Request By:
David Kaplan, Esquire
Counsel's Office
Department of Correctional Services
The State Office Building Campus
Albany, New York 12226
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: George Geoghegan, III, Assistant Attorney General
This is in answer to your inquiry concerning the legality of a New York State peace officer carrying a deadly weapon in the Commonwealth of Kentucky in the course of returning a fugitive from justice to New York.
KRS 527.020 (1) provides:
"A person is guilty of carrying a concealed weapon when he carries concealed a firearm or other deadly weapon on or about his person."
KRS 527.020 (2) and (3) provide certain exceptions to the coverage of the foregoing statute, but none of these can be stretched to include a New York State peace officer while in Kentucky.
Under Kentucky law a New York State peace officer who carries his weapon exposed is not in violation of KRS 527.020 (1). On the other hand, if his weapon is concealed, he could be arrested for violating Kentucky law. However, Kentucky law does not take precedence in this area and should not be enforced against a New York State peace officer who is transporting a fugitive from justice through the Commonwealth of Kentucky.
Article IV, Section II, Clause 2 of the United States Constitution provides:
"A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime."
In implementing Article IV, Section II, Clause 2 of the United States Constitution Congress adopted Title 18, United States Code, sections 3181 et seq. In particular, 18 U.S.C. § 3182 provides in pertinent part that the governor of the Asylum State ". . . . shall cause him [the fugitive] to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered up to such agent when he shall appear. . . . ." [Word supplied].
It is apparent from reading the above that the governor of the demanding state is by virtue of the United States Constitution and federal law authorized to commission an agent to go to the asylum state to return a fugitive from justice. The governor of the demanding state transmits to the governor of the asylum state a Requisition together with a copy of the agent's commission or order of appointment. If the governor of the asylum state decides that the fugitive should be extradited, he issues his Rendition Warrant and attaches thereto the agent's commission from the governor of the demanding state.
The authority for an agent of the governor of the demanding state to return a fugitive from justice is granted by the United States Constitution and federal law. To prohibit an authorized agent of the demanding state from carrying a deadly weapon either openly or concealed would render the agent ineffective to carry out his purpose. In
Lockheed Air Terminal, Inc. v. City of Burbank, 457 F.2d 667 (9th Cir., 1972), Affirmed in 411 U.S. 624, 36 L. Ed. 2d 547, 93 S. Ct. 1854 (1973), the Court held that state legislation which conflicts with the United States Constitution or federal law must fall by virtue of Article VI, Clause 2 of the United States Constitution. Article VI, Clause 2 provides:
"This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."
In summary, although it may be a violation of KRS 527.020 (1) for a New York State peace officer to carry a concealed deadly weapon in the course of returning a fugitive from justice, the law cannot be enforced by virtue of the Supremacy Clause of the United States Constitution. Therefore, when a New York State agent has been properly authorized, he is not subject to arrest for carrying a deadly weapon while he is returning a fugitive from justice. In any event, as a word of caution, we point out that it is difficult for an agent to prove his authorization before receiving in hand the agent's commission from his governor. Since the agent usually does not receive the commission until he obtains custody of the fugitive, it would be wise for the agent to comply with KRS 527.020 (1) while proceeding to the point where he is to receive the fugitive. After he receives the fugitive and his papers, there should be no problem in Kentucky with a New York State peace officer who has been duly appointed by his governor to return a fugitive from justice.