Series Introduction.
The inspiration for the CLB’s “Odd Cops” series was bolstered by the COA’s February 28, 2017 opinion in Albee v. State, 71 N.E.3d 856 (Ind.Ct.App. 2017). Albee confirmed the stereotype of the hapless campus cop, as recounted in an appellate case note titled “What do you mean line-up…?” I made a list, which I hope to find after misplacing it, of law officers like railroad cops, hospital cops, and campus cops whose status seems somewhat peculiar. What legal authority allows for such odd cops? What jurisdiction do they have? What does the case law say about them? Some of these questions will be answered in this series about peculiar varieties of law enforcement officers on the state or local level, to the exclusion of federal law enforcement officers.
Special Deputies
As a preliminary matter I ask myself a question: Who is a “law enforcement officer?” One answer to the question is found in a list of “law enforcement officers” (for most purposes) at IC 9-13-2-92(a), to-wit:
IC 9-13-2-92 “Law enforcement officer”
Sec. 92. (a) “Law enforcement officer” except as provided in subsection (b), includes the following:
(1) A state police officer.
(2) A city, town, or county police officer.
(3) A sheriff.
(4) A county coroner in accordance with IC 36-2-14-4.
(5) A conservation officer.
(6) An individual assigned duties and limitations under IC 10-11-2-26.
(7) A member of a consolidated law enforcement department established under IC 36-3-1-5.1.
(8) An excise police officer of the alcohol and tobacco commission.
(9) A gaming control officer employed by the gaming control division under IC 4-33-20.
The terms refers to a law enforcement officer having jurisdiction in Indiana, unless the context clearly refers to a law enforcement officer from another state or a territory or federal district of the United States.
A broader description of who is a law enforcement officer can be found at IC 35-31.5-2-185:
IC 35-31.5-2-185 “Law enforcement officer”
Sec. 185.(a) “Law enforcement officer” means:
(1) a police officer (including a correctional police officer), sheriff, constable, marshal, prosecuting attorney, special prosecuting attorney, special deputy prosecuting attorney, the securities commissioner, or the inspector general;
(2) a deputy of any of those persons;
(3) an investigator for a prosecuting attorney or for the inspector general;
(4) a conservation officer;
(5) an enforcement officer of the alcohol and tobacco commission;
(6) an enforcement officer of the securities division of the office of the secretary of state; or
(7) a gaming agent employed under IC 4-33-4.5 or a gaming control officer employed by the gaming control division under IC 4-33-20.
(b) “Law enforcement officer,” for purposes of IC 35-42-2-1, includes an alcoholic beverage enforcement officer, as set forth in IC 35-42-2-1.
(c) “Law enforcement officer,” for purposes of IC 35-45-15, includes a federal enforcement officer, as set forth in IC 35-45-15-3.
(d) “Law enforcement officer,” for purposes of IC 35-44.1-3-1 and IC 35-44.1-3-2, includes a school resource officer (as defined in IC 20-26-18.2-1) and a school corporation police officer appointed under IC 20-26-16.
The latter description clarifies that deputies of listed law enforcement officers also qualify, as in the case of sheriff’s deputies. But what about “Special Deputies?” The opinion in Miller v. State, 641 N.E.2d 64 (Ind.Ct.App. 1994) concludes that a traffic stop initiated by a special deputy sheriff driving a private, unmarked vehicle and in civilian clothing was unlawful (for exclusion purposes) pursuant to the requirement of IC 9-30-2-2- that a “law enforcement officer” wear a distinctive uniform and badge or operate a marked police vehicle to make an arrest. The COA rejected the State’s argument that a special deputy sheriff is not a “law enforcement officer.” In support of its position the COA cited IC 36-8-10-10.6 (the enabling statute for appointment of special deputy sheriffs) for the presumptive grant of police powers, privileges, and duties to a special deputy sheriff.¹
While special deputy commissions seem intended (by the statute) for jail guards and for others whose public or private employment “necessitates…the powers of a law enforcement officer,” the expectation is that most commissions will be favors to old political hacks as an ad hoc license to carry a firearm or as a get-out-of-jail-free card for traffic stops and the like.
How can you determine whether the special deputy sheriff who’s in your face and announcing your arrest has police powers like a real deputy? The point is that you may be unable to make that determination in real time as you ponder whether to comply or resist the odd cop in front of you.
The local experience with (now former) Lake County Sheriff John Buncich was covered by NWI Times reporting in May and June of this year. Buncich announced that he had issued 230 non-police special deputy commissions while claiming (through counsel) that “None [of the commissions] convey police powers and none allow the holder to carry a gun without a permit.” NWI Times (digital) June 18, 2017 updated June 19, 2017. Buncich himself advised that he issued commissions with police powers only to his jail guards and a few others with security responsibility from public employment.
