Do Tennessee part-time, reserve, or auxiliary police officers need a security guard license to work off-duty security, and can they wear their police uniform?

Subject

Opinion No. 12-77, Part-time Officers as Licensed Security Guards, July 25, 2012

Plain-English summary

State Representative Gary Moore asked four questions about Tennessee's part-time, temporary, reserve, and auxiliary police officers who moonlight as paid security or traffic-direction personnel. The AG's answers:

1. License required. Only full-time sworn peace officers are exempt from Tennessee's Private Protective Services Licensing and Regulatory Act (Tenn. Code Ann. §§ 62-35-101 to -142). Part-time, temporary, reserve, and auxiliary officers must hold an armed security guard license to receive pay for guard, patrol, or watchperson work.
2. Authority while on the side job. A licensed part-time officer doing paid security or traffic duty has: the authority granted to any licensed security officer; whatever authority the employing agency confers for the assignment; the authority vested by the officer's government employer; and the rights of a private person (including private-citizen arrest authority under Tenn. Code Ann. § 40-7-101).
3. Uniform restriction. No. Tenn. Code Ann. § 62-35-127 forbids any person doing security-guard work from wearing a badge, insignia, shield, patch, or pattern indicating sworn-officer status or containing the word "police." The § 62-35-141 exception applies only to full-time certified officers in designated counties (Davidson and Rutherford, as of 2012).
4. Out-of-jurisdiction traffic direction. Yes. Tenn. Code Ann. § 62-35-103(15)(B), added by 2004 Tenn. Pub. Acts ch. 661, authorizes commissioned uniformed police officers, state troopers, and sheriff's deputies (subject to departmental approval) to direct traffic on any public roadway in Tennessee regardless of their primary jurisdiction, in temporary work zones or for incident management.

Currency note

This opinion was issued in 2012. 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.

Background and statutory framework

Who is a part-time officer

The opinion describes the primary role of part-time, temporary, reserve, and auxiliary officers as supporting full-time officers in the prevention and detection of crime, the apprehension of offenders, and assisting in prosecution, for appropriate remuneration in accordance with specifically assigned duties or a job description (Tenn. Code Ann. § 38-8-101(3)).

Why the license rule applies

The Private Protective Services Act broadly defines "contract security company" (Tenn. Code Ann. § 62-35-102(6)) to capture any person providing or undertaking to provide a security guard and patrol service on a contractual basis. "Person" (§ 62-35-102(8)) is correspondingly broad. The Act exempts "full-time sworn peace officers" providing security under contract to a licensed private business (Tenn. Code Ann. § 62-35-103(7); Tenn. Comp. R. & Regs. 078-5-2.03). It contains no parallel exemption for part-time officers. The AG applied the canon "the mention of one subject in a statute means the exclusion of other subjects that are not mentioned" (Carver v. Citizens Utilities Co.) to conclude part-time officers must comply with the Act.

Authority while doing paid security or traffic duty

Tennessee Supreme Court precedent (White v. Revco Discount Drug Centers) frames off-duty officers' authority as "the complete authority and powers of regular officers to the extent allowed by the special commission from the government employer." Layered on top, the AG identified four sources of authority for a moonlighting part-time officer:

• The authority granted under the Private Protective Services Act (Tenn. Code Ann. §§ 62-35-102, -104, -125)
• The authority vested by the officer's government employer, which the opinion notes can vary from agency to agency
• Any additional authority conferred by the employing agency for that specific security or traffic assignment
• The rights of a private person, including private-citizen arrest under Tenn. Code Ann. § 40-7-101

The opinion adds that law enforcement officers generally have authority only within their respective jurisdictions.

Uniform prohibition

Tenn. Code Ann. § 62-35-127 directly prohibits wearing a sworn-officer-indicating uniform during security-guard work. The narrow exception in Tenn. Code Ann. § 62-35-141(b) lets a certified full-time sworn officer wear the primary jurisdiction's uniform while providing security outside the primary jurisdiction, but only within certain designated counties and only if the jurisdiction has authorized its officers to do so. So a part-time officer working security may not identify as a law enforcement officer by wearing the primary jurisdiction's uniform.

Traffic direction across jurisdictional lines

Tenn. Code Ann. § 62-35-103(15) exempts two categories from the Act's licensing requirement: (A) companies that provide certified officers exclusively for temporary-work-zone traffic control under the federal MUTCD; and (B) commissioned uniformed officers, troopers, and deputies, on departmental approval, authorized to direct traffic on any public roadway in Tennessee regardless of primary jurisdiction, in temporary work zones or for incident management. Both categories anticipate cross-jurisdictional traffic direction.

Common questions

Can a sheriff's deputy work a security shift in uniform after hours?
Generally no, unless the deputy is full-time and the county is one of the designated counties under § 62-35-141. Otherwise, security work must be done out of uniform and without the police-identifying badge or insignia.

