September 16, 2009

ATTORNEY GENERAL OPINION NO. 2009- 20

Keith Schroeder

Reno County District Attorney

27th Judicial District of Kansas

206 West First Avenue, 5th Floor

Hutchinson, Kansas 67501

Re:	Crimes and Punishment--Crimes Against the Public Safety--Criminal Use of Weapons; Authority of District or County Attorney

State Departments; Public Officers and Employees--Firearms--License to Carry Concealed Firearm; Posted Places Where Carrying Concealed Weapon Not Authorized; Authority of District or County Attorney

Synopsis:	Prosecutors are exempt from the prohibitions against criminal use of a weapon and criminal discharge of a firearm if a prosecutor has secured appropriate authorization, obtained a concealed carry license and completed a specific firearms training course. Additionally, the exemption for criminal discharge of a firearm applies only while the prosecutor is actually engaged in the duties of employment or any activities incidental to such duties.

Prosecutors are exempt from the prohibition against unauthorized possession of a firearm in county courthouses and court-related facilities. However, this exemption is contingent upon a prosecutor meeting the requirements of appropriate authorization, obtaining a concealed carry license, and completing a specific firearms training course, subject to any restrictions or prohibitions imposed by the chief judge of the judicial district. Finally, this last exemption is not applicable if a county resolution opts out of the exemption.

With one exception, a prosecutor licensed to carry a concealed firearm is subject to the prohibitions of the Personal Family and Protection Act regarding carrying a concealed firearm into certain posted premises. This exception allows possession in courthouses and court-related facilities if a prosecutor obtains authorization from the chief agency prosecutor and completes a specific firearms training course, subject to restrictions or prohibitions imposed by the chief judge of the judicial district. Cited herein: Cited herein: K.S.A. 2008 Supp. 21-4201, as amended by L. 2009, ch. 92, § 1; K.S.A. 21-4217, as amended by L. 2009, ch. 92, § 2; 21-4218, as amended by L. 2009, ch. 92, § 3; L. 2009, ch. 92, § 4; K.S.A. 2008 Supp. 75-
7c01; 75-7c10, as amended by L. 2009, ch. 92, § 5; 75-7c11, as amended by L. 2009, ch. 92, § 6.

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Dear Mr. Schroeder:

As Reno County District Attorney, you ask whether 2009 Senate Bill 19 (now L. 2009, ch. 92) authorizes prosecutors in this state to carry a concealed weapon to the same extent as a Kansas law enforcement officer, provided such prosecutor is in compliance with section 4 of 2009 Senate Bill 19 (now section 4 of L. 2009, ch. 92). Rather than compare the authority of prosecutors with that of law enforcement officers, this opinion will simply address the limitations, if any, of a prosecutor's authority to carry a concealed firearm pursuant to the terms of L. 2009, ch. 92.

Legislative History

L. 2009, ch. 92 amended a number of Kansas statutes addressing a prosecutor's ability to carry concealed weapons: criminal use of weapons;1 criminal discharge of a firearm;2 unauthorized possession of a firearm in county courthouses;3 and posted places where carrying a concealed weapon is prohibited.4

A review of the legislative history of L. 2009, ch. 92 will aid in resolving the question posed. As indicated, L. 2009, ch. 92 began its journey as 2009 S.B.19, which exempted most prosecutors5 from (1) the crime of carrying a concealed firearm (amending K.S.A. 2008 Supp. 21-4201), (2) the crime of criminal discharge of a firearm when engaged in their duties (amending K.S.A. 21-4217), and (3) the crime of possession of a firearm within a county courthouse (amending K.S.A. 21-4218). Further, these exemptions would be triggered only if a prosecutor secured a license to carry a concealed weapon and completed a special firearms training course. Assistant prosecutors would also have needed the authorization of the agency's chief prosecutor.

