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 guard2 or a private investigator3 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).
| Cite | Name | Level |
|---|
| None Found. |
| 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 |