Request By:
Bobby Thomas, President, Kentucky Sheriffs' Association
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Ed Clark, Assistant Attorney General
Opinion of the Attorney General
You have requested our opinion regarding whether, under KRS 527.020, a deputy sheriff is permitted to carry a concealed deadly weapon out of the county in which he is sworn on off-duty business without a conceal and carry permit. Your request prompts our inquiry into who is exempt from the permit requirement for carrying a concealed deadly weapon.
Under KRS 527.020, only United States mail carriers, agents and messengers of express companies, peace officers, and police officers may carry a concealed deadly weapon without a permit, and only under certain circumstances. In order to carry a concealed weapon without a permit, deputy sheriffs would have to be members of one of the categories identified in the statute.
Deputy sheriffs clearly may not be included within the category of U.S. mail carriers, or the category of agents and messengers of express companies. Even if deputy sheriffs could qualify as peace officers, it still would not empower them to carry concealed deadly weapons on off-duty business without a permit. Peace officers are only exempted from the prohibition against carrying concealed deadly weapons without a permit while "in the discharge of their official duties." KRS 527.020(2).
Under KRS 527.020(3), police officers directly employed by state, county, city or urban-county governments may carry concealed deadly weapons at all times within the Commonwealth of Kentucky, when expressly authorized to do so by the government employing the officer. Deputy sheriffs, however, do not qualify as police officers. The mandated qualifications for a police officer under KRS 95.951 differ from those for a deputy sheriff under KRS 61.300. A police officer must be at least twenty-one years of age and either be a high school graduate, hold a general equivalency diploma, or receive a high school diploma through participation in the external diploma program.
Deputy sheriffs are not required to attain the same educational qualifications, but they may have to satisfy other requirements that are not required of police officers. For example, a deputy sheriff may be required by the sheriff to reside in the county where he is appointed within ninety days of his appointment, and to continue his residence therein during the term of his appointment. 2000 Kentucky Laws Reg. Sess. Ch. 416 (S.B. 62). Deputy sheriffs and police officers have different jobs with different qualifications. Accordingly, KRS 527.020(3), which permits police officers to carry concealed deadly weapons without a permit, does not apply to deputy sheriffs.
Holland v. Commonwealth, Ky., 294 S.W.2d 83 (1956) previously addressed whether deputy sheriffs may carry concealed deadly weapons out of their counties on off-duty business without a permit. In that case, Holland, a Breathitt County deputy sheriff, was arrested, charged and prosecuted after going to Perry County to serve two arrest warrants. Holland was convicted of carrying a concealed deadly weapon. Reversing the judgment against Holland, the Court found "undisputed proof" that Holland was on "a specific journey to locate an alleged offender for the purpose of arrest" at the time of his arrest. Id. at 86. Nevertheless, in dicta , the Court suggested that he would not have needed a permit even if he had been off-duty, stating:
We also must recognize that peace officers, who at the present time work definite shifts, are still charged with the duty under their office to act in times of emergency in behalf of the people generally even if off duty. We believe the statute did not intend that in every interlude between an actual arrest or other direct duty an officer must disarm himself . . .
Id. The Holland court suggested that deputy sheriffs should be considered peace officers and allowed to carry concealed deadly weapons without a permit.
It is unnecessary to address whether deputy sheriffs may qualify as peace officers, as the dicta in Holland suggests. KRS 527.020(2), which became law subsequent to Holland , indicates that peace officers may carry a concealed deadly weapon without a permit only "when necessary for their protection in the discharge of their official duties." Even if deputy sheriffs could qualify as "peace officers, " it would not qualify them to carry concealed deadly weapons without a permit while "off-duty. "
Conclusion
It is the opinion of this office that KRS 527.020 does not authorize deputy sheriffs to carry concealed deadly weapons without a permit out of their counties while on off-duty business.