Do Delaware county sheriffs have the legal authority to arrest people?

Official title

12-IIB03 02/23/2012 AG Opinion Letter to Norman E. Wood re: Sheriff Arrest Power

Plain-English summary

Kent County Sheriff Norman Wood asked the AG a fundamental question about his own office: do the Sheriff and his deputies have legal authority to make arrests? The AG's answer was no, addressing two separate possible sources of that power.

First, Delaware's constitutions since 1776 have called the Sheriff, along with many other officials, a "conservator of the peace," but never defined what powers that title carries. Since the Constitution grants no specific power, the AG looked to the common law in effect when that language was adopted, reasoning that legislatures remain free to modify or abolish common law powers over time.

Second, and more decisively, the AG turned to statute. Delaware's arrest laws, since 1951, grant arrest authority to a "peace officer," a term the Code defines only circularly (someone authorized to make arrests). But in 1981 the General Assembly created a mandatory training and certification system for "police officers" through the Council on Police Training, and specifically excluded the Sheriff, deputy sheriffs, and constables from that definition. In 1985, the General Assembly further amended the statewide arrest-authority statute to limit it to certified "police officers" from a list of specific departments, again not including sheriffs. Reading these laws together, the AG concluded it would make no sense to require certified police officers to complete extensive training before they could arrest, while letting an uncertified Sheriff exercise that same power. The AG acknowledged this is ultimately its own interpretation of decades of legislative history rather than a court ruling, and recommended the General Assembly clarify the law directly.

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.

Common questions

Do Delaware sheriffs have arrest power because the state constitution calls them a "conservator of the peace"?

No, in the AG's view. The AG found that title has appeared in Delaware's constitutions since 1776 without ever being defined or given specific powers, so any authority it might carry comes from the common law in effect when the language was adopted, not from any express constitutional grant.

Did a 1981 Delaware law take away sheriffs' arrest power?

According to this opinion, a 1981 law created mandatory training and certification for "police officers" through the Council on Police Training and specifically excluded sheriffs, deputy sheriffs, and constables from that definition, which the AG read as strong evidence the legislature did not intend sheriffs to have the same arrest authority as certified police officers.

Has a Delaware court ever definitively ruled on whether sheriffs can make arrests?

Not according to this opinion, which noted a Sussex County Sheriff's own lawsuit seeking a declaratory judgment on his rights was dismissed on jurisdictional grounds without reaching the merits, and described its own conclusion as an interpretation of legislative intent that the General Assembly should clarify directly.

Background and statutory framework

Delaware's constitutions, from 1776 through the current 1897 version, have designated various officials, including the Sheriff, as "conservators of the peace" without ever defining the term or its powers. Where a constitution creates an office by name without defining its powers, Delaware courts have said the office carries the common law powers generally recognized for that office at the time the constitutional language was adopted, Darling Apartment v. Springer, 22 A.2d 397, 407 (Del. 1941) (Rodney, J., concurring), but common law powers remain subject to legislative modification or abolition.

The law of arrest in Delaware is governed by statute, which controls over any common law authority, State v. Holland, 189 A.2d 79, 82 (Del. Super.), aff'd, 194 A.2d 698 (1963). Chapter 19 of Title 11, enacted in 1951 as Delaware's version of the Uniform Arrest Act, Cannon v. State, 168 A.2d 108, 110 (Del. 1961), grants arrest authority to a "peace officer," defined only as "any public officer authorized by law to make arrests in a criminal case," 11 Del. C. § 1901(b), a definition never judicially construed. A separate prior AG opinion had found sheriffs retain some specific common law duties, like transporting prisoners, that the legislature has not restricted, Att'y Gen. Op. 95-IB27 (Aug. 29, 1995), and the Code separately codifies other traditional sheriff duties in 10 Del. C. Ch. 21.

In 1981, the General Assembly enacted Chapter 84 of Title 11, creating the Council on Police Training and mandatory certification for "police officers" who carry firearms and enforce the law, but expressly excluded "[a] Sheriff, regular deputy Sheriff or constable" from that definition, 11 Del. C. § 8401(5)b.1, while providing that anyone who does not meet the chapter's training requirements "shall not have the authority to enforce the laws of the State," 11 Del. C. § 8410. In 1985, the General Assembly amended 11 Del. C. § 1911 to grant statewide arrest authority only to a "police officer" holding current Council on Police Training certification and belonging to one of eleven listed police departments.

