Can North Carolina prohibit or regulate private prisons that house federal or out-of-state inmates, and what authority do private prison employees have to make arrests?

Plain-English summary

By 2000, several states were grappling with the question of whether they could keep private prisons (often built to house federal inmates or inmates from other states under contract) out of their borders, and what powers private prison guards actually had on NC soil. Senator Frank Balance and Representative David Redwine asked the NC AG to spell out the answer in nine sub-questions. Special Deputy AG W. Dale Talbert wrote the response.

The opinion drew a sharp line between two scenarios.

Federal inmates. When a federal facility houses federal inmates, including DC felons transferred to the federal Bureau of Prisons under the 1997 National Capital Revitalization Act, the Supremacy Clause shuts down most state attempts to block the facility. The federal government can put a prison anywhere in the United States under 18 U.S.C. § 4003. State and local government can require compliance with national building codes and other safety standards, and can regulate the law-enforcement-authority side (firearms, use of force, arrest powers, professional licensure of staff), but cannot prohibit construction or operation outright. The BOP's own policy is to require its private contractors to comply with state and local building, zoning, and safety law, so the practical conflict was narrower than it might have looked.

Out-of-state inmates (non-federal). When a private prison would hold inmates convicted in other states under a private contract, NC can use its police power to either prohibit or regulate that activity. The General Assembly has broad authority to enact laws protecting public safety and welfare. A categorical ban on private prisons holding non-federal out-of-state inmates would be a permissible exercise of police power, subject to the usual reasonableness review.

Authority of private prison employees. Private prison employees are not inherently law enforcement officers. Under § 15A-401, only sworn law enforcement officers or other peace officers specifically authorized by statute may arrest. A private citizen may temporarily detain another person under § 15A-404 when there is probable cause to believe a serious crime occurred, but must immediately turn the person over to law enforcement. A private prison employee who wants real arrest authority has three paths: become a sworn officer with a sponsoring municipal or county agency, get deputized by a sheriff under § 17E-8, or become commissioned as a Company Police Officer under § 74E-2. Each path has its own limits. Company Police Officers, for instance, can only arrest on property owned by or in the possession of their employer or the entity that contracted for their services (§ 74E-6(c)(1)-(2)), with a narrow continuous-pursuit exception.

Escapes and mutual aid. § 14-256.1 already makes it a Class H felony for an out-of-state-convicted inmate to escape from a private correctional facility in NC. The AG suggested the General Assembly could consider amending the statute to expressly cover federal inmates too, just for clarity. Private prison operators are not within the definition of "law enforcement agency" in § 160A-288(b)(1), so they cannot be parties to a mutual aid agreement under existing law.

Currency note

This opinion was issued in 2000. 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. Private prisons are a moving target legally: the federal BOP discontinued its private-prison contracts at various points in the 2010s and 2020s, federal supremacy doctrine continues to evolve, and NC may have amended Chapters 14, 15A, 74E, 148, or 160A in ways that affect this analysis.

Background and statutory framework

The DC Revitalization Act. Pub. L. 105-33 § 11201 directed the federal BOP to take custody of the District of Columbia's sentenced felon population, including persons convicted under the DC Code, and to house a portion in private contract facilities. DC convicts thereby became "federal inmates" for purposes of 18 U.S.C. § 4001 even though their underlying convictions were not for violations of federal criminal law. That mattered because federal prison operations are largely immune from state interference.

18 U.S.C. § 4003. This statute authorizes the U.S. Attorney General to "establish prisons in any state." When read together with the BOP's general authority to manage federal inmates, it forecloses state attempts to prohibit federal prisons within state borders.

40 U.S.C. § 619. Federal buildings must be constructed in compliance with nationally recognized model building codes and, after consideration of local zoning laws, with state and local recommendations. But § 619(e) bars any suit against the United States for failure to meet these standards. The compliance is functionally a federal policy choice, not a state-enforceable right.

