The opinion
Question Submitted by: The Honorable Marty Quinn, State Representative, District 9
2014 OK AG 3
Decided: 02/19/2014
Oklahoma Attorney General Opinions
Cite as: 2014 OK AG 3, __ __
¶0 This office has received your request for an official Attorney General
Opinion in which you ask, in effect, the following question:
May a private
investigator lawfully carry a firearm into a state courthouse or other state
public building in the State of Oklahoma when acting in the course and scope of
employment?
I.
Introduction
¶1 The answer to your question requires a two-step inquiry. First, we must
identify the legal foundations for a private investigator to carry a firearm in
the State of Oklahoma. Having determined these legal bases, we can then turn to
an examination of what limitations attend each grant of firearms authority a
private investigator might possess. These discussions follow in sequence.
II.
The Oklahoma Legislature Has Provided Three Sources of Authority for a
Private Investigator to Carry a Firearm.
A. Carrying a Firearm in Oklahoma
¶2 Upon gaining independence from Great Britain, the Founders amended the
United States Constitution to "expressly protect" fundamental rights against
interference by the federal government. McDonald v. City of Chic., Ill. ,
____ U.S. ____, 130 S. Ct. 3020, 3066 (2010). "Consistent with their English
heritage, the founding generation generally did not consider many of the rights
identified in these amendments as new entitlements, but as inalienable rights of
all men, given legal effect by their codification in the Constitution's text."
Id. Among these inalienable, natural rights was the right to keep and
bear arms, which, by the time of the founding, "had become fundamental for
English subjects." D.C. v. Heller , 554 U.S. 570, 593 (2008).
¶3 To protect the natural, inalienable right to keep and bear arms, the
Founders devised the Second Amendment, which provides: "A well regulated
Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. In
Heller , the United States Supreme Court acknowledged the natural right to
keep and bear arms, holding that the Second Amendment, "like the First and
Fourth Amendments, codified a pre-existing right." Heller ,
554
U.S. at 592. Moreover, the Court held that "[t]he very text of the Second Amendment
implicitly recognizes the pre-existence of the right and declares only that it
'shall not be infringed.'" Id. Most strikingly, the Court observed that
the Second Amendment "' is not a right granted by the Constitution. Neither
is it in any manner dependent upon that instrument for its existence .'"
Id. (citing United States v. Cruikshank , 92 U.S.
542,
553 (1876)) (emphasis added).
¶4 To protect the established, natural right of the people to keep and bear
arms, the Oklahoma Constitution provides that "[t]he right of a citizen to keep
and bear arms in defense of his home, person, or property, or in aid of the
civil power, when thereunto legally summoned, shall never be prohibited; but
nothing herein contained shall prevent the Legislature from regulating the
carrying of weapons." Okla. Const. art. II, § 26. The Oklahoma Legislature, in
keeping with its express, constitutional role, has promulgated multiple statutes
to regulate the carrying of firearms in Oklahoma. Chief among these is Section
1272(A) of Title 21, which reads:
It shall be unlawful for any person to carry upon or about his or her person,
or in a purse or other container belonging to the person, any pistol, revolver,
shotgun or rifle whether loaded or unloaded . . . whether such weapon be
concealed or unconcealed, except this section shall not prohibit:
1. The proper use of guns and knives for hunting, fishing, educational or
recreational purposes;
2. The carrying or use of weapons in a manner otherwise permitted by statute
or authorized by the Oklahoma Self-Defense Act;
3. The carrying, possession and use of any weapon by a peace officer or other
person authorized by law to carry a weapon in the performance of official duties
and in compliance with the rules of the employing agency;
4. The carrying or use of weapons in a courthouse by a district judge,
associate district judge or special district judge within this state, who is in
possession of a valid handgun license issued pursuant to the provisions of the
Oklahoma Self-Defense Act and whose name appears on a list maintained by the
Administrative Director of the Courts; or
5. The carrying and use of firearms and other weapons provided in this
subsection when used for the purpose of living history reenactment. For purposes
of this paragraph, "living history reenactment" means depiction of historical
characters, scenes, historical life or events for entertainment, education, or
historical documentation through the wearing or use of period, historical,
antique or vintage clothing, accessories, firearms, weapons, and other
implements of the historical period.