Applying ordinary principles of statutory construction, that ambiguous statutes should be read to give effect to legislative intent, Coastal Barge Corp. v. Coastal Zone Industrial Control Board, 492 A.2d 1242, 1246 (Del. 1985) (en banc), read together in pari materia, Evans v. State, 872 A.2d 539, 554 (Del. 2005) (en banc), and harmonized with other enactments, Levan v. Independence Mall, Inc., 940 A.2d 929, 933 (Del. 2007) (en banc), the AG treated the 1985 amendment as strong evidence that the legislature intended arrest authority under Chapter 19 to belong only to certified police officers, not to sheriffs. The AG noted, in a footnote, that a Sussex County Sheriff's own declaratory judgment lawsuit on this question, Reed v. Brady, C.A. No. 2156-8, 2002 WL 1402238 (Del. Ch. June 21, 2002), was dismissed on jurisdictional grounds without reaching the merits. Describing its conclusion as an interpretation of legislative intent spanning several decades, the AG recommended the General Assembly clarify directly whether it wishes to grant county sheriffs the power to arrest.

Citations

• 11 Del. C. § 1901(b) (defining "peace officer")
• 11 Del. C. § 8401(5)b.1 (excluding sheriffs, deputy sheriffs, and constables from the "police officer" definition)
• 11 Del. C. § 8410 (uncertified individuals lack authority to enforce state law)
• 11 Del. C. § 1911 (statewide arrest authority limited to certified police officers)
• 10 Del. C. Ch. 21 (codifying certain traditional sheriff duties)
• Darling Apartment v. Springer, 22 A.2d 397, 407 (Del. 1941) (Rodney, J., concurring) (Delaware Supreme Court; an office named without defined powers carries the common law powers recognized at the time)
• State v. Holland, 189 A.2d 79, 82 (Del. Super.), aff'd, 194 A.2d 698 (1963) (Delaware Superior Court, affirmed; statutory law of arrest controls over common law)
• Cannon v. State, 168 A.2d 108, 110 (Del. 1961) (Delaware Supreme Court; history of the Uniform Arrest Act)
• Att'y Gen. Op. 95-IB27 (Aug. 29, 1995) (sheriffs retain certain unrestricted common law duties, like prisoner transport)
• Coastal Barge Corp. v. Coastal Zone Industrial Control Board, 492 A.2d 1242, 1246 (Del. 1985) (en banc) (Delaware Supreme Court; statutes construed to give effect to legislative intent)
• Evans v. State, 872 A.2d 539, 554 (Del. 2005) (en banc) (Delaware Supreme Court; statutes read in pari materia)
• Levan v. Independence Mall, Inc., 940 A.2d 929, 933 (Del. 2007) (en banc) (Delaware Supreme Court; statutes harmonized with other enactments)
• Reed v. Brady, C.A. No. 2156-8, 2002 WL 1402238 (Del. Ch. June 21, 2002) (Delaware Court of Chancery; sheriff's declaratory judgment suit dismissed on jurisdictional grounds)
• State v. Mitchell, 212 A.2d 873, 879 (Del. Super. 1965) (Delaware Superior Court; historical background on sheriff's common law powers)
• Atwater v. City of Lago Vista, 532 U.S. 318, 328-33 (2001) (U.S. Supreme Court; historical background on arrest powers)

Source

• Landing page: https://attorneygeneral.delaware.gov/2012/02/23/12-iib03-02-23-2012-ag-opinion-letter-to-norman-e-wood-re-sheriff-arrest-power/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/07/AG-Op.-No.-12-IIB03.pdf

Original opinion text

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

CIVIL DIVISION (302) 577-8400
FAX (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
DEPARTMENT OF JUSTICE FAX (302) 577-2496

NEW CASTLE COUNTY FRAUD DIVISION (302) 577-8600
JOSEPH R. BIDEN, III 820 NORTH FRENCH STREET FAX (302) 577-6499
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 TTY (302) 577-5783

AG Opinion No. 12-IIB03

February 23, 2012

The Honorable Norman E. Wood
Sheriff of Kent County

Kent County Administrative Complex
555 Bay Road

Dover, DE 19901

RE: Sheriff Arrest Power

Dear Sheriff Wood:

You have asked whether the Sheriff and his deputies have the legal authority to make arrests. After consideration of the Delaware Constitution, statutes, and case decisions, we conclude that the Sheriff and his deputies do not have authority to arrest.

We will first address the issue concerning the occasional claim that the Sheriff has arrest authority by virtue of his mention in the Constitution as a "conservator of the peace." Afterwards, we will address the question whether the Sheriff has independent, statutory authority to arrest.

The term "conservator of the peace" is first mentioned in Delaware law in Article XII of the Constitution of 1776: "The Members of the Legislature and Privy Councils shall be Justices of the Peace for the whole state during their continuance in trust; and the Justices of the Courts of Common Pleas shall be Conservators of the Peace in their respective counties."

