290



### Carriage of Firearms by the Marshal
, Deputy

Marshals
, and Judges of the Customs Court

The M arshal and D eput y M arshal s of the Customs Court are not authorized by 18 U.S.C. § 3053 to carry firearms.

Neither the official duties of the Marshal, as described by 28 U.S.C. § 872 and Rule 19 of the Rules of the Customs Court, nor the official duties of the J udge s of the Customs Court would appear to necessitate the carriage of firearms.

If t he Customs Court finds it necessary to rely solely on its M arshal to police its quarters, it would probably have inherent authority to authorize the Marshal and D eputies to carry arms ; however, there would be no basis for assuming inherent authority in the Court to authorize possession of arms by its J udges.

A state could not constitutionally require a federal official whose duties necessitate carrying fire arms to
obtain a firearms license

.

October 3, 1967

M EMORANDUM O PINION FOR THE
A CTING A SSISTANT A TTORN EY G ENERAL

C IVIL D IVISION

This is in response to your request for an informal opinion concerning three questions on the carriage of firearms by J udge s and M arshal s of the Customs Court, forwarded to you by Mr. Vance, the c hief of the Customs Section. The questions, which we understand were raised by the Customs Court itself, are as

follows:

1. Are the M arshal and D eput y M arshal s of the Customs Court wit hin the authorization of 18 U.S.C. § 3053 to carry firearms?

2. Would possession of firearms by the J udge s, M arshal

, and D eput y M arshal s of the Customs Court be deemed to be in pursuit of their

official duties?

3. Does the Customs Court have power to issue orders authorizing the possession of firearms by its J udge s, M arshal

, or D eput y M a rshal s?

In addition, a related question has been raised indirectly concerning the propri ety of subjecting federal officials to s tate or local licensing requirements involving

firearms. In general, our response s to the three questions posed directly are:

1. Section 3053 does not apply to the M arshal and D eput y M arshal s of the Customs Court.Carriage of Firearms by Marshal, Deputy Marshals, and Judges of Customs Court

291 2. The duties of the M arshal, as described by 28 U.S.C. § 872 and Rule 19 of the Rules of the Customs Court, would not appear to n ecessitate carrying firearms as part of official duties. However, if r esponsibility for the physical protection of the C ourt is, in fact, part of their duties, the M arshal and D eput ies might be considered inheren tly authorized to carry arms, despite the absence of express statutory
authorization. On the other hand, we see no reasonable basis for co ncluding that carriage of firearms is necessary to carry out the official

duties of J udge s of the Customs Court.

3. If the C ourt finds it necessary to rely solely on its M arshal to police its quarters, it would probably have authority to authorize the

M arshal and D eput ies to carry arms. But, in our view, there would be no basis for assuming inherent authority in the C ourt to authorize

po ssession of arms by its J udge s.

The question of the applicability of s tate fi rearms licensing laws to federal

officials involves both issues of constitutional law and policy considerations. Where federal law expressly authorizes the carrying of arms or where carrying arms is essential to the performance of a federal function, any a ttempt to require

officials to obtain s tate licenses would almost certainly be unconstitutional. On the other hand, the A dministration has, for several years, proposed legislation to

reinforce local firearms restrictions and encourage further limitations o n traffic in

firearms. As a matter of policy, it would seem inappropriate to demand exemption

from s tate firearms restrictions in any but the obviously necessary circumstances
or to encourage noncompliance on the part of federal officials with such s tate
laws. A detailed discussion of these points follows.

I

. App lication of 18 U.S.C. § 3053

The language of 18 U.S.C. § 305 3 expressly authorizes “ United States m arshals and their deputies ” to carry firearms. It would appear that the quoted words refer

to the United States Marshal s appointed by the President with the advice and consent of the Senate pursua n t to 28 U.S.C. § 561 and the Deput ies appointed pursuant to 28 U.S.C. § 562. These are the officers ordinarily referred to as United

States Marshal s and D epu ties. Other special marshal s appointed by, and solely responsible to, the J udicial B ranch are normally designated by the court which they serve, e.g., the M arshal of the Supreme Court, the Marshal of the United States Court of Appeals for t he District of C olumbia, the Marshal of the Customs

Court. Indeed, Rule 19 of the Rules of the Customs Court refers to its Marshal and

