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[459] April 12, 2000

Senator Frank W. Ballance, Jr. 523 Legislative Office Building Raleigh, North Carolina 27601

Representative E. David Redwine 635 Legislative Office Building Raleigh, North Carolina 27601

Re: Advisory Opinion -- Private Prisons

Dear Senator Ballance and Representative Redwine:

You pose a series of questions concerning the State’s authority to regulate or otherwise control the construction and operation of private prisons to house inmates convicted in federal court or the courts of other states. You also inquire about the authority of private prison employees to engage in law enforcement activities. This advisory letter responds to your questions.

QUESTION 1. Are District of Columbia inmates who are transferred to the custody of the federal Bureau of Prisons legally classified as federal inmates?

ANSWER: Yes.

The National Capital Revitalization and Self-Government Improvement Act of 1997 (Revitalization Act) mandates that the federal Bureau of Prisons (BOP) house a portion of the District of Columbia’s sentenced felon population in private contract facilities. Pub.L. 105-33, §§ 11201(c)(1). We are informed and believe the District of Columbia’s sentenced felon population includes persons incarcerated for violations of the District of Columbia Code as well as the criminal laws of the United States. Ordinarily only persons who have violated an act of Congress and are imprisoned or otherwise detained by the United States are properly considered “federal inmates.” 18

U.S.C. 4001. However, in the Revitalization Act Congress has declared any and all of the inmates transferred to the BOP under its authority “shall be subject to any law or regulation applicable to persons committed for violations of laws of the United States consistent with the sentenced imposed.” Revitalization Act, §§ 11201(a) and (b). Also see District of Columbia Code §§ 24-1201(a) and (b) (subjecting persons convicted of violations of the District of Columbia Code to “any law or regulation applicable to persons committed for violations of the laws of the United States ”). Further, Congress has directed that the BOP “shall be responsible for the custody . . . of such persons.” Revitalization Act, § 11201(b). These statutes make clear that the inmates transferred from the custody of the District of Columbia’s Department of Correction to the custody of the BOP, even those initially incarcerated for violations of the District of Columbia Code, are in fact “federal inmates ” under the charge and control of the United States and the BOP.

QUESTION 2. Can the State legally prohibit the construction and operation of a private prison that will hold federal inmates?

ANSWER: No.

The Supremacy Clause of the United States Constitution immunizes the activities of the federal government from state interference. In our opinion the concept of federal supremacy and preemption allows Congress, even over the objection of a state, to construct and operate a prison to be used to house federal inmates at any place in the jurisdiction of the United States. Pacific Gas & Electric Company v. State Energy Resources Conservation and Development Commission, 461 U.S. 190 (1983). See “Advisory Opinion” from Senior Deputy Attorney General William N. Farrell, Jr. and Special Deputy Attorney General W. Dale Talbert to Senator Frank Ballance, Jr. and Representative Howard Hunter, Jr. dated July 2, 1998. See 18 U.S.C. 4003 (authorizing the U.S. Attorney General to establish prisons in any state).

QUESTION 3. What components of a federal prison can or must be regulated by the State or local government?

ANSWER: The State and local governments may enforce reasonable regulations concerning the construction and operation of private prisons which do not violate the Supremacy Clause by thwarting the federal privatization effort or contradicting or obstructing the liberty interests of private correctional service providers employed by the federal government.

The federal government ordinarily is not required to comply with state building codes or local zoning ordinances. However, a building constructed for a federal agency must be constructed in compliance with nationally recognized model building codes and with other applicable nationally recognized codes. 40 U.S.C. 619(a). The building also must be constructed only after consideration of local zoning laws. 40 U.S.C. 619(b). The federal agency also must give due consideration to the recommendations of state and local government concerning measures which should be taken to respond to local conditions. 40 U.S.C. 619 (d). Nevertheless, no action may be brought against the United States for failure to meet the standards imposed by national codes or recommended by state or local officials. 40 U.S.C. 619(e).

Notwithstanding the permissive nature of the federal government’s ordinary obligation to comply with state and local codes, the BOP’s policy and practice in its prisons privatization efforts is to impose all state and local requirements on the private prison operators with whom it contracts. Through its contracting power, the BOP requires a provider of private prison services to “design, construct, operate and maintain the physical plant in accordance with all state and local laws, regulations, guidelines, policies, building and zoning codes.” Request for Proposal, PCC-0004,

p.22. Where there is a conflict among requirements, the most stringent standard will apply. Id.

Areas over which state and local governments have regulatory authority over the operation of private prisons include possession of firearms and use of force by private prison employees, withholding or restricting the arrest authority of private correctional officers, and establishing qualifications and licensure requirements for professional staff.

QUESTION 4. What state and local requirements must the operator of a private prison meet in order to have its employees authorized to make arrests and use force against inmates inside and outside the perimeter of the facility?

ANSWER: In order to make arrests of inmates either inside or outside the confines of a private prison facility, and use force in doing so, the employees of a private prison operator must obtain certification as municipal law enforcement officers, be “deputized” by the sheriff, or become commissioned as Company Police Officers. Absent certification as a law enforcement officer or deputization, the employees of a private prison operator may only “detain” inmates and use force against them consistent with the common law principles of self defense and defense of property.

