               Carriage of Firearms by the Marshal, Deputy
               Marshals, and Judges of the Customs Court
The Marshal and Deputy Marshals 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 Judges of the Customs Court would appear to
  necessitate the carriage of firearms.
If the Customs Court finds it necessary to rely solely on its Marshal to police its quarters, it would
   probably have inherent authority to authorize the Marshal and Deputies to carry arms; however,
   there would be no basis for assuming inherent authority in the Court to authorize possession of arms
   by its Judges.
A state could not constitutionally require a federal official whose duties necessitate carrying firearms to
   obtain a firearms license.

                                                                                        October 3, 1967

                             MEMORANDUM OPINION FOR THE
                          ACTING ASSISTANT ATTORNEY GENERAL
                                     CIVIL DIVISION

   This is in response to your request for an informal opinion concerning three
questions on the carriage of firearms by Judges and Marshals of the Customs
Court, forwarded to you by Mr. Vance, the chief of the Customs Section. The
questions, which we understand were raised by the Customs Court itself, are as
follows:

        1. Are the Marshal and Deputy Marshals of the Customs Court with-
        in the authorization of 18 U.S.C. § 3053 to carry firearms?

        2. Would possession of firearms by the Judges, Marshal, and Deputy
        Marshals 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 Judges, Marshal, or Deputy Mar-
        shals?

    In addition, a related question has been raised indirectly concerning the proprie-
ty of subjecting federal officials to state or local licensing requirements involving
firearms.
    In general, our responses to the three questions posed directly are:

        1. Section 3053 does not apply to the Marshal and Deputy Marshals
        of the Customs Court.



                                                   290
    Carriage of Firearms by Marshal, Deputy Marshals, and Judges of Customs Court


       2. The duties of the Marshal, as described by 28 U.S.C. § 872 and
       Rule 19 of the Rules of the Customs Court, would not appear to ne-
       cessitate carrying firearms as part of official duties. However, if re-
       sponsibility for the physical protection of the Court is, in fact, part of
       their duties, the Marshal and Deputies might be considered inherent-
       ly authorized to carry arms, despite the absence of express statutory
       authorization. On the other hand, we see no reasonable basis for con-
       cluding that carriage of firearms is necessary to carry out the official
       duties of Judges of the Customs Court.

       3. If the Court finds it necessary to rely solely on its Marshal to
       police its quarters, it would probably have authority to authorize the
       Marshal and Deputies to carry arms. But, in our view, there would be
       no basis for assuming inherent authority in the Court to authorize
       possession of arms by its Judges.

    The question of the applicability of state firearms 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 attempt to require
officials to obtain state licenses would almost certainly be unconstitutional. On the
other hand, the Administration has, for several years, proposed legislation to
reinforce local firearms restrictions and encourage further limitations on traffic in
firearms. As a matter of policy, it would seem inappropriate to demand exemption
from state firearms restrictions in any but the obviously necessary circumstances
or to encourage noncompliance on the part of federal officials with such state
laws.
    A detailed discussion of these points follows.

                        I. Application of 18 U.S.C. § 3053

   The language of 18 U.S.C. § 3053 expressly authorizes “United States marshals
and their deputies” to carry firearms. It would appear that the quoted words refer
to the United States Marshals appointed by the President with the advice and
consent of the Senate pursuant to 28 U.S.C. § 561 and the Deputies appointed
pursuant to 28 U.S.C. § 562. These are the officers ordinarily referred to as United
States Marshals and Deputies. Other special marshals appointed by, and solely
responsible to, the Judicial Branch are normally designated by the court which
they serve, e.g., the Marshal of the Supreme Court, the Marshal of the United
States Court of Appeals for the District of Columbia, the Marshal of the Customs
Court. Indeed, Rule 19 of the Rules of the Customs Court refers to its Marshal and
United States Marshals in terms which reflect the distinction between them.




