Law Enforcement Officers Safety Act of 2004-Celebration With Patience

By Mark L. Cohen, FLEOA Legal Services

On July 22, 2004, one of FLEOA's long-standing legislative goals was realized as President George W. Bush signed The Law Enforcement Officers Safety Act of 2004 into law. The legislation, which upon the president's signature became Public Law No: 108-277, basically exempts active duty law enforcement officers (federal, state, and local), as well as qualified retired law enforcement officers from state or local laws which prohibit the carrying of a concealed handgun with certain express exceptions. Due to the limited space constraints as a result of the need to report on the National Conference, I will explore this topic in more depth in a future column, but wanted to get some important information out to the membership as quickly as possible.

As a prelude, let me say that as a member and a newly retired agent, I am completely in favor of this remarkable legislative achievement, and am personally happy that it has become law. It is important however, that our members, particularly our retired members who have awaited the passage of this legislation for a number of years, are aware of several express provisions of this law, so that nobody unnecessarily places himself or herself at risk.

Most importantly, everyone should be aware that nothing in this law confers any federal law enforcement arrest authority. Simply put, for active member agents who are off-duty, as well as retirees, unless the state where you are situated provides affirmative statutory authority conferring peace officer status or some type of "good Samaritan" enforcement authority you are deemed a private citizen who has been granted a limited exemption from local prohibitions against carrying a concealed weapon. It should be noted that even if you act as a peace officer or pursuant to a state statutorily provided "good Samaritan" authority, you do not enjoy the immunities and protection of the United States government which is highly significant. These immunities are conferred solely upon Federal law enforcement officers who are acting within the scope of their federal employment. A close examination of the state law where you are situated should be conducted to determine whether any immunities attach to the exercise of state law enforcement authority. In the absence of any state law immunities, which is most likely, an individual carrying a concealed weapon pursuant to this statute who uses that weapon would be personally liable for any damages arising from the use of the weapon, as well as potential criminal liability for those actions. Of course, merely being sued or charged may be as great a risk as being adjudicated liable in either situation, because attorneys fees would not paid.  Also, the law specifically reserves the right of each state to allow private individuals or entities to prohibit the possession of such weapons on their property, or for the state to prohibit the carrying of such weapons on state or local government property, bases, or installations. In other words, states may still prohibit the carrying of weapons into stadiums, government buildings, or other venues.

The other major purpose of this article is to advise retirees of the requirements for individuals to qualify to carry under this law. The qualifications as expressed in the statute are as follows:

As used in this section, the term `qualified retired law enforcement officer' means an individual who—

(1)retired in good standing from service with a public agency as a law enforcement officer, other than for reasons of mental instability; and

(2)before such retirement, was authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and had statutory powers of arrest; and


(3)

(A) before such retirement, was regularly employed as a law enforcement officer for an aggregate of 15 years or more; or (B) retired from service with such agency, after completing any applicable probationary period of such service, due to a service-connected disability, as determined by such agency; and
(4) has a non-forfeitable right to benefits under the retirement plan of the agency; and
(5) during the most recent 12-month period, has met, at the expense of the individual, the State's standards for training and qualification for active law enforcement officers to carry firearms; and (6) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and (7) is not prohibited by Federal law from receiving a firearm.
(d) The identification required by this subsection is--
(1) a photographic identification issued by the agency from which the individual retired from service as a law enforcement officer that indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the agency to meet the standards established by the agency for training and qualification for active law enforcement officers to carry a firearm of the same type as the concealed firearm; or

(2)

(A) a photographic identification issued by the agency from which the individual  retired from service as a law enforcement officer; and

(B) a certification issued by the State in which the individual resides that indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the State to meet the standards established by the State for training and qualification for active law enforcement officers to carry a firearm of the same type as the concealed firearm.

As you can see, there are two important requirements, credentialing and certification. Both requirements need to be met before an individual is deemed "qualified" and therefore exempt from local concealed carry prohibitions under this statute. Procedures need to be established for each agency to issue photographic identification pursuant to this statute. While FLEOA will remain actively involved in this issue to ensure that our members receive the full protection of this statute, a cautious approach is advised. While "retired" or "cancelled" credentials may eventually prove to be an agency's implementation of this requirement, no retired member should rely on this until each agency issues implementing procedures. Also, each state has to establish training and certification procedures. A call to a local known range officer is not sufficient to meet the requirements of this statute. Again, caution is advised until your state establishes its standards and procedures. Failure to properly comply with both requirements could subject the individual to the serious risk of criminal or civil liability for carrying a concealed weapon in contravention of state or local prohibitions. There is little doubt that states will be motivated to implement their standards as quickly as possible since all of their officers are affected as well. Likewise, various retired agent associations will be as interested as FLEOA in ensuring that their agencies implement the credentialing as quickly as possible. Additionally, FLEOA as well as retired agent associations, will have to explore the issues of what, if any, legal coverage they may choose to offer to members for incidents arising from or in conjunction with individuals carrying concealed weapons under this law. Also, liability insurance of some type would be a highly recommended option, and the parameters of any such plans, as well as an examination of who may be offering them has< yet to be considered.

In summary, this brief article is a call for patience in the midst of our celebration at the passage of this long awaited law. We have much to celebrate in having had our collective voices heard. The next step, after years of activism, is to employ some patience for the next few months as the implementing procedures are established. As all of us who have been trained to carry firearms know, the primary rule is"Safety First", and that as always, includes the "legal safety" of our members!

Questions or concerns regarding this article should be directed to:
FLEOA Legal Services