May 3, 1988

Mr. Dennis A. Groff 
Pennington County State's Attorney 
300 Kansas City Street 
Rapid City, South Dakota 57702

Official Opinion No. 88-17

Powers and qualifications of county constables

Dear Mr. Groff:

You have requested an official opinion from this office based upon the following factual situation:

FACTS: 

Pennington County currently has three county constables.  Several other individuals are also applying at this time to be county constables.  In considering these applications the Pennington County Commission is unsure of what qualifications the applicant must possess before the county can appoint him to the office of county constable.  The Commission is also concerned with the scope of the arrest powers for county constables.

Based upon the foregoing facts, you have asked the following questions:

QUESTIONS: 

1.   What are the arrest powers of a county constable under the provisions of SDCL 7-13-2? 

2.   What additional powers of arrest, if any, are granted to the county constable under the provisions of SDCL 9-29-20? 

3.   Based upon your answers to Questions No. 1 and 2, should a county constable be certified as a law enforcement officer under SDCL ch. 23-3 before assuming his duties as the county constable?

IN RE QUESTIONS NO. 1 and NO. 2:

The nature of your first two questions dictates that they be answered together.  Every person in the state of South Dakota has been granted the power to effect a "citizen's arrest."  The scope of the citizen's arrest powers are set out in SDCL 23A-3-3, which provides: 

Any person may arrest another: 

(1)  For a public offense, other than a petty offense, committed or attempted in his presence;  or 

(2)  For a felony which has been in fact committed although not in his presence, if he has probable cause to believe the person to be arrested committed it.

A person who holds the office of county constable does not have his SDCL 23A-3-3 (citizens arrest) powers limited by virtue of his position.  Any additional powers granted to a county constable, however, are limited to those which are prescribed by statute.  AGR 1941-42, p. 109.

SDCL 7-13-2 provides: 

[C]ounty constables shall have the same powers and jurisdiction throughout the entire county as a township or other constable has within his district; such county constables may serve process and make levies in the same manner and effect as the sheriff, and conduct other official proceedings throughout the county in the same manner and effect as a township or other constable  within his district.

SDCL 8-8-2 provides: 

Any constable in any organized civil township containing any unincorporated town shall be a proper officer for arresting and detaining persons for disorderly conduct within such town arising from drunkenness or otherwise, without process first issuing.

In addition to the foregoing, SDCL 9-29-20 provides: 

The sheriff or any constable of the county or counties in which the municipality is situated may serve any process or make any arrest authorized to be made by any municipal officer.  (Emphasis added.)

A reasonable interpretation of the latter statute is that a municipal officer may, by the terms of the appointment, specifically authorize a constable or sheriff to make arrests and serve process.  Such authorization is, of course, subject to the limitations found in SDCL Title 9.  Absent such specific authorization, the scope of a constable's powers to arrest is to be determined by reference to the other statutes set out herein.  A sheriff, on the other hand, is authorized by SDCL 7-12-2 to keep and preserve the peace throughout his county including the geographical area of any municipalities located therein.

IN RE QUESTION NO. 3:

A constable's powers are limited by the terms of his appointment.  Unless the appointment contains an authorization from a proper municipal officer granting the constable additional powers of arrest pursuant to SDCL 9-29-20, the constable does not have to be certified as a law enforcement officer pursuant to SDCL ch. 23-3.  SDCL 23-3-26 applies "to persons who seek to become law enforcement officers, persons who are serving as such officers in a temporary or probationary capacity, and persons already in regular service."  It is my opinion that absent express authorization pursuant to SDCL 9-29-20, a constable is not a "law enforcement officer" as defined by SDCL 23-3-27.

As a caveat, I would also point out that if the situation arises where the constable is authorized by a municipal officer to make arrests or conduct other law enforcement activity, he must obtain the education and training required by SDCL 23-3-26.  The training and education under such circumstances is required, and failure to comply could be construed as causing the constable to act outside of his scope of authority, thereby removing any protection of governmental immunity granted to public officials in this state.

Respectfully submitted,

Roger A. Tellinghuisen
Attorney General