                                          291
           Supplemental Opinions of the Office of Legal Counsel in Volume 1


   The United States Marshals, while serving as officers of the courts to which
they are assigned, are likewise law enforcement officers of the Executive Branch.
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 United 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 apply
only to the United States Marshals and Deputies who serve as law enforcement
officers of the executive branch and would not cover the Marshal of the Customs
Court, who is solely an officer of that court.

            II. Relationship of Firearms to the Official Duties of the
                             Court and Its Marshal

   As outlined in 28 U.S.C. § 872 and Rule 19 of the Customs Court, the duties of
the Marshal are to attend the Court, serve and execute its process and orders,
disburse funds, take charge of transportation requests, notify the appropriate
United States Marshal of the time and place of sessions when the Court is on
circuit, and perform such other duties as may be assigned by the Court. These
would not appear to be law enforcement duties of the type which would necessari-
ly require the carrying of firearms. It is true that process serving may, at times,
become hazardous. 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 Procedure or to serve summons or subpoenas under Rules 4 and 17
of the Federal Rules of Criminal Procedure. Carrying firearms would not appear to
a necessary element of process serving or of any of the other specific duties of the
Marshal of the Customs Court.
   On the other hand, if the Marshal and his Deputies 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 Administration (“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 (40 U.S.C. § 210), and the Smithsonian Guards (40
U.S.C. § 193t) are authorized, either 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 firearms while engaged in the duty of
protecting the Court and court building. Policing duties of this type ordinarily
involve carrying firearms and if the Marshal 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 Judges of the Customs Court is to hear
and determine matters involving the customs laws. This is, of course, a judicial



                                         292
    Carriage of Firearms by Marshal, Deputy Marshals, and Judges of Customs Court


function. It does not involve policing 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 Judges of the Customs 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.
    Undoubtedly 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 incidental 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 Court necessitating firearms 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 court.

            III. Power of the Customs Court to Authorize Firearms

   The statutes relating to the Customs 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
district court 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
Deputies to carry firearms, if it could be established that carrying arms is reasona-
bly related to the protection of the Court in the performance of its duties. More-
over, a good argument could be made to support the view that a court has inherent
power to take any necessary and proper action to police and protect its quarters
and need not have any statutory basis for taking such action.
   It must be noted that the authority to carry arms has ordinarily been granted
expressly by statute, even with respect to those whose need 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 carrying of firearms, see, e.g., 19 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 been questioned.
   It is our view that if the Marshal and Deputy Marshals 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 Deputies. In
general, the obligation to provide guard service and armed protection for federal
agencies, including courts, throughout the country is imposed on the General
Services Administration. 40 U.S.C. §§ 285, 318. Of course, where the federal



                                        293
            Supplemental Opinions of the Office of Legal Counsel in Volume 1


agency is quartered in a building under state, municipal or private ownership it is
sometimes necessary to make other arrangements. But it seems to us that arrange-
ments for policing the present or the future 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
sufficient 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
Deputies.
   With respect to the Judges of the Customs Court, we are not aware of any
reasonable basis for the court 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 Law

    It may be stated as a general principle that a state may not impose 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 state could not impose license requirements on federal employees driving
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 internal revenue officer 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. McFarland, 145
F. Supp. 258 (E.D. Va. 1956).
    On the other hand, the Court noted in Johnson that federal officers and employ-
ees are not immune from all state laws and that state law must be complied with
unless there is a superseding federal law or the state 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 decisions directly in point, that a state could not constitutional-
ly 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 govern-
ment, in and of itself, does not automatically exempt a federal officer or employee
from state 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 state firearms laws except in those instances
where it is obviously necessary. The Administration, and particularly the Depart-
ments of Treasury and Justice, have urged stricter controls on interstate traffic in
firearms, federal support and assistance in the enforcement of state laws on



                                          294
    Carriage of Firearms by Marshal, Deputy Marshals, and Judges of Customs Court


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




                                        295
