Request By:
Mr. Joseph F. Nutz
Chief of Police
City of Raceland
711 Chinn Street
Raceland, Kentucky 41169
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising two questions, the first of which concerns KRS 95.786, pertaining to the territorial authority of police in cities of the fifth class. That statute provides as follows:
"The chief and members of the police force in cities of the fifth class may make arrests anywhere in the county in which the city is located, but shall not be required to police any territory outside of the city limits. "
You ask whether KRS 95.786 has been changed recently, or whether it still provides that police officers in cities of the fifth class may make arrests anywhere in the county in which the city is located but shall not be required to police the territory outside of the city limits.
KRS 95.786 has not been changed for many years and thus the opinions expressed in OAG's 74-169 and 73-620, copies enclosed, still represent our opinion in regard to the provisions of that particular statute. Therefore, the chief and members of the police force in cities of the fifth class have the authority to make arrests, conduct investigations and participate in other similar activities normally associated with peace officers anywhere in the county in which the city is located. City police officers are not required, however, to police the area beyond the city limits.
Your second question asks if a police officer in a city of the fifth class may make an arrest for a misdemeanor committed in his presence, in the county, while that officer is off-duty as well as on-duty.
A municipal police officer is a peace officer [KRS 446.010(24)] and KRS 431.005(1) sets forth a peace officer's powers of arrest:
"A peace officer may make an arrest in obedience to a warrant, or without a warrant when a felony or misdemeanor is committed in his presence or when he has reasonable grounds to believe that the person being arrested has committed a felony. "
While we have not found a Kentucky case directly in point it is our opinion that a police officer retains his peace officer powers twenty-four hours a day and such powers are not limited just to his regularly assigned work shift. The statute setting forth a peace officer's powers of arrest does not specifically limit those powers to his on-duty hours.
In McQuillin Mun. Corp. (3rd Ed.), Vol. 16, Section 45.15, the following appears:
". . . A police officer on 'off-duty' status is nevertheless not relieved of his obligation as an officer to preserve the public peace and to protect the lives and property of the citizens of the public in general."
The Court, in Banks v. City of Chicago, 11 Ill. App.3d 543, 297 N.E.2d 343 (1973), said in part:
". . . The nature of a policeman's job is that he be fit and armed at all times, whether on or off duty, and subject to respond to any call to enforce the laws and preserve the peace. It is true that his being considered 'on duty' at all hours of the day or night does not result in all of his acts being deemed to have taken place in the performance of his duties as a police offcer. Karas v. Snell, 11 Ill.2d 233, 142 N.E.2d 46. However, since he is always obligated to attempt to prevent the commission of crime in his presence, any action taken by him toward that end, even in his official off-duty hours, falls within the performance of his duties as a police officer. "
In People v. Peters, 18 N.Y.2d 238, 219 N.E.2d 595 (1966), the Court stated:
". . . As the trial court noted, an off-duty policeman is not relieved of his obligation to preserve the peace or protect the lives and property of citizens. The acceptance of this duty has been demonstrated on numerous occasions when such officers have risked and sacrificed their lives to frustrate the commission of crime or to bring the perpetrator of crime to justice."
Finally, in Morris v. State, Tex., 523 S.W.2d 417 (1975), the Court said that a police officer's 'off-duty' status is not a limitation upon the discharge of police authority in the presence of criminal activity.
In conclusion, it is our opinion that a police officer of a fifth class city, who has the statutory authority to make an arrest anywhere in the county in which the city is located, has not only the authority but the duty to make an arrest for a misdemeanor committed in his presence, in the county, regardless of whether he is on-duty or off-duty. A police officer's off-duty status does not relieve him of his obligation to enforce the law nor does it limit him in the discharge of his police authority in the presence of criminal activity.