Request By:
Mr. David Haight
United States Department of Justice
Drug Enforcement Administration
1006 Federal Building
600 Dr. Martin Luther King, Jr. Place
Louisville, KY 40202
Opinion
Opinion By: Chris Gorman, Attorney General; Ian G. Sonego, Assistant Attorney General
Your letter of August 8, 1991, asked this office to address the question of whether Kentucky peace officers participating in the state and local task force of the Drug Enforcement Administration (DEA) in Kentucky may receive a special appointment as federal law enforcement officers pursuant to Title 21 United States Code, Section 878, and thereby be granted the same authority and protection of federal law as exists for DEA officers. See Harrison, "Tort Immunity for Task Force Officers," Civil Remedies in Drug Enforcement Report (Feb./Mar. 1992) (National Association of Attorneys General) pages 15-16. We believe the answer to your question is in the affirmative with certain qualifications and restrictions.
At the outset, we note that Ms. Harrison's article, supra, collects rulings of various courts regarding tort liability of task force officers who received such appointments. We have not been asked to express any opinion on that subject. Hence we express no opinion regarding tort liability of police officers with this federal agent designation nor do we necessarily endorse the opinions expressed in Ms. Harrison's article. We also express no opinion regarding the authority of police officers with the federal appointment under Title 21 United States Code Section 878 beyond that expressly stated in that statute. Any discussion of authority beyond what is expressed in the statute is done simply for purposes of illustration on the assumption that if such implied authority may exist, it presents no conflict of duties between state and federal law enforcement.
Your letter, as revised by a subsequent letter of March 30, 1992, indicates that the DEA has established the state and local drug task force in Kentucky for the purpose of implementing cooperation of federal, state, and local agencies to eliminate illegal drug activities. The objectives of the task force are as follows:
1) To disrupt illicit drug trafficking in specific geographical areas, i.e. Kentucky, by neutralizing the highest level of targeted violators and their organizations.
2) To increase effectiveness of participating agencies by providing extended on-the-job training to assigned task force officers and exposing them to the benefits of selective targeting of traffickers.
3) To improve the interactions of all participating task force agencies.
4) To encourage agencies to establish investigation printouts which target those drugs posing the greatest threat to our citizens.
5) To increase the effectiveness of all drug law enforcement by providing agencies throughout the state with direct assistance, intelligence information and other support.
6) To provide for development and maximum use of intelligence information of drug traffickers and their organizations throughout Kentucky.
You have indicated that the DEA program for local-state-federal task forces received authority from the Attorney General of the United States pursuant to Title 21 United States Code, Section 878, to deputize state and local peace officers participating in the task force. Title 21 United States Code, Section 878, states as follows:
(a) Any officer or employee of the Drug Enforcement Administration or any State or local law enforcement officer designated by the Attorney General may --
(1) carry firearms;
(2) execute and serve search warrants, arrest warrants, administrative inspection warrants, subpenas, and summonses issued under the authority of the United States;
(3) make arrests without warrant (A) for any offense against the United States committed in his presence, or (B) for any felony, cognizable under the laws of the United States, if he has probable cause to believe that the person to be arrested has committed or is committing a felony;
(4) make seizures of property pursuant to the provisions of this subchapter; and
(5) perform such other law enforcement duties as the Attorney General may designate.
(b) State and local law enforcement officers performing functions under this section shall not be deemed Federal employees, except that such officers shall be subject to section 3374(c) of Title 5.
Appointment under this statute, as indicated in your letter, would transfer any legal liability incurred by any peace officer participating in the task force to the DEA and federal government and thereby alleviate the possibility of liability being imposed on a state or local government agency. Appointment pursuant to this statute would also empower those officers to serve administrative process and conduct investigations outside the territorial jurisdiction of government agencies that employ them.
KRS 218A.240 requires in effect that all peace officers in Kentucky, State Police Officers, all employees of the Cabinet for Human Resources, and all prosecutors enforce the laws against drug trafficking and cooperate with all governmental agencies. KRS 65.240(1), part of the "Interlocal Cooperation Act", clearly exemplifies the General Assembly's policy that no barrier shall exist to prevent state and local agencies from cooperating with federal agencies regarding subjects of mutual interest. KRS 65.240(1) states:
Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state, and jointly with any public agency of any other state or of the United States to the extent that the laws of the United States permit such joint exercise or enjoyment. Any agency of the state government when acting jointly with any public agency may exercise and enjoy all the powers, privileges and authority conferred by KRS 65.210 to 65.300 upon a public agency.
(Emphasis added.)