U nited States Marshal s in terms which reflect the distinction between them.Supplemental Opinions of the Office of Legal Counsel in Volume 1

292 The United States Marshal s, while serving as officers of the courts to which they are assigned, are likewise law enforcement officers of the E xecutive B ranch. They are regularly responsible for delivering convicted persons to prison and have been called upon to protect individuals against armed attack. They are authorized to arrest persons violating the laws of the Un i ted States and it is in connection with this authorization that the permission to carry firearms is granted by 18 U.S.C. § 3053. Accordingly, it would appear that 18 U.S.C. § 3053 is intended to app ly only to the United States Marshal s and Deput ies who serve as law enforcement

officers of the e xecutive b ranch and would not cover the M arshal of the Customs

Court

, who is solely an officer of that c ourt.

II

. Relationship of Firearms to the O fficial D uti es of the

Court and I ts Marshal

As outlined in 28 U.S.C. § 872 and Rule 19 of the Customs Court, the duties of

the M arshal are to attend the Court, serve and execute its process and orders, disburse funds, take charge of transportation requests, notify the appropriate

U nited States Marshal of the time and place of sessions when the Court is on circuit, and perform such other duties as may b e assigned by the Court. These would not appear to be law enforcement duties of the type which would necessar ily require the carrying of firearms. It is true that process serving may, at times,

become ha zardous. Yet federal law does not authorize the carrying of firearms by every person authorized to serve process under Rules 4 and 45 of the Federal

Rules of Civil Pr ocedure or to serve summons or subpoenas under Rules 4 and 17

of the Federal Rules of Criminal Procedure. Carrying firearms would not a p pear to a necessary element of process serving or of any of the other specific duties of the

Marshal of the Customs Cour t. On the other hand, if the Marshal and his Deput ies are assigned official duties of a protective or law enforcement nature, carrying firearms could be a necessary

element of those duties. For example, the special police assigned by the General

Services A dministration (“GSA”) to protect public buildings pursuant to 40 U.S.C. § 318 carry firearms, and GSA is expressly authorized to furnish the arms and

ammunition to them (40 U.S.C. § 490(a)(2)). The White House Police (3 U.S.C. § 202), the Capitol Police (4 0 U.S.C. § 210), and the Smithsonian Guards (40

U.S.C. § 193t) are authorized, eithe r directly or indirectly, to carry arms. The Supreme Court Police, although not expressly authorized to carry arms by statue ( see 40 U.S.C. §§ 13f, 13n), do in fact carry f irearms while engaged in the duty of protecting the C ourt and c ourt b uilding. Polic ing duties of this type ordinarily involve carrying firearms and if the Mar s hal of the Customs Court is required to perform such functions, then, we believe carrying firearms might be said to be a part of his official duties. In general terms, the official duty of the Judge s of the Customs Court is to hear and determine matters involving the customs laws. This is, of course, a judicialCarriage of Firearms by Marshal, Deputy Marshals, and Judges of Customs Court

293 function. It does not involve pol icing or law enforcement in the commonly understood meaning of those terms. In our view, there would be little, if any, basis for asserting that the carrying of firearms is a necessary or normal element in the performance of the official duty of the Judge s of the C ustoms Court. Federal laws do not specifically authorize the carrying of firearms by any federal judges and, in modern times at least, we know of no proposal that the carriage of arms be

considered a normal element of federal judicial office.

Undo ubtedly there may be instances in which a federal judge requires the protection of arms and these instances may be directly related to the performances

of his official duties. However, it seems to us that the need for such protection, while perhaps inciden tal to the judicial office, is not a basic element of the office

itself. Carrying a gun, even for self

- protection, is not, it seems to us, part of the official duties of a federal judge. Accordingly, unless there are some special duties

of the Customs Cour t necessitating fir e arms of which we are unaware, carrying a gun would not appear to involve the performance of an official duty on the part of

a judge of that c ourt

.

