92 [90 Op. Att’y

LAW ENFORCEMENT OFFICERS

ARREST – CRIMINAL LAW – WHETHER MARYLAND LAW GRANTS

NSA POLICE LAW ENFORCEMENT POWERS

June 27, 2005

The Honorable John W. E. Cluster, Jr.

House of Delegates

You have requested our opinion concerning the law

enforcement authority of the National Security Agency (“NSA”)

police under Maryland law. Specifically, you have asked: (1)

whether an NSA police officer is covered under certain provisions

of State law that confer various powers on law enforcement officers

– Annotated Code of Maryland, Criminal Procedure Article (“CP”),

§§2-101 through 2-104 and §§2-201 through 2-205 – and (2)

whether an NSA officer may take action if a crime is committed in

the officer’s presence outside the territorial jurisdiction of NSA

police. 

For the reasons explained below, we conclude as follows:

(1) Most of these Maryland statutory provisions conferring

powers on police officers do not directly apply to an NSA officer

because an NSA officer is not a “police officer” as defined in the

Criminal Procedure Article. Certain provisions applicable to a

“federal law enforcement officer” would apply to an NSA officer

acting within the territorial jurisdiction of the NSA police.

(2) Under Maryland law, an NSA officer may make a citizen’s

arrest, if the officer witnesses certain crimes outside the territorial

jurisdiction of the NSA police.
Gen. 92] 93

 The National Security Agency Act of 1959 is uncodified. The 1

current provisions of §11 of the Act can be found in a note following 50

U.S.C.A. §402 (West Supp. 2005). 

 Until December 28, 2001, the authority of NSA’s security 2

protective officers was premised on a delegation by the Administrator of

General Services. The Intelligence Authorization Act for Fiscal Year

2002, Pub. L. No. 107-108, §506, 115 Stat. 1394, 1406 (2001), granted

NSA authority to maintain security personnel without reliance on the

General Services Administration.

 When engaged in the performance of their official duties, NSA 3

officers must be “clearly identifiable as United States Government security

personnel.” Id., §11(c). They are entitled to immunity under provisions

of federal law relating to tort liability, including the Federal Tort Claims

Act, 28 U.S.C. §2671, et seq., consistent with protection available to other

federal law enforcement officers. Id., §11(d).

 NSA officers also enforce rules and regulations prescribed by the 4

Director of NSA within the confines of NSA facilities. See National

Security Agency Act, §11(a)(4) and (b).

I

NSA Police

Under the National Security Agency Act of 1959, as amended,1

the Director of the NSA may employ security officers for the

protection of NSA facilities. The Act allows the Director to

“authorize agency personnel within the United States to perform the

same functions as officers and agents of the Department of

Homeland Security, as provided in [40 U.S.C. §1315(b)(2)], with the

powers set forth in that section,” within specified locations.

National Security Agency Act, §11(a)(1). In the performance of 2

their duties, NSA officers may, among other things, carry firearms,

enforce federal laws for the protection of persons and property, make

certain warrantless arrests, serve warrants and subpoenas, and

conduct investigations. See 40 U.S.C. §1315(b)(2). The NSA 3

police thus have authority equivalent to other police officers

designated by the Secretary of Homeland Security for the protection

of federal property, but with an important limitation as to

jurisdiction. 

4

Under the National Security Act, the NSA officers’ exercise of

their powers is limited to the following territory: 
94 [90 Op. Att’y

(A) at the National Security Agency

Headquarters complex and at any facilities and

protected property which are solely under the

administration and control of, or are used

exclusively by, the National Security Agency;

and 

(B) in the streets, sidewalks, and the open

areas within the zone beginning at the outside

boundary of such facilities or protected

property and extending outward 500 feet.

National Security Agency Act, §11(a)(1). Their jurisdiction beyond

the boundaries of an NSA facility, within the 500-foot perimeter, is

further limited to “those circumstances where [the officers] can

identify specific and articulable facts giving ... reason to believe that

the performance of such functions and exercise of such powers is

reasonable to protect against physical damage or injury, or threats of

physical damage or injury, to [NSA] installations, property, or

employees.” Id., §11(a)(2). 

The extension of the officers’ authority beyond NSA facilities

was intended to allow them to function as federal police “with all

attendant authorities, capabilities, immunities, and liabilities” within

the 500-foot perimeter for authorized purposes; it was not envisioned

as a general grant of police authority. H.R. Conf. Rep. No. 328,

107 Cong., 1 Sess. 27 (2001), reprinted in 2001 U.S. Code Cong. th st

& Admin. News at 1227-28. 

