Request By:
Hon. Gayle B. Robbins
Graves County Attorney
Graves County Courthouse
Mayfield, Kentucky 42066
Opinion
Opinion By: Chris Gorman, Attorney General; Gerard R. Gerhard, Assistant Attorney General
You ask whether an unpaid special deputy appointed by the sheriff pursuant to KRS 70.045 is empowered to make an arrest either with or without a warrant, in view of KRS 431.005(3). Additionally, you ask whether a deputy sheriff has the same authority as a sheriff to break and enter into a building to execute an order of arrest under provisions of KRS 70.078.
In our view, the limited definition of "peace officer" set forth in KRS 431.005(3) as affecting a special deputy sheriff (KRS 70.045), applies only in relation to an arrest that would be made without a warrant pursuant to KRS 431.005(2), in what might be termed the "domestic violence" circumstance. This limited definition does not restrict the authority of a special deputy sheriff, as a peace officer, to make an arrest without a warrant as required by KRS 403.760(2), for violation of a protective order issued under the provisions of KRS 403.740 or 403.750 pursuant to KRS 500.020, 403.715, and 403.740.
While a special deputy sheriff cannot lawfully make an arrest without a warrant pursuant to KRS 431.005(2), in what might be termed the domestic violence setting, given the limited definition of "peace officer" for purposes of that subsection, a special deputy sheriff, as a peace officer under the general definition of that term (KRS 446.010(24)) applicable to KRS 403.760(2), is directed to make an arrest without a warrant where violation of a protective order has occurred, a circumstance that can involve domestic violence. This view assumes the special deputy is acting consistent with the specific statute under which he or she is sworn. For example, the authority of a special deputy sheriff, as a peace officer appointed pursuant to KRS 70.045(1), is not restricted to emergency related circumstances, while a special deputy sheriff appointed pursuant to KRS 70.045(2) has peace officer authority only "in preparation for or during emergencies. " See the discussion in OAG 92-115, copy enclosed.
Regarding your second question, in our view, a deputy sheriff has the same authority as a sheriff to break and enter into a building to execute an order of arrest pursuant to KRS 70.078. Discussion follows.
First, you ask whether an unpaid deputy sheriff appointed by the sheriff pursuant to KRS 70.045 may make an arrest without a warrant in view of KRS 431.005(3), which, you indicate, defines a "peace officer" authorized to make arrests as being required to be a "full-time paid deputy sheriff. "
KRS 431.005(2) (as amended, HB 115, Acts, 1992 Reg. Sess., ch. 172) provides, in part:
(a) Any peace officer may arrest a person without a warrant when the peace officer has probable cause to believe that if the person is not arrested the person will present a danger or threat of danger to others if not immediately restrained and in addition the peace officer has probable cause for believing that the person has intentionally or wantonly caused physical injury to a family member or member of an unmarried couple.
KRS 431.005(3) provides:
For purposes of subsection (2) of this section, a "peace officer" is a full-time sworn officer of the Kentucky State Police, a full-time city policeman, a full-time county policemen, a full-time university safety and security officer appointed pursuant to KRS 164.950 to 164.970, a full-time city-county policeman, a duly elected sheriff, or a full-time paid deputy sheriff.
(Emphasis added.)
The words "For purposes of subsection (2) of this section," as used in KRS 431.005(3) (above), refer to what might be termed a "warrantless domestic violence related arrest" that might be effected under the specific terms of KRS 431.005(2)(a). Such language provides, in substance, that an unpaid special deputy sheriff (KRS 70.045) is not a "peace officer" for purposes of making a warrantless arrest pursuant to KRS 431.005(2). Stated another way, an unpaid special deputy sheriff appointed pursuant to KRS 70.045, can, expect in the case of a domestic violence related arrest that would be made pursuant to KRS 431.005(2), make an arrest either with or without a warrant, when authorized under other provisions of KRS 431.005, the statute under which the deputy is appointed, and other provisions of the law.
It should be noted that while a special deputy sheriff appointed pursuant to KRS 70.045(1) or (2) cannot make an arrest without a warrant pursuant to KRS 431.005(2), in what we have termed "the domestic violence circumstance," a special deputy sheriff, if his or her powers are then operative (the power of special deputies appointed pursuant to KRS 70.045(2) is applicable only in relation to emergency circumstances, as previously indicated), is a peace officer directed to make an arrest without a warrant pursuant to KRS 403.760, in the case of a violation of a protective order under the conditions described in KRS 403.760(2). The legislature has not restricted the definition of "peace officer" for purposes of an arrest pursuant to KRS 403.760. It follows that the general definition of "peace officer" set forth in KRS 446.010(24), under which we believe a special deputy sheriff falls, applies in relation to an officer who would make an arrest pursuant to KRS 403.760. Again, the limited definition of "peace officer" set forth in KRS 431.005(3) restricts the authority of a special deputy sheriff to make an arrest without a warrant only in relation to an arrest that would be made specifically pursuant to KRS 431.005(2).
Regarding whether a deputy sheriff has the same authority as a sheriff to break and enter into a building to execute an order of arrest pursuant to KRS 70.078, the courts of this state have for many years regarded a deputy sheriff as having substantially the same authority as the sheriff. A deputy sheriff, by reason of his or her appointment, is empowered to discharge all the official duties imposed on the sheriff.
Humphrey's Ex'r v. Wade, Ky., 1 S.W. 648, 650 (1886). We see no distinction vis-a-vis arrest authority as between a deputy sheriff and a special deputy sheriff, except as noted above regarding those sworn under KRS 70.045(2) for emergency purposes. That there is no distinction in such regard, we believe, is buttressed by the legislature's having provided for appointment of certain special deputies to assist the sheriff "with general law enforcement and maintenance of public order." KRS 70.045(1). Such assistance, we believe, necessarily includes the power to arrest.
Breaking and entering a house or enclosure to carry out an order of arrest would be a duty of the sheriff, and thus could be carried out by a deputy of the sheriff, or a special deputy of the sheriff, as discussed herein.
Prior opinions of this office concerning the arrest authority of special deputy sheriffs (e.g., OAG 83-246) interpreted the law as it existed at the time of those writings. They might not provide a correct view of the law regarding the arrest authority of a "special deputy sheriff," under current language of the statutes in such regard.