NC police power. The state's police power is "as extensive as is necessary for protection of public safety and general welfare." Regulation must rest on some distinguishing feature of the activity that, unregulated, would harm the public, and must be reasonable in degree. In re Guess, Armstrong, Treants Enterprises, Harris, McCleary, and Hartford Accident together establish the contours.

Arrest authority under NC law. § 15A-401 limits arrest authority to sworn law enforcement officers or other peace officers specifically authorized by statute. § 15A-405 lets citizens "assist" officers when asked. § 15A-404 permits citizen detention for serious crimes with immediate notification of an officer. Other arrests are illegal, per Mobley.

Company Police Officers (Chapter 74E). Created for corporations engaged in providing on-site police security services. Officers have arrest power only on property owned by or in the possession of their employer or the contracting entity (§ 74E-6(c)(1)-(2)). They can pursue across boundaries only when in "immediate and continuous pursuit" for an offense within their territorial jurisdiction (§ 74E-6(c)(3)). The AG flagged an open question whether a private corrections company can even qualify as a Company Police Agency, since § 74E-2(b) speaks of "police security personnel services," not correctional services.

Self-defense and defense of property. If a private prison employee has no statutory arrest authority, the only legal basis to use force against an inmate is the common law of self-defense and defense of property. Anderson, Jennings, Lee, and Bailey set the framework: reasonable force only, no deadly force unless threatened with felonious force, and the right to defend property up to but not including endangering human life or great bodily harm.

Mutual aid agreements. § 160A-288(a) lets law enforcement agencies temporarily assist each other. § 160A-288(b)(1) defines "law enforcement agency" to include only municipal police departments, county police departments, and sheriff's departments. Private prison operators do not fit, so they cannot be parties.

Sex offender registration. Question 8 confirmed § 14-256.1 makes felony escape from a private correctional facility a Class H felony, and the AG suggested an optional amendment to clarify federal inmate coverage.

Common questions

Q: Could a NC county zone out a federal-inmate private prison?

A: The AG concluded NC and its localities cannot prohibit construction of a private prison built to hold federal inmates. Federal supremacy forecloses outright prohibition. Reasonable building, fire, and safety regulations applied evenhandedly are permissible, though the federal government's compliance is largely voluntary in practice.

Q: Could the state ban private prisons housing inmates from other states?

A: The AG concluded yes. NC's police power lets the General Assembly prohibit private prisons that hold non-federal out-of-state inmates outright, or regulate them as it sees fit, subject to ordinary constitutional limits.

Q: Could a private prison employee make an arrest?

A: The AG concluded not without going through one of three pathways: sworn law enforcement certification with a sponsoring municipal or county agency, sheriff deputization under § 17E-8, or Company Police Officer commissioning. Each pathway has limits. Outside those paths, the employee has only the citizen-detention authority of § 15A-404, plus self-defense and defense-of-property at common law.

Q: Could the General Assembly let private prison operators "deputize" their own employees?

A: The AG concluded no, not under existing law. Only sheriffs can deputize. The legislature would have to amend Chapter 17E to authorize anything else.

Q: Could a private prison enter a mutual aid agreement with a sheriff's department?

A: The AG concluded no. Private prison operators are not within the statutory definition of "law enforcement agency" in § 160A-288(b)(1).

Q: Was § 14-256.1 broad enough to cover federal-inmate escapes?

A: The AG read § 14-256.1 to cover any person "convicted in a jurisdiction other than North Carolina," which would include federal convictions. The AG offered optional amendment language for the General Assembly's consideration.

