In a recent decision, in the case of People v. Drew Peterson, Case No. 08 CF 1169 (Oct. 1, 2010), by Judge Richard Schoenstedt of the 12th Judicial Circuit of the State of Illinois, the issue of LEOSA arose again. In particular, Judge Schoenstedt issued a ruling finding that the defendant in this case, Drew Peterson, could not be charged with the unlawful use of a weapon as a result of the Law Enforcement Officers’ Safety Act of 2004 (LEOSA). In so ruling, the judge had been faced with the legal issue of whether or not the defendant, a police officer, could be charged with felony unlawful use of a weapon given the implications of the Federal LEOSA legislation passed into law in 2004.
In court, the defendant’s defense attorneys had argued that Mr. Peterson, as a police officer, had been allowed by LEOSA to own the weapon in question, which they said he used in his law enforcement duties. As background, Will County prosecutors in May of 2008 had charged Mr. Peterson with felony unlawful use of a weapon, contending he had illegally modified the rifle by shortening the barrel.
Judge Schoenstedt, in issuing his ruling interpreting LEOSA to preclude charging the defendant with the felony weapons charge, opined as follows (full text of Judge Schoenstedt’s opinion follows below):
DECISION AND ORDER BY JUDGE SCHOENSTEDT
This cause comes before this Court for decision following hearing of the Defendant's renewed motion to dismiss the charge against the Defendant for the charge of Unlawful Use of a Weapon. This Court has reviewed and considered the pleadings, testimony, exhibits admitted, arguments of counsel and case law.
On July 30, 2008, this Court entered an order finding that "LEOSA" is applicable to this matter and that the Defendant was a qualified law enforcement officer as defined by "LEOSA". By their renewed motion to dismiss, the defense has requested that this Court, on a pretrial basis, decide the factual and legal issues regarding whether this Defendant can be charged with this criminal offense. The State has not objected to this matter being heard by the Court on a pre-trial basis.
The defense argues simply that "LEOSA" applies to any firearm not specifically excluded whether or not that firearm is illegal by State law. The State's position is that "LEOSA" only applies to legal firearms, including those as determined by State law. The State argues that factors including conceal' carry; possession; privately owned v.
department issued; and illegal firearms are not covered by "LEOSA"; are important considerations in their favor.
Taking those factors singly, this Court finds as follows:
An intent of LEOSA is to allow qualified law enforcement officers to carry concealed firearms, so that if the need arises, such an officer may unconceal; show; and ultimately use his weapon. LEOSA does not provide definitions as to the issue of carry or concealment, including whether it is permissible to have the weapon in a case, holster, waistband, and so forth. Similarly, LEOSA does not indicate that the size of the weapon is a factor in determining whether it can be concealed and carried. In fact, machine guns are typically larger than handguns and the machine gun is the only true firearm excepted from LEOSA. The State has presented no evidence sufficient to show this court that in some way the Defendant acted outside of his authority at any time relevant hereto while carrying or concealing the subject weapon.
Under LEOSA, there is no distinction found by this Court that would treat a qualified law enforcement officer differently whether he possessed a firearm while on duty or off duty. As a qualified officer, he is allowed to carry a concealed firearm either way, except as otherwise provided by 18 USCS §926B(b). The case law presented is certainly consistent with this finding:
Privately Owned vs. Department Issued
This Court can find no evidence to support the State's contention that under LEOSA, it should draw a distinction between the same weapon possessed and used by a
qualified law enforcement officer who violates the department policy; and one who does not. The protection provided by LEOSA is simply not reduced or eliminated because an otherwise qualified officer fails to obtain permission from his department to use the weapon; or to arrange to have that weapon issued by his department.
Whether Illegal Firearms (by State Law) are Protected by "LEOSA"
For this Court, this is the closest question to be determined. From a review of the evidence and law, this Court does not believe it was the intent of the drafters of "LEOSA" that qualified officers should be immune from prosecution by the State when in possession of an illegal firearm as determined by that State. This issue may simply have not been considered at all. However, the State is essentially requesting this Court to assume or infer that the drafters intended to provide immunity only for State sanctioned weapons. In fact, it is possible to assume or infer the opposite in part because the evidence here shows that under different circumstances the officers of the Bolingbrook Police Department would have been able to possess and conceal carry this very weapon. From the evidence, this Court is unable to draw any inference of the intent relative to this issue.
Regardless, at trial it is the State's burden to prove each element of the offense charged. By these findings, it would be impossible for the State to do so. The defense's renewed motion to dismiss is granted.
ANALYSIS OF NEW LEOSA DECISION
While this is a state decision, which would apply only in a limited area of Illinois, unless an appeal is taken by prosecutors, it appears that the case could have a number of LEOSA implications towards various state weapons laws taken in this type of context. It is expected that these types of cases will begin to come to the forefront as the law in this area continues to be tested, analyzed and interpreted by the courts. For now, this kind of decision leaves open the possibility that law enforcement officers might be able to argue a wider application of LEOSA in defensive unlawful possession cases in the future. It is definitely an opinion for legal practitioners in this area of law, like myself, to keep in mind as these issues continue to arise under LEOSA.