Can a county marshal or deputy marshal in Georgia operate a speed detection device (radar or lidar) and pull drivers over for speeding?

Plain-English summary

The Commissioner of the Georgia Department of Public Safety asked whether DPS could issue speed-detection-device permits to county marshals' offices. DPS had received a number of such requests and had already issued one. Because of the limited jurisdiction of marshals, the Commissioner wanted clarity before issuing more.

AG Thurbert Baker said marshals do not have authority to operate speed detection devices, and any permit DPS had erroneously issued was void.

The reasoning ran through the speed-detection statute, the marshal statute, and the peace-officer definition:

Speed detection statute (O.C.G.A. § 40-14-2 and § 40-14-3). Speed detection devices may be used by "law enforcement officers" of counties, municipalities, colleges, and universities, when authorized by the appropriate governing official (the sheriff, the county or municipal governing authority, or a college/university president). The agency must apply to DPS for a permit, and only "registered or certified peace officers of the county sheriff, county, municipality, college, or university to which the permit is applicable" may operate the devices. So the permit applicant has to be a law enforcement agency that employs sworn peace officers.

Marshal statute (O.C.G.A. § 15-10-100). A 1995 unofficial AG opinion already established that "a county marshal's office is not equivalent to a county police force," and a county does not establish a county police force when it creates a marshal's office. Marshals are employees of the county governing authority, hired to perform constable duties for magistrate courts (the courts of limited civil jurisdiction). Under § 15-10-100(c.1)(2), marshals "may not exercise any power or authority . . . vested in the office of sheriff or any other peace officer 'except as may be authorized by law.'" Like constables, marshals only have arrest power when they have a warrant or are directed to arrest in the presence of a magistrate or judge of another court (§ 15-10-103).

Peace officer status. Even though § 15-10-100(c.1)(3) requires marshal hires to meet Peace Officer Standards and Training Act requirements (Chapter 8 of Title 35), they are not "peace officers" as that term is defined in O.C.G.A. § 35-8-2(8) because they are not employed by a "law enforcement unit." The training requirement does not create law enforcement status; it just establishes a baseline standard for the position.

Result. A marshal's office is not a "law enforcement agency" within the meaning of Chapter 14 of Title 40. DPS therefore lacked authority to issue speed-detection permits to marshals, and any erroneously issued permits had to be withdrawn. The AG noted one wrinkle in a footnote: a few county-specific local Acts (the example given was the Columbus/Muscogee Municipal Court marshal under 1983 Ga. Laws 4443) had specifically vested sheriff-equivalent power in the local marshal. Such "independent legal authorization" could change the result for that particular county.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The marshal-of-magistrate-court framework in O.C.G.A. § 15-10-100 has been amended several times since 2005, and some counties have used local legislation to expand marshal authority. Anyone evaluating current marshal powers in a specific county should check both the statewide marshal statute and any county-specific local Act, plus any subsequent AG guidance.

Common questions

Q: What's the practical role of a county marshal in Georgia?
A: Service of process for the magistrate court, executing magistrate court writs (such as dispossessory warrants in landlord/tenant cases), and serving as bailiff. Some counties also use the marshal's office for code enforcement, animal control, and similar civil-process work. The role is closer to a civil deputy of the magistrate court than to a sheriff's deputy.

Q: Can a marshal arrest someone they witness committing a crime?
A: Generally no. Under O.C.G.A. § 15-10-103, marshals (like constables) can only arrest with a warrant or when directed to arrest in the presence of a magistrate or judge of another court. They do not have general police powers, and a 1987 unofficial AG opinion (U87-21) confirmed this for constables.

Q: Does this opinion mean a marshal cannot wear a uniform or carry a weapon?
A: The opinion did not address uniforms or weapons. Marshals were required to meet POST training standards under § 15-10-100(c.1)(3), which typically included firearms training. What they could not do was exercise general law-enforcement powers like investigatory stops, traffic stops, or warrantless arrests on probable cause.

Q: What about counties that have both a sheriff and a county police department?
A: Both the sheriff's office and a county police department are law enforcement agencies that can apply for speed-detection permits. The marshal's office, even in those counties, is still a creature of the magistrate court and lacks general police authority.

Q: Could the General Assembly fix this by statute?
A: Yes. The General Assembly has the power to expand or change marshal authority by amending O.C.G.A. § 15-10-100 or by passing a local Act for a specific county. The Columbus/Muscogee marshal in the footnote is an example: a local Act vested sheriff-equivalent powers in that particular marshal.

Q: What happened to drivers who got tickets from a marshal-issued radar permit?
A: The opinion did not address retroactive consequences. As a practical matter, a citation issued by an officer without lawful authority to operate the equipment could be challenged. Any defendant in such a case would have wanted to know about the AG opinion and the specific local Act (or absence of one) for the marshal's county.

Background and statutory framework

Georgia distinguishes between two structurally different ways to provide policing at the county level. A sheriff is a constitutional officer with broad common-law and statutory law-enforcement authority. A county police department is a separate creation under O.C.G.A. § 36-8-1, established by referendum or local Act, with general police powers vested in its officers. Some counties have both; many have only the sheriff.

A county marshal's office, by contrast, exists primarily to support the magistrate court. Magistrate courts handle small civil cases (typically up to $15,000 at the time of this opinion), preliminary criminal matters, and certain warrants. The marshal serves the same role for the magistrate court that the sheriff serves for the superior court: civil process, court security, execution of writs.

The 1995 unofficial AG opinion U95-14 had already explained this structural distinction. The 2005 opinion extends it to the speed detection context: because Title 40 Chapter 14 is built around peace officers in law enforcement units, and marshals are neither, the speed-detection-device permitting system simply does not reach them.

The footnote about Columbus/Muscogee illustrates the safety valve. Where a local Act has specifically given marshal positions sheriff-equivalent powers, the analysis is different. That kind of local-Act authority is the meaning of "independent legal authorization" the AG identifies as the only path that could let a marshal lawfully operate radar in Georgia.

Citations and references

Statutes:
- O.C.G.A. §§ 40-14-2 and 40-14-3 (speed detection devices; permit and operation requirements)
- O.C.G.A. § 15-10-100 (county marshal's office; constable role for magistrate courts)
- O.C.G.A. § 15-10-103 (marshal arrest authority)
- O.C.G.A. § 35-8-2(8) (definition of peace officer)
- 1983 Ga. Laws 4443, 4449 (Columbus/Muscogee local Act)

Prior AG opinions cited:
- 1995 Op. Att'y Gen. U95-14 (county marshal not equivalent to county police force)
- 1987 Op. Att'y Gen. U87-21 (constables lack general police powers)
- 1982 Op. Att'y Gen. 82-45 (marshal duties)

Source

• Landing page: https://law.georgia.gov/opinions/2005-1
• Original PDF: not linked from landing page

Original opinion text

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."