II

Applicability of Law Enforcement Authority 

under Maryland Statutes

You asked whether NSA police officers are covered under

certain Maryland statutes that confer various powers on law

enforcement officers – specifically, CP §§2-101 through 2-104 and

§§2-201 through 2-205. 

All but one of these provisions concern powers of a “police

officer” as defined in the statute. In particular, CP §2-102 deals

with, among other things, the authority of a police officer to engage

in law enforcement activities under specified circumstances

throughout the State; CP §2-103 addresses the authority of a police
Gen. 92] 95

 The statute reads:

5

"Police officer" means a person who in an official

capacity is authorized by law to make arrests and

is:

(1) a member of the Department of

State Police;

(2) a member of the Police Department of

Baltimore City;

(3) a member of the Baltimore City

School Police Force;

(4) a member of the police

department, bureau, or force of a county;

(5) a member of the police

department, bureau, or force of a municipal

corporation;

(6) a member of the Maryland

Transit Administration Police Force,

Maryland Port Administration Police

Force, or Maryland Transportation

Authority Police Force;

(7) a member of the University of

Maryland Police Force or Morgan State

University Police Force;

(8) a special police officer who is

appointed to enforce the law and maintain

order on or protect property of the State or

any of its units;

(9) a member of the Department of

General Services security force;

(10) the sheriff of a county whose

usual duties include the making of arrests;

(continued...)

officer to serve an arrest warrant anywhere in the State; CP §§2-201

through 2-205 address circumstances under which a police officer

may make a warrantless arrest. 

The scope of each of these provisions is limited by the statutory

definition of “police officer.” That definition, which encompasses

members of an extensive list of law enforcement agencies, does not

include members of the NSA Police. CP §2-101(c). Thus, none of 5
96 [90 Op. Att’y

 (...continued) 5

(11) a regularly employed deputy

sheriff of a county who is compensated by

the county and whose usual duties include

the making of arrests;

(12) a member of the Natural

Resources Police Force of the Department

of Natural Resources;

(13) an authorized employee of the

Field Enforcement Division of the

Comptroller's Office;

(14) a member of the

Maryland-National Capital Park and

Planning Commission Park Police;

(15) a member of the Housing

Authority of Baltimore City Police Force;

(16) a member of the Crofton Police

Department;

(17) a member of the WMATA

Metro Transit Police, subject to the

jurisdictional limitations under Article

XVI, §76 of the Washington Metropolitan

Area Transit Authority Compact, which is

codified at §10-204 of the Transportation

Article;

(18) a member of the Internal

Investigative Unit of the Department;

(19) a member of the State Forest

and Park Service Police Force of the

Department of Natural Resources;

(20) a member of the Department of

Labor, Licensing, and Regulation Police

Force; or

(21) a member of the Washington

Suburban Sanitary Commission Police

Force.

 There are conflicting views in the federal courts as to whether 6

federal officers may investigate violations of state law based on a state

(continued...)

these statutory provisions applies directly to NSA officers. 

The one statutory provision you have identified that is not

limited to a “police officer” – CP §2-104 – confers authority on

“federal law enforcement officers.” This statute authorizes federal 6
Gen. 92] 97

 (...continued) 6

law purporting to grant them that authority. See United States v. Ellis, 326

F.3d 593, 596-98 (4 Cir.), cert. denied, 540 U.S. 907 (2003). The Fourth

th

Circuit has suggested that a statute authorizing, rather than requiring,

action by federal officers would be constitutional. Id. at 598.

 “Emergency” is defined as “a sudden or unexpected happening 7

or an unforeseen combination of circumstances that calls for immediate

action to protect the health, safety, welfare, or property of a person from

actual or threatened harm or from an unlawful act.” CP §2-101(b).

law enforcement officers, in specified circumstances, to execute

arrest and search and seizure warrants issued under Maryland law

and to make warrantless arrests under Title 2, Subtitle 2 of the

Criminal Procedure Article. CP §2-104(b)(1). 

The authority granted under CP §2-104 applies only when the

federal officer is: (1) participating in a joint investigation with State

or local law enforcement officials, (2) rendering assistance to a

police officer, (3) acting at the request of a State Police officer or

local police officer, or (4) acting in an “emergency”. CP §2- 7

104(b)(2). The statute requires the federal officer to give notice of

an investigation or enforcement action to certain State or local

officials and addresses the federal officer’s legal status and

immunity protection, as well as State and local government liability.

CP §2-104(c)-(e).