21 O.S.Supp.2013, §
1272(A).
¶5 Notably, Section 1272(A) bears numerous exceptions that allow a citizen to
carry a firearm on the citizen's person. See id. In fact, since 1996, the
Legislature has codified various amendments to the statute for the obvious
purpose of allowing Oklahoma citizens to maximize the enjoyment of their
constitutional right to bear arms. 1 As an example, for a citizen serving as a private
investigator, no less than three separate licenses allow that
investigator to qualify for the exception allowing for the carrying of a firearm
"in a manner otherwise permitted by statute or authorized by the Oklahoma
Self-Defense Act[.]" Id. § 1272(A)(2). A description of these three
licenses, and the authority they carry, follows below.
B. Authority By Which a Private Investigator May Carry a Firearm
¶6 The Oklahoma Security Guard and Private Investigator Act ("Act")
prescribes the qualifications and standards for security guards and private
investigators in Oklahoma. 59 O.S.2011 & Supp.2013, §§
1750.1 - 1750.14. Further, the Act empowers the Council on Law Enforcement
Education and Training ("CLEET") to issue licenses and identification cards for
those meeting the Act's requirements. 59 O.S.2011, § 1750.3(B)(7). Under Oklahoma
law, "no person may be employed or operate" as either a security guard 2 or a private
investigator 3 until CLEET has issued the person a license pursuant to
the Act. Id. § 1750.4. Since November 1, 2013, the Oklahoma Legislature
has empowered CLEET to issue nine separate licenses under the Act, including the
unarmed private investigator license, the armed private investigator license,
and the armed security guard license. 2013 Okla. Sess. Laws ch. 407, § 29(A)
(amending 59 O.S.2011, §
1750.5(A)).
1. Unarmed Private Investigator Carrying a Firearm Under an Oklahoma
Self-Defense Act License
¶7 The most basic license available to an Oklahoma private investigator under
the Act is the unarmed private investigator license. 59 O.S.Supp.2013, § 1750.5(A)(3). Standing alone,
this license grants the licensee absolutely no right to carry a firearm. Even
so, for persons seeking only an unarmed private investigator license, the
Oklahoma Self-Defense Act ("OSDA") provides a separate, distinct avenue to
lawfully carry a firearm. In fact, the OSDA authorizes any "eligible person" 4 to whom a handgun license
is issued " to carry a loaded or unloaded handgun, concealed
or unconcealed ." 21 O.S.Supp.2013, § 1290.5(A) (emphasis added). To
become eligible for an OSDA license, an unarmed private investigator need only:
(1) be a citizen; (2) establish Oklahoma residency; (3) "[b]e at least
twenty-one (21) years of age;" and (4) "[c]omplete a firearms safety and
training course." Id. § 1290.9. Additionally, an OSDA license applicant
must not possess any disqualifying criminal history or mental "conditions"
specified in the OSDA. 21 O.S.2011, § 1290.10.
2. Armed Private Investigator License
¶8 For private investigators seeking to maximize their authority to carry a
firearm, the Act authorizes the issuance of the "Armed Private Investigator
License." 59 O.S.Supp.2013, §
1750.5(A)(7). To qualify for the armed private investigator license, an
applicant must meet age, citizenship, moral character, and criminal background
standards, while also successfully completing "Phase I, III and IV training," a
"psychological examination," a "state test," and training requirements developed
by CLEET. Id. § 1750.5(C)(2), (H). Among other requirements, CLEET
expressly requires all applicants for the armed private investigator license to
"[s]uccessfully complete the firearms phase of private security training[.]" OAC
390:35-5-2(b)(2) (2011).
¶9 Once an applicant has met all prerequisites, "[i]f the private
investigator performs no functions of an armed security guard, [CLEET] may issue
an armed private investigator license." 59 O.S.Supp.2013, § 1750.5(C)(2). Then, upon receipt
of the armed private investigator license, the license holder " may carry a
concealed or unconcealed firearm when on and off duty , provided the
person is in possession of a valid driver license and a valid armed private
investigator license." Id. § 1750.5(C)(3) (emphasis added). This right to
carry, however, is subject to the respective provisions of the Act and "the
rules promulgated by [CLEET]." Id. § 1750.5(D).
