ATTORNEY GENERAL OPINIONS—Sent by ICAP
First, this opinion from 1995 analyzed a proposed initiative that would have allowed private, volunteer militia organizations to organize and train without supervision of the governor and, whenever the governor called them up to serve as part of the "organized militia," would have prevented the governor from having any say in how the militia units were structured. The Attorney General definitively concluded that "the proposed initiative is unconstitutional. Under the proposed initiative, volunteer organizations would be able to organize and train without any oversight or interference from governmental authorities. However, the Idaho Constitution requires control of the state militia by the governor and through laws passed by the legislature."
Second, this opinion from 1987 discusses Idaho's "false assumption" statute, which prohibits individuals who are not law-enforcement officials from exercising law-enforcement functions. The militia in Bonner County may have violated this statute when its members purported to perform the duties of police officers in "protecting" property from what they perceived as a threat of violence. The 1987 opinion addressing the statute is in a different context, but still contains some helpful language. Specifically, it discusses Idaho's law-enforcement training requirements, which are spelled out at title 19, chapter 51 of the Idaho Code. It concludes that even individual officers, employed by local Idaho law-enforcement agencies, are required by law to complete the statutorily required certification and training. The opinion specifically warns that failure to complete that training and receive the required certification puts the officer at risk of violating the false-assumption statute:
A sheriff and his uncertified deputy and other county officers must also consider the consequences of Idaho Code § 18-711 entitled "Unlawful exercise of functions of peace officers." This section makes it a felony offense for any person in this state to "unlawfully exercise or attempt to exercise the functions of ... a deputy sheriff." A person who does not become certified . . . within one year of becoming employed by a sheriff as a peace officer is exercising the functions of a deputy sheriff unlawfully.
This reasoning would apply equally--and perhaps even with greater force--to a private individual, not employed by a state law-enforcement agency, who exercises the functions of a peace officer.