The definition of "agency" applicable to KRS 65.240(1) contained in KRS 65.230 clearly indicates that KRS 65.240 includes federal agencies and is not limited to state agencies. KRS 65.230 defines "public agency" as "any political subdivision of this state, any agency of the state government or of the United States , and any political subdivision of another state . . . ." (Emphasis added.) As noted in Commonwealth ex rel. Breckinridge v. Nunn, Ky., 452 S.W.2d 381, 383 (1970), "The express power [granted by statute] carries with it all powers essential to its exercise." (Citations omitted.) Also see Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907, 919 (1984) (in the absence of statutory language, executive branch has discretion to determine the manner of carrying out statutory policy). The General Assembly by having expressed its policy by legislative enactment has conferred all power necessary to implement that policy. KRS 65.240 by referring to laws of the United States clearly recognizes that the United States Congress is the ultimate arbitrator of the parameters of Federal-State and interstate law enforcement cooperation. Moreover, Congress has the express constitutional power to authorize or disapprove interstate compacts. See United States Constitution, Article I, Section 10, paragraph 3; and Cuyler v. Adams, 449 U.S. 433, 438-443, 101 S. Ct. 703, 706-709, 66 L. Ed. 2d 641, 648-650 (1981).
In 1974 the Kentucky General Assembly enacted KRS 500.060, a territorial jurisdiction statute. This statute is based on provisions of the Model Penal Code. See Model Penal Code, Section 1.03; American Law Institute, Model Penal Code and Commentaries (1985), Part 1, Section 1.03, pp. 33-66 (cited as "ALI, Commentary" hereafter). This statute permits Kentucky to prosecute offenders for committing any substantial part in Kentucky of a crime or any crime which has any substantial effect in Kentucky. See Commentary accompanying Baldwin's KRS Annotated 500.060; ALI, Commentary, esp. at p. 40. We believe the General Assembly's intent in enacting this statute was to extend Kentucky's jurisdiction over criminal offenses to the outer limits of the Federal Due Process Clause. See ALI, Commentary, esp. at p. 40 and p. 50; Lafave and Scott, 1 Substantive Criminal Law , Section 2.9, pages 179-194, citing inter alia, KRS 500.060; 22 C.J.S., Criminal Law, Sections 161b-162, pp. 193-196; 81A C.J.S., States, Section 17, p. 298, noting, "A state may create legal liabilities against an absent person whose conduct produces consequences within its borders which it forbids . . ." In Lane v. State, Fla., 388 So.2d 1022, 1026-1029 (1980), the Florida Supreme Court applied and upheld the constitutionality of its statute similar to KRS 500.060. Also see State v. Poland, 132 Ariz. 269, 645 P.2d 784, 790 (1982) (upholding jurisdiction under similar statute) ; Bright v. State, Del., 490 A.2d 564 (1985) (upholding jurisdiction under similar statute) ; Annotation, "Jurisdiction to prosecute conspirator who was not in the state at the time of substantive criminal act, for offense committed pursuant to conspiracy," 5 A.L.R.3d 887; United States v. King, 552 F.2d 833, 850-852 (9th Cir. 1976), cert.denied, 430 U.S. 966 (upholding extraterritorial jurisdiction); Kramer, "Jurisdiction over Interstate Felony Murder," 50 U. Chicago L. Rev. 1431 (1983); Calder v. Jones, 465 U.S. 783, 789, 104 S. Ct. 1482, 1486-1487, 79 L. Ed. 2d 804, 812 (1984) (fact that the defendants' conduct in Florida foreseeably caused effect in California permitted California court to exercise jurisdiction in civil action), citing Restatement, Second , Conflict of Laws (1971), Section 37. In Tafflin v. Levitt, 493 U.S. 455, 458, 110 S. Ct. 792, 795, 107 L. Ed. 2d 887, 894 (1990), the United States Supreme Court noted, "[t]he States process sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause." The United States Supreme Court has expressly upheld a State's authority to exercise extraterritorial jurisdiction when not in conflict with statutes enacted by Congress. Skiriotes v. Florida, 313 U.S. 69, 77-80, 61 S. Ct. 924, 926-930, 85 L. Ed. 1193, 1200-1201 (1941). "Save for the powers committed by the Constitution to the union, [each state] has retained the status of a sovereign. " Id., U.S. at 77, S. Ct. at 929, L. Ed. 2d at 1200. Also see Kramer, supra, at 1451; Lafave and Scott, supra, at 190-191. Detailed discussion of KRS 500.060 is beyond the scope of this opinion; we merely note that that statute reflects the General Assembly's intention that state boundaries are not to be a barrier to the enforcement of criminal law.
