Law Enforcement Safety Act of 2004
By Craig E. Ferrell Jr., Deputy Director and Administrative General Counsel, Houston Police Department, Houston, Texas
aw enforcement groups have been battling various concealed handgun carry laws for over a decade now and it appears the public and politicians have overwhelmingly decided in a majority of states that concealed handgun laws are a good thing. That, coupled with the fact that more than 35 states now have concealed handgun laws that allow their private citizens to carry concealed handguns, made it only a matter of time before the Law Enforcement Safety Act would pass and allow police officers and honorably retired police officers to carry their firearms nationwide. On July 7, 2004, the Senate voted to pass H.B. 218 the National Concealed Carry for Cops legislation that was passed by the House on June 23, 2004. On July 22, 2004, President George W. Bush signed into law what is officially entitled the Law Enforcement Officers Safety Act of 2004. This law allows qualified active (on- or off-duty) and honorably retired law enforcement officers to carry their firearms concealed nationwide.
Almost every police agency in the United States will have to revise its policies and procedures and adjust to this new national law. The following are a series of commonly asked questions and the answers (or likely answers) to these questions concerning this new federal law. There naturally are, however, some differences that will arise in the administration and implementation of the Law Enforcement Safety Act between the different states. This will be inevitable because the federal law allows each state to set the minimum training and qualification necessary to certify officers living in that state. Also, there are issues of interpretation that may not be resolved conclusively until there are lawsuits and court decisions, but, of course, that takes years.
In order to answer questions about the new federal law and its consequences for law enforcement agencies, the questions that follow were divided into two categories, active and retired officers. (See Law Enforcement Officers Safety Act of 2004, 18 USCA § 926B and 18 USCA § 926C).
The following questions and answers pertain to active officers only.
1a. Can a department restrict the use of its weapons?
Yes, a law enforcement agency may restrict an officer’s right to carry a firearm, including restrictions prohibiting officers from carrying the weapons out of state regardless of whether they are on or off duty. While the police officer would not be violating state or federal law by carrying a firearm, he would be subject to discipline from his department for violating a lawful order from his agency not to carry a firearm. In other words, failure to comply with an agency directive would only be enforceable through departmental sanctions. The new legislation allows qualified officers to carry a concealed handgun nationwide. It does not create a right to do so.
1b. Can a police department restrict the type and caliber weapon carried by an officer travelling to another state?
The Law Enforcement Officers Safety Act of 2004 (hereafter referred to as the Act) states that a firearm does not include a machine gun, firearm silencer, or any destructive device. These terms are defined in different statutes in the United States Code. Other than the exceptions listed, the Act does not restrict the type of handgun an active officer may carry or whether it needs to be a duty weapon. A law enforcement agency, however, may have a more restrictive policy regarding the type of weapons officers may carry during their off-duty time. Therefore, although it would not be illegal for the officer to carry a weapon while off duty that is not permitted by departmental policy, an officer could face departmental sanctions for violating his agency’s policy.
2a. Should a police department have a policy statement that indicates that if an officer carries a privately owned weapon then they are acting as a citizen and not a representative of the department?
It will be each department’s decision on how they should regulate their officers. Although an agency may have a written policy as suggested in the question above, it may be more beneficial to have a good use-of-force policy and to provide additional training for the officers regarding the use of force and the interplay between the new federal law and the right to carry a concealed handgun in the officers’ home state and in other jurisdictions. It is especially important to note that when an officer is in another state, absent law to the contrary, he has no law enforcement authority other than the authority to carry a firearm. A written policy on his lack of law enforcement power in another state should be part of the agency’s written policy.
2b. Is there anything that requires a department to indemnify or defend an officer who took action in another state as a citizen?
There is nothing that requires a department to indemnify actions taken by officers for actions they take as a private citizen in another state. It is a good idea to remind officers that although they may lawfully carry a weapon while in another state because they are police officers, they have no law enforcement authority there and should review and become familiar with that state’s laws on the carrying of a firearm before traveling.
3. The law defines “qualified law enforcement officer” broadly. Will it include certain corrections officers and sheriff’s deputies not previously covered by state laws?
The Act sets forth six criteria that a person must meet in order to qualify as a law enforcement officer and thus be eligible to carry a concealed handgun under the Act. The most restrictive of these are that a person must have been granted the statutory power of arrest and be authorized to carry a firearm by their state. This is more inclusive than what is provided by some state laws. The portion of the federal law governing retired officers is more restrictive. For instance, a retired officer must have a nonforfeitable right to benefits under a pension plan and have a minimum of 15 years, in the aggregate, as a licensed police officer.
4. The Act says that officers must be authorized to carry a firearm by the agency. What obligation does the department have to restrict the officer’s right to carry if an officer is physically or mentally unfit to carry a firearm, whether it is temporary or permanent?
