Did South Carolina's courtesy-summons rules apply when a licensed security guard signed a criminal complaint?

Plain-English summary

A state senator asked whether South Carolina's courtesy-summons provisions applied to licensed private security guards. In 2008, the Attorney General's office concluded that they did not apply to guards who had the law-enforcement arrest authority of sheriff's deputies on the property they were hired to protect. The cited provisions addressed complaints by an affiant who was not a law-enforcement officer or by nonlaw-enforcement personnel.

The opinion's reasoning depended on the guard's licensed status and the location of the arrest power. It quoted the statute granting deputy-like authority only on the protected property and cited South Carolina decisions recognizing a guard's law-enforcement function in that setting. It did not say a guard had the same authority on public property.

Currency note

This opinion was issued in 2008. 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.

Common questions

Was a courtesy summons required when a licensed security guard was the affiant?

The AG concluded that the cited courtesy-summons rules for nonlaw-enforcement affiants did not apply to such a guard because the guard had deputy-like arrest authority on the property being protected.

Did the opinion give security guards arrest authority everywhere?

No. The statute quoted in the opinion limited that arrest power to the property on which the guard was employed, and the opinion expressly distinguished public property.

Why did the AG treat the guard differently from other private complainants?

The opinion read the courtesy-summons provisions alongside the security-guard statute and cited City of Easley v. Cartee, which described licensed guards as performing a law-enforcement function when making authorized arrests on protected property.

Background and statutory framework

S.C. Code Ann. § 22-5-115 allowed a summary or municipal judge to issue a trial summons instead of an arrest warrant on the sworn statement of an affiant who was not a law-enforcement officer. The opinion also discussed the 2008 amendment to § 22-5-110 concerning misdemeanor warrants signed by nonlaw-enforcement personnel. Its conclusion turned on S.C. Code Ann. 40-18-110, which granted a registered or licensed guard employed to protect specific property the authority and arrest power of a sheriff's deputy on that property. The office cited City of Easley v. Cartee and State v. Brant for the guard's law-enforcement role in that setting.

Citations and references

• S.C. Code Ann. § 22-5-115: trial summons on a non-law-enforcement affiant's sworn statement.
• S.C. Code Ann. § 22-5-110: the courtesy-summons amendment discussed in the opinion.
• S.C. Code Ann. 40-18-110: security guards' property-limited arrest power.
• City of Easley v. Cartee, 309 S.C. 420, 424 S.E.2d 491 (1992): licensed guards' law-enforcement function.
• State v. Brant, 278 S.C. 188, 293 S.E.2d 703 (1982): security guard status in a resisting-arrest prosecution.

Official title

Questioning the applicability of S.C. Code Ann. § 22-5-115 to licensed security guards.

Requester

The Honorable Mike Fair, Member, SC Senate

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-16-2008/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/fair-m-os-8704-12-16-08-licensed-security-guards.pdf

Original opinion text

HENRY MCMASTER
ATIORNEY G ENERAL

December 16, 2008

The Honorable Mike Fair
Senator, District No. 6
P. 0. Box 14632
Greenville, South Carolina 29610
Dear Senator Fair:

In a letter forwarded to this office the question was raised as to the applicability of S.C. Code Ann.§ 22-5-115 to licensed security guards. Such provision states: (A) [n]otwithstanding any other provision of law, a summary court or municipal judge may issue a summons to appear for trial instead of an arrest warrant, based upon a sworn statement of an a:ffiant who is not a law enforcement officer investigating the case, if the sworn statement establishes probable cause that the alleged crime was committed. The summons must express adequately the charges against the defendant. If the defendant fails to appear before the court, he may be tried in his absence or a bench warrant may be issued for his arrest. The summons must be served personally upon the defendant. (emphasis added). An amendment to S.C. Code Ann. § 22-5-110 was set forth in Act No. 346 of2008. Such provision adds subsection (B) to the statute and states that:
[n ]otwithstanding another provision oflaw, a person charged with any misdemeanor offense requiring a warrant signed by nonlaw enforcement personnel to ensure the arrest of a person must be given a courtesy summons. (emphasis added). As noted in a prior opinion of this office dated September 25, 2008, a courtesy summons is issued by a summary court judge based upon the sworn statement of an affiant "who is not a law enforcement officer" or is issued to "nonlaw enforcement personnel." That opinion concluded that a school resource officer is a law enforcement officer and would not be considered "nonlaw enforcement personnel" for purposes of Sections 22-5-110 or 22-5-115 regarding the issuance of a courtesy summons. See also: Op. Atty. Gen. dated August 18, 2008 (" ...a courtesy summons would be applicable in shoplifting and fraudu lent check cases involving misdemeanor offenses where the

R EMBERT

c. D ENNIS B UU.OING • POST OFFlCE Box 11549 • COLUMBIA. SC 29211 -1549 • TELEPHONE 803-734-3970 • FACSIM ILE 803-253-6283

The Honorable Mike Fair
Page2
December 16, 2008

warrant is signed by nonlaw enforcement personnel..."); Op. Atty. Gen. dated August 7, 2008 (" ... a courtesy summons must be used for summary level crimes involving victims charging a misdemeanor offense when the affiant is non-law enforcement personnel.") Therefore, consistent with such, a courtesy summons is to be utilized where an individual is charged with a misdemeanor offense and the affiant is nonlaw enforcement personnel. S.C. Code Ann. 40-18-110 states that as to private security guards,
[a] person who is registered or licensed under this chapter and who is hired or employed to provide security services on specific property is granted the authority and arrest power given to sheriff's deputies. The security officer may arrest a person violating or charged with violating a criminal statute of this State but possesses the powers of arrest only on the property on which he is employed. (emphasis added). A prior opinion of this office dated April 7, 2008 referenced that consistent with such provision,
... private security guards have no authority to exercise law enforcement authority except on the private property they are hired to protect...(recognizing that such provision states that) ... a licensed security guard " ... may arrest a person violating or charged with violating a criminal statute of this State but possesses the powers of arrest only on the property on which he is employed." An opinion of this office dated April 2, 1980 concluded that " ... a private security guard is not authorized ... to exercise the power of arrest on public property."

While these opinions differentiate the powers of arrest depending upon whether the property is public or property the security guard is hired to protect, they clearly recognize that a licensed security guard has the power of arrest. Indeed, Section 40-18-110 clearly states that such a guard on the property he is hired to protect "is granted the authority and arrest power given to sheriffs deputies." See: Ops. Atty. Gen. dated August 3, 2006, February 22, 2005 and October 15, 2004. Also, the State Supreme Court in City of Easley v. Cartee, 309 S.C. 420, 424 S.E.2d 491 (1992) recognized that
[t]he legislature has granted licensed security officers the authority and power of sheriffs to arrest any person violating the criminal statutes of this State ... The power is limited only by the requirement that the arrest must be made on the property that the security officer is licensed to protect...Thus, like the police, licensed security officers perform a law enforcement function and act in an official capacity when making an arrest.

The Honorable Mike Fair
Page3
December 16, 2008

See also: State v. Brant, 278 S.C. 188, 293 S.E.2d 703 (1982) (security guard is a law enforcement officer for purposes of resisting arrest prosecution.). Consistent with the above, in the opinion of this office, Sections 22-5-115 and 22-5-110 would not be applicable to licensed security guards inasmuch as these guards are recognized as having the law enforcement authority of a deputy sheriff on the property they are hired to protect. Therefore, they would not be considered as an affiant ''who is not a law enforcement officer" for purposes of requiring the issuance of a courtesy summons instead of an arrest warrant.

If there are any questions, please advise.
Very truly yours,
Henry McMaster
Attorney General

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By:

REVIEWED AND APPROVED BY:

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Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General