What does "authority of a private person" mean for arrest powers?
Under Tenn. Code Ann. § 40-7-101, a private citizen may make an arrest in certain circumstances, primarily for a felony committed in the citizen's presence. A licensed part-time officer acting as a security guard has at least those private-person arrest powers, layered on top of any additional authority specifically conferred by the employing agency or by license.

Can a private security company hire only full-time officers to avoid licensing complications?
Yes. Full-time sworn peace officers contracting through a licensed private business are exempt from the Private Protective Services Act under § 62-35-103(7).

Why is the AG so explicit that part-time officers cannot wear their police uniforms?
The Private Protective Services Act draws a hard line between sworn law enforcement (acting under official authority and accountable to the public) and private security (a contractual service for a private employer). Mixing the two creates confusion about authority and consent, especially in encounters with the public. The narrow § 62-35-141(b) exception for certified full-time officers in certain designated counties did not extend to part-timers.

Citations

Statutes and regulations:

• Tenn. Code Ann. §§ 62-35-101 to -142 (Private Protective Services Licensing and Regulatory Act), including §§ 62-35-102, -103, -104, -125, -127, -141
• Tenn. Code Ann. § 38-8-101(3) (part-time officer role)
• Tenn. Code Ann. § 40-7-101 (citizen's arrest)
• Tenn. Comp. R. & Regs. 078-5-2.03

Cases:

• Carver v. Citizens Utilities Co., 954 S.W.2d 34 (Tenn. 1997)
• White v. Revco Discount Drug Centers, Inc., 33 S.W.3d 713 (Tenn. 2000)

Prior AG opinion:

• Op. Tenn. Att'y Gen. 03-018 (Feb. 19, 2003)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-077.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

July 25, 2012

Opinion No. 12-77

Part-time Officers as Licensed Security Guards

QUESTIONS

1. Is a "part-time police officer/deputy," "temporary police officer/deputy," "reserve police officer/deputy" or "auxiliary police officer deputy" required to have an armed security guard license in order to receive compensation for providing services as a guard, patrol, or watchperson?

2. What authority does a "part-time police officer/deputy," "temporary police officer/deputy," "reserve police officer/deputy" or "auxiliary police officer deputy" have while receiving compensation for directing traffic, or providing services as a guard, patrol, or watchperson?

3. Can a "part-time police officer/deputy," "temporary police officer/deputy," "reserve police officer/deputy" or "auxiliary police officer deputy," while receiving compensation for directing traffic or providing services as a guard, patrol, or watchperson, wear his or her departmental uniform at places other than where he or she is retained to provide such services?

4. When a law enforcement officer is employed by a private company or a security company to direct traffic on a public street or road, can this officer direct traffic outside of the primary jurisdiction where he or she is employed as a law enforcement officer and, if so, how is the officer to direct traffic under such circumstances?

OPINIONS

1. Yes. Only full-time, sworn police officers are exempted from obtaining an armed security guard license. Part-time, non-commissioned officers must comply with provisions of the Private Protective Services Licensing and Regulatory Act, codified at Tenn. Code Ann. § 62-35-101 to -142, in order to receive compensation for providing services as a guard, patrol, or watchperson.

2. While receiving compensation for acting as a security guard or directing traffic, a "part-time police officer/deputy," "temporary police officer/deputy," "reserve police officer/deputy" or "auxiliary police officer deputy" has the authority of a licensed security officer, any authority conferred by the agency employing the officer for security or traffic duty, the authority vested in the officer by his respective government employer, and any rights of a private person.

3. No. Tenn. Code Ann. § 62-35-127 expressly prohibits any person, while performing the function of a security guard, from wearing any badge, insignia, shield, patch or pattern that indicates that the person is a sworn peace officer, or contains the word "police" except as expressly allowed by Tenn. Code Ann. § 62-35-141. The exception provided by Tenn. Code Ann. § 62-35-141 only applies to full-time, certified officers in designated Tennessee counties.

4. Tenn. Code Ann. § 62-35-103(a)(15)(B) authorizes commissioned, uniformed police officers, state troopers and/or sheriff deputies to direct traffic on any public roadway located within Tennessee regardless of such officer's primary jurisdiction. Traffic is to be directed in accordance with the parameters outlined by Tenn. Code Ann. § 62-35-103(a)(15)(B).

ANALYSIS

1. The Private Protective Services Licensing and Regulatory Act ("Act"), codified as Tenn. Code Ann. § 62-35-101 to -142, governs the licensing and conduct of "contract security companies." The term "contract security company" is broadly defined as "any person engaging in the business of providing or undertaking to provide a security guard and patrol service on a contractual basis for another person." Tenn. Code Ann. § 62-35-102(6). "Person" is likewise broadly defined to include "any individual, firm, association, company, partnership, corporation, nonprofit organization, institution or similar entity." Tenn. Code Ann. § 62-35-102(8). Thus part-time, non-commissioned officers must comply with provisions of the Act in order to receive compensation for services as a guard, patrol, or watchperson. See Tenn. Code Ann. § 62-35-104.