If an employer knows that an officer should be restricted from carrying a weapon due to physical or mental infirmities, then it is the employer’s responsibility to restrict the incapacitated officer’s right to carry a weapon. This is accomplished by issuing a written directive and retaining his police credentials until the restrictions can be released. Section 926B(c)(2) of the Act supports this position. Additionally, a state regulatory agency may revoke or suspend an officer’s license under certain circumstances, such as mental incapacity, thereby making him ineligible to carry under the Act. But note: if a police officer is not carrying his governmental issued identification as described under Section 926B(a) and Section 926C(a), he is not authorized to carry a concealed weapon under the Act.
5. What do the terms “not the subject of any disciplinary action by the agency” mean? Active disciplinary investigation? Alternatively, could it mean that anyone with a disciplinary history, regardless of infraction, is disqualified? Do all disciplinary actions warrant restriction or should there be a class of offenses?
The Act states that, to be “qualified,” an officer must not be the subject of “any disciplinary action by the agency.” A reasonable interpretation of this language would seem to be that when an officer is disciplined to such an extent that he is temporarily disqualified by the law enforcement agency for whom he works from working as a police officer and carrying a weapon, then he is restricted from carrying a weapon under the Act for the same period of time. Minor departmental violations resulting in counseling or verbal or written reprimands would not normally disqualify the officer to carry a concealed handgun under the Act.
6. What written policy should law enforcement agencies issue regarding officers’ right to carry a concealed weapon as promulgated under the federal Law Enforcement Officers Safety Act of 2004? In particular, what is the definition of “under the influence of alcohol” as it pertains to the new federal law?
A written policy is a good measure. It provides the agency’s employees with notice and training, and it is a supervisory tool. A department’s written policy should make it clear that officers who are carrying a weapon while off duty in another state do not have law enforcement authority unless specifically granted that authority by that state. The policy should further state that officers can be restricted as to where they can carry a concealed weapon by laws in other states. Officers should be admonished to check the state laws where they intend to carry a weapon prior to going out of state to make sure they are in compliance. The policy should also note that all training and qualification requirements mandated by the department must be maintained before an officer can carry a firearm out of state. Any department standards as to make, model, and caliber of weapon should also pertain to concealed weapons carried by an officer travelling to another state.
The phrase “under the influence of alcohol or hallucinatory drug or substance” is not defined in the statute. Therefore, it should be interpreted using the states’ penal code or may even be more restrictive. A law enforcement agency’s policy regarding carrying a concealed weapon while off duty should include a definition of intoxication and should prohibit an officer from carrying a weapon if he is under the influence of alcohol. The written policy should also restrict an officer from carrying a firearmif over-the-counter or prescribed medicine impairs the officer’s mental or physical condition. A department’s policy should make it clear that the restrictions listed above also apply to officers carrying their weapon while traveling.
Law enforcement agencies are reminded that some jurisdictions have laws restricting off-duty officers from carrying weapons if they have consumed any reasonable quantity of alcohol or taken over the counter or prescribed medicine. This needs to be taken into consideration when writing a policy.
The following questions and answers pertain to retired officers.
1. There is no age limit specified under the Act or any requirement that the retired officer be mentally and physically capable of carrying a firearm safely. What should the standard be?
The Act states that a retired officer must meet the same state standards for training and qualification as an active officer in order to be eligible to carry a firearm. The state regulatory agencies usually set the minimum standards that must be followed.
2. How much responsibility does an agency have to assist retired officers living in its jurisdiction? Remember that the retired officer that comes to you may not necessarily have retired from your department. Do you have any responsibility at all?
The Act requires the agency where the officer retired from to provide a photographic identification if the officer is honorably retired. There is no requirement that the local agency assist officers from outside jurisdictions. The state has the burden of certifying officers living within its jurisdiction. The state must certify that officers residing in their jurisdiction have met the requirements set forth in the Act and provide them with documentation stating so.
3. Retirees must meet state standards for training and qualification. Can the state adopt specific regulations for issuing certificates to retirees? For example, could they include a required medical certification from the retiree’s physician?
The Act states that the retired officer must meet the standards established by the state. By implication, therefore, a state must have established standards for training and qualification. The Act does not specify what the minimum standards of training and qualification must include or what they may not include. Consequently, a reasonable requirement, such as obtaining a medical certification, would presumably be permissible.
4. Who determines what the state’s standards are? If a state does not have statewide standards, must they adopt some or could they refuse to issue any certificates?
The Act assumes all states will have standards already in place for their police officers. If they do not, the Act requires that states enact training and qualification standards.
5. The law requires retirees living in the same state to have an agency-issued identification. Who pays for these cards?
The agency where the officer retired must provide a photographic identification card. The Act is silent concerning reimbursement for the photographic identification. It appears that the issuing agency may elect to charge the retired officer for costs incurred for issuing the photo identification or the agency may provide the police identification at no cost to the retiree. The retiree is required to pay for any expense incurred by the agency to provide training or qualification opportunities.
