Does Minnesota law bar news media from photographing juveniles in police custody, and does a county sheriff have jurisdiction to investigate crimes inside cities that have their own police force?

Plain-English summary

Clay County Attorney Todd S. Webb sent the AG two unrelated questions about local law enforcement. The AG answered both in one combined opinion (numbered 268l with cross-reference to 390a-6).

Question one: photos of juveniles in custody. Minn. Stat. § 260.161, subd. 3(a) said "no photographs of a child taken into custody may be taken without the consent of the juvenile court" and made violation a misdemeanor. Read in isolation, that sentence sounded like a flat ban on anyone photographing a juvenile in custody, including news media. The AG read it narrowly: the prohibition applied only to peace officers, not to journalists.

Two reasons. First, the heading of subdivision 3 was "Peace Officer Records of Children," and the rest of subdivision 3(a) discussed peace officer records under § 3C.08, subd. 3 (1996). Statutory headings were not binding (under Minn. Stat. § 3C.08, subd. 3) but could indicate legislative intent (Hyland v. Metropolitan Airports Comm'n, 538 N.W.2d 717 (Minn. Ct. App. 1995)). The Legislature was unlikely to have buried a flat ban on press conduct in the middle of a peace-officer records paragraph.

Second, broad application to news media would have raised serious First Amendment problems. The U.S. Supreme Court held in Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S. Ct. 2667 (1979), that "if a [media source] lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." The state interest in rehabilitating juveniles through anonymity was not enough to override the press's right to publish lawfully obtained information. Earlier, Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 97 S. Ct. 1045 (1977), reversed a district court's order forbidding the press from publishing a juvenile's name and photograph that media had obtained at a public courtroom proceeding. The Minnesota Court of Appeals applied the same principle in Minneapolis Star and Tribune Co. v. Schmidt, 360 N.W.2d 433 (Minn. Ct. App. 1985), striking down a juvenile court order that barred press coverage of a juvenile proceeding.

Under Minn. Stat. § 645.17(1), courts presume the Legislature did not intend to violate the U.S. Constitution. So the AG read § 260.161, subd. 3(a) to reach only peace officers, who had no First Amendment right to take official custody photographs in violation of the statute.

Question two: sheriff's jurisdiction in cities with their own police. The AG concluded that county sheriffs had jurisdiction to investigate crimes anywhere in the county, including within municipalities that employed their own police forces.

The reasoning rested on Minn. Stat. § 387.03 ("The sheriff shall keep and preserve the peace of his county") and In re Olson, 211 Minn. 114, 300 N.W. 398 (1941) ("The sheriff as chief peace officer of his county is responsible both by common and statutory law to keep and preserve peace and good order within his county"). The county boundary was the sheriff's jurisdiction; municipal boundaries within the county were not jurisdictional limits on the sheriff.

The AG addressed a possible counter-argument from Minn. Stat. § 436.05, subd. 1, which allowed cities, towns, and sheriffs to contract to provide police services. The AG read that provision as applying to cross-county contracts (a sheriff providing police service to a city in a different county), not as suggesting that a sheriff needed a contract to enforce criminal law in cities within his own county. Section 436.05, subd. 5 expressly stated that the contracting authority did not relieve the sheriff of any duties imposed by law.

So Clay County Sheriff retained authority to investigate criminal matters within Clay County's incorporated cities, regardless of whether those cities employed their own police officers.

Currency note

This opinion was issued in 1997. 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.

Historical context: what the AG concluded

The opinion's two questions sat at opposite ends of the local law enforcement spectrum: one about what the press could see, the other about who could investigate. The AG handled both within a single document because both came from the same county attorney's office.

On the press question, the AG worked through a textbook tension between literal statutory language and constitutional avoidance. The first sentence of § 260.161, subd. 3(a) was facially broad ("no photographs of a child taken into custody may be taken"). The AG used three tools to narrow it:

1. Heading context. The subdivision heading "Peace Officer Records of Children" was advisory under § 3C.08, subd. 3 but signaled legislative purpose.
2. Surrounding text. The rest of subdivision 3(a) referenced peace officer records under § 3C.08, subd. 3 (1996). A flat press restriction would have been an odd fit.
3. Constitutional avoidance. Smith v. Daily Mail and Oklahoma Publishing (and the Minnesota application of Smith in Schmidt) made clear that punishing press publication of lawfully obtained information about juveniles required a state interest "of the highest order," which juvenile rehabilitation did not satisfy. The Legislature was presumed not to have meant to violate that doctrine.

