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Official Opinion 2005-1

Official Opinion 2005-1

February 18, 2005
To: 

Commissioner
Georgia Department of Public Safety

Re: 

Questions concerning whether a county marshal has authority to operate speed detection devices or otherwise make vehicle stops based on such operation

You have asked whether a county marshal and the marshal’s deputies have authority to operate speed detection devices or otherwise make vehicle stops based on the operation of such devices. Your request states that the Department of Public Safety has received a number of requests from county marshals’ offices requesting permits to operate speed detection devices. You further state that the Department has issued one such permit, but because of the limited jurisdiction of marshals questions have arisen about the authority of marshals to operate speed detection devices and make vehicle stops based on such operation.

The Department of Public Safety is given the authority under state law to issue permits for the use of speed detection devices and “to prescribe by appropriate rules and regulations the manner and procedure in which applications shall be made for such permits.” O.C.G.A. § 40 14 3(b). The Department may deny or suspend such permits. Id.

Georgia law also provides that “[t]he law enforcement officers of the various counties, municipalities, colleges, and universities may use speed detection devices” when approved by the appropriate governing official, i.e., the sheriff of the county, the governing authority of the county, the governing authority of the municipality, or the president of the college or university. O.C.G.A. § 40 14 2(a). That official “shall apply to the Department of Public Safety for a permit to use such devices in accordance with this chapter.” Id. “Speed detection devices can only be operated by registered or certified peace officers of the county sheriff, county, municipality, college, or university to which the permit is applicable.” O.C.G.A. § 40 14 2(c). Thus, in order to apply for and receive a permit pursuant to O.C.G.A. § 40 14 3, the agency must be a law enforcement agency that employs or appoints peace officers in a sworn law enforcement capacity.

This office has previously opined that “a county marshal’s office is not equivalent to a county police force” and that a county “[does] not establish a county police force when it create[s] a county marshal’s office” pursuant to O.C.G.A. § 15 10 100. 1995 Op. Atty. Gen. U95-14. Rather, marshals are employees of the governing authority of the county employed to perform the duties of constables for courts of limited jurisdiction, i.e., magistrate courts. O.C.G.A. § 15 10 100(c.1)(1); 1982 Op. Atty. Gen. 82-45. Moreover, county marshals may not exercise any power or authority, such as the power of arrest, vested in the office of sheriff or any other peace officer “except as may be authorized by law.” O.C.G.A. § 15 10 100(c.1)(2).1

Marshals, like constables, do not have general police powers. 1987 Op. Atty. Gen. U87 21. Like constables, a marshal may only arrest an individual when the marshal has a warrant or is directed to arrest the individual and is in the presence of a magistrate or the judge of another court. O.C.G.A. § 15 10 103. It is plain, therefore, that a county marshal is not a “law enforcement agency” as that term is used in Chapter 14 of Title 40 of the Official Code of Georgia. Moreover, although O.C.G.A. § 15 10 100(c.1)(3) requires that any person employed or appointed as a marshal meet the requirements of Chapter 8 of Title 35 (the Peace Officer Standards and Training Act), those persons so employed or appointed are not “peace officers” as that term is defined in O.C.G.A. § 35 8 2(8) because they are not employed or appointed by a law enforcement unit.

Therefore, it is my official opinion that, absent independent legal authorization, a county marshal or deputy marshal does not have authority to apply for or use speed detection devices. Without a demonstration that such independent legal authorization exists, the Department of Public Safety is not authorized to issue permits to county marshals in the State of Georgia. Any permits that may have been erroneously issued by the Department of Public Safety are void and should be withdrawn.

Prepared by:

ROBERT W. SMITH, JR.
Assistant Attorney General


1 See, e.g., Act of March 29, 1983, No. 457, § 16, 1983 Ga. Laws 4443, 4449, regarding the Municipal Court of Columbus and Muscogee County and providing that “[a]ll . . . the duties and power and authority imposed by law and conferred . . . upon the sheriff and his deputies of Muscogee County shall be obligatory upon and shall be vested in the . . . marshal[] and deputy marshal or marshals of said court . . . so far as said duties may be applicable to said court and except where inconsistent with or limited by the provisions of this Act defining the jurisdiction of said court.”