III

. Power of the Customs Court to A uthorize Firearms

The statutes relating to the Custom s Court authorize it to assign the powers and

duties of its Marshal (28 U.S.C. § 872), and to exercise the same powers as a

d istrict c ourt with respect to preserving order (28 U.S.C

. § 1581). Taken together, these provisions might be used as a basis for authorizing the Marshal and his Deput ies to carry firearms, if it could be established that carrying arms is reason ably related to the protection of the Court in the performance of its duties. More

over, a good argument could be made to support t he view that a c ourt has inherent power to take any necessary and proper action to police and protect its quarters

and need not have a ny statutory basis for taking such action. It must be noted that the authority to carry arms has ordinarily been granted

e xpressly by statute, even with respect to those whose n eed to carry guns seems

obvious: e.g., FBI agents (18 U.S.C

. § 3052), and prison employees (18 U.S.C. § 3050). Where express statutory authority is lacking, however, regulations have

authorized the car rying of firearms, see , e.g. , 1 9 C.F.R. § 23.33(c) (1967)

, which

authorizes customs officers to carry firearms and cites 19 U.S.C. § 1581

, which imposes law enforcement duties on customs officers. The validity of such a regulation does not appear to have b een questioned.

It is our view that if the Marshal and Deput y Marshal s of the Customs Court are assigned policing or law enforcement duties, the Court would probably have authority to authorize them to carry arms. As a practical matter, however, we see

no need for policing duties to be imposed on the Marshal or his Deput ies. In general, the obligation to provide guard service and armed protection for federal agencies, including courts, throughout the country i s imposed on the General

Services Administration

. 40 U.S.C. §§ 285, 318. Of course, where the federalSupplemental Opinions of the Office of Legal Counsel in Volume 1

294 agency is quartered in a building under s tate, municipal or private ownership it is sometimes necessary to make other arrangements. But it seems to us that arrang ements for policing the present or the f uture quarters of the Customs Court should

be handled through GSA rather than by the Court itself. Enforcement of the orders and contempt authority of the Court might, of course, require arms depending upon the circumstances. However we do not have

suffici ent facts to indicate whether this presents a real problem and necessitates an order or regulation authorizing the carriage of firearms by the Marshal and his Deput ies. With respect to the Judge s of the Customs Court, we are not aware of any

reasona b le bas is for the c ourt to authorize by regulation the carrying of firearms. As noted above, this does not appear to be related to the performance of the judicial office.

IV

. Compliance with State L aw

It may be stated as a general principl e that a s tate may not i mpose restrictions on the federal government or its officers in connection with official government

business. In Johnson v. Maryland

, 254 U.S. 51 (1920), the Supreme Court held

that the s tate could not impose license requirements on federal employees drivi ng Post Office trucks. The Court concluded that the licensing requirement would be an impermissible burden on the performance of a federal function. Id. at 57. Similarly, it has been held that an i nternal r evenue o fficer on his way to make an

arrest could not be convicted of speeding in violation of local laws when speed was necessary to the performance of his duty. City of Norfolk v. Mc F arland , 145

F. Supp. 258 (E.D. Va. 1956).
On the other hand, the Court noted in Johnson that federal officers and emplo ye es are not immune from all s tate laws and that s tate law must be complied with unless there is a superseding federal law or the s tate law interferes with the performance of a federal function. 254 U.S. at 56

– 57. With respect to the carriage of firearms, it seems clear, although there appear to

be no federal court d e cisions directly in point, that a s tate could not constitutiona lly require a license of a person authorized by federal law to carry a firearm. Nor, in our opinion, could a license be required of a federal official whose duties necessitate carrying arms, even if there is no express federal statute authorizing

arms. It seems equally clear, however, that employment by the federal gover nment, in and of itself, does not automatically exempt a federal o fficer or employee

from s tate licensing requirements respecting firearms. As a matter of policy, it is our view that the federal government should not insist upon or request exemption from s tate firearms laws except in those instances where it is obviously necessary. The Administration, and particularly the Depar tments of Treasury and Justice, have urged stricter controls on interstate traffic in firearms, federal support and assistance in the enforcement of s tate laws onCarriage of Firearms by Marshal, Deputy Marshals, and Judges of Customs Court

295 firearms, and stronger s tate laws o n the subject. It would be inconsistent with the publicly announced policy on gun controls to urge any broader exemption from

s tate law with respect to federal officers and employees than is necessary to carry

out the functions of the federal government.

FRANK M. WOZENCRAFT Assistant Attorney General Office of Legal Counsel