On the jurisdiction question, the AG drew on a long-standing constitutional and statutory framework that treated the sheriff as the county's chief peace officer. Minnesota cities and towns retained their own police powers, but municipal police forces operated alongside the sheriff's county-wide authority, not in displacement of it.

The opinion's footnote distinguished §§ 387.03, subd. 1 and 436.05, subd. 5 to show that statutory contracting authority for police services did not narrow the sheriff's inherent jurisdiction. The contracting provisions applied to interjurisdictional arrangements (typically with cities outside the sheriff's own county), not to operations within the sheriff's own county.

Both holdings were defensive: the press question protected First Amendment freedoms by reading the statute narrowly, and the jurisdiction question preserved the sheriff's traditional authority by refusing to read a contracting provision as a backdoor limit.

Common questions

Q: Could a newspaper publish a photo of a juvenile being taken into custody?
A: The AG read § 260.161, subd. 3(a) as not applying to news media at all. So journalists were not subject to the statute's prohibition on taking photos of children in custody. Whether the photo could be lawfully obtained in a given case (e.g., from a public street, from a public courthouse hallway) was a separate question. Smith v. Daily Mail protected publication of lawfully obtained truthful information.

Q: Could a peace officer take a custody photo for police files?
A: Without consent of the juvenile court, no. Section 260.161, subd. 3(a) prohibited peace officers from taking photos of children in custody without juvenile court consent, and violation was a misdemeanor.

Q: Was the juvenile's identity protected from publication?
A: Under Smith and Schmidt, the state could not constitutionally punish a media source for publishing the juvenile's name or photo if the source had lawfully obtained the information. The state could close certain proceedings or seal certain records, but it could not penalize publication of information already in the public domain or obtained from public sources.

Q: Did a county sheriff need permission from a city to investigate a crime that occurred inside the city?
A: No. The sheriff's authority under Minn. Stat. § 387.03 ran county-wide. Within the county, the sheriff did not need contractual authority to investigate or enforce the law. Coordination between the sheriff and a municipal police force was a practical matter, not a jurisdictional requirement.

Q: Could a city demand that the sheriff stay out of a particular investigation?
A: The opinion did not address that specific scenario, but the legal answer based on § 387.03 was that the sheriff's duty to keep the peace was non-delegable. A city could not by ordinance or resolution restrict the sheriff's statutory authority within the county.

Q: Could two officers (one city, one county) work the same case?
A: Yes. Section 436.05, subd. 1's contracting framework facilitated cross-jurisdictional cooperation, but within the same county, both municipal police and county sheriff's deputies had concurrent authority and routinely worked cooperatively.

Q: Were juveniles' records open to the public under this opinion?
A: The opinion did not directly address juvenile records access. It said only that the photo-prohibition language of § 260.161, subd. 3(a) regulated peace officers, not the press. Separate juvenile court procedures and data practices statutes governed broader records access.

Background and statutory framework

Minnesota's juvenile justice framework included strong confidentiality protections, designed to support rehabilitation by preventing public stigmatization of juveniles charged with offenses. Section 260.161 (the predecessor to the current §§ 260B and 260C juvenile court chapters) regulated peace officer records and other juvenile-related law enforcement data. Subdivision 3(a) addressed photographs of juveniles in custody.

The First Amendment framework for press coverage of judicial proceedings sat in tension with juvenile confidentiality. Smith v. Daily Mail (1979) held that state officials could not constitutionally punish a newspaper for publishing the lawfully obtained name of a juvenile arrested for a serious crime. Oklahoma Publishing (1977) reversed an order forbidding press publication of a juvenile defendant's photograph obtained at a public courthouse transit. Schmidt (Minn. Ct. App. 1985) applied the same rule to a Minnesota juvenile proceeding.

Minnesota's sheriff and municipal police framework lived in Minn. Stat. chapter 387 (sheriffs) and various municipal authority provisions. Section 387.03 stated the sheriff's basic duty: "The sheriff shall keep and preserve the peace of his county." In re Olson (1941) confirmed that the sheriff was the chief peace officer of the county and bore both common-law and statutory responsibility for maintaining peace and good order.

