Weapons; Carrying Concealed Weapons; Intensive Probation Officers

Subject:

Weapons; Carrying Concealed Weapons; Intensive Probation Officers; G.S. 14-269

Requested by:

Ben G. Irons, II, Senior Administrative Assistant North Carolina Department of Correction

Question:

May intensive probation officers of the Division of Adult Probation and Parole carry concealed weapons when in the performance of their official duties?

Conclusion:

Yes.
In relevant part, G.S. 14-269 reads as follows:

(a)

It shall be unlawful for any person, except when on his own premises, willfully and intentionally to carry concealed about his person . . . any pistol, gun or other deadly weapon of like kind.

(b)

. . . This prohibition shall not apply to the following persons:

(1)

Officers and enlisted personnel of the armed forces of the United States when in discharge of their official duties as such and acting under orders requiring them to carry arms or weapons;

(2)

Civil officers of the United States while in the discharge of their official duties;

(3)

Officers and soldiers of the militia and the National Guard when called into actual service;

(4)

Officers of the State, or of any county, city, or town, charged with the execution of the laws of the State, when acting in the discharge of their official duties;

(5)

Full-time sworn law enforcement officers, when off-duty, in the jurisdiction where they are assigned, if:

a.

Written regulations authorizing the carrying of concealed weapons have been filed with the Clerk of Superior Court in the county where the law enforcement unit is located by the sheriff or chief of police or other superior officer in charge; and

b.

Such regulations specifically prohibit the carrying of concealed weapons while the officer is consuming or under the influence of alcoholic beverages.

The Administrative Code of the Training and Standards Commission defines a "probation/parole officer" as

. . . an employee of the Division of Adult Probation and Parole whose duties include supervision, evaluating, treating, or instructing offenders placed on probation or parole or assigned to any other community-based program operated by the Division of Adult Probation and Parole. [9A.0103(19)]

The Code defines a "probation/parole officer-surveillance" as

. . . an employee of the Division of Adult Probation and Parole other than a regular probation/parole and a probation/parole intake officer who is duly sworn, empowered with the authority of arrest and is an authorized representative of the court of North Carolina and the Department of Correction, the Division of Adult Probation and Parole whose duties include supervising, investigating, reporting and surveillance of serious offenders in an intensive probation and parole program operated by the Division of Adult Probation and Parole who is trained in community corrections and law enforcement techniques. [9A.0103(21)]

G.S. 15-120, Duties and Powers of the Probation Officer, provides, in pertinent part, that:

. . . A probation officer shall have, in the execution of his duties, the powers of arrest and, to the extent necessary for the performance of his duties, the same right to execute process as is now given, or that may hereafter be given by law, to the sheriffs of this State.

The applicability of G.S. 15-205 was considered by the North Carolina Court of Appeals in State

v. Waller, 37 N.C.App. 133 (1978). Waller was convicted of assaulting William R. Bonar, a probation/parole officer, and G. W. Williams, a police officer, while they were discharging or attempting to discharge the duties of their offices. The Court stated that:

We next consider defendant’s contention that the arrest was illegal because the probation officer made the arrest without a warrant. G.S. 15-205 specifically gives the probation officer the power to arrest in the execution of his duties. In addition, any other officer with the power of arrest may arrest a probationer with a warrant if he has a "written statement signed by said probation officer setting forth that the probationer has, in his judgment, violated the conditions of probation." G.S. 15-200 (subsequently amended and recodified as G.S. 15A-1345, effective 1 July 1978). As a matter of sound policy, a probation officer may often elect to follow this procedure and have another law enforcement officer perform the actual arrest in order for the probation officer to properly maintain his role as adviser to the probation. See Clarke, Probation and Parole in North Carolina: Revocation Procedure and Related Issues, 13 Wake Forest L. Rev. 5 (1977). However, if a simple conclusory statement from the probation officer, containing no factual allegations, is sufficient to permit another officer to arrest a probationer without a warrant, then it is reasonable to conclude that G.S. 15-200 and -205, read together, give the probation officer the authority to arrest a probation under his supervision for violations of conditions of probation without a warrant or other written document. . . .

Since probation/parole officers possess the power to arrest, they would come within the exemption of G.S. 14-269 which permits officers of the State charged with the executions of the law of this State, when acting in the discharge of their official duties, to carry concealed weapons.

RUFUS L. EDMISTEN ATTORNEY GENERAL

Jacob L. Safron Special Deputy Attorney General