Citations from the opinion

• N.C. Gen. Stat. §§ 14-256.1, 15A-401, 15A-404, 15A-405, 17E-8, 74E-2, 74E-6, 148-4, 148-46, 150B-21.1, 160A-288, 160A-288.1, 162-35
• 18 U.S.C. §§ 4001, 4003, 4081
• 40 U.S.C. § 619
• Pub. L. 105-33 §§ 11201(a), (b), (c)
• D.C. Code §§ 24-1201(a), (b)
• 12 N.C.A.C. 9C.0301; 12 N.C.A.C. 10B.0401
• Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190 (1983)
• State v. Mobley, 240 N.C. 476, 83 S.E.2d 100 (1954)
• State v. Anderson, 230 N.C. 54, 51 S.E.2d 895 (1949)
• State v. Jennings, 276 N.C. 157, 171 S.E.2d 447 (1970)
• State v. Lee, 258 N.C. 44, 127 S.E.2d 774 (1962)
• Bailey v. Ferguson, 209 N.C. 264, 183 S.E. 275 (1936)
• In re Guess, 327 N.C. 46, 393 S.E.2d 833 (1990)
• Armstrong v. N.C. State Board of Dental Examiners, 129 N.C. App. 153, 499 S.E.2d 462 (1998)
• Treants Enterprises, Inc. v. Onslow County, 320 N.C. 776, 360 S.E.2d 783 (1987)
• State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940)
• State v. McCleary, 65 N.C. App. 174, 308 S.E.2d 883 (1983)
• Hartford Accident and Indemnification Co. v. Ingram, 290 N.C. 457, 266 S.E.2d 498 (1976)

Source

• Landing page: https://ncdoj.gov/opinions/private-prisons/

Original opinion text

Reproduced from the NCDOJ landing page. The linked landing page is authoritative.

Re: Advisory Opinion, Private Prisons

Dear Senator Ballance and Representative Redwine:

You pose a series of questions concerning the State's authority to regulate or otherwise control the construction and operation of private prisons to house inmates convicted in federal court or the courts of other states. You also inquire about the authority of private prison employees to engage in law enforcement activities. This advisory letter responds to your questions.

QUESTION 1. Are District of Columbia inmates who are transferred to the custody of the federal Bureau of Prisons legally classified as federal inmates?

ANSWER: Yes.

The National Capital Revitalization and Self-Government Improvement Act of 1997 (Revitalization Act) mandates that the federal Bureau of Prisons (BOP) house a portion of the District of Columbia's sentenced felon population in private contract facilities. Pub.L. 105-33, §§ 11201(c)(1). We are informed and believe the District of Columbia's sentenced felon population includes persons incarcerated for violations of the District of Columbia Code as well as the criminal laws of the United States. Ordinarily only persons who have violated an act of Congress and are imprisoned or otherwise detained by the United States are properly considered "federal inmates." 18 U.S.C. 4001. However, in the Revitalization Act Congress has declared any and all of the inmates transferred to the BOP under its authority "shall be subject to any law or regulation applicable to persons committed for violations of laws of the United States consistent with the sentenced imposed." Revitalization Act, §§ 11201(a) and (b). Also see District of Columbia Code §§ 24-1201(a) and (b) (subjecting persons convicted of violations of the District of Columbia Code to "any law or regulation applicable to persons committed for violations of the laws of the United States"). Further, Congress has directed that the BOP "shall be responsible for the custody . . . of such persons." Revitalization Act, § 11201(b). These statutes make clear that the inmates transferred from the custody of the District of Columbia's Department of Correction to the custody of the BOP, even those initially incarcerated for violations of the District of Columbia Code, are in fact "federal inmates" under the charge and control of the United States and the BOP.

QUESTION 2. Can the State legally prohibit the construction and operation of a private prison that will hold federal inmates?

ANSWER: No.

The Supremacy Clause of the United States Constitution immunizes the activities of the federal government from state interference. In our opinion the concept of federal supremacy and preemption allows Congress, even over the objection of a state, to construct and operate a prison to be used to house federal inmates at any place in the jurisdiction of the United States. Pacific Gas & Electric Company v. State Energy Resources Conservation and Development Commission, 461 U.S. 190 (1983). See "Advisory Opinion" from Senior Deputy Attorney General William N. Farrell, Jr. and Special Deputy Attorney General W. Dale Talbert to Senator Frank Ballance, Jr. and Representative Howard Hunter, Jr. dated July 2, 1998. See 18 U.S.C. 4003 (authorizing the U.S. Attorney General to establish prisons in any state).

QUESTION 3. What components of a federal prison can or must be regulated by the State or local government?