Minn. Stat. § 436.05 authorized cities, towns, and sheriffs to contract for police services. Subdivision 1 covered the contracting authority; subdivision 5 preserved the sheriff's underlying statutory duties.

Section 645.17(1) directed that courts presume the Legislature did not intend to violate the U.S. Constitution, which the AG used as the controlling canon for narrowing § 260.161, subd. 3(a).

The opinion's narrow reading of the photo statute and broad reading of sheriff jurisdiction kept both bodies of law within their established constitutional and statutory limits.

Citations and references

Statutes:
- Minn. Stat. § 260.161, subd. 3(a) (peace officer records of children, photo prohibition)
- Minn. Stat. § 387.03 (sheriff's general duty to keep county peace)
- Minn. Stat. § 436.05, subd. 1 (police service contracts)
- Minn. Stat. § 436.05, subd. 5 (preservation of sheriff's underlying duties)
- Minn. Stat. § 3C.08, subd. 3 (1996) (statutory headings not part of the statute)
- Minn. Stat. § 645.17(1) (presumption against unconstitutional legislative intent)

Cases:
- Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S. Ct. 2667 (1979) (First Amendment limits on punishing publication of juvenile identification)
- Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 97 S. Ct. 1045 (1977) (press right to publish juvenile photographs obtained in public)
- Craig v. Harney, 331 U.S. 367 (1947) (press may report public courtroom proceedings with impunity)
- Hyland v. Metropolitan Airports Comm'n, 538 N.W.2d 717 (Minn. Ct. App. 1995) (statutory headings may indicate intent)
- Minneapolis Star and Tribune Co. v. Schmidt, 360 N.W.2d 433 (Minn. Ct. App. 1985) (Minnesota application of Smith)
- In re Olson, 211 Minn. 114, 300 N.W. 398 (1941) (sheriff as chief peace officer of county)

Other AG opinions referenced:
- Op. Atty. Gen. 733, July 14, 1947 (sheriff's general responsibility for enforcing criminal laws throughout the county)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/268l-19971014.pdf

Original opinion text

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

JUVENILES, CRIMES, PHOTOS: Minn. Stat. § 260.161, subd. 3(a) only prohibits peace officers from taking photos of children in custody and does not prohibit news media.

SHERIFFS, POLICE, JURISDICTION: County sheriffs have jurisdiction to investigate crimes anywhere in their county, even in cities with established police forces.

268l
390a-6
(Cr. ref. 494a, 785d)
October 14, 1997

Mr. Todd S. Webb
Clay County Attorney
Clay County Courthouse
P.O. Box 280
807 North 11th Street
Moorhead, MN 56561-0280

Re: Request for Opinions

Dear Mr. Webb:

In your letter to the Office of the Attorney General, you present substantially the following questions:

QUESTION NO. 1

Does Minn. Stat. § 260.161, subd. 3(a) prohibit only peace officers from taking photographs of a child taken into state custody, or does it also apply to prohibit the media from taking photographs of a juvenile taken into state custody?

OPINION

Minn. Stat. 260.161, subd. 3(a) provides that "no photographs of a child taken into custody may be taken without the consent of the juvenile court . . . . Any person violating any of the provisions of this subdivision shall be guilty of a misdemeanor." The quoted language, taken in isolation, would seem to constitute a prohibition directed to all persons. However, the context in which the language appears indicates that a narrower interpretation is intended.

First the heading of subdivision 3 is "Peace Officer Records of Children." While such headings are not part of the statute, they may nonetheless be taken into account in determining legislative intent. See Hyland v. Metropolitan Airports Comm'n., 538 N.W.2d 717 (Minn. Ct. App. 1995). Furthermore, the remainder of this language in subdivision 3(a) expressly refers to Minn. Stat. § 3C.08, subd. 3 (1996) "peace officers records." It does not seem likely that the legislature would place a prohibition applicable to the general public in the middle of a paragraph otherwise related only to governmental officials.

Second, broad application of the prohibition to private persons, including news media, could give rise to constitutional objections. The United States Supreme Court was confronted with a similar statute in Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S. Ct. 2667 (1979). At issue in Smith was a state statute which provided:

[N]or shall the name of any child, in connection with any proceedings under this chapter, be published in any newspaper without a written order of the court....

Id. at 2668. Violation of this statute was a misdemeanor. Id. The Supreme Court held that this statute violated the First and Fourteenth Amendments to the United States Constitution. The court stated that "if a [media source] lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." Id. at 2671. See also Minneapolis Star and Tribune Co. v. Schmidt, 360 N.W.2d 433, 435 (Minn. Ct. App. 1985) (quoting Smith). In Smith, the state attempted to convince the Court that their statute did further a state interest of the highest order, rehabilitation of the juvenile offender through protection of the offender's anonymity. The Court was unpersuaded by the state's rationale and stated that, "[i]f the information is lawfully obtained, as it was here, the state may not punish its publication except when necessary to further an interest more substantial than is present here." Smith, 99 S.Ct. at 2671.

This decision followed Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 97 S. Ct. 1045 (1977). In Oklahoma a photographer took the picture of a juvenile defendant as he was being transported from the courthouse to a vehicle. Id. at 309. The trial court enjoined the media from publishing either this picture or the defendant's name, which was obtained by media sources attending the court hearing. Id. The Supreme Court reversed the district court's order, holding that the district court had abridged the freedom of the press, in violation of the First and Fourteenth Amendments. Id. at 311-12. In support of this decision, the court quoted Craig v. Harney, 331 U.S. 367, 374 (1947) ("Those who see and hear what transpired [in the courtroom] can report it with impunity" (alteration in original)). Id. at 311.

Minnesota courts recognize this constitutional limitation. In striking down a juvenile court order which prohibited the media from publishing any information about a pending juvenile court proceeding, the Court of Appeals stated:

The possibility that one child's anxiety may increase because of media coverage of this proceeding does not rise to the level of a compelling state interest justifying a restraint on the publication of information obtained from public records and independent sources.

Schmidt, 360 N.W.2d at 435. The court explained that, "[o]nce truthful information is publicly revealed or in the public domain, a court may not 'constitutionally restrain its dissemination.'" Id. (quoting Smith, 443 U.S. at 103, 99 S. Ct. at 2671).

It thus appears that if the Minnesota statute is interpreted to apply to third parties, such as news media, and to prevent these third parties from photographing juveniles, it may potentially violate the First and Fourteenth Amendments to the United States Constitution. In construing statutes, however, we are to presume that "[t]he legislature does not intend to violate the constitution of the United States or of this state[.]" Minn. Stat. § 645.17(1). For the foregoing reasons we do not construe section 260.161, subd. 3(a) to prevent news media from photographing and publishing the photographs of juveniles obtained while the juvenile is "in the public domain," nor to punish those who disseminate such a photograph. Rather, the statute should be applied to law enforcement personnel only.

QUESTION NO. 2

Does the County Sheriff have any jurisdictional limits when investigating criminal conduct occurring in a municipality in the Sheriff's county which employs its own police force?

OPINION

The county sheriff is the chief law enforcement officer for the county. Minn. Stat. § 387.03 ("The sheriff shall keep and preserve the peace of his county"). "A sheriff has a general responsibility for enforcing the criminal laws throughout his county." Op. Atty. Gen. 733, July 14, 1947; In re Olson, 211 Minn. 114, 300 N.W. 398 (1941) ("The sheriff as chief peace officer of his county is responsible both by common and statutory law to keep and preserve peace and good order within his county"). Therefore, within the bounds of the county, the sheriff is responsible for ensuring the criminal laws are enforced and the peace is maintained, regardless of any municipal borders within the county and regardless of whether any of these municipalities employ independent police forces.

Minn. Stat. § 436.05, subd. 1 provides that "[a]ny home rule charter or statutory city, town or the sheriff of any county may contract for the furnishing of police service to any other home rule charter or statutory city or town ...." This statute does not imply that, in order to enforce criminal laws in a municipality within its own county, a sheriff must have contractual authority to do so. Rather, this section refers to a sheriff contracting with municipalities outside of its own county. For within its own county, the sheriff is the chief law enforcement officer with a non-delegable duty to enforce the laws and "preserve the peace of his county"; this statute explicitly does not relieve the sheriff "of any duties imposed by law." Minn. Stat. §§ 387.03, subd. 1; 436.05, subd. 5. The County Sheriff therefore has the authority to investigate criminal matters within the borders of a municipality employing an independent police force.

Very truly yours,

HUBERT H. HUMPHREY III
Attorney General

PAUL R. KEMPAINEN
Assistant Attorney General

WILLIAM F. KLUMPP, JR.
Assistant Attorney General

AG:36697v1