H.R. 218

01/14/2011

Interesting New LEOSA Case in the Context of Section 1983 Police Lawsuit

By John V. Berry, Esq., Berry & Berry, PLLC, www.berrylegal.com

In a new case, Bladdick v. Pour, Civ. No. 09-cv-330-WDS (S.D. Ill. Dec. 8, 2010), the U.S. District Court for the Southern District of Illinois has interpreted the Law Enforcement Officers Safety Act (LEOSA), in the context of a lawsuit under 42 U.S.C. § 1983. The Bladdick case make the argument that individual officer personal liability might be avoided when and if an officer does not comply with departmental LEOSA policies.

BACKGROUND

The Bladdick case involved a civil action dating from an incident that had occurred between November 8, 2008 and November 9, 2008 in the parking lot of a sports bar.  During the time in question, a number of off-duty City of St. Louis police officers had been present at a sports bar in Granite City, Illinois.  Three of the off-duty officers, including the defendant, Officer Pour, had been carrying their service weapons.  Officer Pour was at one point asked to leave the sports bar due to his alleged level of intoxication.

Officer Pour then went to the parking lot, where he was apparently discovered by the plaintiff in the lawsuit on the ground.  The facts are not clear, but the plaintiff allegedly attempted to help the officer up.  There was some dispute about what was said between the officer and plaintiff, but the plaintiff was shot in the torso by the police officer.  During the incident, the officer had not been wearing his uniform, did not display his badge, nor did he provide any indication that he was a police officer.

In response to the lawsuit against the officer under 42 U.S.C. § 1983, the police department had argued that the officer had not been acting “under the color of state law.”  The importance here is the personal liability of the individual officer under Section 1983. 

COURT’S DECISION

The U.S. District Court found that the officer had not been acting under the color of state law and therefore that the case was not actionable against him under 42 U.S.C. § 1983.  In particular, the U.S. District Court found, in part, that the officer could not be subject to the Section 1983 claim, in part, because of his police department’s LEOSA policy:

"The nature of Pour's act was purely personal and not in furtherance of any official duty. This late night parking lot scuffle, which ended with the shooting of plaintiff by an intoxicated individual did not occur because Pour was clothed with the authority of state law. Furthermore, when plaintiff helped Pour up off the ground and Pour turned and shot him, he certainly misused his service weapon. However, in light of the evidence before the Court, the Court does not find that Pour's misuse of power was only made possible because Pour was "clothed with the authority of state law." In fact, Pour was stripped of his authority as a state actor as a result of his intoxication and the relevant policy that relates to intoxication.

The Board has provided a copy of the Department procedures which state that an officer is not to act while intoxicated. The Department procedure, which sets forth procedures for complying with the Law Enforcement Officer Safety Act ("LEOSA"), which authorizes the concealed carry of firearms, specifically provides: "LEOSA does not provide authority for a person to carry a concealed firearm while under the influence of alcohol or any other intoxicating or hallucinating substance." (Special Order SO 1-05, Doc. 72, Exhibit C.)"

The court then found that Officer Pour was not acting under the color of state law and because an action under color of state law is a jurisdictional prerequisite to a section 1983 claim, the court found that plaintiffs claim against Pour in his individual capacity had to be dismissed.  

LEGAL THOUGHTS

This is another opinion which impacts upon the interpretation of LEOSA.  Interestingly, the opinion makes the determination that the police department’s LEOSA policy, which the officer apparently was not in compliance with, helped the officer to avoid potential personal liability.  Given that individual police departments have typically instituted rather detailed and strict LEOSA policies in recent years, this may prove to be another effective method of defending an officer against personal liability in civil actions when police officers are sued in their individual capacities. 

 

                                                                                                                                       

Posted at 05:43 PM in H.R. 218, New Court Cases |

Technorati Tags: 42 U.S.C. § 1983, color of state law, law enforcement officers safety act, lawsuit, leosa, personal capacity, police officer, section 1983

10/03/2010

LEOSA Ruling in the Context of Officer Felony Weapons Charge

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.