3. Unarmed Private Investigator Carrying a Firearm Under the Authority of an
Armed Security Guard License
¶10 The Oklahoma Security Guard and Private Investigator Act also accords
consideration for those private investigators engaging in the armed security
industry. For those individuals, the Act allows, "[a] private investigator
may carry a firearm , if the private investigator also performs the
functions of an armed security guard, under the authority of the armed security
guard license." 59 O.S.Supp.2013, §
1750.5(C)(1) (emphasis added). The standards for applicants seeking the armed
security guard license mirror those for the armed private investigator.
See id. § 1750.5(H). Moreover, the right of an armed security
guard to carry is similarly subject to provisions of the Act and "the rules
promulgated by [CLEET]." Id. § 1750.5(D).
III.
Restrictions Exist on When and Where Private Investigators May Carry Firearms
in Oklahoma.
¶11 In your question, you inquire both as to where a private
investigator may carry a firearm and when a private investigator
may do so. Each of the three licenses mentioned above is distinct, and each
carries its own scope of firearms authority. Therefore, to fully respond to your
request, we must examine where and when a private investigator may carry a
firearm under each license available. In each instance, our analysis begins with
the Oklahoma statutes.
A. Legislative Intent
¶12 Under Oklahoma canons of construction, "[l]egislative intent governs
statutory interpretation and this intent is generally ascertained from a
statute's plain language." State ex rel. Dep't of Health v. Robertson ,
152 P.3d 875, 877-78 (Okla. 2006). If
that language is "plain and unambiguous and its meaning clear" no further
interpretation is necessary. TRW/Reda Pump v. Brewington ,
829 P.2d 15, 20 (Okla. 1992); see
also Ledbetter v. Howard , 276 P.3d 1031, 1035 (Okla. 2012) ("If the [statutory]
language is plain and clearly expresses the legislative will, further inquiry is
unnecessary."). "If the statute is ambiguous or its meaning uncertain, it is to
be given a reasonable construction, one that will avoid absurd consequences, if
this can be done without violating legislative intent." Dean v. Multiple
Injury Trust Fund , 145 P.3d 1097, 1101 (Okla. 2006) (citing TRW/Reda
Pump , 829 P.2d at 20). At no time should it be presumed that the Legislature
has "done a vain or useless act in the promulgation of a statute." State ex
rel. Okla. Dep't of Pub. Safety v. Gurich , 238 P.3d 1, 7 (Okla. 2010).
B. Oklahoma Self-Defense Act License Holder
¶13 An unarmed private investigator licensee carrying a firearm pursuant to
the OSDA may not carry a firearm into an Oklahoma state courthouse or public
building, regardless of whether the investigator carries the weapon for personal
use or in the course and scope of the investigator's duties. Stated plainly, the
OSDA license itself bears no relation to the private investigator's profession.
Rather, the OSDA license embodies the "citizens' right" to carry a firearm, and
when an unarmed private investigator carries pursuant to an OSDA permit, the
investigator does so with the same rights and restrictions as any other citizen.
1. Carrying for Personal Use
¶14 When an unarmed private investigator licensee carries for personal use
only, the Oklahoma Statutes clearly impose upon the private investigator a host
of geographic prohibitions. These include: (1) all government owned or leased
buildings where business is conducted with the public; (2) all prison, jail, and
detention facilities; (3) any elementary or secondary school; (4) any sports
arena during a sporting event; (5) any place where pari-mutuel wagering is
authorized by law; and (6) any other place specifically prohibited by law.
21 O.S.Supp.2013, §
1277(A). 5 Based on these restrictions, an unarmed private
investigator licensee in possession of an OSDA permit clearly may not carry a
firearm for personal use into either a state courthouse or any other state
building in Oklahoma.
2. Carrying in the course and scope of duty
¶15 When an unarmed private investigator licensee in possession of an OSDA
permit begins acting within the course and scope of the investigator's duties,
the analysis into whether the investigator may carry a firearm into a state
courthouse or public building complicates somewhat. Based on Section 1277(F)'s
language that "[p]rivate investigators with a firearms authorization shall be
exempt from this section when acting in the course and scope of employment," one
could argue that unarmed private investigator licensees carrying a firearm
pursuant to an OSDA license are exempted from the locational proscriptions of
Title 21, Section 1277, so long as they do so in the course and scope of duty.