Authority to Arrest. In this State the authority to arrest another, with or without a warrant, is regulated by statute. Only sworn law enforcement officers, or other peace officers specifically authorized by statute, may exercise the power of arrest. G.S. § 15A-401. No private person may arrest another person except as provided by G.S. § 15A-405 which authorizes citizens to “assist” law enforcement officers in making arrests and preventing escapes from custody. G.S. 15A-405(a). All other arrests are illegal. S tate v. Mobley, 240 N.C. 476, 83 S .E . 2d 100 (1954).

Although a private citizen cannot arrest another person, a citizen may temporarily detain others when there is probable cause to believe the person to be detained has committed a felony, a breach of the peace, a crime involving physical injury to another, or a crime involving the theft or destruction of property. G.S. § 15A404(b). However, a citizen who detains another under this statutory authority must immediately notify a law enforcement officer of the detention and may continue the detention only until the person detained is surrendered to a law enforcement officer. 15A-404(e).

An employee of a private prison operator may acquire the power to arrest other persons for violations of state law committed on or off the premises of a private prison facility by becoming a sworn law enforcement officer under the sponsorship of a municipal or county law enforcement agency having territorial jurisdiction over the property where the private prison facility is located. To obtain and maintain status as a law enforcement officer with the authority to arrest, the sponsored person must timely meet all pre-employment and in-service training and education standards established by state law and regulation. See 12 N.C.A.C. 9C.0301 (“Every person employed or appointed by the State or any political subdivision thereof as a criminal justice officer shall be certified . . . prior to being administered the oath of office or commencing active service.”); 12 N.C.A.C. 10B.0401 (“Every person performing the duties of a deputy sheriff . . . shall meet the certification requirements of this Subchapter.”) Further, the sponsored person’s subject matter and territorial jurisdiction will be limited to that of the sponsoring law enforcement agency.

An employee of a private prison operator also may obtain limited arrest powers by becoming commissioned as a Company Police Officer under the sponsorship of a Company Police Agency. However, it is an open question whether the operator of a private prison may be certified as a Company Police Agency. The law provides that “a corporation engaged in providing on-site police security personnel services for persons or property may apply to be certified . . . as a company police agency.” G.S . § 74E -2(b) (Emphasis added.) A strict reading of this provision would not allow a corporation engaged in providing private correctional services to be certified as Company Police Agency because the training and education required for certification as a Company Police Officer have not been designed to assure competency in the correction officer profession. Assuming a provider of private correctional services may be commissioned as a Company Police Agency, any of its employees certified as Company Police Officers likely would be limited to providing “police security personnel services ” and not be authorized to exercise the law enforcement powers acquired thereby while employed as a private correctional officer. Company Police Officers may only make arrests on property owned by or in the possession and control of their employer or the entity which has contracted with a Company Police Agency. G.S. §§ 74E -6(c)(1) and (2). Company Police Officers have no law enforcement authority off the property for which they are responsible except when they are in “immediate and continuous pursuit” of a person for an offense committed within the Company Police Officer’s territorial jurisdiction. G.S. § 74E -6(c)(3).

Should the operator of a private prison choose not to seek certification of its employees as law enforcement or company police officers, its employees could be authorized to assist law enforcement officers in “effecting arrests and preventing escapes from custody.” G.S. § 15A-405. However, this limited law enforcement authority vests in a private person only when a request for such assistance is made by a law enforcement officer.

Authority to Use Force. A person may use force against another only when there is legal justification to do so. G.S. §§ 15A-401(d) and (e) describe the limits of a law enforcement officer’s authority to use force in making an arrest. A citizen responding to the request of a law enforcement officer to assist in making an arrest or preventing an escape under the authority of G.S. § 15A-405 has the same authority to use force to accomplish the arrest or prevent an escape as does the requesting law enforcement officer. G.S. 15A-405(a). A private person making a citizen’s detention may use reasonable force. G.S. § 15A-404(c). In all other cases, the justification for a private person to use force against another is based upon the common law of self defense or defense of property.

"If one is without fault in provoking, or engaging in, or continuing a difficulty with another, he is privileged by the law of self-defense to use such force against the other as is actually or reasonably necessary under the circumstances to protect himself [or a third party] from bodily injury or offensive physical contact at the hands of the other, even though he is not thereby put in actual or apparent danger of death or great bodily harm." State v. Anderson, 230 N.C. 54, 56, 51 S.E. 2d 895, 897 (1949); S tate v. Jennings , 276 N.C. 157, 164-65, 171 S.E. 2d 447, 452-53 (1970) (and cases cited therein).

