Opn. No. ( 1978 )

Hon. David R. Essig Regional Counsel, Bureau of Prisons, U.S. Department of Justice

This is in response to your letter to our office wherein you request our opinion as to whether a Federal corrections officer may carry or possess weapons while off duty without an appropriate New York State license.

You state that pursuant to Federal law the Federal corrections officers may not carry weapons, including hand guns, except when specifically required in emergency situations in the course of their employment.

Peace officers, as defined in Criminal Procedure Law, § 1.20(33) (hereinafter referred to as CPL), are specifically exempted from any criminal penalties for carrying or possessing weapons as defined in the Penal Law without an appropriate license pursuant to Penal Law, §265.20(a)(1) (a). CPL 1.20(33) enumerates the categories of persons who are peace officers. Paragraph (h) includes the following within the definition of a peace officer.

"An attendant, or an official, or guard of any state prison or of any penal correctional institution;"

The CPL applies only to the authority to enforce and implement New York State law and does not include Federal law or Federal corrections officers. Therefore, the above paragraph (h) refers only to State or local municipal employees.

Penal Law, § 265.20(a)(1)(b), specifically exempts the following persons from the criminal penalties for carrying or possessing a weapon, as defined in the Penal Law, without a license and states as follows:

"§ 265.20 Exemptions

"a. Sections 265.01, 265.02, 265.03, 265.04, 265.05, 265.10, 265.15 and 270.05 shall not apply to:

"1. Possession of any of the weapons, instruments, appliances or substances specified in sections 265.01, 265.02, 265.03, 265.04, 265.05 and 270.05 by the following:

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"(b) Persons in the military or other service of the United States, in pursuit of official duty or when duly authorized by federal law, regulation or order to possess the same."

The above subdivision allows the possession or carrying of weapons in pursuit of official duty or when authorized by Federal law, regulation or order. As aforementioned, you state that Federal authority allows the possession or carrying of a weapon only in emergency situations in the course of employment. The above language "in pursuit of official duty," means while the Federal correction officer is on duty in the course of his employment. Our research has not revealed any authority in New York State law allowing an off-duty Federal corrections officer to carry or possess a weapon.

Accordingly, we conclude, in the absence of specific Federal authority, an off-duty Federal corrections officer may not possess or carry a weapon as defined in the Penal Law without an appropriate New York State license.