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May 06, 2021

Sheriffs have the powers accorded police officers under the Criminal Procedure Law but are not mandated to get police officer training [Opinions of the Attorney General 2021-F-1]

The Criminal Procedure Law, granting police officer powers, includes sheriffs in its definition of “police officer,” while the Civil Service Law and General Municipal Law, establishing fitness and training requirements for police officers, exclude sheriffs from their definitions of that term.

In response to a request for a Formal Opinion of the Attorney General, Attorney General Letitia James advised Michael Flaherty, Acting Counsel, Division of Criminal Justice Services [DCJS], that Sheriffs have the powers accorded police officers under the Criminal Procedure Law but are not mandated to get police officer training.

The Attorney General noted that Civil Service Law §58, in defining the term "police officer," excludes a sheriff and under-sheriff, commissioner of police, deputy or assistant commissioner of police, chief of police, deputy or assistant chief of police, or any person having an equivalent title who is appointed or employed to exercise equivalent supervisory authority.

Accordingly, the Attorney General concluded that such officers, including the sheriff, need not meet the age, height, weight, and physical fitness requirements established by DCJS’s Municipal Police Training Council."

The opinion further observes:

"Because a sheriff is deemed a “police officer” by Criminal Procedure Law §1.20(34)(b), he or she is eligible to exercise the powers granted to police officers by the Criminal Procedure Law and the Penal Law.* 

"In summary, while the sheriff is expressly not deemed a “police officer” who needs to satisfy the requirements, including training, of Civil Service Law §58 and General Municipal Law §209-q, he or she must be included in the police officer registry maintained by DCJS and is eligible to exercise the powers granted to police officers by the Criminal Procedure Law and the Penal Law.

"We recognize the anomalous result of a sheriff being a police officer under the Criminal Procedure Law, with the attendant powers, but not being required by General Municipal Law §209-q to receive training as to the exercise of those powers. Indeed, this conclusion differs from the conclusion we have reached with respect to police chiefs in prior opinions, because those police chiefs were not explicitly included in the Criminal Procedure Law’s definition of “police officer.” See Op. Att’y Gen. 2003-1 (village chief of police); Op. Att’y Gen. 85-F12 (municipal police chiefs and commissioners).

"We have been unable to identify the reason for the discrepancy between the powers of a sheriff and the lack of a requirement to obtain training relevant to the use of those powers. We note that many sheriffs will in fact have been trained in previous positions of law enforcement employment. See General Municipal Law §209-q(1)(b) (Municipal Police Training Council certificate valid during continuous service as police officer and for up to 10 years following an interruption of service under certain circumstances).

"The Legislature might wish to consider mandating training for all sheriffs, but absent such legislation, the decision to whether to get training rests with the sheriffs themselves." 

* These powers include possessing an unlicensed firearm, Penal Law §265.20(a)(1)(b); making an arrest without a warrant, Criminal Procedure Law §140.10; using physical or deadly force, if necessary, to effect an arrest or prevent an escape, Criminal Procedure Law §120.80, Penal Law §35.30; executing arrest and search warrants, Criminal Procedure Law §§120.60, 690.25; and stopping and frisking a person in a public place, Criminal Procedure Law §140.50.

Click HERE  to access the full text of the Attorney General's opinion.

 

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