Opn. No. ( 1981 )

Andrea Moran, Esq. Town Attorney, Olive

You ask whether a town constable may affix a red light and siren to a motor vehicle and use them while performing official duties; whether he may place an emblem on a motor vehicle identifying it as a constable vehicle; whether a constable may exceed speed limits and ignore other road restrictions in an official emergency; and whether a constable may assist at an emergency in another town.

Sirens may be used only on authorized emergency vehicles (Vehicle and Traffic Law, § 375 [26]). Subdivision 41 of section375 of the Vehicle and Traffic Law controls placement of lights on motor vehicles. Red lights may be affixed only to authorized emergency vehicles (id., § 375 [4] [2]). The term "authorized emergency vehicles" means ambulances, police vehicles, fire vehicles, civil defense emergency vehicles, and ordnance disposal vehicles of the armed forces (id., § 101). Included in the definition of "police vehicle" are vehicles owned by the State; a public authority; a county, town, city or village and operated by the police department or law enforcement agency of such governmental unit (id., § 132-a). Since towns are authorized to establish police departments (Town Law, §150), we believe that the term "police vehicle" as applied to towns in section 132-a means a vehicle operated by a member of a town police department. There is no authority to organize town constables into law enforcement agencies or police departments (see Town Law, § 20 [1] [2]). Although town constables are considered to be police officers for the purposes of the Vehicle and Traffic Law (§ 132), their vehicles are not police vehicles within the meaning of that statute. (See our informal opinion of December 9, 1980, copy enclosed.) It follows that town constables may not affix red lights to their vehicles or utilize sirens (1976 Op Atty Gen 175 [Inf]).

If authorized by the town board, town constables may affix to a town vehicle an emblem identifying the occupant as a town constable (Vehicle and Traffic Law, § 396 [1]). Town contables may not affix an emblem with the word "police" or other description indicating ownership, use or possession of the vehicle by a police department (id., § 396 [2]).

The driver of an "authorized emergency vehicle" when involved in an emergency operation may stop, stand or park irrespective of traffic rules, proceed past a steady red signal, a flashing red signal or a stop sign after slowing down for safety reasons, exceed the speed limits without endangering life or property and disregard regulations governing directions of movement and turning (id., § 1104 [b]). For reasons previously stated, the term authorized emergency vehicle does not include a town constable's vehicle. We conclude that town constables are not exempt from traffic rules under section 1104.

Upon the request of the chief executive officer of a county, city, town or village to another local government, the latter may assign members of its police department, police force or parkway police force to the local government making the request (General Municipal Law, § 209-m). There is no authority under section 209-m for the outside assignment of town constables, since they are not members of a police department or force.

The Legislature has defined the terms police officer and peace officer as distinct and mutually exclusive categories, thereby clarifying the powers possessed by each group (Criminal Procedure Law, § 120 [34]; L 1980, ch 843 added section 2.10 of the Criminal Procedure Law to establish a comprehensive list of peace officers and amended other provisions of law relating to the powers of peace officers and police officers). In determining the nature and extent of a law enforcement officer's powers, the threshold question is whether the person is a peace officer or police officer. In a situation where the powers of your town constables are insufficient, it might be appropriate to request the assistance of the sheriff or the State Police.

The provisions of the Vehicle and Traffic Law may not be varied or superseded by local laws (Vehicle and Traffic Law, § 1600). Regulation of the use of public highways by motor vehicles is an area that has long been preempted by the State (People v Grant, 306 N.Y. 258,260 [1954]).

We conclude that town constables may not affix a red light or use a siren on a motor vehicle. Nor may they exceed speed limits and violate other traffic rules. If authorized by the town board, town constables may affix emblems to town vehicles identifying them as constable vehicles. Town constables may not be used to assist other local governments requesting aid.