The statutory history of Section 1277, however, dispels this argument.
¶16 The Forty-Eighth Legislature inserted the provision "[p]rivate
investigators with a firearms authorization shall be exempt from this
section when acting in the course and scope of employment" into Title 21,
Section 1277 through Senate Bill 434 of its First Regular Session. 2001 Okla.
Sess. Laws ch. 396, § 2(E) (emphasis added). The same bill also amended Title
21, Section 1272.1(A), dealing with carrying firearms where liquor is consumed,
to read:
It shall be unlawful for any person to carry or possess any weapon designated
in Section 1272 of this title in any establishment where low-point beer, as
defined by Section 163.2 of Title 37 of the Oklahoma Statutes, or alcoholic
beverages, as defined by Section 506 of Title 37 of the Oklahoma Statutes, are
consumed. This provision shall not apply to a peace officer, as defined in
Section 99 of this title, or to private investigators with a firearms
authorization when acting in the scope and course of employment . . .
.
. . . .
[However] [n]othing in this section shall be interpreted to authorize any
private investigator with a firearms authorization in actual
physical possession of a weapon to consume low-point beer or alcoholic beverages
in any establishment where low-point beer or alcoholic beverages are
consumed.
2001 Okla. Sess. Laws ch. 396, § 1(A) (emphasis added). In sum, through
Senate Bill 434, the Legislature codified the term "firearms authorization" in
three different locations. See 21 O.S.Supp.2013, §§ 1272.1, 1277(F). Yet, despite
having introduced this new phrase into the Oklahoma Statutes, the Legislature
did not define the term "firearms authorization." As a consequence, to determine
whether "firearms authorization" could incorporate an unarmed private
investigator carrying a firearm pursuant to an OSDA permit, we must establish
what the Legislature's understanding of the term "firearms authorization" would
have been during its 2001 Regular Session.
¶17 By 2001, the Oklahoma Security Guard and Private Investigator Act had
been in existence for fifteen years. 1986 Okla. Sess. Laws ch. 224, §§ 1 - 12
(codified at 59 O.S.Supp.1986, §§
1750.1 - 1750.12). As originally passed, the Act stated that "[a] private
investigator may carry a firearm, if also licensed as an armed security guard."
1986 Okla. Sess. Laws ch. 224, § 5(C) (codified at 59 O.S.Supp.1986, § 1750.5(C). Three years later,
the Legislature amended the Act to provide:
¶18 A private investigator may carry a firearm, if said private investigator
also performs the functions of an armed security guard, under the authority of
the armed security guard license; or if said private investigator performs no
functions of an armed security guard, the Council may add an endorsement to the
license of the private investigator that states " Firearms
Authorized" , in lieu of the armed security guard license, provided the
private investigator completes the same training and testing requirements of the
armed security guard. The Council will charge the same fee for the
"Firearms Authorized" endorsement on the private investigators
license as the cost of the armed security guard license.
¶19 1989 Okla. Sess. Laws ch. 225, § 2(C) (emphasis added). At the time the
Legislature considered and incorporated the exemption for "private investigators
with a firearms authorization" into Title 21, Section 1277, this version
remained in force. See 59 O.S.Supp.2000, § 1750.5(C). Furthermore, at the
time the Legislature passed this exclusion, this was the only instance in the
Oklahoma Statutes to discuss "firearms authorization" or "firearms authorized."
Later, in 2007, the Legislature abandoned the term "firearm authorized" in favor
of the less ambiguous "armed private investigator license." 2007 Okla. Sess.
Laws ch. 360, § 3(C).
¶20 The CLEET rules available for review in 2001 communicated a similar
understanding of "firearms authorized." Notably, the rules divided "[a]pplicants
for Armed Security Guard" from "firearms authorized licenses." OAC 390:35-5-2(b)
(2011). Moreover, CLEET rules clarified that "[l]icensed private investigators
who wish to carry a firearm and perform[] no security guard functions, must
obtain a 'firearms authorized'[] endorsement on the private investigator's
license." OAC 390:35-5-8(a) (1999). Most importantly, despite the statutory
shift in the Act's nomenclature from "firearms authorized" to "armed private
investigator license," CLEET rules have yet to be amended. Therefore, while
statutes now employ the term "armed private investigator license," the
regulations providing the process for that license still refer to the license as
a "firearms authorized endorsement." For purposes of the instant inquiry, we
consider these terms to be transposable.
¶21 For the reasons detailed above, the Forty-Eighth Legislature would have
understood "firearms authorization" to be synonymous with a private investigator
holding a "firearms authorized" endorsement on that individual's private
investigator license. 6 Accordingly, in 2001, when the Legislature excluded
"[p]rivate investigators with a firearms authorization . . . when acting in the
course and scope of employment" 7 from the location proscriptions of Title 21, Section
1277, we conclude that the Legislature intended only to exempt private
investigators with a firearms endorsement, or what is currently referred to as
an armed private investigator license. Had the Legislature intended to exempt
unarmed private investigators carrying pursuant to the OSDA from Title 21,
Section 1277, they could have, as they specifically and repeatedly refer to
those "in possession of a valid handgun license issued pursuant to the
provisions of the Oklahoma Self-Defense Act" or "licensed pursuant to the
Oklahoma Self-Defense Act" in other areas of the statute. Because "[t]he
Legislature is not presumed to have done a vain or useless act in the
promulgation of a statute," 8 we must conclude that the use of "[p]rivate
investigators with a firearms authorization," as opposed to private
investigators "in possession of a valid handgun license issued pursuant to the
provisions of the Oklahoma Self-Defense Act" was purposeful. Accordingly, we
find that an unarmed private investigator licensee carrying pursuant to the OSDA
may not carry a firearm into an Oklahoma state courthouse or
public building, irrespective of whether the investigator is carrying for
personal use or in the course and scope of the investigator's duties.
C. Armed Private Investigator License Holder
¶22 Pursuant to the Oklahoma Security Guard and Private Investigator Act, an
armed private investigator licensee may carry a firearm into an Oklahoma state
courthouse or other public building whether the investigator is in the course
and scope of duties or not. The authority granted by the Act originates outside
the OSDA, and as a result, the armed private investigator license may not be
circumscribed by statutes that restrict where an OSDA permit holder may carry a
firearm. The contours of this authority are described below.
1. When an armed private investigator may carry a firearm
¶23 The Act details when the holder of an armed private investigator license
may carry a firearm. Without equivocation, the Act communicates that a licensee
may "carry a concealed or unconcealed firearm
when on and off duty , provided the person is in possession of a
valid driver license and a valid armed private investigator license."
59 O.S.Supp.2013, §
1750.5(C)(3) (emphasis added). Plainly, if a licensee may carry on and off
duty, the licensee need not be acting in the course and scope of
employment when exercising this right. Recent amendments to the Act reinforce
this fact, as the 2013 Legislature expressly repealed the phrase "in the
performance of his or her duties" in the section Act stating that an "armed
private investigator is authorized to carry a firearm in the performance
of his or her duties subject to the provisions of [the Act] and the
rules promulgated by [CLEET]." 59 O.S.2011, § 1750.5(D) (emphasis added)
(amended by 2013 Okla. Sess. Laws ch. 407, § 29(D)). Because we may never
presume that the Legislature has performed "a vain or useless act in the
promulgation of a statute," the intent of the Legislature is clear. See
Gurich , 238 P.3d at 7. Upon receipt of the armed private investigator
license, the licensee may carry a concealed or unconcealed firearm, on or off
duty, so long as the investigator carries the proper identification.
59 O.S.Supp.2013, §
1750.5(C)(3). At all times, however, the armed private investigator licensee is
subject to the respective provisions of the Oklahoma Security Guard and Private
Investigator Act and "the rules promulgated by [CLEET]." Id. §
1750.5(D).
2. Where an armed private investigator may carry a firearm
¶24 Unfortunately, neither statutes nor administrative rules prescribe
where the holder of an armed private investigator license may
carry a firearm. Indeed, the only relevant limitation on the licensee's right to
carry is that the licensees must maintain both a driver's license and their
armed private investigator license on their person wherever they carry a
firearm. Id. § 1750.5(D). Had the Legislature intended to place
locational constraints on this right, the Legislature could have done so. By
comparison, the Legislature placed numerous controls on where OSDA licensees may
carry a firearm. See 21 O.S.Supp.2013, § 1277 (detailing the various
restrictions on where an OSDA licensee may carry a firearm). Yet, nowhere in the
Oklahoma Security Guard and Private Investigator Act has the Legislature sought
to impose similar restraints on armed private investigators. Moreover, nothing
in the current CLEET regulations restricts where an armed private investigator
licensee may carry a firearm.
¶25 But for the ambiguous language of Title 21, Section 1277, our inquiry
could terminate at this juncture. See State ex rel. Okla. Firefighters
Pension & Ret. Sys. v. City of Spencer , 237 P.3d 125, 132 (Okla. 2009) ("If a statute is plain
and unambiguous, it will not be subjected to judicial construction, but will
receive the effect its language dictates."). Instead, based on the
uncertainty in both this statute and the other acts it affects, we must observe
the Supreme Court's guidance that statutes "must be construed as a consistent
whole in harmony with common sense and reason and every portion thereof should
be given effect if possible ." Cowart v. Piper Aircraft
Corp., 665 P.2d
315, 317 (Okla. 1983) (emphasis added).
¶26 As a means of harmonizing the statutes, one might posit that Title 21,
Section 1277(F) should be read to disallow armed private investigators from
carrying firearms into courtrooms or other state buildings unless they do so in
the course and scope of duties. This approach, however, necessarily ignores the
numerous, express references in Section 1277 to persons "in possession of a
valid handgun license issued pursuant to the provisions of the Oklahoma
Self-Defense Act" or "licensed pursuant to the Oklahoma Self-Defense Act."
See 21 O.S.Supp.2013, §
1277(A)-(E). Just as the Legislature cannot be presumed to have vainly
incorporated the exemptions in Section 1277(F), the Legislature cannot be
presumed to have exclusively applied each and every one of the subsections
preceding Section 1277(F) to persons with an OSDA permit in vain. See
Gurich , 238 P.3d at 7. Had the Legislature intended for the restrictions of
Section 1277 to be more expansive, they could have drafted the statute
accordingly. In fact, both Sections 1272 and 1272.1 of Title 21 refer to "any
person," as opposed to the language in Section 1277, which clearly references
"any person in possession of a valid handgun license issued pursuant to the
provisions of the Oklahoma Self-Defense Act." See 21 O.S.Supp.2013, § 1272 (outlining unlawful carry
generally); Id. § 1272.1 (providing limitations for the carrying of
firearms where liquor is consumed); Id. § 1277 (defining locational
proscriptions on OSDA permit holders). Because the Legislature declined to
expand the proscriptions of Section 1277 despite its obvious awareness of how to
do so, it is not within our province to reconcile the statute's conflicting
subsections by expanding its restraints to include all persons carrying or
possessing a weapon.
¶27 Next, this argument violates the rule that "[p]rovisions in the same
statutory scheme should be given a construction which will result in harmonizing
the provisions and giving reasonable effect to both sections without doing
violence to either ." Roach v. Atlas Life Ins. Co.,
769 P.2d
158, 163 (Okla. 1989) (emphasis added). Obviously, to harmonize the
subsections of Section 1277 by expanding its proscriptions, we would be forced
to discount the numerous, explicit mentions of OSDA permit holders throughout
the statute's substantive subsections. See 21 O.S.Supp.2013, § 1277(A)-(E). Further, we would
have to neglect the Legislature's transparent desire to expand, rather than
contract, the firearms authority of armed private investigators. See 2013
Okla. Sess. Laws ch. 407, § 29(C)(3), (D) (allowing armed private investigators
to "carry a concealed or unconcealed firearm when on and off duty" and expressly
repealing the previous requirement that they carry only in the course and scope
of duties).
¶28 Although statutes "must be construed as a consistent whole in harmony
with common sense and reason," we need only give effect to every portion
" if possible ." Cowart, 665 P.2d at 317 (emphasis added).
Here, we cannot properly construe the limitations on the OSDA permit holders
contained in Title 21, Section 1277 as applying to armed private investigators.
As a consequence, the exception for private investigators with a firearms
authorization when acting in the course and scope of employment cannot constrain
the armed private investigator. Accordingly, based on the authority conferred by
the Oklahoma Security Guard and Private Investigator Act, an armed private
investigator licensee may carry a firearm into an Oklahoma state courthouse or
other public building whether the investigator is in the course and scope of
duties or not.
D. Armed Security Guard License Holder
¶29 The Oklahoma Security Guard and Private Investigator Act stands silent on
both when and where an armed security guard licensee may carry a firearm.
Nevertheless, each licensee remains subject to administrative rules promulgated
by CLEET. 59 O.S.Supp.2013, §
1750.5(D).
¶30 For its part, CLEET has clarified that "[a]n Armed Security Guard License
grants no authority to carry a firearm when not acting directly in the
course and scope of employment ." OAC 390:35-5-2(c) (2011) (emphasis
added). Thus, regardless of where a licensee carries a firearm, the licensee may
do so under this license only when acting directly in the course and scope of
employment.
¶31 Like the Legislature, CLEET has remained silent on what geographic
limitations attach to the armed security guard license. Had the Legislature
intended to place locational restrictions on this class of license, it could
have done so. Similarly, had CLEET intended to restrict this license
geographically, it could have done so. Nevertheless, neither the Legislature nor
CLEET have exercised their authority to enact locational restrictions.
Therefore, under current Oklahoma law, the armed security guard license confers
upon its holder a right to carry a firearm in the course and scope of employment
bereft of locational prohibitions. 9
IV.
Conclusion
¶32 A private investigator in Oklahoma may carry a firearm under three
separate licenses. The first two - the armed private investigator and armed
security guard licenses - derive from the Act, while the third comes from the
OSDA. Under the two licenses deriving their authority from the Act, a private
investigator may carry a firearm into a state courthouse or state public
building in Oklahoma, so long as the investigator is acting in the course and
scope of the investigator's duties. In addition, a private investigator in
possession of the armed private investigator license may carry a firearm both in
and outside the course and scope of the investigator's duties, into any state
courthouse or state public building in Oklahoma. An unarmed private investigator
in possession of an OSDA permit, however, carries a firearm with no superior
firearms rights than any other Oklahoma citizen, and may not carry a firearm
into an Oklahoma state courthouse or state public building, regardless of
whether the investigator is on duty or not.
¶33 It is, therefore, the official Opinion of the Attorney General that:
1. A private investigator in possession of an armed private investigator
license may carry a firearm into a state courthouse or other state public
building in the State of Oklahoma, regardless of whether the person is acting
inside or outside the scope of employment. 59 O.S.Supp.2013, § 1750.5 .
2. A private investigator in possession of an armed security guard license
may carry a firearm into a state courthouse or other state public building in
the State of Oklahoma, so long as the person is acting directly in the course
and scope of employment. OAC 390:35-5-2(c) (2011).
3. A private investigator in possession of an unarmed private investigator
license may not carry a firearm pursuant to an Oklahoma Self-Defense Act permit
into a state courthouse or other state public building in the State of Oklahoma,
regardless of whether the person is acting in the course and scope of
employment. 21 O.S.Supp.2013, §
1277 (A), (F).
4. A private investigator with an unarmed private investigator license may
not carry a firearm without some additional grant of authority from a separate
license, as the unarmed private investigator license confers no right to carry a
firearm upon the licensee. See 59 O.S.Supp.2013, § 1750.5 (A).
E. SCOTT PRUITT
Attorney General of Oklahoma
Kristopher Dale Jarvis
Assistant Attorney General
FOOTNOTES
1 See 1996 Okla.
Sess. Laws ch. 191, § 2; 2003 Okla. Sess. Laws ch. 465, § 1; 2007 Okla. Sess.
Laws ch. 128, § 1; 2012 Okla. Sess. Laws ch. 259, § 1; 2013 Okla. Sess. Laws ch.
102, § 1.
2 A "security guard," for purposes of the Act, is defined
as:
[A]n individual contracting with or employed by a security agency, private
business or person to prevent trespass, theft, misappropriation, wrongful
concealment of merchandise, goods, money or other tangible items, or engaged as
a bodyguard or as a private watchman to protect persons or property . . .
.