-Page 2-

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:

Conceal Carry

 

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. 

Possession

 

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

-Page 3-

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.

Posted at 06:45 PM in H.R. 218, New Court Cases |

Technorati Tags: criminal defense, Drew Peterson, illinois, law enforcement officer, law enforcement officers safety act, LEOSA, police department, police officer, unlawful weapons charge, Will County

09/30/2010

LEOSA 2010 Passes the House of Representatives and Goes to the President

In very positive news for the law enforcement community, the House of Representatives passed the Law Enforcement Officers Safety Act of 2010, which will now go to the President of the United States for signature.  The House passed the bill after the significant efforts of the national Fraternal Order of Police, and it’s President, Chuck Canterbury. 

The legislation, also often known as LEOSA 2010, will help in a number of ways. The soon to be law (following the President’s expected signature) will amends the federal criminal code to include a law enforcement officer of the Amtrak Police Department and the Federal Reserve or a law enforcement or police officer of the executive branch as a qualified law enforcement officer as eligible to carry concealed firearms. The legislation also changes the definition of "firearm" to include ammunition not expressly prohibited by federal law or subject to the provisions of the National Firearms Act.

The law revises the definition of "qualified retired law enforcement officer" to: (1) include officers separated (currently, retired) in good standing from service with a public agency as a law enforcement officer; and (2) reduce the years-of-service requirement for such officers from 15 to 10 years.

The new law also revises the (1) requirements for firearms certification for such separated officers to allow firearms training in accordance with the standards of the officer's former agency, the state in which such officer resides, or if such state has not established training standards, standards established by a law enforcement agency within the state or those used by a certified firearms instructor; and also (2) mental health requirements for such officers.

The law helps clarify the definition of law enforcement officer to include those employed by the Executive Branch of the Federal Government and who are classified as GS-0083 police officers.  Finally, the law reduces the number of years of aggregate service needed to meet the definition of “qualified retired law enforcement officer.”  In sum, this is very helpful legislation and bound to help clarify the earlier legislation.  See the full bill that was passed here. Download LEOSA 2010

Posted at 06:49 PM in H.R. 218, Laws and Regulations |

Technorati Tags: amtrak police, federal reserve police, FOP, Fraternal Order of Police, GS-0083, House, law enforcement officers safety act, LEOSA, LEOSA 2010, passed, police officer, qualified retired law enforcement officer, retirement law enforcement officer, right to carry, S. 1132, Senate, Senate Bill 1132

09/25/2010

LEOSA 2010 – Still Pending in the House of Representatives

In my practice of representing federal, state and local law enforcement officers and supervisors, the issues associated with the Law Enforcement Safety Officers Act of 2004 (LEOSA) come up fairly regularly.  Sometimes they involve active duty members (typically related to off duty events) or law enforcement retirees and the process they must endure for certification under LEOSA.

In any event, it appears that the LEOSA Improvements Act of 2010 (LEOSA 2010) is still on track.  LEOSA 2010 passed the U.S. Senate with wide support on May 13, 2010 (Senate Bill 1132) and was then referred to the U.S. House of Representatives on July 26, 2010.  In particular, the legislation was referred to the House Judiciary Committee and the Subcommittee on Crime, Terrorism, and Homeland Security.   

The changes in the new legislation focus on amendments to the original LEOSA legislation.  The purpose of LEOSA 2010 is to amend the existing law “to refine the eligibility requirements and procedures by which active and retired law enforcement officers obtain certification to carry concealed firearms across State lines.” Summary, S. Bill 1132.  It is hoped that the legislation will continue to move forward to enhance the changes first made in 2004. 

Posted at 09:22 PM in H.R. 218 |

Technorati Tags: Congress, House, HR 218, Judiciary Committee, LEOSA, LEOSA 2010, Referral, Referred, Senate, Senate Bill 1132

08/11/2010

Budget Report on LEOSA 2010 Improvements Looks Good

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.

 

 

Posted at 05:41 PM in H.R. 218 |

Technorati Tags: Congressional Budget Office, Costs, Expense, House, HR 218, Law Enforcement Officer Safety Act improvements, LEOSA, LEOSA 2010, Police Officer, S. 1132, Senate, Senate Bill 1132

08/05/2010

State Court Affirms Ability of State to Revoke Firearms Permit of Retired Officer Under LEOSA

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.

Posted at 10:00 PM in H.R. 218 |

Technorati Tags: civil action, Court, Court case, Federal Preemption, Federal Supremacy, HR 218, lawsuit, LEOSA, License, Permit, Police Officer, Retired Law Enfrocement Officer, Retired Police Officer

07/25/2010

U.S. District Court Rules against Retired Officers in HR 218/LEOSA Case

 

In Johnson v. New York State Dept. of Correctional Services, 2010 WL 1752550, *1+ (N.D.N.Y. Apr 30, 2010) (NO. 809-CV-965 DNH/RFT), the U.S. District Court for the Northern District of New York heard and ruled in a case where retired corrections officers had brought a civil action against the New York State Department of Corrections seeking relief from the court under the Law Enforcement Officers Safety Act (LEOSA) permitting retired police officers to carry concealed weapons.  

 

The retired correctional officers in the Johnson case had sought to obtain necessary credentials under LEOSA from their former agency in order to comply with the law.  They had prepared a number of written requests to this effect with their former agency. In response to the retired officers’ written requests, the New York Department of Corrections had denied the officers the credentials they had sought.  The retired officers then brought suit against the agency. 

 

In their lawsuit, the retired officers sought a number of findings from the U.S. District Court in their lawsuit.  Most important to the correctional officers, however, was a request that the court order the Department of Corrections to provide the retired officers with the credentials that were necessary in order to comply with 18 U.S.C. § 926C(a) of LEOSA. Section 926C(a) of LEOSA requires retired law enforcement officers to photo identification in accord with 18 U.S.C. § 926C (d) from the agency from which they retired.

 

The U.S. District Court held that LEOSA established a federal right for retired law enforcement officers to carry concealed firearms across state lines, but also ruled that the lawsuit in this case had to be dismissed because the relief sought was unconstitutional.  In particular, the U.S. District Court for the Northern District of New York found that because Congress could not force state agencies to take action in issuing retired police officers credentials under LEOSA, that their case must be dismissed.

 

In sum, while this one U.S. District Court appeared to rule contrary to retired officers in the present case, it may not be an indication of what another U.S. District Court might hold.  In addition, the Johnson case also would not apply on the constitutional issues involved, to federal law enforcement officers.  An appeal in the case was filed in the U.S. Court of Appeals for the Second Circuit and is presently pending. 

 

 

 

Posted at 05:52 PM in H.R. 218, New Court Cases | | Comments (0)

Technorati Tags: Congress, Firearms, HR 218, Intent, LEOSA, NY Department of Corrections, Police Officer, Retired, Retired Police Officers, Right to Carry

07/19/2010

Maryland Issues Form for Retired Officers to Apply for LEOSA Certification

The State of Maryland has issued a form for retirement law enforcement officers covered under the Law Enforcement Officers Act of 2004 (LEOSA / HR 218) which attempts to fill in some of the gaps for the certification gap that currently exists.  Please see the attached copy of the State of Maryland's form. Download LEOSA_APPLICATION MD

Posted at 02:39 PM in H.R. 218 | | Comments (0)

Technorati Tags: HR 218 Retired, LEOSA, Maryland, Police Officer

07/15/2010

Full Copy of LEOSA and HR 218

I have written on many areas of the Law Enforcement Officers' Safety Act of 2004 (LEOSA) (also popularly referred to as HR 218, the designation of the House Bill that first passed this measure) but often times it is helpful to look back at the actual language of what was passed in evaluating law enforcement professional issues that arise. 

Here is a text copy of LEOSA for reference:

Public Law 108–277
108th Congress
An Act
To amend title 18, United States Code, to exempt qualified current and former law enforcement officers from State laws prohibiting the carrying of concealed handguns.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Law Enforcement Officers Safety Act of 2004’’.

SEC. 2. EXEMPTION OF QUALIFIED LAW ENFORCEMENT OFFICERS
FROM STATE LAWS PROHIBITING THE CARRYING OF CONCEALED FIREARMS.
(a) IN GENERAL.—Chapter 44 of title 18, United States Code, is amended by inserting after section 926A the following:

‘‘§ 926B. Carrying of concealed firearms by qualified law
enforcement officers
‘‘(a) Notwithstanding any other provision of the law of any
State or any political subdivision thereof, an individual who is
a qualified law enforcement officer and who is carrying the identification
required by subsection (d) may carry a concealed firearm
that has been shipped or transported in interstate or foreign commerce,
subject to subsection (b).
‘‘(b) This section shall not be construed to supersede or limit
the laws of any State that—
‘‘(1) permit private persons or entities to prohibit or restrict
the possession of concealed firearms on their property; or
‘‘(2) prohibit or restrict the possession of firearms on any
State or local government property, installation, building, base,
or park.
‘‘(c) As used in this section, the term ‘qualified law enforcement
officer’ means an employee of a governmental agency who—
‘‘(1) is authorized by law to engage in or supervise the
prevention, detection, investigation, or prosecution of, or the
incarceration of any person for, any violation of law, and has
statutory powers of arrest;
‘‘(2) is authorized by the agency to carry a firearm;
‘‘(3) is not the subject of any disciplinary action by the
agency;
‘‘(4) meets standards, if any, established by the agency
which require the employee to regularly qualify in the use
of a firearm;
‘‘(5) is not under the influence of alcohol or another intoxicating
or hallucinatory drug or substance; and
‘‘(6) is not prohibited by Federal law from receiving a
firearm.
‘‘(d) The identification required by this subsection is the photographic
identification issued by the governmental agency for which
the individual is employed as a law enforcement officer.
‘‘(e) As used in this section, the term ‘firearm’ does not include—
‘‘(1) any machinegun (as defined in section 5845 of the
National Firearms Act);
‘‘(2) any firearm silencer (as defined in section 921 of this
title); and
‘‘(3) any destructive device (as defined in section 921 of
this title).’’.
(b) CLERICAL AMENDMENT.—The table of sections for such
chapter is amended by inserting after the item relating to section
926A the following:
‘‘926B. Carrying of concealed firearms by qualified law enforcement officers.’’.
SEC. 3. EXEMPTION OF QUALIFIED RETIRED LAW ENFORCEMENT OFFICERS
FROM STATE LAWS PROHIBITING THE CARRYING
OF CONCEALED FIREARMS.
(a) IN GENERAL.—Chapter 44 of title 18, United States Code,
is further amended by inserting after section 926B the following:
‘‘§ 926C. Carrying of concealed firearms by qualified retired
law enforcement officers
‘‘(a) Notwithstanding any other provision of the law of any
State or any political subdivision thereof, an individual who is
a qualified retired law enforcement officer and who is carrying
the identification required by subsection (d) may carry a concealed
firearm that has been shipped or transported in interstate or foreign
commerce, subject to subsection (b).
‘‘(b) This section shall not be construed to supersede or limit
the laws of any State that—
‘‘(1) permit private persons or entities to prohibit or restrict
the possession of concealed firearms on their property; or
‘‘(2) prohibit or restrict the possession of firearms on any
State or local government property, installation, building, base,
or park.
‘‘(c) As used in this section, the term ‘qualified retired law
enforcement officer’ means an individual who—
‘‘(1) retired in good standing from service with a public
agency as a law enforcement officer, other than for reasons
of mental instability;
‘‘(2) before such retirement, was authorized by law to
engage in or supervise the prevention, detection, investigation,
or prosecution of, or the incarceration of any person for, any
violation of law, and had statutory powers of arrest;
‘‘(3)(A) before such retirement, was regularly employed as
a law enforcement officer for an aggregate of 15 years or more;
or
‘‘(B) retired from service with such agency, after completing
any applicable probationary period of such service, due to a
service-connected disability, as determined by such agency;
‘‘(4) has a nonforfeitable right to benefits under the retirement
plan of the agency;
‘‘(5) during the most recent 12-month period, has met,
at the expense of the individual, the State’s standards for
training and qualification for active law enforcement officers
to carry firearms;
‘‘(6) is not under the influence of alcohol or another intoxicating
or hallucinatory drug or substance; and
‘‘(7) is not prohibited by Federal law from receiving a
firearm.
‘‘(d) The identification required by this subsection is—
‘‘(1) a photographic identification issued by the agency from
which the individual retired from service as a law enforcement
officer that indicates that the individual has, not less recently
than one year before the date the individual is carrying the
concealed firearm, been tested or otherwise found by the agency
to meet the standards established by the agency for training
and qualification for active law enforcement officers to carry
a firearm of the same type as the concealed firearm; or
‘‘(2)(A) a photographic identification issued by the agency
from which the individual retired from service as a law enforcement
officer; and
‘‘(B) a certification issued by the State in which the individual
resides that indicates that the individual has, not less
recently than one year before the date the individual is carrying
the concealed firearm, been tested or otherwise found by the
State to meet the standards established by the State for
training and qualification for active law enforcement officers
to carry a firearm of the same type as the concealed firearm.
‘‘(e) As used in this section, the term ‘firearm’ does not include—
‘‘(1) any machinegun (as defined in section 5845 of the
National Firearms Act);
‘‘(2) any firearm silencer (as defined in section 921 of this
title); and
‘‘(3) a destructive device (as defined in section 921 of this
title).’’.
(b) CLERICAL AMENDMENT.—The table of sections for such
chapter is further amended by inserting after the item relating
to section 926B the following:
‘‘926C. Carrying of concealed firearms by qualified retired law enforcement officers.’’.
Approved July 22, 2004.

Posted at 02:21 PM in H.R. 218, Laws and Regulations | | Comments (0)

Technorati Tags: Congress, Firearm, HR 218, LEOSA, Police Officer, Retired Officer, Right to Carry

07/13/2010

Coast Guard Boarding Officer Firearms Case Dismissed by Court as a Result of HR 218/LEOSA

In a State of New York case, People v. Booth, 2008 W.L. 2247068 (N.Y.Co.Ct May 29, 2008) the state court held, in the context of a criminal prosectuion, that Coast Guard boarding officers are qualified LEOs within the meaning of the Law Enforcement Safety Officers Act of 2004, aka LEOSA/H.R. 218.  While the decision is from two years ago, the discussion of the application of LEOSA to law enforcement officers is important.

The Coast Guard boarding officer was pulled over in the City of Newburgh, NY on a traffic stop.  During the stop, the patrol officer uncovered a firearm (loaded Glock 23 handgun) in the vehicle.  The patrol officer arrested the Coast Guard boarding officer because he did not have a license to carry a firearm. 

The Booth court found that the Coast Guard boarding officer qualified under LEOSA and was exempt from prosecution, even though he did not have a handgun license (a violation of USCG rules).  The court held that "When distilled to the salient facts, the evidence presented . . . showed that the defense was a qualified law enforcement officers who possessed photographic identification issued by the Coast Guard.  Accordingly, he is exempt from prosecution." 

The Booth opinion can be seen here.Download LEOSA NY Case

Posted at 12:36 PM in H.R. 218, Laws and Regulations | | Comments (0)

Technorati Tags: exempt, firearm, HR 218, law enforcement, law enforcement officers safety act, LEOSA, license, police officer, right to carry

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