Could Maryland's Motor Vehicle Administration let its investigators carry handguns, and were those investigators police officers?

Plain-English summary

Maryland's Motor Vehicle Administrator asked the Attorney General whether the MVA could let investigators in its Division of Investigative Services carry handguns, whether the MVA could arm only some investigators (for example, by geographic assignment) rather than all of them, and whether these investigators counted as police officers because of a recent law giving them citation authority. The MVA had barred its investigators from carrying firearms on duty since 1972 but was reconsidering that policy.

The Attorney General concluded that the Division's investigators were neither "law enforcement personnel" nor police officers under Maryland law: they were not part of a designated police force, were not trained or authorized to maintain the peace, safety, and order of the community, and, although they could issue citations for certain vehicle registration, titling, and excise-tax violations under TR §12-104.1, they had no authority to make arrests. Because of that, the investigators did not fall within the statutory exemption that lets "law enforcement personnel" carry handguns without an individual permit. The opinion concluded the MVA could authorize investigators to carry handguns, but only if each investigator obtained an individual permit from the Superintendent of the Maryland State Police, who could limit the permit's geographic area, circumstances, or timing, and the MVA could impose its own narrower limits (though not broader ones) on top of whatever the Superintendent allowed. The opinion also concluded the MVA could choose to arm all investigators or only some, using reasonable criteria such as geographic assignment, and it flagged potential liability issues, including that individual investigators could face personal liability for a federal civil rights violation under 42 U.S.C. §1983 if they used excessive force, while the MVA and those responsible for training investigators could also face liability if training on the use of handguns was inadequate.

Currency note

This opinion was issued in 1992. 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 mentioned here, particularly the current numbering and content of Maryland's handgun permit statutes, which were part of Article 27 in 1992 and have since been recodified into the Criminal Law and Public Safety Articles.

Common questions

Could Maryland's MVA let its investigators carry handguns in 1992? Yes, according to this opinion, but only if the MVA required each investigator to obtain an individual handgun permit from the Superintendent of the Maryland State Police, since the investigators did not qualify for the statutory exemption that let "law enforcement personnel" carry handguns without a permit.

Were MVA Division of Investigative Services investigators considered police officers? No. The opinion concluded the investigators were not police officers under the Maryland Vehicle Law because they had no authority to arrest offenders, and issuing a citation for a vehicle-registration or titling violation was not the same as making an arrest.

Could the MVA arm only some investigators, like those in certain parts of the state? Yes. The opinion concluded the MVA could require all investigators to be armed or could impose reasonable criteria, such as arming only investigators assigned to particular geographic areas, since the same geographic limits could independently be imposed by the State Police Superintendent on the permits themselves.

Could an MVA investigator be personally sued for using a handgun? The opinion identified this as a real risk: an investigator could face personal liability under the federal civil rights statute, 42 U.S.C. §1983, for using excessive or objectively unreasonable force, and the MVA or those responsible for training investigators could also face liability if the training on handgun use was inadequate and that inadequacy caused an injury.

Background and statutory framework

Under Article 27, §36B(b), it was a misdemeanor to wear, carry, or transport a handgun without an exemption or a permit. The "law enforcement personnel" exemption in §36B(c)(1)(i) covered full-time members of a police force or similar agency responsible for preventing and detecting crime and enforcing the law, as defined in §36F(i). The opinion found that the MVA, unlike other divisions within the Department of Transportation that had their own statutorily designated police forces (such as the State Aviation Administration Police Force or the Maryland Port Administration Police Force), had no designated police force, and its investigators were not trained or authorized to maintain the peace, safety, and order of the community the way a police force is. The investigators' citation authority under TR §12-104.1 was limited to registration, titling, and excise-tax violations and did not include authority to arrest, which the opinion treated as the dividing line between a police officer and other government personnel under TR §11-147.

