, subject to authorization of the fiscal court, operates, in our view, as a ban on use of a type of light for which the state has not provided. There simply is no statutory authorization for a constable to equip a vehicle with a fixed or stationary blue light. It follows that a constable may not lawfully equip a vehicle with such a light.
Beyond the common law related to authorization, or the lack thereof, for official action (a constable equipping a vehicle with a fixed or stationary blue light), substantial public policy considerations bear upon whether a constable, as a county officer, may equip a vehicle with a fixed or stationary blue light.
The motoring public, in our view, recognizes that law enforcement vehicles for which they must stop or yield are identified, in part, by flashing, rotating or oscillating lights, either blue, red, or a combination thereof. There is no recognition, we believe, by the motoring public that a motorist must stop or yield the right-of-way for a vehicle displaying a fixed or stationary blue light. Indeed, KRS 189.930, which addresses when a motorist must stop or yield the right-of-way to an emergency vehicle, directs drivers of other vehicles to yield to or stop in relation to an emergency vehicle upon the approach of one operating one or more flashing, rotating or oscillating red or blue lights.
As there is no statutory requirement that a motorist stop for a vehicle displaying a fixed or stationary blue light, a constable's equipping of a vehicle with such a light, and use of it to attempt to require motorists to stop or yield the right-of-way, we believe, would give rise to potentially dangerous confusion or uncertainty on the part of the motoring public as to whether they must stop or yield the right-of-way.
In sum, because there is no statute authorizing a constable to equip a vehicle with a fixed or stationary blue light, and no statutory command that a motorist stop or yield the right-of-way to a vehicle using a fixed or stationary blue light, and because of the public policy considerations indicated, a constable, in our view, may not lawfully equip a vehicle with a fixed or stationary blue light.
Aside from the law regarding whether a constable can lawfully equip a vehicle with a fixed or stationary blue light are liability considerations. We are concerned that a constable, using a light not generally recognized by the motoring public as one for which it must stop or yield, one not provided for by law for the use intended, might cause dangerous confusion leading to accidents or confrontations, exposing a constable to a greater liklihood of personal liability than would be the case if a statutorily recognized device were used following proper authorization.
In so far as what you should do now, you can reiterate to the fiscal court your request for its approval for your use of a flashing, rotating or oscillating blue light. Until the fiscal court formally grants such approval, you must refrain from equipping a vehicle with such a light.