The Act requires the agency from which the officer retired to provide the officer with a photographic identification indicating that the officer retired in good standing; the identification may also indicate whether the officer completed firearms training within the most recent 12 months. If the agency does not elect to certify that the retired officer has met the state training and firearm qualification requirements, then the Act does not specify that the retiree’s identification be renewed annually. The training and qualification requirements under the Act must be renewed annually.
6. The law says that identification cards must denote that the retiree has, within the last year, been “tested or otherwise found by the agency to meet the standards established by the agency for training and qualification of active law enforcement officers to carry a firearm of the same type as the concealed firearm.” Who is going to test the retired officers?
The retiree must receive an identification from the agency where he retired. The identification need only certify that the bearer is retired from that law enforcement agency. It is recommended that law enforcement agencies only provide identification to retirees for purposes of the Act to those who meet or exceed the requirements set forth under 18 USCA § 926C(c).
The Act then gives two options whereby a retired officer shall be able to certify that he has completed the mandated state training and qualification requirements. The first is optional under the Act. It states that the retired officer’s agency may certify that the officer has met the mandatory requirements thereby making him eligible to carry a firearm under the new federal law.
The second option is mandated by the Act. The state is mandated by the Act to set procedures whereby a retiree can receive certification when he has met the state-mandated standards established for training and qualification for active law enforcement officers to carry a firearm. It requires the state to certify that a retired officer living within its jurisdiction has met all of the state requirements for active law enforcement officers to carry a firearm. The Act does not specifically authorize the individual states to place this burden on county or municipal police agencies.
7. What proof that the retiree passed the qualification requirements will be acceptable?
A photographic identification card issued by the retiree’s agency indicating the officer is retired is sufficient. It may be prudent to note that this identification does not certify that the listed officer has met state training and qualification requirements. If the agency is also providing certification, a notation on the card indicating that the officer has met the minimum training and qualifications required by the state will suffice. An expiration date not exceeding 12 months should also be noted on the identification. The certification portion of the identification should also indicate the type of firearm the officer is qualified to carry.
If the retiree is obtaining certification from the state, then the certification card should contain the same information as noted above.
The records demonstrating that the retiree met the state-mandated proficiency should be kept as required by the state. In Texas, The State’s Commission on Law Eenforcement Standards Examinations has written guidelines for record retention for firearms qualification.
8. Does this testing include mental and physical testing?
The Act does not explicitly require any type of testing, mental or physical, in order for a retired law enforcement officer to carry a firearm. The Act, instead, defers to the qualifications mandated by the individual states for their active officers to carry a concealed firearm.
9. What does the law mean where it reads, “to carry a firearm of the same type as the concealed weapon”?
Section 926C(d)(1) and (2)(B) reference “the type of concealed weapon.” The type of firearm is interpreted as meaning either a semiautomatic handgun or a revolver. A law enforcement agency should list either semiautomatic handgun or revolver or both on identification cards issued to retirees who meet state-mandated qualification requirements. A retiree will need to demonstrate proficiency with each type of weapon he desires to carry (revolver or semiautomatic handgun or both) before it is listed on the identification. The Act does not restrict a retiree from carrying other weapons of the same type as the one for which he qualified.
10. How will the agency issuing the card know what type of weapon the person is carrying?
The agency certifying that the retired officer has qualified with a particular weapon is the agency that will be conducting firearms training and qualification testing.
11. Does that mean the retiree (and by extrapolation, an active officer) can be limited in the type of weapon carried? Can a retiree carry more than one type of weapon? Will there have to be a separate card for each type of weapon? Can an agency decline to issue cards for certain weapons or multiple weapons?
An agency may regulate the type of weapon the officer can qualify with at their facility, including caliber, barrel length, and so on. If an agency does not permit its officers to carry a revolver or a semiautomatic firearm, then it would be within its rights to limit qualification to those types of weapons at their range. The Act specifically states that the retiree must “meet the qualifications established by the agency for training and qualification for active law enforcement officers.”
12. Does the agency have to do the qualification or can a private, for-profit group do the actual firearm testing based on the agency’s standards?
Some jurisdictions allow private ranges to conduct their firearm qualification now. The Act only requires that the officer qualify annually, meeting the agency’s minimum qualification requirements.
13. For retirees from another state living in your jurisdiction, the photographic identification does not have to have been issued in the past year. For how long is that identification acceptable? How do you verify the card?
The Act is silent on these issues. A police department should use the same requirements for updating retirees’ identifications as it uses for active officers. A written policy detailing this is preferable.
An identification card should be registered in each agency’s database. Verification can then be obtained by contacting the originating agency.
Each agency should evaluate its own state licensing law for police officers and consult with local legal counsel before amending its policies. The author thanks Captain James Jones, staff attorney and legislative liaison with the Houston Police Department, for his assistance in the preparation of this column.
|This column is prepared monthly by members of IACP’s Legal Officers Section.Interested section members should coordinate their contributions with Randy Means at email@example.com.|
From The Police Chief, vol. 71, no. 10, October 2004. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.