McKenzie v. United States, 2507.

• Decision Date: 29 March 1960
• Docket Number: No. 2507.,2507.
• Citation: 158 A.2d 912
• Parties: John A. McKENZIE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

158 A.2d 912

John A. McKENZIE, Appellant, v. UNITED STATES, Appellee.

No. 2507.

Municipal Court of Appeals for the District of Columbia.

Argued January 11, 1960.

Decided March 29, 1960.

William J. Garber, Washington, D. C., for appellant.

Nathan J. Paulson, Asst. U. S. Atty., Washington, D. C., with whom Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U.S. Atty., Washington, D. C., were on the brief, for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

ROVER, Chief Judge.

Appellant was convicted of carrying a pistol without a license in violation of Code 1951, § 22-3204 (Supp. VII).¹ The sole question on appeal is whether as a special policeman, appointed by the Commissioners under the provisions of Code 1951, § 4-115, he was exempt from the provisions of section 22-3204, because of the provisions of Code 1951, § 22-3205, exempting from the provisions of section 22-3204 "policemen or other duly appointed law-enforcement officers." Appellant contends that under the facts and circumstances of this case he was entitled to carry the pistol without having secured a license, because of his status as a special policeman; in other words, that he was either a policeman or a law-enforcement officer and was accordingly not required to have a license to carry a pistol.

The distinction between a regular and a special policeman is clearly set forth in Klopfer v. District of Columbia, 25 App. D.C. 41. In that case, at page 44, the court in discussing the status of a special policeman said:

"* * * [I]t is very plain that he was only a special policeman for a special purpose, and not subject to the performance of the general duties of a policeman, in the ordinary sense of that term. * * *

"* * * He was employed for one sole purpose, that of guarding from depredation the property of those who paid him for his services. For this purpose alone, and to enable him to perform his duty in that regard, he received a commission from the District of Columbia as policeman. * * *"

The statute under which appellant was appointed (Code 1951, § 4-115) provides as follows:

"The Commissioners of the District of Columbia, on application of any corporation or individual, or in their own discretion, may appoint special policemen for duty in connection with the property of, or under the charge of, such corporation or individual; said special policemen to be paid wholly by the corporation or person on whose account their appointments are made, and to be subject to such general regulations as the said commissioners may prescribe." (Emphasis supplied.)

Pursuant to this statute the Commissioners adopted the following regulations:

"Sec. 7. No person appointed as a special policeman under the provisions of Section 4-115, D.C.Code of [1951], shall display a badge, a weapon, or other evidence of authority in any other place than the property of, or under the charge of, the corporation or individual upon whose account he was appointed and by whom he is paid, or, in the case of a special policeman whose commission extends to more than one person's or corporation's property, in any other place than the area or locations defined in his commission.

"Sec. 8. Firearms or other dangerous weapons carried by a special policeman on the premises for which he holds a commission must be left on said premises when such special policeman is not actually on duty. Firearms or other dangerous weapons carried by special policemen whose commissions extend to more than one person's or corporation's property, may be carried only when such special policeman is on actual duty in the area thereof or while traveling, without deviation, immediately before and immediately after the period of actual duty, between such area and the residence of such special policeman."²

The facts and circumstances surrounding appellant's possession of the pistol are as follows: A member of the Metropolitan Police Department received information in the early morning of July 19, 1959, that a man was impersonating an officer in front of the Birdland Cafe. He proceeded to the cafe where he observed the appellant on the public sidewalk in conversation with someone who was seated in an automobile. The officer requested identification from the appellant and the latter opened...