Request By:
Hon. Paul F. Fauri
General Counsel
Department for Human Resources
275 East Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: K. Gail Leeco, Assistant Attorney General
You have requested our opinion on the legality of having "special law enforcement officers" appointed pursuant to KRS 61.902 to guard patients being transported from Grauman Forensic Psychiatry Unit to a public hospital for emergency medical treatment. The need for such guards has arisen because the local ambulance service is refusing to transport Forensic Unit patients unless they are accompanied by a "peace officer." Although we sympathize with the difficulties which the Department for Human Resources is experiencing in transporting these patients in medical emergencies, we cannot find authority in KRS 61.902 for the appointment of guards for patients.
As you acknowledge in your letter, KRS 61.902 refers not to the appointment of guards for people but to the appointments of guards for public property. You seek to get around this limitation by stating that the guards would be appointed to guard public property, the public property being the ambulance. In our opinion, KRS 61.902 would not authorize such appointment because it is confined to the appointment of officers to guard public real property, not public personalty.
That the legislature only intended KRS 61.902 to allow appointment of guards for real property can be seen by examination of other statutes in the Special Law Enforcement Officers Act, KRS 61.900 to 61.930. KRS 61.900(6)(a) through (d) sets out the duties of special law enforcement officers; the duties are appropriate only if the public property involved is real property. KRS 61.900(6)(e) includes examples of special law enforcement officers; every example involves officers who protect public real property, the Capitol, the Capital Plaza, schools, airports. KRS 61.920 confines the "area of jurisdiction" of the special law enforcement officer to "the premises of the public property to be protected;" "premises" is defined in Webster's Third New International Dictionary solely in terms of real property - "property," "land with structures," "building or buildings," or "place of business." Clearly, the legislature intended special law enforcement officers to guard real property, not personalty.
Further support for our position is found in KRS 61.924. In that statute, the legislature granted special law enforcement officers' authority to use public emergency vehicles. The statute makes no mention of any authority to protect public emergency vehicles in and of themselves. Nor does the statute extend the special officers authority to use emergency vehicles beyond the jurisdiction established in KRS 61.920 -- i.e., within the premises of the public property or in pursuit of a person fleeing the property after committing a felony or misdemeanor.
In sum, we consider that the statutes in the Special Law Enforcement Officers Act evince a clear legislative intention to confine the Act to the appointment of guards for public real property. To use the Act to permit the appointment of guards for ambulances would go far beyond its purpose. To use the Act to permit the appointment of guards for patients in the ambulances (D.H.R.'s express concern) would abuse it.
In your letter, you ask that we suggest an alternative solution to the problem if we do not agree that special law enforcement officers may be used. Lack of an alternative solution does not make KRS 61.902 more available. Further, alternative solutions depend on many factors on which we have no information, such as frequency of the need for an ambulance, types of medical emergencies, and costs. However, D.H.R. might explore the following alternatives: a cooperative plan between D.H.R., State Police, and Jefferson County Police to protect the ambulance crew, with D.H.R. tailoring its request for police assistance to the nature of the medical emergency; maintenance of the Forensic Unit's own ambulance equipped with restraints for patients; the stationing of a permanent police detail at the Forensic Unit. Hopefully, one of these methods, or some other, can be used to meet the understandable concern of the ambulance crews for their safety.