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    ATF Opinion: HR 218 is not "enforcible"

    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?

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    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

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    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.

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    Quote Originally Posted by SA13 View Post
    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?
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    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.
    Last edited by David Hineline; 08-29-2008 at 05:12 PM.

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    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.

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    Quote Originally Posted by David Hineline View Post
    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!
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    Quote Originally Posted by pulicords View Post
    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.

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    Quote Originally Posted by SA13 View Post
    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.
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    Quote Originally Posted by SA13 View Post
    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.
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    Quote Originally Posted by pulicords View Post
    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?
    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.

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    Quote Originally Posted by yellowreef View Post
    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.

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    Legal issues not analyzed correctly

    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-...ubl277.108.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.
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    Quote Originally Posted by yellowreef View Post
    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.
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    Quote Originally Posted by DAL View Post
    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.pdf
    Whether 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.

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    Quote Originally Posted by DAL View Post
    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.

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    Quote Originally Posted by DAL View Post
    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).

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    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.

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    Quote Originally Posted by SA13 View Post
    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!

    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.
    "I'm not fluent in the language of violence, but I know enough to get around in places where it's spoken."

  20. #20
    DAL
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    Quote Originally Posted by SA13 View Post
    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.
    Last edited by DAL; 08-29-2008 at 11:32 PM.
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    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?
    Last edited by bigislander72; 08-29-2008 at 09:56 PM.

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    Quote Originally Posted by Name Taken View Post
    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
    .
    Last edited by DAL; 08-29-2008 at 10:42 PM.
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    Quote Originally Posted by pulicords View Post
    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?
    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.

  24. #24
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    At least those of us who had enough sense not to go to Sturgis will benefit from having more case law interpreting HR 218.
    Facts do not cease to exist because they are ignored. -- Aldous Huxley
    Two things are infinite: the universe and human stupidity. -- Albert Einstein

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    SA13....Would you be so kind as to post which Federal Statute authorizes Federal agents to carry firearms off duty?

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