ANSWER: The State and local governments may enforce reasonable regulations concerning the construction and operation of private prisons which do not violate the Supremacy Clause by thwarting the federal privatization effort or contradicting or obstructing the liberty interests of private correctional service providers employed by the federal government.

The federal government ordinarily is not required to comply with state building codes or local zoning ordinances. However, a building constructed for a federal agency must be constructed in compliance with nationally recognized model building codes and with other applicable nationally recognized codes. 40 U.S.C. 619(a). The building also must be constructed only after consideration of local zoning laws. 40 U.S.C. 619(b). The federal agency also must give due consideration to the recommendations of state and local government concerning measures which should be taken to respond to local conditions. 40 U.S.C. 619(d). Nevertheless, no action may be brought against the United States for failure to meet the standards imposed by national codes or recommended by state or local officials. 40 U.S.C. 619(e).

Notwithstanding the permissive nature of the federal government's ordinary obligation to comply with state and local codes, the BOP's policy and practice in its prisons privatization efforts is to impose all state and local requirements on the private prison operators with whom it contracts. Through its contracting power, the BOP requires a provider of private prison services to "design, construct, operate and maintain the physical plant in accordance with all state and local laws, regulations, guidelines, policies, building and zoning codes." Request for Proposal, PCC-0004, p.22. Where there is a conflict among requirements, the most stringent standard will apply.

Areas over which state and local governments have regulatory authority over the operation of private prisons include possession of firearms and use of force by private prison employees, withholding or restricting the arrest authority of private correctional officers, and establishing qualifications and licensure requirements for professional staff.

QUESTION 4. What state and local requirements must the operator of a private prison meet in order to have its employees authorized to make arrests and use force against inmates inside and outside the perimeter of the facility?

ANSWER: In order to make arrests of inmates either inside or outside the confines of a private prison facility, and use force in doing so, the employees of a private prison operator must obtain certification as municipal law enforcement officers, be "deputized" by the sheriff, or become commissioned as Company Police Officers. Absent certification as a law enforcement officer or deputization, the employees of a private prison operator may only "detain" inmates and use force against them consistent with the common law principles of self defense and defense of property.

Authority to Arrest. In this State the authority to arrest another, with or without a warrant, is regulated by statute. Only sworn law enforcement officers, or other peace officers specifically authorized by statute, may exercise the power of arrest. G.S. § 15A-401. No private person may arrest another person except as provided by G.S. § 15A-405 which authorizes citizens to "assist" law enforcement officers in making arrests and preventing escapes from custody. G.S. 15A-405(a). All other arrests are illegal. State v. Mobley, 240 N.C. 476, 83 S.E.2d 100 (1954).

Although a private citizen cannot arrest another person, a citizen may temporarily detain others when there is probable cause to believe the person to be detained has committed a felony, a breach of the peace, a crime involving physical injury to another, or a crime involving the theft or destruction of property. G.S. § 15A-404(b). However, a citizen who detains another under this statutory authority must immediately notify a law enforcement officer of the detention and may continue the detention only until the person detained is surrendered to a law enforcement officer. 15A-404(e).

An employee of a private prison operator may acquire the power to arrest other persons for violations of state law committed on or off the premises of a private prison facility by becoming a sworn law enforcement officer under the sponsorship of a municipal or county law enforcement agency having territorial jurisdiction over the property where the private prison facility is located. To obtain and maintain status as a law enforcement officer with the authority to arrest, the sponsored person must timely meet all pre-employment and in-service training and education standards established by state law and regulation. See 12 N.C.A.C. 9C.0301 ("Every person employed or appointed by the State or any political subdivision thereof as a criminal justice officer shall be certified . . . prior to being administered the oath of office or commencing active service."); 12 N.C.A.C. 10B.0401 ("Every person performing the duties of a deputy sheriff . . . shall meet the certification requirements of this Subchapter.") Further, the sponsored person's subject matter and territorial jurisdiction will be limited to that of the sponsoring law enforcement agency.

