This section attempts to collect references defining the authority of and for a Sheriff's Auxiliary under Missouri law in one place. The Auxiliary shall always look back to these authorities when formulating policy and practice. These references are also expected to be of help for other counties (or municipalities) contemplating the use of law enforcement volunteers.
The authority for formation of a Sheriff's auxiliary is steeped in history and tradition under the authority of the county Sheriff to appoint assistants and delegate such portion of his authority as he deems appropriate to 'auxiliary persons'. These organizations have taken the form of Sheriff's possees (e.g. RsMO 544.120, 544.230), citizens' constabularies, and auxiliaries in various times and places. Some of this history and tradition is taught in our Constitution, Law, and the Auxiliary classes. Law relating to organized, unorganized, and select militia is also often applicable to Auxiliaries.
RsMO 44 and Auxiliary Police
There are, however, several concrete and direct statements of authority for organized Auxiliaries in Missouri law, including RsMO 44.080 2. :
2. In carrying out the provisions of this law, each political subdivision may:
(2) Appoint, provide, or remove rescue teams, auxiliary fire and police personnel and other emergency operations teams, units or personnel who may serve without compensation. [emphasis mine]
Which clearly affirms authority for appointing "auxiliary police personnel" who "may serve without compensation".
Lawfully Summoned In the Aid of the Civil Power
Although the role and precise authority of "auxiliary police" is not well-defined in Missouri law, there are both constitutional and statutory references which are of some help. In many cases these references apply to any person called to assist law enforcement in carrying out their duties, not just volunteers in established organizations such as our own. The existence of an established organization simply gives the Sheriff a structure to recruit, vet, and train those persons prior to their need. The most important is in Article I, Section 23 which states Missouri's Right To Keep and Bear Arms and explicitly references those "lawfully summoned in the aid of the civil power".
In an emergency deployment, our volunteers are "summoned in the aid of the civil power" and therefore come under the authority of the agency doing the summoning to the extent that we are faithfully executing our duty as assigned. We do not willy-nilly gain authority when deployed but only the minimum authority necessary to carry out duties we are lawfully ordered to perform.
When we are so summoned and specifically assisting law enforcement in carrying out their duties, certain legal restrictions to our activity are removed by virtue of the authority of the Licensed Peace Officer we are serving. RsMO 571.030 2.(1): pertaining to "...any person summoned by such officers to assist in making arrests or preserving the peace while actually engaged in assisting such officer..." exempts volunteers from RsMO 571 weapons offenses, for instance.
Subject To the Authority of Our Served Agency
As detailed in our CLA classes, neither the Sheriff nor any other Peace Officer we are taking orders from on the field may delegate to us power they themselves do not hold. This is made explicit in Missouri law in RsMO 563.051.1:
A private person who has been directed by a person he or she reasonably believes to be a law enforcement officer to assist such officer to effect an arrest or to prevent escape from custody may, subject to the limitations of subsection 3 of this section, use physical force when and to the extent that he or she reasonably believes such to be necessary to carry out such officer's direction unless he or she knows or believes that the arrest or prospective arrest is not or was not authorized.
A similar mention of the limits of delegated authority is in RsMO 563.021.2 regarding justification of use of force:
2. The defense of justification afforded by subsection 1 of this section applies:
(1) When a person reasonably believes his or her conduct to be required or authorized by the judgment or directions of a competent court or tribunal or in the legal execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process;
(2) When a person reasonably believes his or her conduct to be required or authorized to assist a public servant in the performance of his or her duties, notwithstanding that the public servant exceeded his or her legal authority.
Oath of Service
The US Constitution and Missouri Constitutions require that officers of every kind serve under an oath of service to uphold those constitutions. RsMO 44.115 makes this requirement explicit with respect to those serving in a Civil Defense capacity and provides that none may serve in such a capacity "who advocates or has advocated a change by force or violence in the constitutional form of the government of the United States or in this state or the overthrow of any government in the United States by force or violence, or has been convicted of or is under indictment or information charging any subversive act against the United States."
Sheriff's Auxiliary volunteers, in and of themselves, have no more and no less power to arrest than ordinary citizens. That means that volunteers possess no general power of arrest except when acting under RsMO 563.051 as quoted above, in which case, they have arrest power only to the extent necessary to carry out the orders of the Licensed Peace Officer directing their service. General citizens do have a limited power of arrest under Missouri law, stated in RsMO 563.051.3(3):
(3) When he or she reasonably believes such use of deadly force is immediately necessary to arrest a person who at that time and in his or her presence:
(a) Committed or attempted to commit a class A felony or murder; or
(b) Is attempting to escape by use of a deadly weapon.
This provision in theory applies to Auxiliary volunteers, but it is the policy of the Lawrence County Sheriff and of the Sheriff's Auxiliary that we avoid the use of this provision and do not make citizen's arrests "in all cases except where a continued threat to life exists if the suspect were not immediately and forcibly contained."
Law Enforcement Academy Requirement
It should be specifically noted that none of these authorities require persons called to assist law enforcement to have undertaken POST certification (700 hours of required courses as of the time of this writing). We have written elsewhere that having auxiliary volunteers as Licensed Peace Officers (LPO) is not merely unnecessary but undesirable. For these purposes here, it will suffice to say that it is not required because volunteers do not have general arrest powers and depend on the authority of the LPO supervising to carry out arrest.
That being said, Missouri law does permit volunteers to be temporarily elevated to the status of Peace Officers and therefore to temporarily possess arrest powers of their own authority as per RsMO 57.119:
In any emergency the sheriff shall appoint sworn deputies, who are residents of the county, possessing all the qualifications of sheriff. The deputies shall serve not exceeding thirty days, and shall possess all the powers and perform all the duties of deputy sheriffs, with like responsibilities, and for their services shall receive two dollars per day, to be paid out of the county treasury.
The Sheriff's Auxiliary maintains, however, that outside an extremely dire circumstance, the grant of arrest powers is not necessary to our volunteer function. Separating these powers by requiring a volunteer to receive approval from a supervising LPO for the use of normally prohibited law enforcement authority is a valuable check on potential abuse which should not lightly be discarded.