Attachment “A”

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IACP Presentation at Nov. 2004 annual conference

IACP Net Documents # 575601 and 575602

 

By Martin J. Mayer, Esq., General Counsel

California Police Chiefs Association

Jones & Mayer

3777 North Harbor Boulevard

Fullerton, CA 92835

(714) 446-1400

(Fax: (714) 446-1448

www.jones-mayer.com 

 

Background:

 

On July 22, 2004, President George W. Bush signed a new federal law that allows both current and retired law enforcement officers to carry concealed weapons wherever they go in the United States, regardless of most state or local prohibitions to the contrary. The law, which is attached, effectively “trumps” all local laws which may restrict and/or prohibit individuals from carrying concealed weapons in their states.

 

The law is very broadly drawn and leaves numerous questions unanswered including exactly who “qualifies” as a current or retired law enforcement officer. Significant concerns were raised by the International Association of Chiefs of Police in their testimony and opposition to the passage of HR 218, regarding officers who travel to other states and become involved in incidents while carrying concealed weapons.

 

HR 218 Issues:

 

1. What, if any, liability falls on the employing agency, if action is taken by an off duty officer in another jurisdiction?

 

2. Are those who have limited peace officer authority (e.g. Reserves, corrections officers, part time officers, etc.) covered under HR 218?

 

3. Does the disciplinary action, referred to in HR 218, mean current or in the past?

 

4. What do retired officers need to prove if their state has no “standards for training and qualifications … to carry firearms?”

 

5. Can an officer carry “any” firearm while off duty?

 

Law enforcement officers may carry concealed handguns nationwide, on or off-duty.  When traveling to other states, they are not required to inform other state or local authorities that they are carrying concealed weapons, though they must produce valid identification if challenged.

 

The new law does not extend an officer’s authority to enforce the law in states where it is not already authorized; it simply gives officers greater freedom to be armed.  The justification for this new law is, in part, based on the fear of officers having negative contact with someone they previously arrested, and their need to protect themselves.

                       

The law passed Congress on June 23, 2004, and the Senate on July 7, 2004.  It adds two new sections to Chapter 44 of Title 18 of the United States Code, the chapter of the federal criminal code which deals with firearms.  Under 18 USCS 926B(a), “a qualified law enforcement officer... carrying the identification required by subsection (d) may carry a concealed firearm... subject to subsection (b),...” anywhere in the United States. Section 926C extends the same privilege to qualified, retired, law enforcement officers.

 

Who is qualified?

 

Section 926B(c) defines “qualified law enforcement officer” as someone who is authorized by the law (of his or her state) to enforce the law and make arrests; is authorized by his or her agency to carry a firearm; is not being disciplined by the agency; meets agency standards for qualifying in the use of a firearm; is not intoxicated; and is not prohibited by other federal law from possessing a firearm.

 

Section 926C(c) defines “qualified retired law enforcement officer” in a similar way, with the added requirements that the officer left the agency in good standing, after a minimum of 15 years of service (or because of a disabling injury, not based on mental instability), and has a nonforfeitable right to benefits under the agency’s retirement plan.  Ironically, unlike 926B, a retired officer is not required to be authorized by his agency to carry a firearm, but the officer must be able to prove that he/she is qualified in the use of a firearm under state standards within the last 12 months.

 

Both current and retired officers must carry identification.  A current officer must have the photo I.D. issued by his or her law enforcement agency.  A retired officer must carry either, (1) a new photo I.D. issued by his or her old agency which indicates that he/she has qualified within the last 12 months to use a firearm of the kind he/she is carrying, or (2) his/her old photo I.D., along with a certification of such qualification issued by the officer’s state of residence.

 

Exceptions to the Law

 

Peace officers who qualify under the new law must still obey local prohibitions or restrictions against the carrying of concealed weapons on (1) private property, if the owner imposes such prohibitions or restrictions, and (2) state or public property, such as a courthouse or a public park.

 

The law does not give officers the right to carry:

     (1) any machine gun (as defined in section 5845 of the National Firearms Act);

     (2) any firearm silencer (as defined in section 921 of Title 18); or

     (3) any destructive device (as defined in section 921 of Title 18).

 

How This Affects Your Agency

 

Local agencies have to prepare for armed, current and retired, peace officers from other states traveling into their jurisdictions without notice.  These out-of-state officers have a right to carry concealed weapons, provided they can produce proper identification. Additionally, these officers will be subject to their own agency or state’s standards, if any, for firearms training or qualification.

 

The laws of each state are not the same in determining who is a “qualified law enforcement officer.”  Other states may have totally different standards than California; but their definition will apply.

 

If you have questions or wish to discuss this memo in greater detail, please do not hesitate to communicate with Martin Mayer at 714-446-1400 or mjm@jones-mayer.com.