An employee of a private prison operator also may obtain limited arrest powers by becoming commissioned as a Company Police Officer under the sponsorship of a Company Police Agency. However, it is an open question whether the operator of a private prison may be certified as a Company Police Agency. The law provides that "a corporation engaged in providing on-site police security personnel services for persons or property may apply to be certified . . . as a company police agency." G.S. § 74E-2(b) (Emphasis added.) A strict reading of this provision would not allow a corporation engaged in providing private correctional services to be certified as Company Police Agency because the training and education required for certification as a Company Police Officer have not been designed to assure competency in the correction officer profession. Assuming a provider of private correctional services may be commissioned as a Company Police Agency, any of its employees certified as Company Police Officers likely would be limited to providing "police security personnel services" and not be authorized to exercise the law enforcement powers acquired thereby while employed as a private correctional officer. Company Police Officers may only make arrests on property owned by or in the possession and control of their employer or the entity which has contracted with a Company Police Agency. G.S. §§ 74E-6(c)(1) and (2). Company Police Officers have no law enforcement authority off the property for which they are responsible except when they are in "immediate and continuous pursuit" of a person for an offense committed within the Company Police Officer's territorial jurisdiction. G.S. § 74E-6(c)(3).

Should the operator of a private prison choose not to seek certification of its employees as law enforcement or company police officers, its employees could be authorized to assist law enforcement officers in "effecting arrests and preventing escapes from custody." G.S. § 15A-405. However, this limited law enforcement authority vests in a private person only when a request for such assistance is made by a law enforcement officer.

Authority to Use Force. A person may use force against another only when there is legal justification to do so. G.S. §§ 15A-401(d) and (e) describe the limits of a law enforcement officer's authority to use force in making an arrest. A citizen responding to the request of a law enforcement officer to assist in making an arrest or preventing an escape under the authority of G.S. § 15A-405 has the same authority to use force to accomplish the arrest or prevent an escape as does the requesting law enforcement officer. G.S. 15A-405(a). A private person making a citizen's detention may use reasonable force. G.S. § 15A-404(c). In all other cases, the justification for a private person to use force against another is based upon the common law of self defense or defense of property.

"If one is without fault in provoking, or engaging in, or continuing a difficulty with another, he is privileged by the law of self-defense to use such force against the other as is actually or reasonably necessary under the circumstances to protect himself [or a third party] from bodily injury or offensive physical contact at the hands of the other, even though he is not thereby put in actual or apparent danger of death or great bodily harm." State v. Anderson, 230 N.C. 54, 56, 51 S.E. 2d 895, 897 (1949); State v. Jennings, 276 N.C. 157, 164-65, 171 S.E. 2d 447, 452-53 (1970) (and cases cited therein).

"As an incident to the indubitable right to acquire and own property, recognized by the Constitution of North Carolina and the Constitution of the United States, a person in possession of property, either as owner, or as the agent or servant of the owner, has the legal right to defend and protect it from threatened and impending injury or destruction at the hands of an aggressor, or if it is personal property, to prevent it from being unlawfully taken, or injured, or destroyed by another, and in doing so he may use such force as is reasonably necessary, and no more than is reasonably necessary, to accomplish this end, subject to the qualification that, in the absence of a felonious use of force on the part of the aggressor, human life must not be endangered or great bodily harm inflicted." State v. Lee, 258 N.C. 44, 127 S.E.2d 774, (1962) (citing Bailey v. Ferguson, 209 N.C. 264, 183 S.E. 275 (1936)).

QUESTION 5. May the State or local government provide to a private prison operator the authority to "deputize" citizens to assist its employees in recapturing escaped inmates?

ANSWER: No, not under existing statutes.

Under current law, only sheriffs may "deputize" persons or have them take the oath of office and immediately become authorized to perform law enforcement duties. G.S. § 17E-8(b).

QUESTION 6. Can the State of North Carolina regulate the type of offender housed in federal prisons?

ANSWER: No.

