| In the last
issue of The PBA Magazine, I described in general terms the well-intentioned
but flawed Law Enforcement Officers Safety Act of 2004 (the “Act”),
which was meant to allow active and retired law enforcement officers
to carry concealed weapons nationwide without having first obtained
permits from the states to which they are traveling.
As I pointed out in the last issue, both the language of the Act and
the U.S. Justice Department’s position on the legislation may
give rise to varying interpretations from state to state and, at least
with respect to retirees, the Act will require further action by the
state and/or the agency with which he or she was employed. We discussed
in the first article that, one, the law does not make the officer’s
police powers portable and, two, it does not trump federal laws, including
those related to the carrying of concealed weapons in airports and federal
facilities.
In this article, I will describe some further provisions of the legislation
and attempt to answer to the extent possible given the Act’s recent
enactment and the lack of law interpreting it, some of the questions
frequently asked by our members.
In the most basic terms, the Act provides for active officers that,
“notwithstanding any other provision of the law of any state or
any political subdivision thereof [i.e., city or municipality], an individual
who is a qualified law enforcement officer who is carrying [the appropriate]
identification may carry a concealed firearm in any of the 50 United
States.”
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| QUESTION: Who
is a “qualified law enforcement officer”?
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ANSWER: He or she is an employee of a government
agency who:
- is authorized by law to engage in or supervise the prevention,
detection, investigation or prosecution of, or incarceration
of, any person for any violation of law, and has statutory powers
of arrest; and
- is authorized by the agency to carry a firearm; and
- is not the subject of any disciplinary action by the agency;
and
- meets the standards, if any, established by the agency that
require the employee to regularly qualify in the use of a firearm;
and
- is not under the influence of alcohol or another intoxicating
or hallucinatory drug or substance; and
- is not prohibited by federal law from receiving a firearm.
— An active police officer must also carry photo identification
issued by his or her employer.
There is no question that active members in good standing of
the NYPD are qualified law enforcement officers under the Act.
Questions are raised, and an officer should proceed with caution,
when he or she is currently under discipline. At this point, what
is meant by “subject of discipline” and how the challenging
agency verifies whether or not an officer is subject to discipline
is unclear. The Act is silent on what constitutes discipline and
this issue may only ultimately be defined through case law or
regulation. A prior version of the Act contained the language:
“…is not the subject of discipline that prevents the
carrying of a firearm.” While this would seem to be a reasonable
interpretation of the language, the deletion of the language by
Congress leaves the issue open to interpretation.
— The Act also allows “qualified” retirees
who are carrying proper identification to carry concealed weapons
nationwide. |
| QUESTION: Who
is a “qualified” retiree? |
ANSWER: A person who:
- retired in good standing from service with a public agency
as a law enforcement officer, other than for reasons of mental
instability; and
- was authorized by law before retirement to engage in or supervise
the prevention, detection, investigation or prosecution of,
or the incarceration of, any person for any violation of law,
and had statutory powers of arrest; and
- (a) before retiring was regularly employed as a law enforcement
officer for an aggregate of 15 years or more; or (b) retired
from service with the agency after completing any applicable
probationary period of service due to a service-connected disability,
as determined by the agency; and
- has a non-forfeitable right to benefits under the agency’s
retirement plan; and
- during the most recent 12-month period, has met, at the expense
of the individual, the state’s standards of training and
qualification for active law enforcement officers to carry firearms;
and
- is not under the influence of alcohol or another intoxicating
or hallucinatory drug or substance; and
- is not prohibited by federal law from receiving a firearm.
— The retiree also must carry proper identification. |
| QUESTION: What
is “proper identification” for a retiree? |
ANSWER: Proper identification is:
- photographic identification issued by the agency from which
the individual retired that indicates that the individual has,
not less than one year before the date the individual is carrying
the concealed firearm, been tested or otherwise found by the
agency to meet the standards established by the agency for training
and qualification for active law enforcement officers to carry
a firearm of the same type as the concealed firearm; or
- photographic identification issued by the agency from which
the individual retired from service as a law enforcement officer;
and a certification issued by the state in which the individual
resides that indicates that the individual has, not less recently
than one year before the date the individual is carrying the
concealed firearm, been tested or otherwise found by the state
to meet the standards established by the state for training
and qualification for active law enforcement officers to carry
a firearm of the same type as the concealed firearm.