In 1792, the Constitution was amended in Article VII, Section 1 to add other government officials to the list: "The members of the Senate and House of Representatives, the Chancellor, the Judges of the Supreme Court, and the Court of Common Pleas, and the Attorney General, shall by virtue of their offices, be conservators of the peace throughout the state; and the Treasurer, Secretary, Clerks of the Supreme Court, Prothonotaries, Registers, Recorders, Sheriffs, and Coroners shall, by virtue of their offices, be conservators thereof, within the counties respectively in which they reside." Article VII, Section 1 of the Constitution of 1831 is virtually identical.

The most recent iteration of the Delaware Constitution in 1897 provided: "Conservators of the peace. . . The Chancellor, Judges and Attorney General shall be conservators of the peace throughout the State; and the Sheriffs shall be conservators of the peace within the counties respectively in which they reside." The Constitution does not define the powers of a "conservator of the peace," and dictionary definitions offer little guidance. See Black's Law Dictionary (rev. 4th ed. 1968) at 378 ("Officers authorized to preserve and maintain the public peace.").

From this bit of history, we can see that the term "conservator of the peace:" (1) has been used repeatedly in the Delaware Constitution; (2) has never been defined; (3) has always referred to an array of public officials; and (4) does not confer any specific powers on those office holders. In the absence of a specific grant of power in the Constitution, we must look to the common law in effect at the time of the constitution to determine the authority of a "conservator of the peace." While the common law powers of the Sheriff have not been addressed by the courts in Delaware, a similar question arose in connection with the powers of the Attorney General. In Darling Apartment v. Springer, 22 A.2d 397 (Del. 1941), the Delaware Supreme Court said "when the framers of the Constitution created an office by name only they had reference to that office with those generally recognized legal powers, duties and functions belonging to the office in the jurisdiction in which the Constitution was to operate and at the time of the adoption of the Constitution." Id. at 407 (Rodney, J., concurring).

Common law powers were never intended to be immutable, cast in stone forevermore. It has long been recognized that legislatures may, when so moved, amend or even abolish authority of public officials previously recognized under the common law. As the court said further in the Darling Apartment case:

The common law powers are, at most, a part of the common law, and can rise no higher than their source. If this were not true then much legislation concerning Sheriffs, coroners and other constitutional officers of common law origin, whose duties are not expressly defined, would suffer from the same taint. Thus could be brought into question much legislation enacted through the century and a half of the State's existence, touching care and custody of prisoners and the manner of selecting juries, and countless other modifications of common law duties of an officer, where merely the name of the office was carried into the Constitution. (emphasis added), 22 A.2d at 408.

[Footnote: In Reed v. Brady, C.A. No. 2156-8, 2002 WL 1402238 (Del. Ch., June 21, 2002), the Court of Chancery dismissed the Sussex County Sheriff's lawsuit for a declaratory judgment to determine his rights under the Delaware Constitution, statutes, and common law without reaching the merits. As a court of equity, the Court of Chancery was without jurisdiction because the Sheriff had an adequate remedy at law in Superior Court. The Sheriff did not pursue the lawsuit in Superior Court.]

Like the Attorney General, the Delaware Constitution only mentions the office of Sheriff without defining his powers. The powers of the Sheriff are those that existed by statute or common law in 1897 except as modified or abrogated by the legislature.

The nature of the Sheriff's powers at common law has changed throughout history. See generally, State v. Mitchell, 212 A.2d 873, 879 (Del. Super. 1965); Atwater v. City of Lago Vista, 532 U.S. 318, 328-33 (2001). We will forgo an exhaustive historical analysis because the law of arrest is governed by statute in Delaware and the relevant statutes control over common law. State v. Holland, 189 A.2d 79, 82 (Del. Super.), aff'd, 194 A.2d 698 (1963). As explained below, whatever authority the Sheriff ever had to arrest at common law has been abrogated by subsequent legislation.

Chapter 19, Subchapter I of Title 11 of the Delaware Code explains the authority to make arrests. That authority is said to belong to a "peace officer." Section 1901(b) defines a "peace officer" as "any public officer authorized by law to make arrests in a criminal case." This definition of a "peace officer" is the only one to be found in the Delaware Code and, in the context of the issue presented here, is circular: a peace officer is someone authorized to make arrests and he is authorized to make arrests because he is a peace officer.

When a statute is arguably ambiguous in a given application, courts rely upon methods of statutory interpretation to give effect to the intent of the legislature. Coastal Barge Corp. v. Coastal Zone Industrial Control Board, 492 A.2d 1242, 1246 (Del. 1985) (en banc). Courts must read statutes, as amended, in pari materia, to interpret and give effect to the statutory scheme. Evans v. State, 872 A.2d 539, 554 (Del. 2005) (en banc). The object of this effort is to construe statutes in a way that promotes the purposes of the General Assembly and harmonizes them with its other enactments. Levan v. Independence Mall, Inc., 940 A.2d 929, 933 (Del. 2007) (en banc).