In addition, Kentucky, as well as 47 other states, has adopted provisions of the Uniform Criminal Extradition Act (KRS 440.210) to permit Kentucky to extradite a person to another state based on constructive rather than actual presence in the state where the crime was committed. See ALI, Commentary, p. 59 and n. 80; Squadroni v. Smith, Ky., 349 S.W.2d 700 (1961); and OAG 65-482. In 1987, the United States Supreme Court ruled that interstate extradition is no longer a discretionary function of the states but is instead a constitutional imperative that must be enforced by the state where the interstate fugitive is located. Puerto Rico v. Branstad, 483 U.S. 219, 227, 107 S. Ct. 2802, 2808, 97 L. Ed. 2d 187, 195 (1987), overruling in part Kentucky v. Dennison, Governor of Ohio, 24 How. 66 (1861). The Extradition Clause of Article IV, Section 2, paragraph 2, of the United States Constitution recognizes the necessity of interstate law enforcement. See California v. Superior Court of San Bernardino County, California, 482 U.S. 400, 107 S. Ct. 2433, 96 L. Ed. 2d 332 (1987).
In Jones v. Black, Ky., 468 S.W.2d 274 (1971), Kentucky's highest court upheld the authority of a Kentucky parole officer to arrest a Kentucky parolee in another state pursuant to the Interstate Parole Compact, KRS 439.560. The Interstate Parole Compact has been held to be constitutional. Rider v. McLeod, Okla. Crim., 323 P.2d 741 (1958) (collecting cases); State ex rel Niederer v. Cady, 72 Wis.2d 311, 240 N.W.2d 626 (1976) (collecting cases). In Bircham v. Commonwealth, Ky., 238 S.W.2d 1008, 1015-1016 (1951), Kentucky's highest court held that a Kentucky peace officer could arrest an interstate fugitive in Kentucky under Federal law (Title 18 U.S.C. Section 1073), even though no Kentucky statute authorized the arrest. Therefore, we have no doubt that a Kentucky peace officer may arrest an individual accused of a crime wherever that individual may be located, even if outside Kentucky, when the arrest is authorized by Federal law or by an interstate agreement. The Kentucky General Assembly has expressed its legislative policy that state boundaries shall yield to effective law enforcement to the maximum extent permitted by the Constitution of the United States.
As noted in 81A C.J.S., States, Section 28, pages 344-345:
The states may agree to cooperate with the federal government in projects which serve the welfare of both the states and the nation . . . . Enforcement of the criminal law is an appropriate field for cooperation between state and federal governments.
(Emphasis in original.)
Cooperation between the Commonwealth of Kentucky and the United States Government does not offend the soverign powers of either government. We have no doubt that because of the enactment of KRS 65.240 the General Assembly intended for such cooperation to occur. We also note that Kentucky peace officers may enforce federal laws when permitted by the Federal Government. As noted in 81A C.J.S., States, Section 20, pages 305-306:
As a general rule the laws of the United States are laws in the several states, and are just as binding on the citizens and courts thereof as state laws, and the Constitution, laws, and treaties of the United States are as much a part of the law of every state as its own local laws and constitution. Accordingly, the state courts are required to give to the statutes of the United States the same recognition, force, and effect accorded the laws of the states.
See Howlett v. Rose, 496 U.S. 356, 110 S. Ct. 2430, 2438, 110 L. Ed. 2d 332, 347 (1990) (reiterating this constitutional rule). In Commonwealth v. Lew Stark, Inc., 279 Ky. 667, 132 S.W.2d 42, 44 (1939), Kentucky's highest court specifically upheld that principle of law.
Therefore, we conclude that all peace officers in the Commonwealth of Kentucky are authorized, if not required, to cooperate with federal officials, i.e. the DEA, in enforcing appropriate federal laws against illegal drugs and drug trafficking. We also believe Kentucky peace officers may, to the extent permitted by federal law, enforce federal drug laws regarding crimes that have occurred in Kentucky in whole or in part, or that otherwise affect a business or person residing in Kentucky. We do not find that these activities are inconsistent with Kentucky law because they are specifically authorized by KRS 65.240(1) and consistent with Supremacy Clause in Article VI, paragraph 2, of the United States Constitution.
However, the question whether the federal appointment would result in the Kentucky peace officers in question holding an incompatible office under Kentucky law must still be addressed. Section 237 of the Kentucky Constitution states in part:
No . . . person holding or exercising an office of trust or profit under the United States . . . shall be eligible to hold or exercise any office of trust or profit under this Constitution, or the laws made in pursuance thereof.
