October 16, 2000

New Castle County/Civil Division

The Honorable Brian J. Bushweller
Secretary, Department of Public Safety
303 Transportation Circle
Dover, DE 19901 D610

RE: Opinion of the Attorney General relating to the Sheriff as a Police Officer

Dear Secretary Bushweller:

On October 13, 2000 you asked the Attorney General for an opinion regarding two issues: (1) are the sheriffs and their deputies police officers, and (2) may the sheriffs' departments affix emergency lights to their vehicles. Your inquiry was prompted by the current events in Sussex County and more specifically, a letter dated October 13, 2000 from James Todd Mumford.

Simply stated, Mr. Mumford's letter suggests that persons, specifically deputy sheriffs, who have received a certification from the Council on Police Training ("Council"), are, by that fact alone, police officers. He also contends, therefore, that they have police powers and any vehicle they operate in the course of their duties is a police vehicle and may be equipped as such. A analysis of Delaware law leads to the conclusion that, under current Delaware law, the sheriff⁽¹⁾ is not a police officer as defined in the Delaware Code. Neither is the sheriff authorized to equip the vehicles of his or her office with emergency lights.

The first question is whether the sheriff is a police officer.⁽²⁾ 11 Del. C.  1911 discusses the authority of police officers and defines a police officer as:

[a]ny police officer holding current certification by the Council on Police Training as provided by Chapter 84 of this title and who is:

A member of the Delaware State Police;
A member of the New Castle County Police;
A member of the police department, bureau or force of any incorporated city or town;
A member of the Delaware River and Bay Authority Police;
A member of the Capitol Police;
A member of the University of Delaware Police: or
A law enforcement officer of the Department of Natural Resources and Environmental Control. (emphasis added)

The conjunctive word "and" imposes a two tiered requirement for a person to meet the definition of a police officer and the statute specifically delineates persons who shall exclusively have police authority. Accordingly, a person who may have the Council's certification but who is not a member of any of the specifically named police departments is not considered a police officer under Delaware law.

An analogy may be made to persons who have law, medical, accounting, engineering and similar degrees who may have the training to engage in those professions, but without the appropriate State approved license are prohibited from doing so. Any attempt on their part to engage in their respective professions without such a license would subject them to the same penalties as any other unlicenced person. The fact that the sheriff, and persons like constables, parole officers, correctional officers and the Attorney General and her Deputy Attorneys General, may have certain law enforcement authority does not make them police officers as defined by Delaware law. That conclusion would apply even if any of those persons obtained a certification from the Council

The conclusion that the sheriff is not a police officer is reinforced by reference to 11 Del. C. Chapter 84 which governs the Delaware Police Training Program. The definition of a "police officer" in Section 8401(5) includes subsection b.1. which says that the term shall not include " [a] sheriff, regular deputy sheriff or constable." By excluding the sheriff from the mandatory training requirements of Chapter 84, the General Assembly recognized that the sheriff is not a police officer as otherwise defined in the Delaware Code.

Neither do we find that references to other law enforcement statutes like those relating to law enforcement officers of the Department of Natural Resources and Environmental Control are helpful. 29 Del. C.  8003A says that DNREC officers "shall have police powers similar to those of sheriffs, constables, peace officers and other police officers" when enforcing the laws and regulations for which they were hired. That reference to other officials and police officers is for descriptive purposes and is clearly meant to describe the various duties of the DNREC officers, not to expand or define the duties of the persons to whom reference is made.

Since the sheriff is not a police officer, as defined by Delaware law, it is clear that vehicles operated by sheriffs are not police vehicles. Although the term "police vehicle" is not specifically defined in the Delaware Code, 11 Del. C.  4106(e) includes, as emergency vehicles, vehicles operated by police departments. Vehicles operated by the sheriff are not included anywhere in Section 4106 as it applies to emergency vehicles. While emergency vehicles are not otherwise defined, Delaware law prohibits the use of flashing lights except on emergency vehicles authorized by the Department of Public Safety. 21 Del. C.  4353(c). Under current Delaware law, unless the Department of Public Safety authorizes the sheriff to use emergency lights, he is not allowed to do so.

Very truly yours,

Michael J. Rich
State Solicitor

cc: The Honorable M. Jane Brady
Mr. Robert L. Stickels
Mr. James Todd Mumford.

1. For the purposes of this letter, any reference to the term "sheriff" shall mean the sheriff and deputy sheriffs.

2. On August 29, 1995, my office issued Opinion 95-IB27 relating to the duties of the sheriff to transport prisoners at the direction of a judge of the Family Court. While that opinion discussed the various duties of the sheriff, it did not address the question of whether a sheriff is a "police officer" or whether he is entitled to display emergency lights on his vehicles.