The Act does distinguish between full-time and part-time officers. Specifically, Tenn. Code Ann. § 62-35-103(7) exempts from the Act full-time sworn peace officers who are receiving compensation for services as a guard, patrol or watchperson under a contract with a private business that is properly licensed by the State. See also Tenn. Comp. R. & Regs. 078-5-2.03. The Act contains no similar exemption for part-time sworn peace officers. The omission of part-time officers from the list of persons under Tenn. Code Ann. § 62-35-103 who are exempt from the licensing and registration requirements of the Act indicates that the General Assembly intended to require part-time officers to comply with the requirements set forth in the Act as a condition for receiving compensation for employment as a guard, patrol or watchman and for being permitted to carry firearms while on the job. See Carver v. Citizens Utilities Co., 954 S.W.2d 34, 35 (Tenn. 1997) (recognizing the general rule of statutory construction "that the mention of one subject in a statute means the exclusion of other subjects that are not mentioned.")

2. While receiving compensation for acting as a security guard or directing traffic, a "part-time police officer/deputy," "temporary police officer/deputy," "reserve police officer/deputy" or "auxiliary police officer/deputy" has the authority granted under the Act to a licensed security officer, the authority vested in the officer by his respective government employer, any general authority conferred by the agency employing the officer for security or traffic duty, and any rights of a private person. The primary role of part-time police officers is to support full-time police officers in the prevention and detection of crime, apprehension of offenders, and assisting in the prosecution of offenders for appropriate remuneration in accordance with specifically assigned duties or job description. See Tenn. Code Ann. § 38-8-101(3). In White v. Revco Discount Drug Centers, Inc., 33 S.W.3d 713, 723 (Tenn. 2000), the Tennessee Supreme Court observed that, in a case addressing the employer's liability for torts committed by off-duty police officers employed as security guards, "special officers usually only have the complete authority and powers of regular officers to the extent allowed by the special commission" from his or her government employer. Furthermore, law enforcement officers generally only have authority within their respective jurisdictions. The employing agency also has the power to determine the authority and duties of a part-time police officer retained to provide security or direct traffic, and that authority can vary from agency to agency. See id. at 724. Finally, a part-time police officer employed as a security guard or to direct traffic has the authority conferred by the Act, see Tenn. Code Ann. §§ 62-35-102, -104 & -125, and that of a private person, which includes the power to make an arrest pursuant to Tenn. Code Ann. § 40-7-101. See generally Op. Tenn. Att'y Gen. 03-018 (Feb. 19, 2003) (outlining arrest authority of security guards).

3. While receiving compensation for services as a guard, patrol, or watchperson, part-time officers are prohibited from wearing their primary jurisdiction's uniform. Tenn. Code Ann. § 62-35-127 expressly prohibits any person, while performing the function of a security guard, from wearing any badge, insignia, shield, patch or pattern that indicates that the person is a sworn peace officer or contains the word "police." Tenn. Code Ann. § 62-35-141(b) provides a limited exception to this prohibition by expressly authorizing, within certain counties, certified full-time sworn peace officers to wear their primary jurisdiction's uniform if the jurisdiction has authorized its officers to do so while providing security outside of the officer's primary jurisdiction. Therefore, part-time law enforcement officers working as a security guard may not identify themselves as law enforcement officers by wearing the uniform of their primary jurisdiction.

4. Law enforcement officers, when employed by a private company to provide traffic control, have the authority to direct traffic outside of their primary jurisdiction. Tenn. Code Ann. § 62-35-103(15) exempts from compliance with the Act companies that provide certified law enforcement officers to others exclusively for traffic control purposes and authorizes under certain circumstances commissioned, uniformed police officers, state troopers and/or sheriff deputies, regardless of primary jurisdiction, to direct traffic upon any public roadway located in Tennessee. This statute specifically states that the Act does not apply to:

(A) A company using or providing certified law enforcement officers to others exclusively for traffic control purposes within temporary work zones located in the public right-of-way and established in accordance with the manual on uniform traffic control devices (MUTCD); provided, however, that any department providing the law enforcement officers may require the company to have on staff a traffic control supervisor or a traffic engineer in order to insure compliance with the MUTCD and may also require the company to demonstrate proof of liability insurance; or

(B) Commissioned, uniformed police officers, state troopers and/or sheriff deputies, upon departmental approval, are authorized, regardless of primary jurisdiction, to direct traffic in departmental approved uniforms or utilizing other governmental equipment, as may be required, in temporary work zones or for incident management purposes, to meet the needs of and control all road uses, whether motorists, bicyclists, or pedestrians, within the highway, including persons with disabilities in accordance with the Americans with Disabilities Act of 1990 (ADA), Title II, Paragraph 35.130, upon any public roadway located within the state.

Tenn. Code Ann. § 62-35-103(15) (A) & (B).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

LYNDSAY F. SANDERS
Senior Counsel

Requested by:
Honorable Gary W. Moore
State Representative
32 Legislative Plaza
Nashville, TN 37243