Remarkably, the commission card reproduced at the top of this article is “with police powers” yet issued (per the NWI TIMES story) to a lady described as a retired (7 years) court administrator whose job description would not have included security duties. An observation about IC 36-8-10-10.6 is that the issuance of a special deputy commission is restricted to persons whose public or private employment warrants a grant of police powers. Accordingly, no unemployed person (retired or not) should ever hold such a commission.
Here is the text of the commission card:
LAKE COUNTY, INDIANA
DEPUTY SHERIFF
Name __________________________________________
Is a Lake County Special Deputy Sheriff with police
powers within and for said Lake County State of Indiana.
This individual’s activities are directed by the Lake County
Sheriff according to Law.
Authority of /s/ John C. Buncich
Sheriff, Lake County, Indiana
What would you say is the territorial jurisdiction for exercise of the police powers of a special deputy? The answer to this intriguing question begins with another question, to-wit: What is the territorial jurisdiction generally for exercise of the police powers of law enforcement officials attached to a municipality or county? This second question turns on IC 35-33-1-1 and case law construing it. IC 35-33-1-1 grants arrest powers to “law enforcement officers.” The statute contains no territorial limit, to the effect that a local law enforcement officer has statewide powers of arrest. Spranger v. State, 498 N.E.2d 931 (Ind. 1986); Hart v. State, 671 N.E.2d 420, (Ind.Ct.App. 1996) abrogated on other grounds at Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). Given that special deputies generally have police powers under IC 36-8-10-10.6, and given that case law generally regards them as law enforcement officers, it would seem that a special deputy possesses statewide powers of arrest. Be afraid…very afraid.
The text of the Lake County Sheriff’s special deputy commission card refers to “police powers within and for said Lake County.” Does this clause restrict a special deputy’s territorial jurisdiction? I think not. The quoted language is that of grant rather than restriction.² If the sheriff grants police powers within Lake County, then the General Assembly through IC 35-33-1-1 expands that authority to all 92 counties.
There is one interesting anecdote in the case law about a Lake County special deputy gone rogue. Vernon Miller was a black man who held a commission as a special deputy sheriff in Lake County. He was involved in a racially charged dispute with two white men outside a Merrillville McDonald’s restaurant. Vernon announced that he was a law officer, pulled out a handgun, and shot two rounds in the air. The dispute continued, and the two white men commenced to beat a second black man (an intervenor) inside the restaurant where Miller followed and fired his gun again, wounding an innocent restaurant employee. This account and the affirmance of Miller’s conviction for criminal recklessness can be seen at Miller v. State, 449 N.E.2d 1119 (Ind.Ct.App. 1983).
Here are some additional holdings of appellate case law.
A special deputy is a public servant for purposes of the official misconduct statute. Robey v. State; 481 N.E.2d 138 (Ind.Ct.App. 1985);
A special deputy assisting regular police is a law enforcement officer for purposes of the commission of battery of a law enforcement officer. Carty v. State, 421 N.E.2d 1151 (Ind.Ct.App. 1981); and
The special deputy enabling statute withstands the (Indiana) constitutional challenge that it is void for giving police powers to private employers. Wright v. State, 772 N.E.2d 449 (Ind.Ct.App. 2002).
Interim Sheriff Oscar Martinez would be well-advised to review all special deputy commissions issued to anyone who is not currently working as a jail guard. He would further be well-advised to adopt a consistent and transparent policy respecting the grant of police powers or the withholding of police powers.
While the enabling statute does not expressly provide for an expiration date, it does empower a sheriff to terminate a special deputy commission at any time without assignment of cause. Accordingly, Interim Sheriff Oscar Martinez could and should assign a termination date to each commission.
The Indiana General Assembly should clarify the term and the jurisdictional area of a special deputy commission. I would favor an expiration date no later than 30 days after the end of the appointing sheriff’s term, with mandatory surrender of commission card, badge, uniform (if applicable), and any other special deputy paraphernalia. As for territorial jurisdiction, I would recommend the county line as an irrevocable barrier except (perhaps) for “fresh pursuit” or while assisting and in close proximity to a “regular” police officer.
Not everything there is to know about special sheriff’s deputies is revealed in statutes, appellate opinions, and newspaper stories. If you have something to share based on your personal experience, please feel free to leave a comment.
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¹The presumptive police powers of a special deputy sheriff may be limited only in a writing from the sheriff and signed by the special deputy.
²Another clue that the “within Lake County” is not meant as a restriction is that there is no proximate signature of the special deputy, as would be required for a restriction under IC 36-8-10-10.6.
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