Without the "law enforcement personnel" exemption, the opinion turned to the individual handgun permit process in Article 27, §36E(a), which required the State Police Superintendent and the Handgun Permit Review Board to find, case by case, that an applicant had "good and substantial reasons" to carry a handgun as a precaution against apprehended danger. The Superintendent could limit a permit's geographic area, circumstances, or timing under §36E(d), and the opinion reasoned that the MVA could add its own narrower restrictions but could not exceed whatever limits the Superintendent set. On the liability questions, the opinion distinguished ordinary state-law tort claims, for which investigators would generally be immune from personal liability if acting within the scope of their duties and without gross negligence or malice under SG §12-105 and CJ §5-399.2, from federal civil rights claims under 42 U.S.C. §1983, where an investigator could be personally liable for an unreasonable use of force, and where the State itself or those responsible for handgun training could face liability for deliberately indifferent training that caused an injury.

Citations and references

Statutes:

• Article 27, §36B(b), the misdemeanor prohibition on wearing, carrying, or transporting a handgun without an exemption or permit
• Article 27, §36B(c)(1)(i), the exemption for "law enforcement personnel," which the opinion held did not cover MVA investigators
• Article 27, §36B(c)(2), permitting handgun carriage under an individual permit issued by the State Police Superintendent
• Article 27, §36F(i), defining "law enforcement personnel"
• Article 27, §36E(a) and (d), governing the individual handgun permit application and the Superintendent's authority to limit a permit's scope
• TR §12-104.1, giving Division investigators citation authority for certain registration, titling, and excise-tax violations
• TR §11-147, defining a "police officer" under the Maryland Vehicle Law by reference to arrest authority
• SG §12-105 and CJ §5-399.2, governing state employee immunity from common-law tort liability for acts within the scope of duty
• SG §12-104, making the MVA liable for a covered employee's tort up to the limits of self-insurance
• SG §§12-404 and 12-405, authorizing the Board of Public Works to pay damages assessed against a state employee
• 42 U.S.C. §1983, the federal civil rights statute under which an investigator could face personal liability for excessive force

Cases:

• Huger v. State, 285 Md. 347, 352, 402 A.2d 880 (1979), defining a "police force" as a body trained in law enforcement and given authority to maintain peace, safety, and order
• Bouldin v. State, 276 Md. 511, 516, 350 A.2d 130 (1976), defining an arrest as detention of a suspect for the purpose of prosecution
• Little v. State, 300 Md. 485, 510, 479 A.2d 903 (1984), on when an arrest occurs through physical restraint or voluntary submission
• Stevenson v. State, 287 Md. 504, 513, 413 A.2d 1340 (1980), on citizen's-arrest authority versus a police officer's broader misdemeanor-arrest authority
• Dougherty v. State, 40 Md. App. 535, 537, 392 A.2d 1165 (1978), cited for the proposition that issuing a citation is not itself an arrest
• Snowden v. Handgun Permit Review Board, 45 Md. App. 465, 469, 413 A.2d 295 (1980), on the Superintendent and Board's authority to determine "apprehended danger" for permit purposes
• Brower v. County of Inyo, 489 U.S. 593 (1989), on when a shooting amounts to a Fourth Amendment seizure
• Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir. 1991), holding an unintended shooting of a bystander was not a Fourth Amendment seizure
• Graham v. Connor, 490 U.S. 386 (1989), the "objectively unreasonable" standard for excessive-force claims
• City of Canton v. Harris, 489 U.S. 381 (1989), the deliberate-indifference standard for inadequate-training liability
• Revene v. Charles County Commissioners, 882 F.2d 870, 875 (4th Cir. 1989), requiring inadequate training to be shown as the cause of the injury

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1992/Volume77_1992.pdf (this opinion appears at printed pages 233-239 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Vehicle Laws-Motor Vehicle Administration - Carrying of Handguns By Investigators

July 14, 1992

Mr. W. Marshall Rickert
Motor Vehicle Administrator

You have asked for our opinion on a series of questions related to the authority of certain investigators employed by the Motor Vehicle Administration ("MVA") to carry handguns. Specifically, you ask the following questions:

1. May the MVA authorize its investigative personnel to be armed, and if so, what legal requirements are connected with implementing such a decision?