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| QUESTION: What
if I am a retiree residing outside of New York State? |
| ANSWER: Your photo identification will be issued by the NYPD.
The certification is issued by the state in which you reside. |
| QUESTION: Can
I carry on private property or property owned by state or local
governments? |
| ANSWER: Private persons and entities can prohibit the possession
of a concealed firearm on their property. Similarly, state and local
governments can restrict the possession of a concealed firearm on
their properties (e.g., schools, parks, government offices). |
| QUESTION: Does
the Law Enforcement Officers Safety Act supersede departmental regulations
regarding the carrying of your firearm while off duty? |
| ANSWER: While this issue is the subject of debate, a 2005 U.S.
Attorney General’s memorandum suggests that agency regulations
continue to apply. We would err on the side of caution and recommend
that police officers continue to observe departmental regulations
regarding carrying firearms off duty except to the extent that they
prohibit the officer from carrying across state lines. |
| QUESTION: What
weapons am I prohibited from carrying under the new law? |
| ANSWER: Any machine gun (as defined in section 5845 of the National
Firearms Act); any firearm silencer (as defined in section 921 of
title 18); or any destructive device (as defined in section 921
of title 18).
— Your service weapon does not fall into any of these prohibited
categories. |
| QUESTION: Which
states have started to implement procedures for retirees? |
|
ANSWER: Thus far, we are aware that the following
jurisdictions have issued pronouncements or have measures under
consideration concerning HR 218: Alabama; Arizona; Illinois; Kentucky;
Maine; Missouri; Nevada; New Jersey; Pennsylvania; South Carolina;
Tennessee (not as to retirees); and Virginia. We are informed
by an attorney for NYS’s Division of Criminal Justice that
they will not be issuing any regulations certifying local agency
retirees. They have not decided the issue with respect to state
retirees.
One state bearing special mention is Florida, home of many of
our retirees. In a recent pronouncement whose impact on our members
is unclear, the Florida Attorney General said, “I am of
the opinion that retired law enforcement officers may carry concealed
weapons [under HR 218] even though the state does not currently
have statewide firearms training and qualification standards for
active law enforcement officers.” We contacted various Florida
officials, including the Attorney General’s office, but
they would not confirm that our members living in Florida were
covered by that language or whether that language only applied
to retirees from Florida agencies. Therefore, it is unclear what
impact, if any, these standards have on the right of our retirees
to carry under HR 218. We recommend that our Florida retirees
not carry a concealed weapon based on this pronouncement. |
In summary, HR 218 has created much uncertainty in the law enforcement
community, for both the carrying officer and the enforcing agency. Whether
intended by Congress or not, many judgment calls may ultimately be put
into the hands of officers on the street and their supervisors, who
may encounter police officers carrying concealed weapons in other than
their home jurisdictions. Unfortunately, the guidance provided by the
states has been precious little to date. While we hope officers in the
enforcing agencies exercise their seemingly broad discretion in a manner
favorable to active and retired NYPD officers who carry across state
lines or outside their “home” jurisdictions in good faith
reliance on the act, we have no assurance that this will be the case.
And while we understand that the NYPD has been studying the issue, no
official guidance has been issued by the Department, either with respect
to NYPD officers carrying outside New York or to officers from foreign
jurisdictions carrying in New York. All of this suggests that police
officers, particularly those who are retired, should proceed with caution
when carrying across state lines or outside their home jurisdictions.
We will maintain and update in our office a list of the states that
have issued interpretations or regulations or are considering passing
such measures. We also will keep you informed of developments in this
column or through the PBA website. If you have any questions, please
don’t hesitate to contact our office.
* My thanks to Rob McCarthy, David Morris and Valerie Dabas for their
assistance in researching this article.
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