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Official Opinion 96-22

Official Opinion 96-22

November 15, 1996
To: 

Acting Executive Director
Georgia Peace Officer Standards and Training Council

Re: 

Candidates for certification as a peace officer may not carry a weapon while on patrol with a field training officer unless they comply with the mandatory licensing requirements of O.C.G.A. ¿ 16-11-126 through 16-11-129.

This is in response to your request for an opinion concerning whether candidates for appointment as a peace officer may carry a weapon while on patrol with a field training officer. 1

In answering your inquiry, it must be noted that under O.C.G.A. § 35-8-9, a candidate for appointment as a peace officer must meet the requirements of O.C.G.A. § 35-8-8 as well as successfully completing the basic training course "prior to his or her appointment as a peace officer." While O.C.G.A. § 16-11-130 does exempt peace officers and other enumerated individuals from the mandatory licensure requirements of O.C.G.A. §§ 16-11-126 through 16-11-129, the individuals mentioned in your letter of inquiry are "candidates" and, therefore, are obviously not peace officers. 2 1974 Op. Att'y Gen. 74-135; 1990 Op. Att'y Gen. U90-22; 1978 Op. Att'y Gen. U78-30. Since "candidates" are not peace officers, they are not exempt from the mandated license requirements. Id.

In complying with the licensure requirements of persons not exempted under O.C.G.A. § 16-11-130, a candidate should be aware that it is a misdemeanor offense to carry a weapon to a "public gathering." O.C.G.A. § 16-11-127(a). Not being able to carry a weapon to a "public gathering," as that term is defined in O.C.G.A. § 16-11-127(b) and the cases interpreting that Section, may significantly impact a candidate's capability in having a weapon with him or her while on patrol. Nevertheless, a weapon may be carried by a candidate for appointment as a peace officer, applying the licensure requirements to the candidate the same as if he or she were a private, unexempted citizen.

You have also asked for clarification of the following statement: "It is the understanding of [POST] that if the public may perceive these [candidates] as peace officers, then they must be certified in compliance with POST Act."

This issue is more properly addressed by each law enforcement unit in relationship to the liability and other considerations in that jurisdiction. This is true because under the current status of the law, public perception itself does not dictate compliance with the requirements of O.C.G.A. §§ 35-8-8, 35-8-9, 35-8-10. These statutory requirements are satisfied by meeting criteria established in the law and by POST. Therefore, public perception is potentially problematic, but public perception does not force certification. Public perception may influence liability and that is why each jurisdiction should carefully consider the use of "candidates" who may look like peace officers, but who do not have the powers of arrest and other obligations of peace officers.

In summary, candidates for certification as a peace officer may not carry a weapon while on patrol with the field training officer unless they comply with the mandatory licensure requirements of O.C.G.A. §§ 16-11-126 through 16-11-129.

Prepared by:

CAROL A. CALLAWAY
Senior Assistant Attorney General


{1} Your letter indicates that some candidates may be certified in another state as a peace officer. However, a peace officer who is certified in another state is not a peace officer in Georgia until he or she meets the requirements of O.C.G.A. § 35-8-9 and satisfactorily completes the basic training course in Georgia.

{2} Because a candidate is not, by definition, a peace officer, the candidate does not have the power to arrest as does a law enforcement officer. O.C.G.A. § 17-4-20. However, a candidate would have the same power of arrest as a private citizen. O.C.G.A. § 17-4-60; 1973 Op. Att'y Gen. 73-93; 1972 Op. Att'y Gen. U72-127.