Request By:
Mr. Larry S. Lawson
Spencer County Sheriff
Box 475
Taylorsville, Kentucky 40071
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion on the question concerning the power of arrest of special deputies, as treated in KRS 70.045. That statute reads:
"(1) The sheriff in each county may appoint and have sworn in, and entered on the county clerk order book, as many special deputies as needed to assist him in the execution of his duties and office in preparation for or during an emergency situation, such as fire, flood, tornado, storm, or other such emergency situations. For purposes of this section only, an emergency situation is a condition which, in the judgment of the sheriff, requires a response immediately necessary for the preservation of public peace, health or safety, utilizing special deputies previously appointed in preparation for the contingency.
"(2) The special deputy shall:
(a) Be appointed and dismissed on the authority of the sheriff;
(b) Not receive any monetary compensation for his time or services;
(c) Serve at the request of the sheriff, unless personal conditions rule otherwise;
(d) Be answerable to and under the supervision of the sheriff, who shall be responsible for the actions of the special deputy; and
(e) Be appointed regardless of race, color, creed or position.
"(3) The position of special deputy as created and defined in subsections (1) and (2) is subject to the provisions of this section only."
The statute dealing with the general powers of arrest of peace officers is KRS 431.005, which provides:
"(1) A peace officer may make an arrest:
(a) In obedience to a warrant; or
(b) Without a warrant when a felony is committed in his presence; or
(c) Without a warrant when he has reasonable grounds to believe that the person being arrested has committed a felony; or
(d) Without a warrant when a misdemeanor, as defined in KRS 431.060, has been committed in his presence; or
(e) Without a warrant when a violation of KRS 189.290, 189.393, 189.520, 189.580, 511.080, or 525.070 has been committed in his presence.
"(2) Any peace officer may arrest without warrant when he has reasonable grounds to believe that if the person is not arrested he will present a danger or threat of danger to others if not immediately restrained and in addition he has probable cause for believing that said person has intentionally or wantonly caused physical injury to his spouse, parent, grandparent, child, or stepchild. Within twelve (12) hours following apprehension and booking of a person arrested under this section, an officer shall return to the abused person, if the abused person is an adult, and request that a signed, written statement be made by the abused person stating that an abuse occurred and the person who committed it. If the abused person refuses to sign the statement, the charges shall be summarily dismissed and the defendant released from custody.
"(3) 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 policeman, a full-time city-county policeman, a duly elected sheriff, or a full-time paid deputy sheriff.
"(4) A private person may make an arrest when a felony has been committed in fact and he has reasonable grounds to believe that the person being arrested has committed it."
The arresting authority of "peace officers" is dealt with in detail in KRS 431.005. Under subsection (3) of that statute, and as relates to subsection (2), concerning making an arrest without a warrant, a "peace officer" , by that definition, does not include a special deputy appointed under KRS 70.045, since the special deputy is not a full-time paid deputy sheriff.
When a special deputy (KRS 70.045) is properly on duty in connection with an actual emergency, as defined in that statute (a fire, flood, tornado, storm, or similar emergency) , such special peace officer has the authority to make an arrest: (a) in obedience to a warrant; or (b) without a warrant when a felony is committed in his presence; or (c) without a warrant when he has reasonable grounds to believe that the person being arrested has committed a felony; or (d) without a warrant when a misdemeanor, as defined in KRS 431.060, has been committed in his presence; or (e) without a warrant when a violation of KRS 189.290, 189.393, 189.520, 189.580, all being traffic regulations, 511.080 (criminal trespass), or 525.070 (harassment) has been committed in his presence. The inference is strong in KRS 431.005 that the arresting powers described in subsection (1) applies to "peace officers" , as defined in KRS 446.010(24) and to special deputy sheriffs.
However, it must be carefully remembered that the above listed arresting powers of a special deputy can only be invoked or used in one or more of the "emergencies" explicitly defined in KRS 70.045.