Subsequently enacted legislation is given great weight to determine the correct meaning of a prior ambiguous statute. See 2B N. Singer, Sutherland Statutory Construction §49:11, at 120-21 (6th ed. 2000) (where the meaning of a former statute is doubtful, "subsequent legislation is strong evidence of what the legislature intended in the first statute").

The General Assembly enacted Chapter 19, Subchapter I of Title 11 in 1951. The term "peace officer" was contained therein and so far as we can determine, it has never been judicially interpreted in Delaware.

[Footnote: See Att'y Gen. Op. 95-IB27 (Aug. 29, 1995) (the Sheriffs "still maintain the duty to transport prisoners under the common law in that the legislature has not expressly restricted or otherwise modified this duty"). The Delaware Code codifies some common law powers of the Sheriff in Chapter 21 of Title 10, including: attendance on courts, summoning jurors and witnesses, and sale of property under execution of process.]

[Footnote: Chapter 19 codified the Uniform Arrest Act which was drafted in 1941 by the Interstate Commission on Crime. "The act grew out of the inadequacies of the common law to meet the modern needs for questioning and detaining suspects. Such detention has long been a police practice, generally sanctioned by the courts in cases of felony, but perhaps of doubtful validity in many cases of misdemeanor." Cannon v. State, 168 A.2d 108, 110 (Del. 1961).]

In 1981, the General Assembly enacted Chapter 84 of Title 11 of the Delaware Code, establishing a comprehensive regulatory scheme for the training of "police officers." The legislature determined that to promote public safety, anyone who carries a firearm and enforces the laws of this State should be required to undergo formal training appropriate to those duties. To that end, Chapter 84 creates a Council on Police Training ("COPT") which establishes a core curriculum for training (568 hours) at certified police academies in Delaware, and periodic re-training requirements. Notably, the General Assembly excluded the Sheriff and his deputies from this comprehensive regulatory scheme. "For purposes of this Chapter this term [police officer] shall not include the following: 1. A Sheriff, regular deputy Sheriff or constable; . . . ." 11 Del. C. § 8401(5)b.1.

Anyone who does "not meet the requirements of this Chapter and the criteria as established by the Council shall not have the authority to enforce the laws of the State." 11 Del. C. § 8410 (emphasis added). So it seems that at least by 1981, the General Assembly intended that only those individuals that had completed certification by the Council on Police Training would be authorized to make arrests pursuant to Chapter 19 of Title 11 (arrests on warrants, arrests on probable cause without warrants for offenses committed outside the officer's presence, detaining and questioning suspects).

In 1985, the General Assembly amended 11 Del. C. § 1911 to strike the previous section in its entirety and replace it with a provision on statewide police authority. The statute defines a "police officer" to mean "any police officer holding current certification by the Council on Police Training as provided by Chapter 84," of Title 11 in the Delaware Code. Section 1911 gives a "police officer" who is a member of one of the eleven listed police departments statewide arrest authority.

We believe the amendment of Section 1911 is strong evidence of what the legislature intended authorizing a "peace officer" to make an arrest. Chapters 19 and 84 of Title 11 must be read harmoniously to prevent an unreasonable result. It would be unreasonable to expect "police officers" to undergo mandatory training and certification before they can exercise the power of arrest, but to allow any so-called "peace officer" (which would include not only the Sheriff, but a host of other public officials) to have that same power of arrest without having undergone the same training.

[Footnote: See Regulations of the Delaware Council on Police Training, Section 16.0 Basic Curriculum (includes, among other required courses, Criminal Code 20 hours; Motor Vehicle Code 20 hours; First Responders 40 hours; Firearms 40 hours; Laws of Arrest, Laws of Evidence, and Search and Seizure 40 hours; Weaponless Defense 30 hours; Use of Deadly Force 6 hours); Section 11.0 (two days every year of firearms retraining); Section 14.0 (re-training every three years in cardio-pulmonary resuscitation (CPR) and automatic external defibrillator (AED)).]

Having reached this conclusion, however, we must recognize that we are essentially interpreting the intent of the General Assembly as expressed over the course of 30 or 40 years. We think the wisest course for all concerned is to seek clarification from the General Assembly as to whether it wishes to grant county sheriffs the power to arrest. In the meantime, we adhere to our view that Sheriffs do not have the statutory or common law authority to make arrests.

Very truly yours,

Lawrence W. Lewis
State Solicitor

cc: The Honorable Trinidad Navarro, Sheriff of New Castle County
The Honorable Jeffrey S. Christopher, Sheriff of Sussex County