2. May the MVA require certain investigators who have permits to carry weapons and yet not require other investigators to do so even though they perform the same function? May a decision to allow investigators to be armed be made on a geographic basis or must such a decision affect all agents?

3. Are agents of the MVA's Division of Investigative Services ("Division") considered police officers as a result of recent legislation providing them with citation authority?

For the reasons stated below, we conclude as follows:

1. The MVA may authorize the Division's investigators to carry handguns, subject to the approval of, and conditions imposed by, the Superintendent of the Maryland State Police. Although the MVA may authorize its investigators to carry handguns, it must ensure that each investigator receives adequate training in the use of a handgun before carrying, wearing, or transporting the handgun, and it must establish rules and guidelines on the appropriate conditions under which an investigator is permitted to use a handgun. In addition, the Division's investigators may not wear, carry, or transport a handgun without a permit.

2. The MVA may require that all investigators be armed or it may impose reasonable criteria on who are to be armed - for example, by requiring that only investigators assigned to certain geographic areas of the State be armed.

3. The Division's investigators are not law enforcement personnel or police officers.

I

Background

The Division is responsible for conducting all MVA investigations except those concerning persons licensed in an occupation or profession regulated by the MVA under Title 15 of the Transportation Article ("TR" Article).1 The purposes behind the investigations are varied. The Division's investigators repossess driver's licenses, vehicle registration cards, and registration plates, after a licensee, registrant, or owner has failed to comply with an order of the MVA to return the document or plate. The investigators may also be required to conduct interviews or engage in surveillance concerning a person who seeks reinstatement of a driver's license or a person who is the subject of a complaint that the licensee is an unfit or unsafe driver.

On April 4, 1972, the MVA instituted a policy barring a field agent or investigator assigned to the Division from carrying firearms on his or her person or in State vehicles while the agent or investigator is on duty. Since then, this policy has been the subject of some discussion within the MVA, but it has been in force the entire 20 year period. We understand that the MVA is currently considering whether to rescind the 1972 policy and to permit investigators to carry firearms.

II

Carrying of Handguns by Investigators

Under Article 27, §36B(b), it is a misdemeanor for a person to "wear, carry, or transport any handgun" on or about his person or to "wear, carry, or knowingly transport any handgun" in a vehicle. This prohibition does not apply if the person is considered "law enforcement personnel ... of this State ..." Article 27, §36B(c)(l)(i). In addition, a person may carry a handgun if the Superintendent of the Maryland State Police has issued a permit authorizing the person to do so. See Article 27, §36B(c)(2).

1
Investigations of persons licensed under Title 15 are conducted by investigators assigned to the MVA's Division of Licensing and Consumer Services.

A. "Law Enforcement Personnel" Exception

The term "law enforcement personnel" means any "full-time member of a police force or other agency of... a state ... who is responsible for the prevention and detection of crime and the enforcement of the laws of... a state ...." Article 27, §36F(i). A "police force" is "a body of persons trained in methods of law enforcement and crime prevention and detection, and given authority to maintain the peace, safety, and order of the community." Huger v. State, 285 Md. 347, 352, 402 A.2d 880 (1979) (quoting Black's Law Dictionary (4th ed. rev. 1968)).

The MVA, unlike some of the other modal administrations with the Department of Transportation, does not have a designated "police force." See TR §§5-212 (State Aviation Administration Police Force), 6-210 (Maryland Port Administration Police Force), 4-208 (Toll Facilities Police Force), and 7-207 (Mass Transit Administration Police Force). Nor do the Division's investigators constitute a police force in fact, since they are neither authorized nor trained to maintain the peace, safety, and order of the community. Under TR §12-104.1, the Division's investigators may issue citations for violations of the vehicle registration, titling, and excise tax provisions of TR Title 13 and the provisions of TR Title 17 relating to required security. However, the powers that may be exercised by an investigator for the Division do not extend to general enforcement of the laws of Maryland.