“As an incident to the indubitable right to acquire and own property, recognized by the Constitution of North Carolina and the Constitution of the United States, a person in possession of property, either as owner, or as the agent or servant of the owner, has the legal right to defend and protect it from threatened and impending injury or destruction at the hands of an aggressor, or if it is personal property, to prevent it from being unlawfully taken, or injured, or destroyed by another, and in doing so he may use such force as is reasonably necessary, and no more than is reasonably necessary, to accomplish this end, subject to the qualification that, in the absence of a felonious use of force on the part of the aggressor, human life must not be endangered or great bodily harm inflicted. State v. Lee, 258 N.C. 44, 127 S .E .2d 774, (1962) (citing Bailey v. Fergus on, 209 N.C. 264, 183 S .E . 275 (1936)).

QUESTION 5. May the State or local government provide to a private prison operator the authority to “deputize” citizens to assist its employees in recapturing escaped inmates?

ANSWER: No, not under existing statutes.

Under current law, only sheriffs may “deputize” persons or have them take the oath of office and immediately become authorized to perform law enforcement duties.

G.S. § 17E-8(b).

QUESTION 6. Can the State of North Carolina regulate the type of offender housed in federal prisons?

ANSWER: No.

Congress has enacted legislation giving the U.S. Attorney General authority to control and manage federal prisons including the authority to classify inmates for security purposes and assign them to appropriate prison facilities. 18 U.S.C. §§ 4001(b)(1) and (2); 18 U.S.C. 4081. In our opinion, any attempt by the State to regulate the classification of inmates sent to federal prisons in this state would violate the Supremacy Clause.

QUESTION 7. What state and local requirements must a private prison operator meet in order to sign mutual aid agreements with state and local agencies?

ANSWER: Under existing statutes, a company operating a private prison cannot be a party to a “mutual aid agreement” authorized by G.S. §§ 160A-288 and 160A-288.1

State law authorizes “the head of any law enforcement agency [to] temporarily provide assistance to another agency in enforcing the laws of North Carolina if so requested in writing by the head of the requesting agency.” G.S. § 160A-288(a). A “law enforcement agency” is defined as including “only a municipal police department, a county police department, or a sheriff’s department.” G.S. § 160A-288(b)(1). Private prison operators are not included within this definition of “law enforcement agencies” and therefore may not be a party to a mutual aid agreement.

QUESTION 8. Will federal inmates who escape from private prisons be subject to North Carolina criminal penalties?

ANSWER: Yes.

G.S. § 14-256.1 provides “it is unlawful for any person convicted in a jurisdiction other than North Carolina but housed in a private correctional facility in North Carolina to escape from that facility. Violation of this section is a Class H felony.” Pursuant to this statute it is a crime for a federal inmate or an inmate convicted by another state to escape from a private prison to which he has been assigned by appropriate authority.

QUESTION 8a. Are any statutory revisions necessary to clarify this?

ANSWER: No, provided the statute clearly defines all the conduct the General Assembly intends to prohibit.

However, as with any other criminal statute, if the Legislature is concerned that this statutory provision does not prohibit a particular act, additional clarifying language may be proposed. In an abundance of caution, the Legislature may wish to consider amending G.S. § 256.1 to specify that it encompasses within its scope and coverage private prisons “housing inmates convicted in this or any other state or by the federal government.” Consideration also could be given to amending G.S. § 162-35, “Arrest of escaped persons from penal institutions.” The statute currently provides sheriffs and any other peace officer the authority to arrest only persons who have escaped from “any correctional or penal institution,established by the laws of the State . . . .” (Emphasis added.)

QUESTION 9. Can North Carolina permanently ban the housing of inmates from other states in private prisons if they are not federal inmates.

ANSWER: It is our opinion that North Carolina may utilize its police power to prohibit totally or regulate in ways it deems appropriate the construction and operation of private prisons intended to house persons convicted in other states.

The State possesses police power in its capacity as sovereign, and in that capacity, the General Assembly may enact laws to protect or promote health, morals, order, safety, and the general welfare of society. North Carolina Constitution, Article I, § 19; In re Gues s , 327 N.C. 46, 393 S.E.2d 833 (1990). The State’s police power is as extensive as is necessary for protection of public safety and general welfare. Armstrong v. N.C. State Board of Dental Examiners , 129 N.C. App. 153, 499 S.E.2d 462 (1998); Treants Enterprises, Inc. v. Onslow County, 320 N.C. 776, 360 S.E.2d 783 (1987).

Regulation of a business or occupation under the State’s police power must be based upon some distinguishing feature in the business itself or the manner in which it ordinarily is conducted, the natural and probable cons equence of which, if unregulated, is to produce injury to the public peace, health or welfare. S tate v. Harris , 216 N.C. 746, 6 S .E .2d 854 (1940); S tate v. McCleary, 308 S .E .2d 883, 65 N.C. App 174 (1983). Similarly, legislative enactments under the State’s police power which interfere with the rights of a property owner to use his land as he deems fit must have a reasonable relation to the accomplishment of a legislative purpose and must not be unreasonable in degree in comparison with the public good. Hartford Accident and Indemnification Co. v. Ingram, 290 N.C. 457, 266 S.E.2d 498 (1976).

In our opinion, regulation or prohibition of private prisons falls within the State’s police power and is a proper object of legislation reflecting the General Assembly’s determination of appropriate public policy.

S igned by:

W. Dale T albert Special Deputy Attorney General