Congress has enacted legislation giving the U.S. Attorney General authority to control and manage federal prisons including the authority to classify inmates for security purposes and assign them to appropriate prison facilities. 18 U.S.C. §§ 4001(b)(1) and (2); 18 U.S.C. 4081. In our opinion, any attempt by the State to regulate the classification of inmates sent to federal prisons in this state would violate the Supremacy Clause.

QUESTION 7. What state and local requirements must a private prison operator meet in order to sign mutual aid agreements with state and local agencies?

ANSWER: Under existing statutes, a company operating a private prison cannot be a party to a "mutual aid agreement" authorized by G.S. §§ 160A-288 and 160A-288.1.

State law authorizes "the head of any law enforcement agency [to] temporarily provide assistance to another agency in enforcing the laws of North Carolina if so requested in writing by the head of the requesting agency." G.S. § 160A-288(a). A "law enforcement agency" is defined as including "only a municipal police department, a county police department, or a sheriff's department." G.S. § 160A-288(b)(1). Private prison operators are not included within this definition of "law enforcement agencies" and therefore may not be a party to a mutual aid agreement.

QUESTION 8. Will federal inmates who escape from private prisons be subject to North Carolina criminal penalties?

ANSWER: Yes.

G.S. § 14-256.1 provides "it is unlawful for any person convicted in a jurisdiction other than North Carolina but housed in a private correctional facility in North Carolina to escape from that facility. Violation of this section is a Class H felony." Pursuant to this statute it is a crime for a federal inmate or an inmate convicted by another state to escape from a private prison to which he has been assigned by appropriate authority.

QUESTION 8a. Are any statutory revisions necessary to clarify this?

ANSWER: No, provided the statute clearly defines all the conduct the General Assembly intends to prohibit.

However, as with any other criminal statute, if the Legislature is concerned that this statutory provision does not prohibit a particular act, additional clarifying language may be proposed. In an abundance of caution, the Legislature may wish to consider amending G.S. § 256.1 to specify that it encompasses within its scope and coverage private prisons "housing inmates convicted in this or any other state or by the federal government." Consideration also could be given to amending G.S. § 162-35, "Arrest of escaped persons from penal institutions." The statute currently provides sheriffs and any other peace officer the authority to arrest only persons who have escaped from "any correctional or penal institution, established by the laws of the State . . . ." (Emphasis added.)

QUESTION 9. Can North Carolina permanently ban the housing of inmates from other states in private prisons if they are not federal inmates.

ANSWER: It is our opinion that North Carolina may utilize its police power to prohibit totally or regulate in ways it deems appropriate the construction and operation of private prisons intended to house persons convicted in other states.

The State possesses police power in its capacity as sovereign, and in that capacity, the General Assembly may enact laws to protect or promote health, morals, order, safety, and the general welfare of society. North Carolina Constitution, Article I, § 19; In re Guess, 327 N.C. 46, 393 S.E.2d 833 (1990). The State's police power is as extensive as is necessary for protection of public safety and general welfare. Armstrong v. N.C. State Board of Dental Examiners, 129 N.C. App. 153, 499 S.E.2d 462 (1998); Treants Enterprises, Inc. v. Onslow County, 320 N.C. 776, 360 S.E.2d 783 (1987).

Regulation of a business or occupation under the State's police power must be based upon some distinguishing feature in the business itself or the manner in which it ordinarily is conducted, the natural and probable consequence of which, if unregulated, is to produce injury to the public peace, health or welfare. State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940); State v. McCleary, 308 S.E.2d 883, 65 N.C. App. 174 (1983). Similarly, legislative enactments under the State's police power which interfere with the rights of a property owner to use his land as he deems fit must have a reasonable relation to the accomplishment of a legislative purpose and must not be unreasonable in degree in comparison with the public good. Hartford Accident and Indemnification Co. v. Ingram, 290 N.C. 457, 266 S.E.2d 498 (1976).

In our opinion, regulation or prohibition of private prisons falls within the State's police power and is a proper object of legislation reflecting the General Assembly's determination of appropriate public policy.

Signed by:

W. Dale Talbert, Special Deputy Attorney General