The purpose of this provision was described in Baker v. Dixon, 295 Ky. 279, 174 S.W.2d 410, 413 (1943);
It is obvious that the primary purpose of the constitutional provision is to prohibit a separation of allegiance from one soverign to another, and to prevent a division of loyalty justly due the sovereign to which the officer is in the first instance duty bound.
This provision is intended to prevent any possible conflict of duty or interest so as to preclude holding appointment from the Commonwealth of Kentucky and from the United States. As stated in Knuckles v. Board of Education of Bell County, 272 Ky. 431, 114 S.W.2d 511, 514 (1938):
[I]ncompatibility is declared when the public functions to be performed are inconsistent, the one with the other, and where the nature and duties of the two offices are such as to render it improper from consideration of public policy for one incumbent to retain both.
(Internal quotations omitted. Emphasis added.)
In Barkley v. Stockdell, 252 Ky. 1, 66 S.W.2d 43, 44 (1933), the Court explained incompatible offices for purposes of Kentucky's common law rule against such appointments:
The question is whether one office is subordinated to the other, or the performance of one interferes with the performance of the duties of the other, or whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest .
(Citations omitted. Emphasis added.)
In Nicholas v. Land, 288 Ky. 693, 157 S.W.2d 303, 304-305 (1941), the Court held that the office of special tax collector was not incompatible with the office of sheriff since the sheriff was authorized to collect taxes as part of his duties.
As previously stated, Kentucky peace officers are authorized to enforce federal law and to investigate persons effecting crimes in Kentucky, even if the person is outside of Kentucky and part of the crime occurred outside Kentucky. The express public policy of Kentucky as stated in the previously cited Kentucky statutes is that law enforcement agencies of Kentucky shall prosecute interstate crimes affecting Kentucky and shall cooperate with the United States government whenever and wherever authorized by the United States Congress. The notion that law enforcement must stop at the state line has been repudiated by our General Assembly. The appointment of Kentucky peace officers as federal law enforcement officers is in the public interest.
Therefore, the question then becomes the extent to which an appointment under Title 21 United States Code Section 878 would conflict with a Kentucky peace officer's other duties and allegiance to the government agency that he serves in Kentucky. We think that the Attorney General of the United States has authority pursuant to the Federal statute to condition and limit his appointments under that statute. We note that Subsection (b) of Section 878 specifically states that state and local law enforcement officers appointed under that section are not federal employees. We also believe that the United States Attorney General in making or authorizing an appointment under that section can exclude from the appointment subsection (a)(5) which in effect allows the Attorney General to add other miscellaneous law enforcement duties. If the appointment were deemed to include subsection (a)(5), the Attorney General's ability to assign other duties could be deemed to supersede the Kentucky peace officers' duties to their own government agencies. We also believe that the United States Attorney General (or duly authorized United States Attorney) can limit and condition the appointment under this statute to law enforcement activities concerning Kentucky, i.e. occurring at least in part or having effect in Kentucky, consistent with the purposes of the drug task forces. Assuming that the United States Attorney General so restricts and delineates his appointment to exclude these matters, we believe that the Kentucky peace officers so appointed would not be holding an incompatible office as defined in the Kentucky Constitution or in violation of other principles of Kentucky law.
Therefore, we believe that the Kentucky peace officers participating in the DEA law enforcement task forces may accept an appointment under these restrictions and conditions:
(1) That the appointment shall be limited to those matters within the scope of the task force and those crimes which have some effect in Kentucky.
(2) That the Kentucky peace officers' primary duties other than task force activities will be determined by the government agency of Kentucky that employs them.
(3) That the Kentucky peace officers receiving the appointment will not be required to perform any duties pursuant to subsection (a)(5) and will not be required to perform any duties regarding crimes no part of which occurred in Kentucky and which had no effect in Kentucky.
We adhere to the principle that Kentucky peace officers may not make an arrest outside of the territorial limits of Kentucky unless authorized by interstate agreement, by federal law, or by the law of the state where the arrest occurred. An out-of-state arrest based upon state law will normally require an extradition hearing or waiver. See Cuyler v. Adams, 449 U.S. 433, 449-450, 101 S. Ct. 703, 712, 66 L. Ed. 2d 641, 654-655, (1981), and Annotation, "Arrest and transportation of fugitive without extradition proceedings as violation of civil rights actionable under 42 U.S.C. § 1983," 45 ALR Fed. 871. Cf. Jones v. Black, Ky., 468 S.W.2d 274 (1971); State ex rel. Niederer v. Cady, 72 Wis.2d 311, 240 N.W.2d 626 (1976). The Constitution and law of Kentucky provide no tolerance for interstate crime.
We are grateful for your letter and the opportunity to clarify Kentucky law on these matters.