The Police Law Blog

From the Congressional Budget Office (CBO), an analysis of LEOSA 2010 amendments has been produced which shows that the cost of making these needed improvements would be neglible.  The language of the report, first issued on March 19, 2010, is listed below:

From the CBO:                                  

S. 1132

Law Enforcement Officers Safety Act Improvements Act of 2010

As reported by the Senate Committee on the Judiciary on March 11, 2010

Current federal law exempts certain active and retired law enforcement officers from
most state and local laws prohibiting the carrying of concealed firearms. S. 1132 would
clarify that officers of the Amtrak Police Department, the Federal Reserve, and the executive branch of the federal government would qualify as individuals who may carry
concealed firearms. The bill also would change the requirements that retired officers must meet to carry concealed firearms. CBO estimates that implementing the bill would result in no significant costs to the federal government. Enacting S. 1132 would not affect direct spending or revenues; therefore, pay-as-you-go procedures would not apply.

S. 1132 contains an intergovernmental mandate as defined in the Unfunded Mandates
Reform Act (UMRA) because it would expand an existing mandate that preempts state or local laws prohibiting the carrying of concealed weapons. CBO estimates that the costs, if any, for state, local, or tribal governments to comply would be insignificant and well below the annual threshold established in UMRA ($70 million in 2010, adjusted annually for inflation).

S. 1132 contains no private-sector mandates as defined in UMRA. The CBO staff contacts for this estimate are Mark Grabowicz (for federal costs) and Melissa Merrell (for the state and local impact). The estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis.

In other words, there is no reason not to move forward and pass these new changes into law, which still appears to be the likely outcome when the House votes on the already approved Senate Bill.

In an effort to review the different aspects of the Law Enforcement Officers’ Safety Act of 2004 (LEOSA) / HR 218, I see a case that I have not looked at before.  The case itself is not new, but it is unique and it is hard to tell whether or not it will yield similar results in other states. 

The case, In re Carry Permit of Andros, 958 A.2d 78 (N.J. 2008), involved an attempt by the State of New Jersey to revoke a retired police officer’s permit to carry a firearm.  The honorably retired police officer had challenged the efforts of New Jersey in this case by invoking LEOSA, contending that the revocation application process was preempted by the LEOSA legislation.  The court held that held that LEOSA did not preempt a state statute allowing revocation for good cause of a retired officer's privilege to carry a handgun.

The court, in it’s opinion seriously evaluated the federal preemption argument regarding the firearms permit revocation, but ultimately concurred in the ability of the state to take such action, even it light of LEOSA.

The Andros court held as follows:

It is conceded that appellant satisfied the requirements of the federal act. But a retired officer's conduct permits the licensing state to revoke the permit, as evidenced by the requirements for qualification and testing every year. . . . In other words, the federal act expressly permits states to set "standards for training and qualification" consistent with those of "active law enforcement officers." Otherwise, a retired officer who suffers from a disability or inability to satisfy those standards would be able to continue to carry firearms.

We thus agree with the opinion of Judge Neustadter that the federal act merely preempts a state's ability to preclude, or change the requirements for, carrying the firearm interstate, if the state of former employment permits licensing of the retired officer. Thus, as the judge said, New Jersey "retains jurisdiction to hear the State's contention that it can establish 'good cause' justifying the revocation." In fact, prior to adoption of the 2004 Act, a federal court in a removal action noted that the Gun Control Act of 1968, 18 U.S.C.A. § 922, et seq., was designed to have preemptive effect only where there is "a direct and positive conflict" when state law and the federal statute "cannot be reconciled." City of Gary v. Smith & Wesson Corp., 94 F.Supp.2d 947, 951 (D.Ind.2000) (quoting 18 U.S.C.A. § 927). This is not such a case.

Federal preemption recognizes the "assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." City of Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 432, 122 S.Ct. 2226, 2232, 153 L.Ed.2d 430, 440 (2002).

. . .

With these principles in mind, we find no Congressional intent to preclude the action taken by the State in this case, and no basis for concluding that a state cannot revoke a handgun permit because Congress authorizes a carrier when licensed in one state to possess it in another state. Andros has submitted references to the Congressional Record in which speakers opposed the legislation and addressed adverse effects on the states. However, when seeking to determine legislative intent, the United States Supreme Court has stated that "[t]he fears and doubts of the opposition are no authoritative guide to the construction of legislation." Shell Oil Co. v. Iowa Dept. of Revenue, 488 U.S. 19, 29, 109 S.Ct. 278, 284, 102 L.Ed.2d 186, 198 (1988) (quoting cases). Andros has submitted no legislative history which warrants a conclusion that section 926C was designed to preempt the action taken by the State in this case.The order revoking the permit to carry a handgun is affirmed.

While we must keep in mind that this is the decision of a single state court in this area of law, it is a quite interesting decision.   I believe that this issue will no doubt be litigated again, probably in a number of states given the issues of preemption.