CP §2-104 was apparently designed to facilitate the ability of

federal and State law enforcement officers to work together in areas

where they share jurisdiction, by eliminating certain liability

concerns. Documentation in the legislative file of the bill that

enacted the predecessor of CP §2-104 explained:

Often a federal officer is working along

with a state officer, and the situation arises

where officers need to make an arrest. Under

present law, the federal officer must stand by

helplessly, for fear of later being sued by the

arrestee.
98 [90 Op. Att’y

 House Bill 854 (1982) was enacted as Chapter 864, Laws of 8

Maryland 1982, adding former Article 27, §594B(g) – provisions now

codified, as amended, at CP §2-104. 

Legislative history file, House Bill 854 (1982). It is thus apparent 8

that the purpose was to confer authority on federal officers to the

extent they are engaged in cooperative law enforcement efforts with

State and local officers.

Whether CP §2-104 applies to an NSA police officer depends

on whether that officer qualifies as a “federal law enforcement

officer.” For purposes of this statute, a “federal law enforcement

officer” is defined as:

an officer who may:

(1) make an arrest with or without a

warrant for violations of the United States

Code; and

(2) carry firearms in the performance of

the officer’s duties.

CP §2-104(a). 

NSA officers may make certain arrests and carry firearms in

the performance of their duties, but that authority is limited

geographically to NSA facilities and areas within 500 feet of those

facilities. In authorizing a separate NSA police force, Congress

anticipated that the NSA police would enter into cooperative

arrangements with other police agencies that shared concurrent

jurisdiction within the 500-foot perimeter surrounding an NSA

facility. See H.R. Conf. Rep. No. 328, 107 Cong., 1 Sess. 27 th st

(2001). As noted under Part I of this opinion, the NSA police were

not intended to serve as a general federal law enforcement agency.

Given the territorial limitations on an NSA officer’s powers

under federal law to make arrests or carry firearms, it is our view

that an NSA officer falls within the definition of “federal law

enforcement officer” only when the officer is acting within the

territorial jurisdiction of the NSA police – i.e., within an NSA
Gen. 92] 99

 This conclusion does not mean that an NSA officer would be 9

considered a federal law enforcement officer or official in a different

context. See letter of advice from Assistant Attorney General Robert A.

Zarnoch to Delegate Kevin Kelly (June 23, 2003) (given NSA officers’

limited jurisdiction, they do not qualify for exemption applicable to law

enforcement officials of the United States under Maryland’s handgun

registration statute).

facility or within the 500-foot area around facility. This conclusion 9

is consistent with the congressional intent not to grant NSA officers

general police authority. It is also consistent with the legislative

purpose underlying CP §2-104, to facilitate cooperative

arrangements between State and federal officers who are otherwise

acting within their respective jurisdictions.

III

Crimes Witnessed Outside NSA Officer Jurisdiction

You also asked what action an NSA officer might take when

a crime is committed in the officer’s presence outside the

jurisdiction of the NSA police. In those circumstances, the officer’s

authority is the same as that of a private citizen. Stevenson v. State,

287 Md. 504, 509-10, 413 A.2d 1340 (1980); see also 6A C.J.S.

Arrest §11 (2004) (federal officials such as customs agents, treasury

officials, narcotics agents, FBI agents, internal revenue agents, and

postal inspectors authorized to make citizen arrests in circumstances

where such arrests are permissible).

Under Maryland law, the authority of a private citizen to make

an arrest without a warrant varies based on the nature of the crime.

If the crime is a felony, a citizen can make an arrest if the felony is

being committed in the citizen’s presence or when a felony has in

fact been committed, whether or not in the citizen’s presence, and

the citizen making the arrest has probable cause to believe the person

arrested has committed the felony. Stevenson, 287 Md. at 513. If

the crime is a misdemeanor, a citizen can make an arrest if the

misdemeanor is committed in the citizen’s presence or view and the

crime amounts to a breach of the peace. Id.

Maryland law permits an NSA officer to make a citizen’s arrest

outside the officer’s jurisdiction. However, an officer would have

no official immunity from liability for such an action. Moreover,

NSA may have policies that govern whether officers may engage in
100 [90 Op. Att’y

law enforcement activities outside the scope of their employment,

including making citizen’s arrests. We must, of course, defer to the

agency concerning the application of any such policy.

IV

Conclusion

It is our opinion that:

(1) Most of these Maryland statutory provisions conferring

powers on police officers do not apply directly to an NSA officer

because an NSA officer is not a “police officer” as defined in the

Criminal Procedure Article. Certain provisions applicable to a

“federal law enforcement officer” would apply to an NSA officer

acting within the territorial jurisdiction of the NSA police.

(2) Under Maryland law, an NSA officer may make a citizen’s

arrest, if the officer witnesses certain crimes outside the territorial

jurisdiction of the NSA police.

J. Joseph Curran, Jr.

Attorney General

William R. Varga

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice