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pulicords
08-29-2008, 04:58 PM
This in no way excuses the actions of a few stupid cops in Sturgis, but since when does the ATF have the authority to decide that HR 218 isn't applicable? Has the U.S. Department of Justice simply dropped the ball and left law enforcement officers in legal limbo or is ATF really "HUA" in discounting what cops across the nation believe?

http://www.rapidcityjournal.com/articles/2008/08/29/news/local/doc48b784e086e0d898298826.txt

DACP
08-29-2008, 05:25 PM
What the ****?? They say this guy is not covered under the law in essence because the attorney general dropped the ball? But yet a member of the coastguard who has no authority to carry of duty had his charges dropped because some how the judge was able to apply this law something is amiss here.


The act was passed, but it’s never been enforced by the Attorney General’s office,” she said. Congress directed the U.S. Attorney General’s office to meet the conditions for its implementation – such as establishing the necessary databases and identifications -- something which DiPirro said apparently has never been done.
What data base? What Identifications? What is there to implement? Don’t recall seeing that as part of anything anywhere in the legislation. Not sure if it was a bad shoot or good shoot, but I would have to say that lying is never a good thing, that is going to hurt big time IF found to be true

SA13
08-29-2008, 05:35 PM
Well before everyone runs around bashing ATF, and crying that the sky is falling why don't you try reading that article for COMPREHENSION, rather than getting all twisted up over what you're missing.

All the ATF PIO said was that the Grand Jury in Meade County had no way to consider the affects of the FEDERAL law on the STATE charges. In the case of the Coastie he sought relief in FEDERAL court, and the FEDERAL court said he was protected by the law. So the STATE of SD, and Meade COUNTY can do whatever they want, according to state and local law, but if these cops want protection under the LEOSA they will need to seek relief through the FEDERAL courts, just like that Coastie did.

Geez, it's as if you all had never learned about separate sovereigns. Then again maybe you didn't.

pulicords
08-29-2008, 06:04 PM
So the STATE of SD, and Meade COUNTY can do whatever they want, according to state and local law, but if these cops want protection under the LEOSA they will need to seek relief through the FEDERAL courts, just like that Coastie did.

Geez, it's as if you all had never learned about separate sovereigns. Then again maybe you didn't.

I guess then it's okay for local/state agencies to arrest off-duty FBI/ATF/U.S. Secret Service agents and let them go through the expense and stress of getting relief via the Federal courts too? The purpose of the legislation was to establish uniformity and now you have one agency (not even the one with primary authority according to their own spokesperson) saying HR 218 hasn't been legally implemented.

Yea, there's something to be concerned about here. Especially if you plan on carrying legally in another state. What if you're retired? Now you have to provide your own resources (re: money) to get relief?

David Hineline
08-29-2008, 06:04 PM
National carry for officers would not include in bars and while drinking. SD does not allow CCW in bars.

From the text below Officer Smith sounds like a heck of a dept. asset.

David Hineline
08-29-2008, 06:07 PM
Seattle officers charged in Sturgis shooting

SIOUX FALLS (AP) -- Grand jurors have indicted a Seattle police detective, a Hells Angel biker he shot, two customs officers and another man following a bar fight at this year's Sturgis motorcycle rally.

Joseph McGuire, 33, of Imperial Beach, Calif., was shot and injured Aug. 9 at the Loud American Roadhouse by Ronald Smith, 43, a vacationing Seattle detective, authorities said.

Both men are charged with alternative counts of aggravated and simple assault.

The four other men charged are, like Smith, members of the Iron Pigs Motorcycle Club, a biker group culled from the ranks of law enforcement and firefighters. Dennis McCoy, 59, a Seattle police sergeant; Customs and Border Protection officers Scott Lazalde, 38, of Bellingham, Wash., and James Rector, 44, of Ferndale, Wash.; and Erik Pingel, 35, of Aurora, Colo., were charged with the misdemeanor of carrying a concealed pistol without a permit, and an alternative count of failure to abide by a permit of a reciprocal state.

McGuire and Smith also face those charges, and Smith is further charged with perjury.

"The grand jury must've decided that Mr. Smith, having taken an oath to testify truly, in a state proceeding, stated intentionally and contrary to the oath, a material matter which he knew to be false," Meade County State's Attorney Jesse Sondreal wrote in an e-mail to reporters.

The prosecutor said he did not want to comment beyond a news release in which he wrote that warrants will be served and no court dates have been set.

Ten people testified Thursday before the grand jury. On Aug. 10, 25 people appeared before the same panel, Sondreal wrote.

In a brief statement Thursday, the Seattle Police Department said only that its officers who were involved remain on paid administrative leave.

The Seattle Police Officers' Guild, meanwhile, put out a statement saying: "We are certain that once all the facts are known, the involved SPOG members will be vindicated and absolved of any wrongdoing. Until that occurs, we are heartened by the news that Detective Ron Smith is recovering from his serious injuries and that no other parties were injured except for Detective Smith and his alleged assailant."

The statement did not say what Smith's injuries were.

Smith, who said after the shooting he had been attacked, had clashed with the Hells Angels before. In 2005, he pressed misdemeanor charges against the owner of a Seattle motorcycle shop, Anthony James Magnesi, for threatening him over the telephone.

But the charges were dropped after Magnesi and his attorney, Paul Bernstein, played a recording of the call for city prosecutors. On the tape, Smith called Magnesi a "dirtbag," told him that being a member of the Hells Angels is a crime -- which it's not -- and said, "You better watch your back," Bernstein said Thursday.

The biker had called Smith after learning through friends that Smith had been asking about him. Magnesi was under no criminal investigation at the time, and had simply called the detective to offer to speak with him, Bernstein said.

"The detective just went bezerk, making all sorts of threats and being very angry," said Bernstein, a former city and county prosecutor in Seattle. "The detective, he's doing this intimidating, 'You're a dirtbag Anthony, don't be calling me.' It's the stuff you see and hear in the movies, but when it's real, it's chilling."

The Seattle Times has reported that in a column for the newspaper of the Seattle Police Officers' Guild, Smith frequently wrote about outlaw motorcycle clubs.

Smith was twice disciplined in 2005, first for taunting fans at a Seattle Seahawks playoff game and later after he was accused of threatening to shoot a Tacoma restaurant manager. The first incident resulted in a two-day suspension, the second with a letter in Smith's file.

He testified last year at a federal racketeering and murder trial involving members of the Washington Nomads chapter of the Hells Angels.

The two customs officers charged are both stationed at Blaine, Wash., on the Canadian border. Rector, assistant area port director for passenger vehicles, has been with customs for more than 20 years, said agency spokesman Mike Milne. Lazalde, a customs officer, has been with the agency for 13 years.

A fire chief at Buckley Air Force Base in Aurora, Colo., confirmed that a Department of Defense firefighter named Erik Pingel was stationed there, but did not confirm whether it is the same person who was charged.

pulicords
08-29-2008, 06:16 PM
National carry for officers would not include in bars and while drinking. SD does not allow CCW in bars.

From the text below Officer Smith sounds like a heck of a dept. asset.

Agreed on both counts, but that's not my concern. Read the ATF "opinion" regarding the validity of HR 218. There's a lot for professional law enforcement officers (current and retired) to be concerned about there and it goes well beyond possession in bars and while drinking!

SA13
08-29-2008, 06:34 PM
I guess then it's okay for local/state agencies to arrest off-duty FBI/ATF/U.S. Secret Service agents and let them go through the expense and stress of getting relief via the Federal courts too? The purpose of the legislation was to establish uniformity and now you have one agency (not even the one with primary authority according to their own spokesperson) saying HR 218 hasn't been legally implemented.

Yea, there's something to be concerned about here. Especially if you plan on carrying legally in another state. What if you're retired? Now you have to provide your own resources (re: money) to get relief?Did you sleep through civics class in HS, and all the legal training at the academy?

Here's a refresher. The STATES are separate SOVEREIGN governments from the FEDERAL government. STATES often have laws that conflict with FEDERAL laws, seeing as how they are separate SOVEREIGN governments. The US Constitution, specifically Article VI says that the FEDERAL laws have supremacy over STATE laws, and STATE Constitutions.

HOWEVER, whenever a law is passed it is commonly challenged in the courts, to test the limits of just how that law applies. When federal laws are passed, often the department tasked with implementing that law makes attempts to interpret the law, and take the statute and apply to the real world in a practical way, often by adding new regulations to the Code of Federal Regulations. All of which will be considered in any court cases involving the law.

When a FEDERAL statute affects STATE government actions, you can expect it to face challenges in the courts, or at the very least you can expect that some STATES in absence of any guidance from the FEDERAL government on how that law should be implemented will go about their business as a separate SOVEREIGN, and wait for the FEDERAL courts to rule on how the FEDERAL law should be applied to the various cases arising under that law.

The Department of Justice has not done much in the way of implementing this law. There have been very few cases involving officers seeking relief from the state charges related to this law, and I am unaware of ANY case in SD related to this law.

Therefore, it is ridiculous for anyone to assume that the STATE and COUNTY governments would merely not charge or dismiss charges based on a claim from a defendant that he or she is protected by the LEOSA, since there has been little or no guidance to the STATE of South Dakota on when this law applies, and how the Justice Department and the FEDERAL courts will apply this law to various cases where a person CLAIMS protection under the LEOSA when charged with violating a STATE firearm law.

JUST LIKE EVERY OTHER LAW, this one has to be tested in the system. STATES should not ignore their own statutes in light of a FEDERAL law that the Justice Department has not given any real guidance on how to implement, and more importantly has not been thoroughly tested in the FEDERAL courts.

If anyone expected that the first decade that this law was in affect would not result in cases going to FEDERAL court because cops who violated various STATE firearms laws and claimed protection under the LEOSA, those people are naive to the extreme. Anyone who has been trotting around the country carrying a gun and ASSUMING that they were OK because of this law, is also very naive. The early court cases relating to new legislation are called TEST cases for a reason.

As for the non-sense about arresting the feds for carrying, that issue has been tested in the courts before. If some local agency wants to arrest and charge a federal agent who is authorized by the federal government to carry firearms throughout the US, they will all get a lesson in Article VI of the Constitution, Sovereign Immunity, Qualified Immunity, and a handful of federal criminal statutes, and all the relevant caselaw implementing those (funny how the issue of testing things in courts is a running theme) that would apply to the idiots who unlawfully detained the agent and unlawfully seized his property.

Again, people need to take a step back. Remember how our various systems of government work, including the fact that the STATES are a SEPARATE SOVEREIGN government from the FEDERAL government. Anyone who has been around law enforcement for a while should understand that various laws WILL get tested in the courts. They should also understand that various STATE governments are not in job of interpreting and implementing FEDERAL laws without some sort of guidance from the executive branch of the FEDERAL government, and the judicial branch of the FEDERAL government.

Please note the words FEDERAL and STATE have been capitalized throughout, to emphasize that they are seperate sovereign governments, and it should be expected that will often conflict on legal matters, which will need to be resolved through the courts.

pulicords
08-29-2008, 07:47 PM
Did you sleep through civics class in HS, and all the legal training at the academy?

Here's a refresher. The STATES are separate SOVEREIGN governments from the FEDERAL government. STATES often have laws that conflict with FEDERAL laws, seeing as how they are separate SOVEREIGN governments. The US Constitution, specifically Article VI says that the FEDERAL laws have supremacy over STATE laws, and STATE Constitutions.

I'm sorry, but I'm lacking experience in dealing with such pretentious jerks. I am aware of the conflicts between federal and state (sorry for not capitalizing, if this offends you too) law. In California (and I believe other states too), federal law enforcement officers' authority and ability to carry while off-duty or upon retirement hasn't been so clearly defined. As a point of fact (if not law), ignorant, local law enforcement officers such as myself have routinely treated federal officers to the benefit of any doubt regarding issues like this and have not considered arrests when the only issue in question was their lack of (24 hour) peace officer status.

The purpose of this legislation (HR 218) was (allegedly) an attempt to rectify any conflicts between state, local and federal law regarding the legality of concealed carry by on-duty, off-duty and qualified retired LEOs. Cooperation, between all levels of government would seem like a good place to start. Requiring "test cases" to set precedent defeats the legislative intent of congress and the president who signed this bill into law.

Perhaps it's too much to expect that those of us who are or were (until retirement) charged with enforcing laws, can exercise a little common sense, discretion and respect regarding legislation that was enacted for our mutual benefit. Although I haven't been "trotting around the country carrying a gun", I have identification issued by my department's chief of police indicating that (per LEOSA) I have the right to carry a concealed firearm. I have every reason to believe that so long as I otherwise act responsibly (unlike the officers in question) I'm not in violation of local or state law and I'll take that authority at face value.

It's apparent that your belief (and that of at least some members of ATF) differ considerably from mine and a very significant number of active or retired officers. If that's the case, I suppose we'll see happens. It's just a shame that if we are correct in our assessment of HR 218, it will need to be "proved" in court because some people prefer fighting legal battles with fellow officers rather than working with them.

yellowreef
08-29-2008, 07:59 PM
As for the non-sense about arresting the feds for carrying, that issue has been tested in the courts before. If some local agency wants to arrest and charge a federal agent who is authorized by the federal government to carry firearms throughout the US, they will all get a lesson in Article VI of the Constitution, Sovereign Immunity, Qualified Immunity, and a handful of federal criminal statutes, and all the relevant caselaw implementing those (funny how the issue of testing things in courts is a running theme) that would apply to the idiots who unlawfully detained the agent and unlawfully seized his property.

I haven't read anywhere whether it was their duty weapon or a personal weapon on a CCW. That would definitely change whether the Fed backs them up on this or not.

SA13
08-29-2008, 08:37 PM
I'm sorry, but I'm lacking experience in dealing with such pretentious jerks. I'm not the one being a jerk. You're chastising a Public Affairs person for merely answering a question from the media, and frankly answering it correctly.
I am aware of the conflicts between federal and state (sorry for not capitalizing, if this offends you too) law. Obviously you're not or you wouldn't be getting so bent out of shape over this.
In California (and I believe other states too), federal law enforcement officers' authority and ability to carry while off-duty or upon retirement hasn't been so clearly defined.Off duty carry is clearly defined by the various federal statutory law enforcement authority in the US Code, and individual agency policies implementing it. I'll clue you in, whether it's CA, or any other state in the Union, agents in my agency, and the previous agencies I've worked for have STATUTORY authority from Congress to carry their firearms concealed all the time, and agency policy has implemented that. As to retired federal agents they are in the same predicament as every other cop, they will have to hope the LEOSA protects them, but until this law gets tested more thoroughly in the federal courts as to who is covered, and when, they are merely living on hope.
As a point of fact (if not law), ignorant, local law enforcement officers such as myself have routinely treated federal officers to the benefit of any doubt regarding issues like this and have not considered arrests when the only issue in question was their lack of (24 hour) peace officer status.I don't need CA peace officer status, nor does any other federal agent who has statutory authority to carry firearms under federal law. We are in fact protected by the FEDERAL system. See my previous post about Article VI of the Constitution, Sovereign Immunity, Qualified Immunity, various fed statutes, and the applicable caselaw. Retired feds are in the same boat as everyone else, and depend solely on the LEOSA. It's a gamble until this law gets more thoroughly tested in the courts. AFAIK, it's only been tested at the District court level. So it could be a while before we see some appeals to the Circuit Courts and/or the US Supreme Court. However, let me reiterate, if you've got a working fed, with statutory authority to be armed, and his agency allows off duty carry by policy, barring that person violating agency policy in some manner related to his carriage/use of firearms. He won't be prosecuted for a state firearms charge related to concealed carry, and the cops and prosecutors that try would probably ending up regretting the attempt.
The purpose of this legislation (HR 218) was (allegedly) an attempt to rectify any conflicts between state, local and federal law regarding the legality of concealed carry by on-duty, off-duty and qualified retired LEOs. Cooperation, between all levels of government would seem like a good place to start.Yeah, but no one has even attempted to figure out who is actually covered by this, and who isn't, given particular circumstances. It is nothing new to expect legal fighting over what the true intent of a law really is.
Requiring "test cases" to set precedent defeats the legislative intent of congress and the president who signed this bill into law.Well I guess, we can just throw out Article III of the Constitution of the United States, and while we're at it Article VI, because according to you the various governments (Local, State, and Fed) should just play nice, and the legislature and executive branches should just play nice, and the courts are useless. Hey who needs checks and balances, and State's rights anway? :rolleyes:
Perhaps it's too much to expect that those of us who are or were (until retirement) charged with enforcing laws, can exercise a little common sense, discretion and respect regarding legislation that was enacted for our mutual benefit.What did you do in LE that you never saw a case argued over in court to see where the limits of the law really lie? What Utopian jurisdiction did you work in where everything the legislature enacted into law, was so clearly defined that no one disagreed on what the law actually said, and how it applied to various cases? If you expect me to believe that you think laws get passed, and implimented with no legal challenges, you're crazy. You know better, I know better, you're just PO'd because with regard to this legislation you WANT it to mean what you think it means, and not have to worry that some court case might rule differently than you believe.
Although I haven't been "trotting around the country carrying a gun", I have identification issued by my department's chief of police indicating that (per LEOSA) I have the right to carry a concealed firearm.In certain circumstances you do, but it's not a blanket right. Without the courts getting involved, or the DOJ trying to implement CFRs, anyone who reads the statute can see there are limits. How and when those limits apply have not been clearly defined.
I have every reason to believe that so long as I otherwise act responsibly (unlike the officers in question) I'm not in violation of local or state law and I'll take that authority at face value.Wrong, you might be in violation of state or local law, and you are ASSUMING that the LEOSA exempts you from prosecution. What I've been trying to tell you, and what that article (poorly IMO) tried to articulate, is that the details of when people are protected and when they aren't haven't even been begun to be applied to real world cases.
It's apparent that your belief (and that of at least some members of ATF) differ considerably from mine and a very significant number of active or retired officers.Don't assume what I do or don't believe. I was explaining how the legal system works when there are challenges to a law, or when someone seeks relief based on a particular law. That has nothing to do with what I believe about concealed carry for retired officers, or active officers outside their jurisdiction.
It's just a shame that if we are correct in our assessment of HR 218, it will need to be "proved" in court because some people prefer fighting legal battles with fellow officers rather than working with them.It's not about fellow officers wanting legal battles, it's about local prosecutors, and local politicians (including some in LE management), wanting to enforce their state statutes. If they want to test the limits of the LEOSA they will. Again, it's not different than any other statute that's been battled over in court. You're just hacked off because you have a personal stake in this particular battle. Sorry, but the legal system doesn't suddenly change because a bunch of cops are involved in the legal dispute, and if you looked at it objectively instead of emotionally you'd know that's true.

SA13
08-29-2008, 08:39 PM
I haven't read anywhere whether it was their duty weapon or a personal weapon on a CCW. That would definitely change whether the Fed backs them up on this or not.Not necessarily. Some agencies allow their officers/agents to carry personal weapons. Policies vary on what's allowed and what isn't.

DAL
08-29-2008, 09:08 PM
HR 218 is self-implementing and a valid defense in state court

HR 218 is Public Law 108-277, 117 Stat. 865.
The official version as published by the GPO is found at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_public_laws&docid=f:publ277.108.pdf
That document does not direct the Attorney General to enact regulations to implement the legislation. Federal statutes can be self-effectuating. That one provides a defense to various state laws. Federal defenses can be asserted in state court. State courts can interpret federal statutes.
Furthermore, the US Attorney General has issued an interpretation of HR 218 that states: "The Act does preempt and supersede inconsistent state laws and local ordinances, whether criminal or civil." http://www.usdoj.gov/olp/agmemo01312005.pdf

HR 218 can be a defense in a bar or while drinking if the officer is not under the influence
One of the limitations in 18 USC § 926B(c) is "‘‘(5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance." One may be in a bar without being under the influence, as we all know.
Another limitation in 19 USC 926B is "‘‘(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." But I saw nothing to indicated that possessing a concealed weapon in the bar was prohibited by the bar owner.

DAL
08-29-2008, 09:10 PM
I haven't read anywhere whether it was their duty weapon or a personal weapon on a CCW. That would definitely change whether the Fed backs them up on this or not.

HR 218 is not limited to specific weapons that your department authorizes you to carry.

SA13
08-29-2008, 09:49 PM
Federal defenses can be asserted in state court. State courts can interpret federal statutes.Sure can, but that does not mean a prosecutor has to present a potential defense claim to the Grand Jury in their state. Further, guess what happens if someone asserts a federal defense in state court and the state court rejects that defense, interpreting the state statute in such a way that it does not protect the defendant from prosecution? Either the prosecution proceeds or the defendant seeks relief from the FEDERAL courts. Hmm, where was that said before? ;)
Furthermore, the US Attorney General has issued an interpretation of HR 218 that states: "The Act does preempt and supersede inconsistent state laws and local ordinances, whether criminal or civil." http://www.usdoj.gov/olp/agmemo01312005.pdfWhether or not a state law is inconsistent is subject to interpretation. Guess where that interpretation will be done? That's right, the courts, and if the defense or prosecution doesn't like how the state interprets it, you can bet it will end up going to a FEDERAL court. Wow, that seems familiar too. ;)

SA13
08-29-2008, 09:54 PM
HR 218 is not limited to specific weapons that your department authorizes you to carry.Maybe, maybe not.

This too could be up to interpretation by the courts.

Part of the statute reads:
"(2) is authorized by the agency to carry a firearm;"

Now it would seem clear that being authorized to carry is a requirement to seek protection under the LEOSA, but has anyone examined the legislative intent of Congress with regard to whether they intended officers to comply with their agency policy regarding carrying firearms? If that is not clear, carrying a firearm outside of policy may negate protection by the LEOSA.

Anyone who has been through the courts with new legislation, and sometimes decades old legislation, knows that challenges are often brought from both sides. New laws are escpecially tricky because there is no court precedent on that specific statute.

Name Taken
08-29-2008, 10:06 PM
HR 218 is not limited to specific weapons that your department authorizes you to carry.

Oh yes it is. If your department has a procedure or regulations regarding what you can/cant carry off duty..and you are carrying something not approved...then you are not under HR218.

HR218 doesnt give you a right to carry any old firearm anywhere you want. If you think this is correct I'd speak with your departments training staff or legal section on Tuesday morning (Monday of course being a Holiday).

SA13
08-29-2008, 10:18 PM
I'd like to thank DAL and Name Taken for proving my point.

There are aspects of this Act that are up for interpretation. DOJ has done little in the way of attempting to provide the interpretation of the executive branch. The courts have heard very few cases involving this defense.

Yet, people are so sure they know what is or isn't covered by this law. DAL is certain he can carry whatever he wants regardless of agency policy, and Name Taken is certain that someone is only covered if they carry a firearm approved by the agency employing the individual.

So let's pretend DAL is a cop carrying his personal weapon outside his agency policy, and gets busted in Name Taken's state. Let's also pretend Name Taken is the local DA looking to prosecute DAL for violating a state carry law in Name Taken's state. How do you think that dispute would get settled? That's right folks in the courts, and if the state court refused to interpret a fed law, or agreed with Name Taken, what would DAL's next option be? Seek relief from the FEDERAL courts.

pulicords
08-29-2008, 10:38 PM
I'm not the one being a jerk. You're chastising a Public Affairs person for merely answering a question from the media, and frankly answering it correctly.

Really? Maybe you should re-read the original post. I'm discussing an official ATF "opinion" blaming The Department of Justice for failure to implement HR 218. The agency (not the Public Affairs person) is open to question and interpretation. Personal attacks started when you accused me of "bashing" the ATF, "sleeping through civics class or legal training at the academy." Very professional! :rolleyes:

Off duty carry is clearly defined by the various federal statutory law enforcement authority in the US Code, and individual agency policies implementing it. I'll clue you in, whether it's CA, or any other state in the Union, agents in my agency, and the previous agencies I've worked for have STATUTORY authority from Congress to carry their firearms concealed all the time, and agency policy has implemented that.

Off-duty carry isn't so clearly defined by federal law (according to FBI and Secret Service agents I've worked with) and just because their employing agency allows it, doesn't make it legal according to state law that you're so concerned about being able to protect. In California, agents from either agency are not recognized as having peace officer authority while off-duty and (at least according to the agents I've worked with) their authority to carry conceal weapons while off-duty is far from clearly defined. Maybe some federal manager thinks he has the statutory authority to grant this, but it isn't granted by CA Penal Code and I'm not in a position to argue with agents who've told me otherwise.

Regardless of how you may or may not feel about states' rights or where federal law ends and the authority of some federal manager begins, isn't the point of this issue. The point is that this legislation was designed to provide peace officers (federal, state and local) with the ability to carry firearms in a responsible manner nationwide, without needing to know whether S/W Podump has an ordinance prohibiting officers from anywhere else from legally doing so. It's an excellent tool, that if used (and not abused) is a benefit to all of us.

If you wanted to debate the necessity of such a federal law, you can do so. If you think it's an abuse of federal authority, that's your right. The problem is there's many people in politics and within law enforcement management who will debate an issue to death in the courts, even knowing the courts will rule against them. Look no further than San Francisco's firearms ban. It was passed even though the City Attorney clearly knew and advised those in favor of it that it was contrary to California law. When overturned, the response was, "We knew it would be, but we wanted to make a political point!"

The courts are jammed enough as it is and, "making a political point" isn't (IMHO) a valid reason to divert limited court resources. I didn't work in "Utopia", but I certainly learned in short order that not every case could or should be looked at as a basis for appeal. Apparently courts of appeal (both state and federal) recognize this too, as far more cases are rejected for appeal or go unpublished than are used to establish case law.

If you have a problem with LEOSA, state your concerns and they can be discussed, calmly and in a respectful manner. If you want to continue to debate with personal attacks, you can go it alone.

DAL
08-29-2008, 10:47 PM
Maybe, maybe not.

This too could be up to interpretation by the courts.

Part of the statute reads:
"(2) is authorized by the agency to carry a firearm;"

Now it would seem clear that being authorized to carry is a requirement to seek protection under the LEOSA, but has anyone examined the legislative intent of Congress with regard to whether they intended officers to comply with their agency policy regarding carrying firearms? If that is not clear, carrying a firearm outside of policy may negate protection by the LEOSA.

Anyone who has been through the courts with new legislation, and sometimes decades old legislation, knows that challenges are often brought from both sides. New laws are escpecially tricky because there is no court precedent on that specific statute.

Yes, courts have to interpret the statute. They also would have to interpret any regulations issued by the Attorney General, and they would have to determine whether those regulations are valid. But that does not mean that the statute is not "enforceable," it means that the statute has some ambiguities. Virtually every statute does. So the ATF public affairs officer is wrong, and SA13's assertion that ATF was right is wrong.

I do not believe that the ATF has issued an "opinion" or "interpretation" of HR 218. If there is one, please post a citation to it. The US AG's statement I cited is entitled "MEMORANDUM FOR THE DIRECTOR, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES . . ."

The interpretation that "a firearm" means "the firearm that your agency authorizes you to carry" is inconsistent with the plain meaning of "a." Furthermore, if you read 18 USC § 926C(d)(1), you will note that for a retired officer it accepts "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. It would make no sense to have a broader exemption for retirees than active officers.

There is nothing in the statute that says that active officers are not covered if their carrying a firearm violates departmental policy. Moreover, the legislative history indicates that one of the purposes was to cover officers whose departments did not authorize them to carry a weapon off duty.

As far as precedent goes, the only case of which I know if People v. Booth from a New York trial court, in which the court held that HR 218 covered an off-duty Coast Guard petty officer with law enforcement powers while on duty, even though the gun was not his duty weapon and even though Coast Guard regulation prohibited him from carrying a weapon off duty.

I imagine that the offenses charged are misdemeanors under South Dakota law, so getting a grand jury indictment seems odd.

I also think that most prosecutors would and should, as an ethical matter, present exculpatory evidence to the grand jury. The existence of a valid defense, whether state or federal, is exculpatory. A prosecutor should not even pursue a case when he believes the defendant has a valid defense. When presenting a homicide case, for example, one would rightly expect the prosecutor to tell the grand jury about evidence showing that the defendant acted in self defense or was a police officer attempting to apprehend a violent, armed felon.

bigislander72
08-29-2008, 10:53 PM
I tried asking this question in a different thread, but did not get a satisfactory answer. Here goes once more:

Hawaii has some of the strictest gun possesion laws in the nation; here is a summary:

Ineligibility

Persons are not eligible to own or possess a firearm or ammunition if:

They are a fugitive from justice.
They are under indictment, have waived indictment or have been bound over to the circuit court for a felony, any crime of violence or illegal sale of any drug.
Have been convicted of a felony, any crime of violence or illegal sale of any drug.
Are or have been under treatment or counseling for addiction to or abuse of any dangerous, harmful or detrimental drug or alcohol.
Have been acquitted of a crime on the grounds of mental disease or mental disorder.
Have been diagnosed as having a significant behavioral, emotional or mental disorder or for treatment for organic brain syndromes.
Are younger than 25 and have been adjudicated by the family court to have committed a felony, two or more crimes of violence or an illegal sale of any drug.
Have been restrained by court order from contacting, threatening or physically abusing another person.

The bolded sections have always made me wonder how this would apply to an officer who has such disqualifications as written in the statute. As it seems, a cop or former cop who has simply been to an AA meeting or has a simple assault like a scuffle that resulted in conviction is banned for life in this state.

I know its not the norm, but there are officers who have attended AA meetings or have a simple assualt on their rap sheet or am I mistaken?

DAL
08-29-2008, 11:05 PM
Oh yes it is. If your department has a procedure or regulations regarding what you can/cant carry off duty..and you are carrying something not approved...then you are not under HR218.

HR218 doesnt give you a right to carry any old firearm anywhere you want. If you think this is correct I'd speak with your departments training staff or legal section on Tuesday morning (Monday of course being a Holiday).

I am not moved by unsupported statements. How about revealing the source for this assertion. I see you are from Maryland. What you say is contrary to what the Maryland State Police have to say about it:

http://www.mdsp.org/downloads/LEOSA_2004.pdf

Active Law Enforcement Officer
· You must have met firearm and training standards established by your
agency which requires you to regularly qualify in the use of a firearm.
· You must possess a photographic identification card issued by your
agency.
· If you have met the aforementioned procedures, no additional
documentation or certification is needed to meet the provisions of LEOSA;
however, you may want to consult with your agency to ensure there is no
conflict with any internal policy regarding your use of and/or carrying a
concealed firearm out of your jurisdiction.

SA13
08-29-2008, 11:11 PM
Off-duty carry isn't so clearly defined by federal law (according to FBI and Secret Service agents I've worked with) and just because their employing agency allows it, doesn't make it legal according to state law that you're so concerned about being able to protect.You're not getting it, and I doubt you've ever talked to any FBI and USSS agents about their policies, and their statutory authority. I am a fed, and work with guys from those agencies frequently. Further as a "gun nut" I talk guns, including policies, all the time. Those agents have statutory authority under FEDERAL law, to carry firearms, this is supported by their agency policy implimenting that authority, and several decades of legal precedent. It matters not what the CA penal code says about it, it's already been settled in the federal system. So if an FBI or USSS agent is complying with their agency policy while carrying their firearms, they are protected from prosecution for violating the concealed carry laws in your state.
In California, agents from either agency are not recognized as having peace officer authority while off-duty and (at least according to the agents I've worked with) their authority to carry conceal weapons while off-duty is far from clearly defined.It may not be clearly defined under STATE law, but the issue has been settled via federal law and the federal courts for many years. Again, reference Article VI of the US Constitution, and the issues of Sovereign Immunity from prosecution, and qualified immunity from prosecution.
Regardless of how you may or may not feel about states' rights or where federal law ends and the authority of some federal manager begins, isn't the point of this issue.You're right, might personal feeling on it don't matter, I've been trying to point out the REALITIES OF OUR LEGAL SYSTEM AS IT APPLIES TO THE IMPLIMENTATION OF THIS STATUTE. Which is a concept you can't seem to grasp. Please look at the example I gave regarding the dispute between DAL and Name Taken, as it's a clear example of what's at play, and what you can't seem to get your head around.
The point is that this legislation was designed to provide peace officers (federal, state and local) with the ability to carry firearms in a responsible manner nationwide, without needing to know whether S/W Podump has an ordinance prohibiting officers from anywhere else from legally doing so.Yes, but as has been repeatedly pointed out to you, it's not a cut and dried issue, and has never been tested in the courts, and there has been little to no guidance provided by DOJ on this topic. Again, the disagreement between DAL and Name Taken clearly illustrate that point.
If you wanted to debate the necessity of such a federal law, you can do so.Never tried to, and there is nothing in my previous posts that suggests I want to.
If you think it's an abuse of federal authority, that's your right.Not my opinion, and nothing I posted previously suggests that either.

I've merely been pointing out the LEGAL REALITIES WHICH CREATE PROBLEMS FOR PEOPLE SEEKING PROTECTION UNDER THIS STILL VERY NEW LAW. What about that do you not understand? :rolleyes:
The courts are jammed enough as it is and, "making a political point" isn't (IMHO) a valid reason to divert limited court resources.It's not just about political points, some people will have valid arguments that certain behavior by cops or retired cops is NOT protected by this act, and those debates will need to be settled in the courts. It benefits everyone because it will more clearly define what is protected by this statute, and what is not.
I didn't work in "Utopia", but I certainly learned in short order that not every case could or should be looked at as a basis for appeal. Not every case is, and no court treats every case that way. However, this is a new law, and to believe it wouldn't get tested in the courts is naive in the extreme. You should know better, and I think you do, but you've got emotionally wrapped up in what is going on here.
If you have a problem with LEOSA, state your concerns and they can be discussed, calmly and in a respectful manner.I have no problem with the LEOSA, but I do recognize there is room for interpretation which will be done by the courts, because I've seen before with other legislation. To believe otherwise is naive. However, you're wrapped around the axle about an ATF Public Affairs person answering a question, and again answering correctly, although he should have mentioned the issue of the courts for a more complete answer. This isn't a problem with ATF, it's how the process works and that person merely answered that question.

However, you want to rant and rave about what should happen, when with your claimed experience you should absolutely know how the system works, and that new laws will get challenged in the courts to test their limits.

DAL
08-29-2008, 11:46 PM
At least those of us who had enough sense not to go to Sturgis will benefit from having more case law interpreting HR 218.

Dinosaur32
08-30-2008, 12:36 AM
SA13....Would you be so kind as to post which Federal Statute authorizes Federal agents to carry firearms off duty?

sross112
08-30-2008, 12:55 AM
I believe the actual initial charges were Possession of a Loaded Firearm while Intoxicated. Whether those have been amended or the press release is incorrect (everyone knows they always get it right), I can't be sure of.

SD recognizes the right of active and retired LEO's to carry concealed and it would be a very rare instance where there was action taken against them. We deal with it on a regular basis and I've never heard of anyone being arrested or treated in any way other than they should be (Have a safe trip brother, please slow it down).

I think most people are failing to see where the specific federal legislation was violated by the intoxication. There is a section that states you can't be intoxicated and carry concealed, and that should be common sense. If there was no intoxication, I don't think there would be a crime. I may be wrong, but if you were in a bar, not intoxicated and carrying, I think you'd be ok.

And if you Federal boys want to talk about restricting rights, I am made to check my firearm at the entrance to the Federal court house when I am under subpoena to testify and in full uniform acting under the authority of the government. Why is that? It's assinine to say the least. I would understand for security purposes if I was there off duty, in civilian attire, to get a new social security card or something, but it's ridiculous on duty.

There, that's my 2 cents.

beachcop05
08-30-2008, 01:22 AM
[QUOTE=SA13;1389022] So if an FBI or USSS agent is complying with their agency policy while carrying their firearms, they are protected from prosecution for violating the concealed carry laws in your state.It may not be clearly defined under STATE law, but the issue has been settled via federal law and the federal courts for many years. . To QUOTE]

Well I think it's time there was a test case and a local officer arrests a fed for CCW, and we'll see what the courts have to say about that.

Firebug
08-30-2008, 02:41 AM
SA13....Would you be so kind as to post which Federal Statute authorizes Federal agents to carry firearms off duty?


For my agency, It would be 8 USC 1357. It will be different depending upon which agency the person is employed by.

FB

kingsman
08-30-2008, 02:44 AM
And getting a state CCW if you are a fed isn't always that easy. My local sheriff refused to issue me a CCW because I was a Customs inspector and had a Federal Permit to carry concealed. (Carry concealed as long as I had my service Glock and an approved holster.)

Okay, Customs said I had to carry the glock concealed if I wanted to carry a concealed weapon. The sheriff didn't care what I carried, and he would have allowed me to carry any pistol I wanted. But he wasn't my employer, and if I had ever needed to use a non-approved by Customs weapon, I would have lost my job.

So it may be germain as to whether these two CBP officers were carrying their issued weapons or something else under their state CCW.

God, these laws are so confusing...

Monty Ealerman
08-30-2008, 08:27 AM
SA213:

I think you're doing too much all-caps yelling, your expressed excuses nothwithstanding.

You're trying to persuade people who are bright, as apparently you are, but you're acting as if we have to have your ideas of the distinctions between different levels of the governmental authority we live with, and deal with professionally, hammered into us, along some of your other ideations, as if we are too obtuse to understand them otherwise. Isn't "let me clue you in" FEDERAL STATE more than a little bit condescending?

If we really are all so dimwitted that you have to yell to get your points across (please recognize that this is the net and that no-one gets to interrupt) it seems to me that there's really not much point in trying to bring us around to your viewpoints.

Regards,

Monty

ComicGuy
08-30-2008, 08:48 AM
...wrapped around the axle...
Now that's a mental picture...:p

xraodcop
08-30-2008, 08:49 AM
THE FEDS ARE NOT YOUR FRIEND

pulicords
08-30-2008, 11:18 AM
For my agency, It would be 8 USC 1357. It will be different depending upon which agency the person is employed by.

FB

Firebug- I'm really not attempting to get into a p*****g match here. My point is that I'm unfamiliar with any legislation (federal) that specifically provides for off-duty carry. I've reviewed Title 8 USC 1357 here- http://law.onecle.com/uscode/8/1357.html and it seems to deal with on-duty powers of arrest only.

If a federal officer is on annual vacation, traveling with his wife and kids through States A, B, C and D, HR 218 and is stopped because the registration on his rental vehicle is expired, what public interest would it serve for that (clearly) off-duty officer to be subject to arrest if he's CCW? HR 218 was specifically enacted to address that issue.

Is there such a compelling state interest to so strictly interpret state CCW laws that it would be reasonable for an officer to assume HR 218 isn't constitutional (until upheld in federal courts) and to subject the off-duty vacationer to arrest? How many courts must decide? Is it necessary for this issue or associated side issues (ie: vacation carry is too broad, but on regular days off is okay?), before officers can reasonably believe HR 218 means anything? Does this law need to reach SCOTUS for agencies throughout the US to reasonably believe their honorably retired officers (who qualify under the law) can be granted CCW privilege under HR 218 or is it all meaningless?

My point regarding the importance of HR 218 relating to federal authority to grant off-duty CCW privileges isn't to degrade federal officers or their managers. It was to point out that (at least from the info I've received) off-duty carry for federal LEOs wasn't clearly established as being lawful (when examined on a state/local level) until passage of HR 218. Does it do any of us in LE any good to examine this law under the microscope, before accepting it in good faith? On it's face, it clearly does not allow officers to be carrying weapons while intoxicated or on property where that possession is prohibited. Should state or local governments challenge it's scope beyond that?

Finally, as bigislander pointed out, some state legislation is exceptionally vague or broad to the point where any reasonable person (including LEOs) have to ask, "Is this what the legislators really wanted to do?"

If Hawaii's weapons law (prohibiting possession by anyone treated for alcoholism or mental disorder) was strictly applied, would this mean that peace officers who participate in department sponsored programs such as AA or mental health counseling before violating department policies, procedures or the law be subject to termination because they now can't legally own firearms? What about private persons who voluntarily enter programs for their own benefit, without ever having posed an immediate danger to themselves or others? Does their individual right to possess firearms (as per "Heller") now become null, even though they've never been arrested, convicted or subject to any court review?

The difference between legal scholars and peace officers is that we (LEOs) routinely make our decisions based upon statutory law, legal precedent and common sense based on the individual circumstances at hand. To defer making those decisions until a thorough review through the appellate process isn't only unrealistic, it would render our job impossible to perform.

Name Taken
08-30-2008, 07:02 PM
I am not moved by unsupported statements. How about revealing the source for this assertion. I see you are from Maryland. What you say is contrary to what the Maryland State Police have to say about it:

http://www.mdsp.org/downloads/LEOSA_2004.pdf

Active Law Enforcement Officer
· You must have met firearm and training standards established by your
agency which requires you to regularly qualify in the use of a firearm.
· You must possess a photographic identification card issued by your
agency.
· If you have met the aforementioned procedures, no additional
documentation or certification is needed to meet the provisions of LEOSA;
however, you may want to consult with your agency to ensure there is no
conflict with any internal policy regarding your use of and/or carrying a
concealed firearm out of your jurisdiction.


Perhaps my agency is one of the few that have an "approved" list of off duty weapons. Meaning unless you qualify with one on their list you have failed to meet the traning standards established by your agency.

I realize the different between breaking a "law" and a "department policy", however this seems like one in the same. If the Dept. hasnt green lighted you the ability to carry that weapon it appears that you are on your own if you need to use it.

Furthermore beyond my interpetation of the "law" I highly doubt an agency would cover you with an unapproved weapon for all the civil drama that is going to ensue.


Some rules you can bend...when it comes to carrying a weapon with every intention to use it if need be and justified...I'm playing by the letter of the law. If someone wants there name all over some case law to "explain" the "law" further be my guess.

Firebug
08-31-2008, 01:32 AM
Firebug- I'm really not attempting to get into a p*****g match here. My point is that I'm unfamiliar with any legislation (federal) that specifically provides for off-duty carry. I've reviewed Title 8 USC 1357 here- http://law.onecle.com/uscode/8/1357.html and it seems to deal with on-duty powers of arrest only.



Ahh no arguement from me. I agree with you. I am just answering your question. The statue I gave you covers both on-duty and off-duty powers concerning arrest and the abiltiy to carry firearms according to Uncle Sam's academy. Along with the statue, there are the CFR's which are supposed to interpret the law and then operateing instructions that interpret the CFR. Never, easy in the Federal system. The big thing is that for every Federal agency it will be a different law that allows for the statutory right to carry. My agency, for instance, prior to large immigration reform act the ability to carry a firearm was implied and was not even clearly addressed in the Federal Law. But again I agree with you.

FB

pulicords
08-31-2008, 01:59 AM
Thanks for the info and the civil reply. What does "CFR" stand for?

Firebug
08-31-2008, 02:20 AM
Thanks for the info and the civil reply. What does "CFR" stand for?

CFR = Code of Federal Regulations

FB

pulicords
08-31-2008, 02:34 AM
Duly noted. Thanks again.

ISPCAPT
08-31-2008, 12:27 PM
I believe the actual initial charges were Possession of a Loaded Firearm while Intoxicated. Whether those have been amended or the press release is incorrect (everyone knows they always get it right), I can't be sure of.
Correct. That's the crux of the charges. Being under the influence is specifically mentioned in LEOSA as a violation of the statute. Violate that part and there's no longer any protection under LEOSA.
Here's the specific part of LEOSA in case anyone has missed it, or in some cases have never read it.
"...the term `qualified law enforcement officer' means an employee of a governmental agency who--
(5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance;"
Violate (5) and you no longer are considered, under LEOSA, as being a 'qualified LEO'.
I've also heard reports from LEOs who worked the Sturgis area that there was some question as who was the agressor in the situation and whether the shooting was actually a justified use of deadly force. Even tho a LEO might have qualified under LEOSA it does not grant immunity for misusing a firearm or exceeding the legal permissible standards for the use of deadly force.
A local PD commander was indicted and convicted in another state for unlawful use of a weapon. Same sort of situation altho no one was hit during his episode. It's the old saying that when you mix gunpowder with alcohol it produces crap.
Where the ATF spokesman came up with the idea that a federal law needs some type of federal implementing agency is beyond explanation and is ill-informed if that is in fact what was said. Apparently the spokesman forgot his high school civics lesson too as there's nothing in the Constitution or any other statute requiring implementing federal agencies/bureaucracies before a law goes into effect. LEOSA does not, nor do a lot of other federal laws, require ay implementation or oversight by any federal agency. However, I also recognize that what's reported in the news often isn't what said.

SA13
08-31-2008, 12:50 PM
If we really are all so dimwitted that you have to yell to get your points across (please recognize that this is the net and that no-one gets to interrupt) it seems to me that there's really not much point in trying to bring us around to your viewpoints.There is no "we" involved in my posts, I was specifically addressing the person who can't seem to grasp that there is little to no caselaw regarding the LEOSA, and little to no guidance from DOJ on the LEOSA, and therefore SD is not required to do anything regarding the LEOSA if they wish to leave it up to the fed courts to decide whether or not it applies in this case.

SA13
08-31-2008, 01:13 PM
It was to point out that (at least from the info I've received) off-duty carry for federal LEOs wasn't clearly established as being lawful (when examined on a state/local level) until passage of HR 218. Again, you seem to be missing the point. The issue of federal LEOs with FEDERAL statutory authority to carry, is a matter for the FEDERAL courts, just like the LEOSA. Not an issue of how it's examined under federal and state law. However, unlike the LEOSA the issue of federal LEOs is clearly defined by statute, agency policies, decades of precedent, and caselaw.

As to your question about statutory authority the two agencies you have repeatedly mentioned are the FBI and USSS. FBI statutory authority is:
18USC3051. USSS statutory authority is 18USC3056.

Neither statute limits the carry of firearms to "on duty" further, FBI and USSS agents, like agents from dozens of other agencies, are specifically paid to be available to respond outside their normally scheduled work hours. It's called Law Enforcement Availability Pay (LEAP).

However, you feel free to jam up a fed with statutory authority to carry firearms, who is carrying in accordance with agency policy, on a state CCW violation. Guess where that case will end up? That's right the federal courts, just like it would with the LEOSA. If a STATE authority decided to arrest and charge a FEDERAL LEO with a STATE CCW violation, that FEDERAL LEO would need to seek relief from the FEDERAL courts.

This is not a new concept. However, on the specific issue of feds with statutory LE authority to carry firearms under FEDERAL law, and complying with agency policy while doing so, the issue has been settled long ago. That is NOT true for the LEOSA. However, if a STATE authority decided some FED LEO was not legally carrying and wished to pursue charges, that issue would be settled in FEDERAL court. Just like that Coastie who sought protection under the LEOSA.

Again, what about this process do you NOT understand? Further, what about the ATF Public Affairs answer do you not understand? The prosecution is NOT required to present the defense case at grand jury, and absent any guidance from DOJ, and more importantly any caselaw regarding these specific circumstances, and any caselaw regarding these circumstances in SD, the STATE is free to interpret the statute as they choose, and let the issue be decided by the FEDERAL courts, if the defendant wishes to seek such relief.
Finally, as bigislander pointed out, some state legislation is exceptionally vague or broad to the point where any reasonable person (including LEOs) have to ask, "Is this what the legislators really wanted to do?"Yeah, and those issues of vagueness get decided in courts, just like laws that don't specifically address LEOs.
is that we (LEOs) routinely make our decisions based upon statutory law, legal precedent and common sense based on the individual circumstances at hand. To defer making those decisions until a thorough review through the appellate process isn't only unrealistic, it would render our job impossible to perform.Yeah, and this case the decision made was to charge those persons with a violation of the STATE law. If they wish to seek relief under the FEDERAL law they will have to pursue that in the courts. If the STATE refuses to interpret the FEDERAL law as applying and protecting the officers from those chargs, then the defendants will need to pursue the case in FEDERAL court.

Again, why is this so difficult for you to grasp?

SA13
08-31-2008, 01:25 PM
However, I also recognize that what's reported in the news often isn't what said.There is the crux of the matter. Forget the info from the paper, and look at the quote from the agent. This is what was said, "“The act was passed, but it’s never been enforced by the Attorney General’s office." That's it. Which is true the DOJ, specifically the AG, has provided little to no guidance on how the act should be applied, who is proctected under what particular circumstances. Therefore if a person violates a State law, it's up to the State to decide if they want to interpret the Act as protecting that person or not. If the defendant disagrees they will need to seek relief in the Federal courts. Further, even if the DOJ had made efforts to implement the act, and provide guidance on what the limits of that protection are, a State government is free to disagree with that interpretation/implementation by the DOJ, and charge a person. Again, the Federal courts would need to settle that dispute, if the defendant could not convince the judge in State court that the Act provided them immunity from State prosecution.

ArmouredSainT
08-31-2008, 02:16 PM
Can't we all just...get along???:confused:

ISPCAPT
08-31-2008, 02:32 PM
Forget the info from the paper, and look at the quote from the agent. This is what was said, "“The act was passed, but it’s never been enforced by the Attorney General’s office." That's it.
And then the reporter throws in their 2 cent interpretation.


Which is true the DOJ, specifically the AG, has provided little to no guidance on how the act should be applied, who is proctected under what particular circumstances. Therefore if a person violates a State law, it's up to the State to decide if they want to interpret the Act as protecting that person or not.
To a degree that is true. If the person in question is a bonafide LEO then there's little interpretation. Where the question comes in is who is a bonafide LEO. Statutory power of arrest and authority to carry a firearm? That at one time would cover some IL Dept of Ag meat inspectors but they were never considered to be LEOs, just meat inspectors. No LEO training or certification of any kind. Same as with some state security guards. Not LEOs, just security guards.


If the defendant disagrees they will need to seek relief in the Federal courts.
Which is really no different than any other appeal process.



Further, even if the DOJ had made efforts to implement the act, and provide guidance on what the limits of that protection are, a State government is free to disagree with that interpretation/implementation by the DOJ, and charge a person. Again, the Federal courts would need to settle that dispute, if the defendant could not convince the judge in State court that the Act provided them immunity from State prosecution.
Nothing in the LEOSA statute, or most federal statutes, require DOJ or the AG to provide any interpretation or implementation prior to the law going into effect. And as with any dispute in interpretation it will be the courts which will decide.
However, in the SD case, there's more than what's being reported. Excessive alcohol use, apparently a lingering question as to who was the actual aggressor, and the lack of justified use of force. LEOSA does not give blanket immunity to use a firearm any why a person wants. Laws still have to be followed. Any one of those would prevent LEOSA from being used as a defense. As I quoted previously, being under the influence takes one out from under LEOSA protection. One cannot instigate or escalate a fight, pull a gun, shoot someone, then claim they can't be arrested because of LEOSA. Additionally, a LEO can't pull a gun in the middle of a street and shoot out the lights then claim immunity because of LEOSA. None of that matters if it was done out of state, in their home town, on duty or off duty either prior to or since LEOSA. Those acts exceed legal authority no matter where they're located. As such they can be arrested, not for the act of a LEO carrying a firearm but for misuse of that firearm. That's the crux of what's going on in SD. This has nothing to do with LEOSA. It's a case that involves the misuse of a firearm.

velobard
08-31-2008, 06:18 PM
And getting a state CCW if you are a fed isn't always that easy. My local sheriff refused to issue me a CCW because I was a Customs inspector and had a Federal Permit to carry concealed. (Carry concealed as long as I had my service Glock and an approved holster.)
One alternative would be to get a non-resident ccw from someplace like FL or UT. Michigan would not recognize it, but it would cover a number of states if you're traveling.

The thing to keep in mind, if you're leaning on a ccw permit as authority to carry, is that it would place you under all the carry restrictions that civilians face.

IMachU
08-31-2008, 06:56 PM
Ibtl......

SA13
08-31-2008, 08:36 PM
To a degree that is true. If the person in question is a bonafide LEO then there's little interpretation.Actually there's lots of interpretation to be done about what limits apply. Reference the disagreement between DAL and Name Taken, about whether or not a person carrying a firearm outside of their agency policy would be covered by the LEOSA. A real world example is the recent court case involving the Coastie. I'm sure opinions varied greatly whether he would get protection under the Act, and now he has at least one Federal District Court ruling in his favor.
Nothing in the LEOSA statute, or most federal statutes, require DOJ or the AG to provide any interpretation or implementation prior to the law going into effect.Correct, but often with new legislation the DOJ puts out policies on how the law will be implemented precisely because the statutes often leave room for interpretation. Also, as I said earlier DOJ policies are just that, policies, that be challenged in court, and often are.
And as with any dispute in interpretation it will be the courts which will decide.Which has been my point all along. Regarding this still new, and relatively untested law there are plenty of arguments to be made regarding who is covered, and in what cases those people who are covered might lose that protection.

screech60
08-31-2008, 08:54 PM
Agreed on both counts, but that's not my concern. Read the ATF "opinion" regarding the validity of HR 218. There's a lot for professional law enforcement officers (current and retired) to be concerned about there and it goes well beyond possession in bars and while drinking!

But what about the portion of the LEOSA that reads, "Notwithstanding any state or local .......". Notwithstanding means in spite of, meaning LEO's are exempt from state and local regulations concerning CCW.

ArmouredSainT
08-31-2008, 09:50 PM
I think SA13 is right. Everyone needs to slow down and take a breather.

This thread went from WTF about hr218 to fed law officers vs local cops.

I agree with everyone's arguments in that the law says one thing and we, as law enf officers, want it to mean what its intent was to be which is a protection for folks to carry all over the USA.

Unfortunately, the law has to be tested. After years of "tests" then who or what is covered and to what extent will be the law of the land. Remember, many of our reps signed off on the bill without ever reading it and therefore the language of the bill was never challenged before it left congress.

Try contacting your state reps to change the laws regarding out of state cops carrying off-duty...even on duty in some respects.

In Montana, the law says off-duty cops can carry and fed law officers who are authorized to make arrests and carry firearms. It's that simple. Just don't carry into a bar or bank is all. Arkansas says off-duty cops can carry if the other officer’s state jurisdiction reciprocates.

You bigger city folks, like where I was from, get with your unions and national police associations to change the laws in your state.

tpc
08-31-2008, 10:27 PM
However, if a STATE authority decided some FED LEO was not legally carrying and wished to pursue charges, that issue would be settled in FEDERAL court. Just like that Coastie who sought protection under the LEOSA.


Apparently YOUR reading comprehension and research ability are as deficient as YOUR NETIQUETTE. The "Coastie" was charged and acquitted under NEW YORK STATE law and the state did not appeal (BUT APPRENTLY IT IS BENEATH YOU TO VERIFY FACTS BEFORE SPOUTING OFF). The issue was resolved UNDER STATE LAW, even though his agency made every attempt to show that he was not covered by LEOSA.

Similarly, NOT ALL FEDERAL LAW ENFORCEMENT OFFICERS ARE AUTHORIZED BY THEIR AGENCIES TO CARRY FIREARMS OFF DUTY. Those officers would have difficulty establishing that they were carrying concealed weapons UNDER COLOR OF AUTHORITY and therefore probably would not be able to remove the action to federal court pursuant to 28 USC 1442(a). SUCH FEDERAL OFFICERS would wind up being prosecuted in STATE COURT, and could only get federal review by discretionary writ in the Supreme Court or by writ of habeas corpus after exhausting state-court appeals.

ISPCAPT
08-31-2008, 11:39 PM
Actually there's lots of interpretation to be done about what limits apply. Reference the disagreement between DAL and Name Taken, about whether or not a person carrying a firearm outside of their agency policy would be covered by the LEOSA.
They are arguing dept policy, not statute. They don't seem to know the difference between the 2. A state law may say something to the effect that a LEO may be armed, etc, etc. Dept policy says their LEO can only carry "X" weapon. Violating the policy does not equate to violating the law.
Where violating dept policy comes into play is when someone, carrying a non-authorized dept firearm, is involved in a shooting situation. Since that LEO is carrying a non-authorized firearm then their dept does not have to pick up the tab when they're sued. It's not that they violated law, it's that they didn't follow dept policy. It's would be no more different than if their dept banned the use of a blackjack but they carried one anyway and in a justified use of force they slapped someone with the blackjack. Their use of force was justified by dept policy yet the tool they carried was not in accordance with their dept policy, ergo, they didn't commit a crime but they didn't use a tool sanctioned by their dept. They end up getting sued and the dept can wash its hands of the LEO by saying the LEO used a tool which was specifically prohibited by dept policy. Same with them carrying a SIG when their dept says they have to carry the issed Glock. State law is not likely to prohibit the SIG but their dept can show they didn't adhere to policy by carrying an unauthorized firearm and did not receive training from their agency for that firearm.
No where in LEOSA does it say you must carry the firearm issued or approved by your agency, only that you are authorized by your agency to carry a firearm. People have to understand the difference between statute and policy. 2 different animals.
Once you retire none of that matters. I don't have to follow any policy by my agency. I'm retired. Whatever the boss writes in the big red book doesn't apply to me anymore. I no longer come under their authority.

tpc
09-01-2008, 12:09 AM
They are arguing dept policy, not statute. They don't seem to know the difference between the 2. A state law may say something to the effect that a LEO may be armed, etc, etc. Dept policy says their LEO can only carry "X" weapon. Violating the policy does not equate to violating the law.
Where violating dept policy comes into play is when someone, carrying a non-authorized dept firearm, is involved in a shooting situation. Since that LEO is carrying a non-authorized firearm then their dept does not have to pick up the tab when they're sued. It's not that they violated law, it's that they didn't follow dept policy. It's would be no more different than if their dept banned the use of a blackjack but they carried one anyway and in a justified use of force they slapped someone with the blackjack. Their use of force was justified by dept policy yet the tool they carried was not in accordance with their dept policy, ergo, they didn't commit a crime but they didn't use a tool sanctioned by their dept. They end up getting sued and the dept can wash its hands of the LEO by saying the LEO used a tool which was specifically prohibited by dept policy. Same with them carrying a SIG when their dept says they have to carry the issed Glock. State law is not likely to prohibit the SIG but their dept can show they didn't adhere to policy by carrying an unauthorized firearm and did not receive training from their agency for that firearm.
No where in LEOSA does it say you must carry the firearm issued or approved by your agency, only that you are authorized by your agency to carry a firearm. People have to understand the difference between statute and policy. 2 different animals.
Once you retire none of that matters. I don't have to follow any policy by my agency. I'm retired. Whatever the boss writes in the big red book doesn't apply to me anymore. I no longer come under their authority.

I think DAL was writing about the statute. Otherwise, I generally agree with you.

An officer may be subject to disciplinary action if he violates agency policy. Conversely, even if you comply with department policy, when you are out of state you have no law enforcement authority, and your employing agency need not (and probably won't) defend or represent you if you shoot someone, even if the shooting is justified and you are using your department-issued weapon. In California, your agency has to defend you even if you violate policy -- but only when you are acting in the scope of your employment (which is interpreted broadly). Thus, if you use a blackjack in an on-duty fight with a suspect, the department will have to defend you.

SA13
09-01-2008, 01:57 PM
Apparently YOUR reading comprehension and research ability are as deficient as YOUR NETIQUETTE. The "Coastie" was charged and acquitted under NEW YORK STATE law and the state did not appeal (BUT APPRENTLY IT IS BENEATH YOU TO VERIFY FACTS BEFORE SPOUTING OFF). The issue was resolved UNDER STATE LAW, even though his agency made every attempt to show that he was not covered by LEOSA.If I was wrong about which court I apologize, but that does not change the fact that the State could still appeal that case to the Federal courts. There is nothing about that case that prevents future court cases on the LEOSA. Again, as I said earlier State's can hear a defense based on the Federal law, but if there is a conflict over their ruling that can't be settled in the State, the cases will need to be decided in Federal District Court. Eventually everyone should expect to see some rulings in the various Districts, possibly some rulings at the Circuit, and eventually I would bet on a case making it all the way to the US Supreme Court. Possibly multiple cases.
Similarly, NOT ALL FEDERAL LAW ENFORCEMENT OFFICERS ARE AUTHORIZED BY THEIR AGENCIES TO CARRY FIREARMS OFF DUTY.I never said they were, and since you're concerned about my reading comprehension you should re-read my statements. Details about the Coastie case were not presented here, but my statements about Fed LEOs were clearly presented here, yet you've decided to take my comments out of context. Not once, not ever, did I claim all Fed LEOs were authorized to carry firearms off duty. However, pulicords kept making comments about the FBI and USSS specifically. I addressed those two agencies specifically, and made comments such as, "So if an FBI or USSS agent is complying with their agency policy while carrying their firearms, they are protected from prosecution for violating the concealed carry laws in your state." Note my very clear emphasis on being in compliance with agency policy. Later I made comments such as, "However, on the specific issue of feds with statutory LE authority to carry firearms under FEDERAL law, and complying with agency policy while doing so, the issue has been settled long ago." Again, note my very clear emphasis on complying with agency policy.

You may be right that I should have done more research outside this forum on the Coastie case, but don't chastise me for reading comprehension when you can't characterize correctly the comments I made ON THIS FORUM and ON THIS THREAD.

SA13
09-01-2008, 02:10 PM
They are arguing dept policy, not statute. They don't seem to know the difference between the 2.No, they were arguing about the statute. Specifically, whether or not violating agency policy negates the protection provided by the statute.
Violating the policy does not equate to violating the law.That was precisely the disagreement. They were arguing whether violating the agency policy, means the person was not, "authorized by the agency to carry a firearm."
Where violating dept policy comes into play is when someone, carrying a non-authorized dept firearm, is involved in a shooting situation. No, on this specific issue it's not about justification for use of force, but whether the Act protects the person from prosecution for violating state CCW laws. Again, I have heard compelling arguments both ways on whether violating agency policy would mean the person is not, "authorized by the agency to carry a firearm."
No where in LEOSA does it say you must carry the firearm issued or approved by your agency, only that you are authorized by your agency to carry a firearm.No, but it does say you must be "authorized by the agency to carry a firearm." There are arguments to made both ways as to whether that would mean a person carrying in a manner not "authorized by the agency" policy would mean the person is not covered by the Act.
People have to understand the difference between statute and policy.However, as I've tried to illustrate, there is an argument to be made the being covered by the statute requires compliance with agency policy. If and when the argument will be made in court remains to be seen. It is my opinion that it's just a matter of time before some agency decides to not back an officer, and state tries to press charges saying the person was not covered because they were not in compliance with agency policy and therefore were not, "authorized by the agency to carry a firearm." There are arguments to be made on each side, but until we start seeing court rulings on it,and establishing precedent, it's all just speculation.

ISPCAPT
09-01-2008, 02:43 PM
I have heard compelling arguments both ways [/QUOTE]
I take no stock in some of these people's opinion because they haven't done any research on the statute, the background concerning it, nor discussed it with anyone of authority for a legal opinion. I've heard discussions by some LEOs who have said LEOSA doesn't apply in NY, CA, IL, HI, (whatever state/city). Just because they discuss it and talk like they want others to believe what they say, no matter how compelling, they obviously haven't done any research at all on the topic and are pulling their "thoughts" out their backsides. There was even the spokesman assigned to answering questions from the public employed by the CA Attorney General's office who said that LEOSA was not recognized by CA because CA didn't allow out of state LEOs to carry. He sure made himself sound convincing and he repeated his assertion several times and every time restating his position with the CA AG. However, I addressed this gentleman's comments with the CA AG and found that they were not aware their spokesman was answering the inquiries incorrectly and they assured me the corrections would be made and their spokesman would not be commenting further on the topic. He sure made compelling statements but they were 100% inaccurate.


No, but it does say you must be "authorized by the agency to carry a firearm."
Again, they are arguing policy, not statute. No where in LEOSA does it say a LEO has to carry a specific firearm. LEOSA only specifies that they are authorized to carry a firearm. Their dept policy is subject to whatever gun they happen to be issued/authorized at the time which can change at the whim of the administration. They could be disciplined for violation of policy but not for violation of law. That's where these type discussions get confusing for some. They can't differentiate policy from statute.
I was on the state committee to research LEOSA prior to the statewide implementation. I done a lot of research on it, including discussions with the writers and DOJ attorneys.

It is my opinion that it's just a matter of time before some agency decides to not back an officer, and state tries to press charges saying the person was not covered because they were not in compliance with agency policy and therefore were not, "authorized by the agency to carry a firearm."
That's where you're mixing policy with statute. I've yet to see a state statute anywhere that says a LEO can only carry "X" make/model firearm. The change in firearms is subject to whatever the administration wants, ergo, policy change, not statute change. Where the LEO could get jammed up is not violating the statute but violating policy and therefore getting hung out to dry in a civil suit because they were carrying a firearm not authorized by their agency.
Where none of that makes a difference is when carrying out of state for state/local officers. In such case any action taken by the out of state LEOs is not under the color of law by their agency but acting as a private citizen and no dept would be required to cover them in a resulting suit.

SA13
09-01-2008, 03:04 PM
Again, they are arguing policy, not statute. No where in LEOSA does it say a LEO has to carry a specific firearm. LEOSA only specifies that they are authorized to carry a firearm. Their dept policy is subject to whatever gun they happen to be issued/authorized at the time which can change at the whim of the administration. They could be disciplined for violation of policy but not for violation of law. That's where these type discussions get confusing for some. They can't differentiate policy from statute.
I was on the state committee to research LEOSA prior to the statewide implementation. I done a lot of research on it, including discussions with the writers and DOJ attorneys.

That's where you're mixing policy with statute. I've yet to see a state statute anywhere that says a LEO can only carry "X" make/model firearm. The change in firearms is subject to whatever the administration wants, ergo, policy change, not statute change. Where the LEO could get jammed up is not violating the statute but violating policy and therefore getting hung out to dry in a civil suit because they were carrying a firearm not authorized by their agency.
Where none of that makes a difference is when carrying out of state for state/local officers. In such case any action taken by the out of state LEOs is not under the color of law by their agency but acting as a private citizen and no dept would be required to cover them in a resulting suit.ISPCAPT, I am most certainly not confusing policy with statute. One must comply with the statute to be protected by it. There is a an argument to be made that the language, "authorized by the agency to carry a firearm," means that you must comply with your agency policy to be protected by the Act. Whether or not you or I agree with that line of debate is immaterial, it's an argument that could easily be made, and there are probably courts that would entertain such an idea. Just as it doesn't explicilty say a LEO must carry a specific firearm, it doesn't explicitly say the LEO can carry any firearm, in any manner, regardless of agency policy. There is plenty of room to argue whether or not the statute covers someone who is carrying in violation of agency policy.

These are precisely the kind of details that get argued in courts. As I've said repeatedly, just like every other statute that's ever been written there is plenty of room for arguing the details of when this statute does and does not apply. Statutes are never written with such "airtight" language that they are not tested in the courts, and they are often repeatedly tested in various jurisdictions. While the language of this statute may be relatively brief, it covers complicated issues, and there is plenty of room to argue this one, including on whether compliance with agency policy is necessary to get protection from the Act.

Again, this is not confusing policy with statute, it's a question of what limits apply to the the statute, specifically what the meaning of "is authorized by the agency to carry a firearm," means in relation to complying with agency policy. A decent case could be made that authorization to carry "a firearm" is not "authorization to carry any firearm." You see that's an issue of what the statute really means with regard to the authorization requirement.

Dinosaur32
09-01-2008, 03:34 PM
New York State cannot appeal the Coastie's acquittal to any court. The case is over.

willbird
09-01-2008, 03:38 PM
I tried asking this question in a different thread, but did not get a satisfactory answer. Here goes once more:

Hawaii has some of the strictest gun possesion laws in the nation; here is a summary:

Ineligibility

Persons are not eligible to own or possess a firearm or ammunition if:

They are a fugitive from justice.
They are under indictment, have waived indictment or have been bound over to the circuit court for a felony, any crime of violence or illegal sale of any drug.
Have been convicted of a felony, any crime of violence or illegal sale of any drug.
Are or have been under treatment or counseling for addiction to or abuse of any dangerous, harmful or detrimental drug or alcohol.
Have been acquitted of a crime on the grounds of mental disease or mental disorder.
Have been diagnosed as having a significant behavioral, emotional or mental disorder or for treatment for organic brain syndromes.
Are younger than 25 and have been adjudicated by the family court to have committed a felony, two or more crimes of violence or an illegal sale of any drug.
Have been restrained by court order from contacting, threatening or physically abusing another person.

The bolded sections have always made me wonder how this would apply to an officer who has such disqualifications as written in the statute. As it seems, a cop or former cop who has simply been to an AA meeting or has a simple assault like a scuffle that resulted in conviction is banned for life in this state.

I know its not the norm, but there are officers who have attended AA meetings or have a simple assualt on their rap sheet or am I mistaken?

I know one individual in Toledo who was a sworn LEO who was REQUIRED by his dept to provide written proof that he attended a specified number of AA meetings each week, this was part of the terms and conditions of an event where he was intoxicated while armed with his duty firearm (he was off duty) and trying to forcibly enter his girlfriends house...she called the police and they searched for him and finally found him, it was all handled within the department with no court involvement....and as I said one of the requirements was for him to go through alcoholism inpatient treatment and afterwords to provide proof of attendance of AA meetings for the duration of his LE career with that department.

Knowing what I know of the disease due to the fact that I am a recovering alcoholic and drug addict myself I would support that condition of employment 100%.


Honestly ATF tries to screw EVERY person in the USA who owns a gun, it does not surprise me that they do not give sworn and or retired LEO any special treatment........their "professional courtesy" privilege should therefore be revoked, and you guys should write to the back of your ticket book when you pull one over :-).

Bill

beachcop05
09-01-2008, 04:27 PM
Honestly ATF tries to screw EVERY person in the USA who owns a gun, it does not surprise me that they do not give sworn and or retired LEO any special treatment........their "professional courtesy" privilege should therefore be revoked, and you guys should write to the back of your ticket book when you pull one over :-).

Bill


Well said...100% agree...

bigislander72
09-01-2008, 04:56 PM
I know one individual in Toledo who was a sworn LEO who was REQUIRED by his dept to provide written proof that he attended a specified number of AA meetings each week, this was part of the terms and conditions of an event where he was intoxicated while armed with his duty firearm (he was off duty) and trying to forcibly enter his girlfriends house...she called the police and they searched for him and finally found him, it was all handled within the department with no court involvement....and as I said one of the requirements was for him to go through alcoholism inpatient treatment and afterwords to provide proof of attendance of AA meetings for the duration of his LE career with that department.

Knowing what I know of the disease due to the fact that I am a recovering alcoholic and drug addict myself I would support that condition of employment 100%.


Bill

Don't know if I would feel sorry for this guy if the consequences were worse, like losing his job or firearm rights. Attempted forcible entry while armed and intoxicated? Any citizen would be getting a felony(maybe more than one) for that type of conduct.

I would feel more compassion if the required AA meetings were for say, drinking on the job, or an arrest for public intox. or the assault conviction resulted from a fight with another man.(sorry for sounding sexist, I just think these DV convictions for some 110 lb woman slapping her 200+ lb boyfriend are ridiculous)

SA13
09-01-2008, 05:25 PM
Honestly ATF tries to screw EVERY person in the USA who owns a gun . . . That's a load of BS. I doubt you've ever worked a single case with ATF, because if you had you'd know that's not true. I've had the opportunity to work with them, and have never seen them try to "screw anyone" just for owning a gun. I have seen them go after violent criminals, and assist their local, state, and other federal partners in going after violent criminals.

Regardless, this issue not really about that brief statement by the ATF Public Affairs person, it's about the legal realities invovled with testing this new statute.

ISPCAPT
09-01-2008, 06:07 PM
There is a an argument to be made that the language, "authorized by the agency to carry a firearm," means that you must comply with your agency policy to be protected by the Act.
Think about it a bit then. The falacy of that thinking is think how such would affect a retiree who is not restricted by any dept policy. Carrying your thinking thru then the only firearm a retiree could legally carry would be the one in which is former dept issued/authorized. Clearly that is not the case. Why? Think about it further. The retiree can also qualify by the state in which he resides. Show me any state where the all the LEOs in that state have to carry only the specific firearm that state mandates. Doesn't happen. Travel thru any state and you'll see guys carrying every make imagined.


There is a an argument to be made that the language, "authorized by the agency to carry a firearm," means that you must comply with your agency policy to be protected by the Act.
Read LEOSA again. It specifically mentions firearms are not covered under LEOSA. To refresh your memory:
"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)."
No where in LEOSA does it say the LEO has to carry the firearm issued or approved by their agency but it is specific as to which firearms cannot be carried. The only other stipulation is the officer " meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm". Again, "a firearm" not the issued or authorized firearm.
When we were doing our research for our state we asked those in Congress and DOJ what was meant by "type of firearm" and the answer we received was "revolver or auto". Nothing about dept issued/approved.
A dept policy isn't a statute.
Again, I really don't care if you've heard some with convincing arguments. Some people are easily convinced by those who haven't done any research on it and others who show they haven't read or understand the statute.

SA13
09-01-2008, 06:35 PM
A dept policy isn't a statute. Never said it was.
Again, I really don't care if you've heard some with convincing arguments. Some people are easily convinced by those who haven't done any research on it and others who show they haven't read or understand the statute.Well then are you just in the pulicords camp of everyone should just agree, and this should never be in front of the courts. That's fantasy thinking. We've seen here that some disagree on this issue, and it's likely that some prosecutor somewhere will disagree too.

You make a decent argument that complying with agency policy is not required. However, that is just one side of the argument. Your opinions, and mine, are mostly irrelevant, as all it takes is a cop charged with illegal carry, while that cop is violating agency policy, and we could have our first test case.

Your claim that that because Congress specifically prohibited certain NFA weapons that they were saying a cop could carry any firearm is faulty logic. My agency issues people on the tac team "flash bangs" which are destructive devices. Just because Congress doesn't want an agent carrying around flash bangs (or machineguns, or silencers) on vacation does not mean they are saying anything else goes.

Further, I don't doubt you did your research, but unless you polled every member who voted to support this bill specifically on whether they expected officers to comply with agency policy, you are not able to claim knowledge of their legislative intent.

Further, as I said earlier the language of the statute references "a firearm" and specifically references that the officer must be authorized and must meet the qualification standards. Again, it does not say "any firearm", but it could be argued that the authorization to carry and qualification to carry is based on agency policy. In fact agency policy does cover that for active officers.

Further, retirees are covered by a separate section of the statute, and it's obvious by how it's written (not to mention necessitated by common sense) that Congress treats the two groups separately. Therefore it's fautly to use the practical application of the law to retirees as a basis for how the law will be applied to active officers.

Also, it is naive to believe that this issue is settled in minds of all players in the various States, and at the Federal level in the various courts.

You can make the argument that any firearm (except the NFA weapons noted) can be carried by active officers, regardless of agency policy. However, I think it's foolish to believe that some cases won't come up that contests that idea.

NYFedLeo
09-01-2008, 08:44 PM
Well I think it's time there was a test case and a local officer arrests a fed for CCW, and we'll see what the courts have to say about that.

A Federal Agent is authorized to carry their duty weapon 24/7 nationwide, including while flying on airplanes. A local cop has absolutely no authority to take this right away from a FED. That is because Federal Agents are considered to never really be "off-duty". They are on call 24/7. Now this does not apply to every Fed officer/agent. Each agency has their own policies. FBI, Secret Service, ATF, Marshals, and ICE are all authorized under Federal statute and agency policy to carry their duty weapon 24/7 nationwide.

tpc
09-01-2008, 09:41 PM
If I was wrong about which court I apologize, but that does not change the fact that the State could still appeal that case to the Federal courts.

The double jeopardy clause precludes a state from appealing an acquittal. A state can only appeal a dismissal on procedural grounds. And if a state did seek review in the federal courts, it would be by way of petition from writ of certiorari, not an appeal.


Again, as I said earlier State's can hear a defense based on the Federal law, but if there is a conflict over their ruling that can't be settled in the State, the cases will need to be decided in Federal District Court.

The only way a federal district court would have jurisdiction to review such a case is by writ of habeas corpus if the defendant is convicted. A state could not obtain review of an acquittal in federal district court or any other court.


Eventually everyone should expect to see some rulings in the various Districts, possibly some rulings at the Circuit, and eventually I would bet on a case making it all the way to the US Supreme Court.

As discussed above, the procedural mechanisms for federal review are very limited. In four years there have been no LEOSA cases reported in the federal courts, for the simple reason that LEOSA is a defense to state prosecution, not federal. In addition, in the vast majority of states, the offense of carrying a concealed weapon would be a misdemeanor, and appeals from a conviction for a misdemeanor usually are not reported. Beyond that, police officers are highly unlikely to arrest another law enforcement officer for carrying a concealed weapon unless he had used it in the commission of an offense. That was true even before LEOSA.


Details about the Coastie case were not presented here.

They were presented in another thread in this forum and you made an assertion about the procedure followed when you did not even bother to read about the case, or about the court opinion, which I easily found online. So, if your reading comprehension is not to blame, then YOU ARE MAKING ASSERTIONS OF FACT WITHOUT DISCLOSING THAT YOU HAVE NO BASIS FOR THEM. That is even worse.As for

Your assertion that your comments were limited to two specific kinds of federal LEOS carrying in accordance with agency policy in belied by the following quote, in which you misrepresented the procedural posture of the Coastguardsman, who was a federal LEO:


However, if a STATE authority decided some FED LEO was not legally carrying and wished to pursue charges, that issue would be settled in FEDERAL court. Just like that Coastie who sought protection under the LEOSA.

As the Coast Guard case illustrates, that issue most likely would be decided in state court. If the officer's agency informed the state that he was authorized to carry the firearm pursuant to agency regulations, the state would be unlikely to prosecute. Conversely, if the state were not so advised, removal to federal court would be unlikely to succeed.

It sounds to me like you do not understand the interplay between state and federal criminal law and procedure very well.

tpc
09-01-2008, 10:01 PM
Again, what about this process do you NOT understand? Further, what about the ATF Public Affairs answer do you not understand? The prosecution is NOT required to present the defense case at grand jury.

Again, why is this so difficult for you to grasp?

The Department of Justice requires prosecutors to present highly probative material to the grand jury.

"US Attorney Manual Section 9-11.233

Presentation of Exculpatory Evidence
In United States v. Williams, 112 S.Ct. 1735 (1992), the Supreme Court held that the Federal courts' supervisory powers over the grand jury did not include the power to make a rule allowing the dismissal of an otherwise valid indictment where the prosecutor failed to introduce substantial exculpatory evidence to a grand jury. It is the policy of the Department of Justice, however, that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person. While a failure to follow the Department's policy should not result in dismissal of an indictment, appellate courts may refer violations of the policy to the Office of Professional Responsibility for review."

On what basis do you assume that state prosecutors adhere to lower ethical standards?

ArmouredSainT
09-01-2008, 10:02 PM
One way to look at how to interpret HR218 is view it in comparison to government challenges to the second amendment where to keep and bear arms shall not be infringed.
The constitution says in plain language the right shall not be infringed but courts and local ordinances seem to be INFRINGING upon it anyway.
It took a 30 years of court challenges in DC and 200 years as a whole to finally get an "interpretation."
Hopefully HR218 will not take that long.

ISPCAPT
09-01-2008, 10:33 PM
Well then are you just in the pulicords camp of everyone should just agree, and this should never be in front of the courts.
No one said anything such. You're taking a rather large leap with that one. In the case which started this thread the matter before the court will be whether the LEO violated one of the requirements under LEOSA and as such was no longer carrying legally under LEOSA. As I referenced another case involving a commander from a local PD who was under carrying out of state and was under the influence when he decided it was time to do a bit of gunfire. What got him indicted was it was decided that since he was in violation of paragraph (5) he was no longer legally carrying under LEOSA and therefore was not authorized the protection LEOSA provides. That will be a similar question to be decided in the Sturgis case.


Your claim that that because Congress specifically prohibited certain NFA weapons that they were saying a cop could carry any firearm is faulty logic.
My point is LEOSA specifically mentions firearms which are not permitted. Had the writers intended the statute to limit the firearm carried specifically to the dept issued then it would have been very easy for them to clearly specify that the LEO could only carry the dept firearm. Congress had 12 yrs working on the bill yet that was never an issue. Additionally, when our committee discussed their intent with the congressional writers this was not one of their concerns. As far as our state's committee's research one does not have to contact every person who voted for the bill. That makes no sense at all. The persons who need contacted were only those who formulated the bill to determine their intent. Additionally, we had 12 yrs of congressional record for discussion of what ended up being LEOSA.


retirees are covered by a separate section of the statute, and it's obvious by how it's written (not to mention necessitated by common sense) that Congress treats the two groups separately. Therefore it's fautly to use the practical application of the law to retirees as a basis for how the law will be applied to active officers.

There's a very good reason why there is a separate paragraph covering retirees and why the 2 groups are mentioned separately. Because retirees are no longer LEOs. That's pretty simple to explain.
However, using your logic that a LEO has to carry the firearm which is dept issued/authorized could also be carried to retirees. LEOSA says "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;"
By your definition then a retiree would have to carry the same firearm as his former dept policy indicates. However, a retiree is not bound by any former dept policy.



I think it's foolish to believe that some cases won't come up that contests that idea.
Personal thoughts don't carry much weight. As I posted before, the spokesman for the CA AG thought LEOSA didn't apply in CA because CA didn't recognize LEOSA. That's what he thought but just because he thought it didn't make it so. It just showed that what he thought wasn't based on doing research but only on what he thought and what he thought wasn't correct.

tpc
09-01-2008, 11:42 PM
I have never seen anything from the California AG asserting that California does not recognize LEOSA or that LEOSA does not apply in California. The contrary appears to be true.

http://ag.ca.gov/firearms/forms/pdf/leosasummary.pdf
http://ag.ca.gov/firearms/forms/pdf/leosiss.pdf#xml=http://search.doj.ca.gov:8004/AGSearch/isysquery/f493ee03-398d-4fad-ab7e-368898e70721/1/hilite/

I also read the complete legislative history of HR 218 and the companion Senate bill, because I was asked to provide advice on the applicability of LEOSA to reserve officers -- an even more complicated issue. The legislative history contains a passage indicating an intent to supersede departmental policies that prohibited officers from carry a firearm off duty. That is inconsistent with the strained interpretation that the officer must be carrying a firearm in accordance with or as permitted by departmental policy. Indeed, that would be impossible to determine from the credentials that LEOSA requires. The California AG's published statements distinguish between what violation of a departmental policy (which can subject the officer to administrsative action) and failure to comply with LEOSA (which would result in exposure to criminal prosecution, depending on the laws of the state).

Also, for your information, there is a long-standing doctrine that statements of legislators, other than those made on the floor of the legislature or in official reports, are not admissible to show legislative intent.

Monty Ealerman
09-02-2008, 12:37 AM
I know 20 dope spots less than a mile away where I can rob me a stake and then I can go buy me a Dixmoor Park District badge, and get me a nationwide packin permit.

http://findarticles.com/p/articles/mi_m1355/is_20_100/ai_79665391

I don't know, maybe you ain't hustlin, but I'm slick.

kingsman
09-02-2008, 01:15 AM
So are Customs inspectors now allowed to carry 24/7 and on aircraft? They weren't when I was in. You had to take a class to carry concealed, you could only carry your service weapon, and you could not carry on aircraft. That was 2003.

tpc
09-02-2008, 01:27 AM
So are Customs inspectors now allowed to carry 24/7 and on aircraft? They weren't when I was in. You had to take a class to carry concealed, you could only carry your service weapon, and you could not carry on aircraft. That was 2003.

LEOSA has nothing to do with carrying a firearm aboard a commercial aircraft. That is governed by federal law.

As for your other question, LEOSA would preempt state laws, but would not preclude your agency from taking disciplinary action for carrying off duty.

Monty Ealerman
09-02-2008, 02:01 AM
So are Customs inspectors now allowed to carry 24/7 and on aircraft? They weren't when I was in. You had to take a class to carry concealed, you could only carry your service weapon, and you could not carry on aircraft. That was 2003.Due to the pressure differentials 5 miles up, and the fact that standard LE ammo can pierce the fuselage, they don't let just every LE guy take a firearm on an aircraft. I can explain this further if anyone cares for that. Please be safe.

Regards,

Monty

ISPCAPT
09-02-2008, 09:19 AM
I have never seen anything from the California AG asserting that California does not recognize LEOSA or that LEOSA does not apply in California.
I've read the letters you reference. However, the CA AG's person had not and was providing erroneous information concerning LEOSA.
Here's the thread reference CA DOB Staff Services Analyst Brent George. I personally had email discussions with George where he stated to me, and apparently others, that CA does not recognize LEOSA. In my exchange with George I gave him the opportunity to research the matter further and referenced the info you also referenced. He still persisted in providing erroneous information based on his beliefs, not on research but just what he believed.
Included in the below reference on page 3 is the response letter I received from the chief of the CA Bureau of Firearms
http://glocktalk.com/forums/showthread.php?t=849553&highlight=george

merlin436
09-02-2008, 01:33 PM
So are Customs inspectors now allowed to carry 24/7 and on aircraft? They weren't when I was in. You had to take a class to carry concealed, you could only carry your service weapon, and you could not carry on aircraft. That was 2003.


There are no more CI's, they converted over in July of 04.

CBPO's are authorized 24/7 carry and are allowed to carry on flights. Subject to the policies of the agency, of course.

cpd169
09-15-2008, 12:36 PM
I know 20 dope spots less than a mile away where I can rob me a stake and then I can go buy me a Dixmoor Park District badge, and get me a nationwide packin permit.

http://findarticles.com/p/articles/mi_m1355/is_20_100/ai_79665391

I don't know, maybe you ain't hustlin, but I'm slick.

A badge by itself is worthless and has nothing to do with the LEOSA. An LEO must have their official I.D. on their person for their badge to be accepted. I certainly hope you don't believe that someone having a badge makes them a LEO.

MarineVet89
09-15-2008, 08:18 PM
Yet another reason for not leaving Texas...

DAL
09-15-2008, 11:34 PM
Assault charge dropped against Seattle police officer

By SCOTT GUTIERREZ
P-I REPORTER

An assault charge has been dismissed against a Seattle police officer who shot and wounded a Hells Angel biker during the Sturgis Motorcycle Rally, the Meade County State's Attorney's Office in South Dakota announced Monday.

It's the second victory for Detective Ron Smith after a grand jury indicted him last month on charges of aggravated assault, perjury and possession of a concealed weapon without a permit. State's Attorney Jesse Sondreal announced earlier this month that the evidence did not support the perjury charge.

According to Sondreal's statement on Monday, the police investigation "establishes that Ron Smith was defending himself from a violent pre-meditated attack and he responded in a manner which was neither excessive nor unreasonable under the circumstances."

Smith was attending the rally with the Iron Pigs, a motorcycle club oriented to law enforcement. Four other off-duty Seattle police officers were present during the shooting.

Smith said he was forced to fire in self-defense after several Hells Angels jumped him. Sondreal has said that the Hells Angels appear to have started the fight.

The Hells Angel, Joseph McGuire, 33, was charged with aggravated assault following the Aug. 9 confrontation and shooting at the Loud American Roadhouse. His first hearing has been set for later this month.

Smith and four other Iron Pigs members, including a second Seattle police officer and two U.S. Customs and Border Protection agents from Washington, still face charges for carrying a concealed weapon without a permit or in the alternative, failing to abide by the weapons permit of a reciprocal state.

ComicGuy
09-16-2008, 12:30 AM
Smith and four other Iron Pigs members, including a second Seattle police officer and two U.S. Customs and Border Protection agents from Washington, still face charges for carrying a concealed weapon without a permit or in the alternative, failing to abide by the weapons permit of a reciprocal state.
If that's all that's left, they're home free. Any conviction at the local level will be tossed out on appeal; the law's pretty damm clear even if it hasn't been "tested in court."

FNA209
09-16-2008, 03:18 AM
Like it or not, there are enough SAs/DAs and local/state politcians out there who hate guns. They will test LEOSA. We have to have a few cases go through the courts to codify the law and set limitations on what states laws can be applied to officers carrying under LEOSA.

A few weapon possessions resulting in a state-law violation are going to go through various state court and the finding will be an adverse one for the officer. Hopefully some federal judge will tell the state they were out-of-line and we'll see that particular state stop screwing around with the law. It's going to take some case law and a few states are going to have to be spanked. I for one don't really want to be a test case. :p

But, since the passing of the law, I've carried through about 22 states and never had a problem. Then again, I have never had to shoot a Hells Angel outside of a bar either.

IMO, the ATF is frequently overstepping their authority and they do make some bad policy from time-to-time. I can easily see why there are a lot of people who don't trust them. The LEOSA has nothing to do with the ATF. Their spokesperson should have directed any questions to the right place. But, either the spokesperson mis-spoke or we have to start worrying the ATF is attempting to trash a law they have no say in to begin with by forming stupid policies.

ateamer
09-16-2008, 02:34 PM
Hopefully this DA in South Dakota will be removed from office. If he doesn't know about LEOSA and understand that it is the law of the land, he isn't fit to be a district attorney. LEOSA is extremely relevant to this case, and there is no way it hasn't been brought to his attention.

wildbill129
09-16-2008, 09:21 PM
All this talk about Federal vs. State/local, HR218 etc, but did you Fed's notice they charged a couple of Feds with the same concealed weapons violations? Don't you think that has already been addressed in the courts? Obviously, in South Dakota, it doesn't matter....

"In addition to Smith, four other members of the Iron Pigs who were with him at the bar face misdemeanor charges. All are charged with carrying a concealed weapon without a permit. A conviction on the misdemeanor could result in up to one year in jail and a $2,000 fine.

They are: Scott Lazalde, 38, of Bellingham; James Rector, 44, of Ferndale, Whatcom County; Erik Pingel, 35, of Aurora, Colo.; and Seattle police Sgt. Dennis McCoy, 49, of Seattle. Lazalde and Rector are longtime members of U.S. Customs and Border Inspection and stationed in Blaine. Pingel is a firefighter."

DAL
09-17-2008, 12:05 AM
Perhaps the charges will be dismissed on a pretrial motion.

I wonder why the State's Attorney sought a grand jury indictment if he was going to dismiss it.

FNA209
09-17-2008, 01:27 AM
All this talk about Federal vs. State/local, HR218 etc, but did you Fed's notice they charged a couple of Feds with the same concealed weapons violations? Don't you think that has already been addressed in the courts? Obviously, in North Dakota, it doesn't matter....


Again, that's just how new laws work. There is little, if any, case law on LEOSA. So, depending on how a federal judge (if it goes there) decides on South Dakota's interpretation of the law will show us if "in North [South] Dakota, it doesn't matter...."

You gotta be patient and see how the law will be implemented and what the feds finally tell the states they can do in regards to it.

Naelbis
09-17-2008, 07:01 AM
For the record, Sturgis is in SOUTH DAKOTA therefore ND laws have nothing to do with any of this.

FNA209
09-17-2008, 07:37 AM
For the record, Sturgis is in SOUTH DAKOTA therefore ND laws have nothing to do with any of this.


I knew that! :p

I was referring to ND because I didn't track the other comment well enough to catch the erronous location. :(

I fixed mine. :D

wildbill129
09-17-2008, 02:09 PM
For the record, Sturgis is in SOUTH DAKOTA therefore ND laws have nothing to do with any of this.

oops, my bad, fixed...

DAL
09-17-2008, 03:41 PM
Again, that's just how new laws work. There is little, if any, case law on LEOSA. So, depending on how a federal judge (if it goes there) decides on South Dakota's interpretation of the law will show us if "in North [South] Dakota, it doesn't matter...."

You gotta be patient and see how the law will be implemented and what the feds finally tell the states they can do in regards to it.

The case is highly unlikely to make it to federal court. The officer would have to be convicted and lose his appeal(s) before the fedeal courts would ever consider the issue.

Iowa #1603
02-28-2012, 11:11 PM
SA13, you are correct.
.

4 yr old thread which was totally forgotten 3.99 yrs ago.

1042 Trooper
02-29-2012, 02:27 AM
There is no "we" involved in my posts, I was specifically addressing the person who can't seem to grasp that there is little to no caselaw regarding the LEOSA, and little to no guidance from DOJ on the LEOSA, and therefore SD is not required to do anything regarding the LEOSA if they wish to leave it up to the fed courts to decide whether or not it applies in this case.

Relax, Francis. Relax.

mavriktu
02-29-2012, 07:24 AM
Holy freakin Easter:rolleyes:

sgt jon
02-29-2012, 09:20 AM
4 yr old thread which was totally forgotten 3.99 yrs ago.

Holy Revived Thread Batman. I must say this is a record. And on the subject of LEOSA of all things…go figure.