Id. § 1750.2(7). Oklahoma law defines an armed security guard as "a
security guard authorized to carry a firearm[.]" Id. § 1750.2(8).
3 "Private investigator," as defined by the Act,
means:
[A] person who is self-employed, or contracts with, or is employed by an
investigative agency for the purpose of conducting a private investigation and
reporting the results to the employer or client of the employer relating to:
a. potential or pending litigation, civil, or criminal,
b. divorce or other domestic investigations,
c. missing persons or missing property, or
d. other lawful investigations . . . [.]
Id. § 1750.2(4). Unsurprisingly, the Act defines an "armed private
investigator" as a "private investigator authorized to carry a firearm." Id.
§ 1750.2(5).
4 21 O.S.Supp.2013, § 1290.3 (authorizing the Oklahoma
State Bureau of Investigation to license an eligible person to carry a concealed
or unconcealed handgun as provided by the Oklahoma Self Defense Act).
5 OSDA license holders are also prevented from carrying a
firearm on the grounds of any college, university, or technology school
property. 21 O.S.Supp.2013, §
1277(E). This limitation, like the others enumerated in Title 21, Section
1277, carries numerous exceptions. See generally id. § 1277.
6 Amendments to the Act support the notion that the
Legislature may now consider an armed security guard licensee to fall within the
rubric of those with a "firearms authorization" for purposes of Title 21,
Section 1277. See e.g., 59 O.S.Supp.2013, § 1750.5(D). Nevertheless, such an
analysis would fail to dispose of any relevant issues related to your question.
For that reason, this Opinion will forgo that examination.
7 21 O.S.Supp.2013, § 1277(F).
8 Gurich , 238 P.3d at 7.
9 Although it fails to inform as to when or where an
armed security guard may carry a firearm, the rules do mention that "[a]ll armed
security guards not in uniform apparel must carry their firearm concealed from
view." OAC 390:35-13-1(b) (2011).
Citationizer © Summary of Documents Citing This Document Cite
Name
Level
None Found.
Citationizer: Table of Authority Cite
Name
Level
Oklahoma Supreme Court Cases
Â
Cite
Name
Level
Â
1989 OK 27, 769 P.2d 158, 60 OBJ 536,
Roach v. Atlas Life Ins. Co.
Cited
Â
1992 OK 31, 829 P.2d 15, 63 OBJ 682,
TRW/Reda Pump v. Brewington
Cited
Â
2006 OK 78, 145 P.3d 1097,
DEAN v. MULTIPLE INJURY TRUST FUND
Cited
Â
2006 OK 99, 152 P.3d 875,
STATE ex rel. OKLA. STATE DEPT. OF HEALTH v. ROBERTSON
Cited
Â
2009 OK 73, 237 P.3d 125,
STATE ex rel. OKLA. FIREFIGHTERS PENSION AND RETIREMENT SYSTEM v. CITY OF SPENCER
Cited
Â
2010 OK 56, 238 P.3d 1,
STATE ex rel. OKLAHOMA DEPT. OF PUBLIC SAFETY v. GURICH
Cited
Â
2012 OK 39, 276 P.3d 1031,
LEDBETTER v. HOWARD
Cited
Â
1983 OK 66, 665 P.2d 315,
Cowart v. Piper Aircraft Corp.
Cited
Title 21. Crimes and Punishments
Â
Cite
Name
Level
Â
21 O.S. 1290.5,
Term of License and Renewal
Cited
Â
21 O.S. 1272,
Unlawful Carry
Discussed
Â
21 O.S. 1272.1,
Carrying Firearms Where Liquor Is Consumed
Cited
Â
21 O.S. 1277,
Unlawful Carry in Certain Places
Discussed at Length
Â
21 O.S. 1290.3,
Authority to Issue License
Cited
Â
21 O.S. 1290.10,
Mandatory Preclusions
Cited
Title 59. Professions and Occupations
Â
Cite
Name
Level
Â
59 O.S. 1750.1,
Short Title
Discussed
Â
59 O.S. 1750.3,
Director's Powers and Authority - Council on Law Enforcement Education and Training - Powers and Duties
Cited
Â
59 O.S. 1750.5,
Licenses Authorized to be Issued - Firearms - Identification Card - Liability Coverage - Inactive Status
Discussed at Length