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Law Enforcement and the Law with Ken Wallentine

P1 Exclusive: HR218 Explained

Ed Note: PoliceOne legal columnist Ken Wallentine delves into some of the legal subtleties of HR 218 in the below article—be sure to check out Iron Pigs, Hells Angels, and universal off duty carry: Behind the scenes in a critical court case, part one of Charles Remsberg’s two-part article on the Sturgis incident.

A South Dakota Circuit Court judge recently dismissed charges relating to carrying concealed weapons against Scott Lazalde, 38, of Bellingham, Washington, and James Rector, 44, Ferndale, Washington, law enforcement officers with the U.S. Customs and Border Protection Service, and Dennis McCoy, 58, of Seattle, Wash., a Seattle police sergeant and Ron Smith, 43, a Seattle police detective. During a confrontation at the Loud American Roadhouse bar in Sturgis, South Dakota, Detective Smith shot Hells Angel member Joseph McGuire as McGuire made aggressive moves toward Smith.

McGuire still faces assault charges.

The judge ruled that a state may restrict police officers from carrying weapons on state property, but is barred from restricting officers from carrying weapons on private property within the state. The judge’s decision dismisses charges filed by Meade County State's Attorney Jesse Sondreal. Sondreal claimed that state law should trump HR 218, known as the Law Enforcement Officers’ Safety Act (LEOSA).

Judge Warren Johnson ruled that, “While states retain the right to prohibit the possession of firearms on government property and to permit private persons and entities to prohibit the possession of firearms on their property, they cannot restrict qualified law enforcement officers in any other manner.”

Judge Johnson’s decision is a victory for sworn officers whose concealed-carry rights are protected under LEOSA. The court really did nothing more than uphold the time-honored principle that local authorities must obey federal laws.

The LEOSA allows any law enforcement officer with powers of arrest, who is authorized to carry a weapon on duty (whether or not the officer actually carries a weapon), and meets certain standards, or retired officer who formerly met these criteria, to lawfully carry a concealed handgun in any state. There are certain narrow limitations. Qualified law enforcement officers employed by or retired from a local, state or federal law enforcement agency. A “qualified active law enforcement officer” is defined as an employee of a government agency who:

• is authorized by law to engage in or supervise the prevention, detection, investigation, prosecution or the incarceration of any person for any violation of law;
• has statutory powers of arrest;
• is authorized by the agency to carry a firearm; is not the subject of any disciplinary action by the agency;
• meets the standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;
• is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance;
• and is not prohibited by federal law from possessing a firearm.

Qualified active law enforcement officers must carry the photographic identification issued by the agency for which they are employed. A "qualified retired law enforcement officer" is defined as an individual who:

• has retired in good standing from service with a government agency as a law enforcement officer for an aggregate of fifteen (15) years or more for reasons other than mental instability, OR retired from such an agency due to a service-connected disability after completing any applicable probationary period of such service;
• was authorized by law to engage in or supervise the prevention, detection, investigation, prosecution or the incarceration of any person for any violation of law;
• had statutory powers of arrest;
• has a nonforfeitable right to benefits under the retirement plan of the agency for which he was employed;
• meets, at his own expense, the same standards for qualification with a firearm as an active officer within the state in which he or she resides;
• is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance;
• and is not prohibited by federal law from possessing a firearm.

Qualified retired law enforcement officers must carry the photographic identification issued by the agency for which they were employed and documentation which shows that they have met the qualification standards in their state of residence for the firearm they are carrying.

A number of questions are left unanswered by the LEOSA and are left to state officials to interpret and implement. For example, the LEOSA speaks of meeting a state firearms qualification standard. Some states have no state standards and those states leave firearms qualification standards to local agency discretion. There are no mandated procedures for qualification and identification documents for retired officers. Several states have taken affirmative action to fill the gaps left by the LEOSA and to facilitate its implementation. Other states have done little or nothing. Commonly asked questions include:

“I am a fully-sworn law enforcement officer with statutory law enforcement authority, but I work for a private university, or other non-governmental employer. Will I be able to carry under the provisions of the LEOSA?”

No. You must be an employee of a local, state or federal governmental agency to carry a firearm under the provisions of this legislation.

“My agency has a policy that does not allow me to carry my firearm while I am off-duty. Does this mean that this legislation will not affect me?”

If you are a qualified active law enforcement officer, you will legally be able to carry a firearm under the provisions of the LEOSA. There may be agencies which enforce or adopt policies, rules, regulations, or employment conditions which discourage or punish officers who choose to carry while off-duty, but such actions do not mean that the officer cannot carry under the provisions of the bill.

“I am a retired officer, how do I qualify to carry under the provisions of this bill?”

Retired officers must qualify at their own expense and, once they do, will be able to carry the firearm with which they have been qualified with under the provisions of the LEOSA. Each state may adopt different procedures. The state may issue retired officers who have qualified with their firearm a document certifying that the officer has met the state's requirements. Retired officers must carry this documentation in addition to their photographic identification.

“Does the LEOSA allow me to carry a firearm on an airplane?”

No. This legislation exempts qualified active and retired law enforcement officers from state and local laws regarding the carrying of concealed firearms, not federal laws. Carrying firearms on aircraft is regulated by other federal statutes and airline policy. There are other laws regulating carrying firearms on military bases, national parks, court houses, and post offices.

“I am a constable. Do I benefit from this law?”

Not unless employed by a state, city, or county law enforcement agency, and granted powers to investigate crimes and make arrests. A contractual relationship with a city or county is probably not sufficient to grant the protection of this law, but further study is needed on this issue.

“Could the state do nothing to implement the LEOSA, and not be in violation of federal law?”

Yes. An officer has no right to state-issued identification, state-administered qualification, or for the state to establish a qualification standard. Many agency legal advisors conclude that if the state does not have a firearms qualification standard, then no standard must be met. In other words, retired and active officers could carry weapons without meeting any standard. As for identification for retired officers, the federal law does not require that the identification be current, or show that the officer is actually retired. If a state does nothing, the likely legal result is that officers can still carry concealed weapons.

“Who will issue the required identification for retired officers?”

Some agencies already do so. The law does not contemplate that the state will issue identification; the state's role is to issue a ‘certificate’ of qualification if the agency from which the officer retired does not do so.

“Who will administer the qualification of retired officers?”

Unknown. Should it be the agency from which the retired officer resides? What about retired officers who move to Utah (a big issue in Florida!)? Should it be the state’s POST?

“Who will maintain qualification records for retired officers?”

Unknown. Aside from individual agencies, a state POST could easily create a system transforming officers’ training records into retired officers' records once an officer retires from an agency. This does not address the situation of officers who retire from one state and move to another state.

A clean-up bill is pending in both the U.S. Senate and House of Representatives. Senate Bill 376 and House Resolution 2726 would amend the LEOSA to clarify the concealed carry rights of retired law enforcement officers. The bills also clarifies that Amtrak Police Department officers and the executive branch of the Federal Government who are classified as a GS-0083 meet the definition of “qualified law enforcement officer” in the LEOSA. The Senate bill proposes that the aggregate years of service needed to meet the definition of "qualified retired law enforcement officer" would be reduced from fifteen to ten years and cleans up confusing language related to that definition.

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