Further, the Division's investigators are not police officers under the Maryland Vehicle Law. To be a police officer under the Maryland Vehicle Law, the person must be authorized "to make arrests for violations of any of the provisions of the Maryland Vehicle Law ..." TR §11-147. An arrest is the "detention of a known or suspected offender for the purpose of prosecuting him for a crime." Bouldin v. State, 276 Md. 511, 516, 350 A.2d 130 (1976). An arrest occurs when the arrestee is physically restrained or when the arrestee voluntarily submits to an arrest. Little v. State, 300 Md. 485, 510, 479 A.2d 903 (1984).2

An investigator with the Division may issue citations for certain violations of TR Titles 13 and 17. However, the investigator is not specifically authorized to arrest an offender and the issuance of a citation does not constitute an arrest. Cf. Dougherty v. State, 40 Md. App. 535,

2
Any individual may arrest without a warrant if the arrester has reasonable grounds to believe a felony has been committed by the arrestee or a misdemeanor, which amounts to a breach of peace, is being committed in front of the arrester. Stevenson v. State, 287 Md. 504, 513, 413 A.2d 1340 (1980). Only a police officer is authorized to arrest for a misdemeanor if the misdemeanor does not amount to a breach of peace. Id.

537, 392 A.2d 1165 (1978) (issuance of a game law citation was not an arrest.)

Inasmuch as an investigator is not authorized to make arrests for violations of the Maryland Vehicle Law, the investigator is not a police officer under TR §11-147. Further, since an investigator is not "law enforcement personnel" under Article 27, §36B(c)(l), the Division's investigators are not exempt from the statute that bars the transportation of a handgun without a permit.

B. Permits for Investigators

Article 27, §36E(a) allows the State Police Superintendent to issue a permit to carry a handgun if the applicant satisfies the following condition, among others:

(6) Has, based on the results of investigation, good and substantial reasons to wear, carry, or transport a handgun, provided however, that the phrase "good and substantial reason" as used herein shall be deemed to include a finding that such permit is necessary as a reasonable precaution against apprehended danger.3

3 The other criteria are as follows:
(1) Is eighteen years of age or older; and (2) Has not been convicted of a felony or of a misdemeanor for which a sentence of imprisonment for more than one year has been imposed or, if convicted of such a crime, has been pardoned or has been granted relief pursuant to Title 18, §925 of the United States Code; and
(3) Has not been committed to any detention, training, or correctional institution for juveniles for longer than one year after an adjudication of delinquency by a juvenile court; provided, however, that a person shall not be disqualified by virtue of this paragraph (3) if, at the time of the application, more than ten years has elapsed since his release from such institution; and (4) Has not been convicted of any offense involving the possession, use, or distribution of controlled dangerous substances; and is not presently an addict, an habitual user of any controlled dangerous substance not under legitimate medical direction, or an alcoholic; and
(5) Has, based on the results of investigation, not exhibited a propensity for violence or instability which may reasonable render his possession of a handgun a danger to himself or other law-abiding persons.

Under this provision, the Superintendent and the Handgun Permit Review Board ("Board") determine, on a case-by-case basis, whether an applicant should be issued a permit.4

4
Whether the MVA may require that all applicants for investigator positions be eligible for handgun permits need only be addressed if the Superintendent decides that the Division's investigators need handguns as a reasonable precaution against apprehended danger. With that assumption, the MVA may, as a condition or qualification of employment, require that an applicant for an investigator's position with the Division either (i) have a permit to carry a handgun or (ii) meet the prerequisite requirements of §36E(a)(l) through (4) and receive a permit during the probationary period. Under Chapter 168 (House Bill 610) of the Laws of Maryland 1992, the Department of Transportation may incorporate any qualifications it chooses to adopt into its new classification system.