The bill was heard by the Senate Judiciary Committee, which received testimony solely from proponents of the bill,6 as no conferee spoke against it.7 The only amendment made by the Senate committee was one to include the Attorney General and assistant Attorneys General authorized by the Attorney General in the list of prosecutor exemptions.8 The Senate committee then recommended S.B. 19, as amended, favorably for passage.9 When presented to the Senate as a whole, the bill passed as amended.10

S.B. 19 was then referred to the House Federal and State Affairs Committee. Primarily, the same proponents testified.11 In this committee hearing, however, the district and magistrate judges opposed the bill because of concern about firearms in courtrooms.12 Chief Judge for the 6th Judicial District, Richard M. Smith, also pointed out the lack of coordination between the proposed prosecutorial exemptions in S.B. 19 and the current concealed carry law in relation to courtrooms. Judge Smith proposed a solution:

SB 19 needs to be amended to include the same language as exists in 75-
7c10 making it abundantly clear that despite the amendment to the criminal code the presence of firearms in the courtroom is left to the sound discretion of the judge.

The House committee took the judges' concerns to heart by adding two provisions. The first provision further amended K.S.A. 21-4218 (unauthorized possession of a firearm in county courthouses) to authorize the chief judge of a judicial district to impose restrictions or prohibitions regarding possession of firearms in courtrooms.

The second amendment authorized counties to opt out of the section of the bill allowing prosecutors to carry concealed firearms in a courthouse, where adequate security measures exist to ensure that no weapons enter the courthouse and notification signs are posted. This amendment is the "county opt out" provision.

With some other minor amendments, this version of S.B. 19 passed the House of Representatives.13 However, because the Senate did not concur with the House amendments, a conference committee resolved the differences between the two versions. Resolution was reached in the following manner:

•	The chief judge of each judicial district retains authority to determine restrictions or prohibitions concerning firearms in courtrooms.

•	The "county opt out" provision was enhanced by adding additional requirements.

•	The Personal and Family Protection Act (PFPA) was amended to allow prosecutors with concealed carry licenses to possess firearms within courthouses and court-related facilities if the prosecutor receives authorization from the agency's chief prosecutor and completes a special firearms training course. However, a prosecutor remains subject to restrictions or prohibitions imposed by the chief judge of the judicial district.

The Personal and Family Protection Act

The PFPA applies to persons who have secured a license to carry a concealed firearm. One provision within the PFPA14 prohibits licensees from carrying a concealed firearm into 22 specified premises if the premise is conspicuously posted with a prohibitory sign approved by the Attorney General.15 Courthouses and courtrooms16 are listed. However, it is not a violation of the PFPA for a prosecutor to possess a firearm within county courthouses or court-related facilities if the following requirements are met:(1) authorization from the chief agency prosecutor; and (2) completion of a specified firearms training course. The prosecutor is also subject to any restrictions or prohibitions issued by the chief judge of the judicial district. Under the PFPA this exemption from the concealed carry prohibition is limited to "any county courthouse or court-related facility," and does not extend to the other types of premises for which concealed weapons are prohibited.

Another provision allows private businesses, cities, and counties to prohibit licensees from carrying concealed firearms into posted buildings.17 This provision was amended in similar fashion to exempt prosecutors but only with respect to court houses and court related facilities and then only if the two above-referenced conditions are met, subject to any restrictions or prohibitions imposed by the chief judge of the judicial district.

Criminal Firearms Statutes

The criminal statute, unlawful use of weapons,18 was also amended by L. 2009, ch. 92, as were the crimes of criminal discharge of a firearm,19 and possession of a firearm in courthouses.20

The criminal use of weapons statute and the criminal discharge of a firearm statute now exempt prosecutors from the general prohibition against carrying a concealed firearm and discharging a firearm. However, this exemption is applicable only if a prosecutor obtains authorization from the chief agency prosecutor, completes a specific firearms training course and obtains a concealed carry license.21 Additionally, the firearms discharge exemption applies only while actually engaged in the duties of employment or any activities incidental to such duties.22

Possession of a firearm in courthouses was amended in an identical manner.23 However, this statute was further amended to allow a county to "opt out" of the provision allowing prosecutors to carry firearms in courthouses or court-related facilities if certain security measures exist.24 Additionally, even if a county has not opted out, a prosecutor remains subject to prohibitions or restrictions established by the chief judge of the judicial district.

Sincerely,

Steve Six

Attorney General

Camille Nohe

Assistant Attorney General

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