Moreover, the Superintendent may limit the geographic area, circumstances, or times during which the permit is effective. Article 27, §36E(d). Thus, the Superintendent and the Board may determine that the issuance of a handgun is to be limited to certain geographic areas since only in those areas are there "good and substantial reasons" for the investigator to wear, carry, or transport a handgun. The Superintendent and the Board, as opposed to the applicant or the MVA, determine whether there is "apprehended danger" to the applicant for the permit. Snowden v. Handgun Permit Review Board, 45 Md. App. 465, 469, 413 A.2d 295 (1980). Therefore, if the MVA chooses to allow its investigators to carry handguns, it must limit the transportation of the weapons to the geographic limitations and conditions imposed by the Superintendent.

If the Superintendent issues permits without limitations, there is no reason why the MVA could not impose its own geographic, temporal, or circumstantial limitations. It simply cannot broaden the restrictions imposed by the Superintendent.

III

Potential Liability of the MVA and Its Employees

In determining whether the MVA should permit the wearing and transporting of handguns by the Division's investigators, several issues of potential liability should be considered by the MVA and the State Treasurer's Office. If a person is injured by an investigator, that individual may have a cause of action for the common law torts of negligence, assault, or battery or for violating the individual's constitutional or civil rights.

The investigator would be immune from liability for the common law torts if the investigator was acting within the scope of the investigator's public duties when the alleged tort occurred and if the actions of the investigator did not constitute gross negligence or malicious conduct. §12- 105 of the State Government Article ("SG" Article) and §5-399.2 of the Courts and Judicial Proceedings Article ("CJ" Article). Subject to the provisions of CJ §5-399.2, the MVA would be liable for a tort committed by an investigator up to the limits of self-insurance. SG §12-104.

An investigator could be personally liable, however, for a violation of an individuals' civil rights under Title 42 U.S.C., §1983.5 For example, the shooting of a person amounts to a seizure if the defendant intends to terminate the person's movement. Brower v. County of Inyo, 489 U.S. 593 (1989). Cf. Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir. 1991) (unintended shooting of an innocent bystander was not a seizure under the Fourth Amendment). A claim that excessive force was used in the course of a seizure could succeed if the investigator's actions were "objectively unreasonable" in light of the facts and circumstances confronting the investigator. Graham v. Connor, 490 U.S. 386 (1989).

5
The Board of Public Works is authorized to pay damages against a State employee under SG §§12-404 and 12-405.

Finally, liability for a civil rights violation could extend to those individuals within the State who are responsible for training investigators regarding the use of handguns, including the circumstances under which firearms may be used and the degree of force authorized. To be liable, a defendant must be shown to be deliberately indifferent to the need for training. City of Canton v. Harris, 489 U.S. 381 (1989). Moreover, the inadequate training must be shown to have caused the injury. Revene v. Charles County Commissioners, 882 F.2d 870, 875 (4th Cir. 1989).

Thus, it is critical that specific guidelines be established regarding the circumstances justifying the use of handguns. While the Police Training Commission may provide training on the use of handguns and the degree of force authorized by police officers, the Division's investigators are not police officers, and the allowable threshold of force for the investigators would not be the same as that for police officers.

V

Conclusion

In summary, it is our opinion that:

1. The MVA may authorize the Division's investigators to carry handguns, subject to the approval of, and conditions imposed by, the Superintendent of the Maryland State Police. Although the MVA may authorize its investigators to carry handguns, it must ensure that each investigator receives adequate training in the use of a handgun before carrying, wearing, or transporting the handgun, and it must establish rules and guidelines on the appropriate conditions under which an investigator is permitted to use a handgun. In addition, the Division's investigators may not wear, carry, or transport a handgun without a permit.

2. The MVA may require that all investigators be armed or it may impose reasonable criteria on who are to be armed - for example, by requiring that only investigators assigned to certain geographic areas of the State be armed.

3. The Division's investigators are not law enforcement personnel or police officers.

J. Joseph Curran, Jr.
Attorney General

Edward R. K. Hargadon
Assistant Attorney General