 

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Jones & Mayer Client Alert Memorandum

September 16, 2004

 

To:                  All [California] Police Chiefs and Sheriffs

                                                                                                                                                               

From:              Martin J. Mayer

                                               

HR 218 - CURRENT INFORMATION

 

The volume of calls and e-mails has not let up regarding the implementation of the Law Enforcement Officers Safety Act of 2004 (HR 218) and how it impacts on current and retired California law enforcement officers. For prior information see Client Alert Memos on our web site at www.jones-mayer.com 

 

Unfortunately, it is not up to the individual states to define the requirements in HR 218 but, rather, the federal government since it is a federal law.  Nonetheless, most states are making efforts to reach some consensus as to how to protect their law enforcement officers who choose to travel to other jurisdictions with concealed weapons.

 

In California, the Department of Justice is taking the lead in an effort to develop protocols which will accomplish this task.  This morning a 2 ½ hour conference call was held amongst many “stakeholders” to try and resolve some of the more pressing concerns.  The call involved those of us who are part of a “sub-committee” created by DOJ.  An effort is being made to secure assistance from the U.S. Department of Justice to respond to numerous questions and concerns raised during the call.  It is hoped that a meeting with U.S. DOJ can occur within the next 4 - 6 weeks to secure their advice and guidance.  Again, since HR 218 is federal law, the federal input is imperative.

 

HOW THIS AFFECTS YOUR AGENCY:

 

In the interim, and until more definitive answers are secured, the following suggestions are made.  It is most important to emphasize that these are merely recommendations and we strongly urge that each officer secure advice and guidance from his or her department’s legal advisor.  Pursuant to the language set forth in HR 218 we believe the following is necessary to be able to legally travel to another state with a concealed weapon:

 

CURRENT LAW ENFORCEMENT OFFICERS must be able to verify, among other things, that they have statutory powers of arrest and are “authorized by the agency to carry a firearm.”  As such, we urge that an officer carries a current photo ID card from his or her agency, which states that he or she “has statutory powers of arrest” AND “is authorized to carry a firearm.”  The law states, in sec. 926B(d), that “the identification REQUIRED by this subsection is the photographic identification issued by the governmental agency for which the individual is employed as a law enforcement officer.” (Emphasis added.)

 

RETIRED LAW ENFORCEMENT OFFICERS must be able to verify, among other things, that they “retired in good standing” (for reasons other than “mental instability”);  that “before such retirement (they) had statutory powers of arrest;”  that they were “regularly employed as a law enforcement officer for an aggregate of 15 years or more;” AND “not less recently than one year before the date the individual is carrying the concealed firearm” he or she met the standards for “training and qualification for active law enforcement officers to carry a firearm” which were established by the agency from which the officer retired OR the state standards in which the retired officer now resides.

 

It has come to our attention that some states are attempting to resist the impact of HR 218 regarding law enforcement officers going into their states with concealed weapons.  During the conference call it was noted that New York State will be insisting on all aspects of HR 218 being applied.  That would include being able to prove that the out of state officer meets all of the HR 218 requirements - not just those set forth above.  We suggest that you all review the law carefully.  It can be accessed on the California DOJ web site at ag.ca.gov/firearms/index.html.

 

Once again, we urge that you secure legal advice and guidance from your department’s legal advisor before traveling to other states with concealed weapons.  As always, if you wish to discuss this in greater detail, please feel free to contact me at 714 - 446-1400 or by e-mail at mjm@jones-mayer.com

 

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California Department of Justice Notice

California Department of Justice

Firearms Division

Randy Rossi, Director

Implementation of HR 218

Law Enforcement Officers Safety Act of 2004

 

To:      All Law Enforcement Agencies

 

            On July 22, 2004, the Law Enforcement Safety Act of 2004 (HR 218) became law. This law provides for the carrying of concealed firearms by law enforcement officers (both active and retired) nationwide upon meeting certain criteria.

 

            This legislation has broad reaching implications. California, along with other states, are developing procedures and standards to implement this legislation. Implementation of this law will require extensive review and analysis of existing policies/practices.

 

            In an effort to fully address the issues associated with the implementation of this legislation, the California Department of Justice is in the process of convening a meeting consisting of representatives from both law enforcement and legal communities to expeditiously identify, address and resolve issues and concerns that have been brought to our attention.

 

            This is a very important issue for law enforcement nationwide, and we are moving forward as quickly as possible to endure the smooth and successful implementation of HR 218. Your patience and cooperation are appreciated as we move forward. We invite interested parties to visit the Department’s website at http://ag.ca.gov/firearms/index.html for period updates as well as for access to this legislation.

 

            Should you have questions regarding this bulletin, please feel free to contact the Department of Justice Firearms Division Field Representatives at (916) 263-4887 or you may contact me directly at (916) 263-6275.

 

                                                                        Sincerely,

 

                                                                        RANDY ROSSI, Director

                                                                        Firearms Division

 

                                                            For      BILL LOCKYER

                                                                        Attorney General

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Answers from Office of Congressman

Randy Cunningham

(Principal sponsor of HR 218)

 

H.R. 218 allows qualified active and retired law enforcement officers to carry concealed firearms on which they are trained and certified by their state to use

 

What is a qualified active law enforcement officer?

 

An employee of a government agency who is:

 

• authorized by law to engage in or supervise the prevention, detection, investigation, prosecution or incarceration of any person for any violation of law

 

• has statutory powers of arrest

 

• is authorized by their employing agency to carry a firearm

 

• is not the subject of any disciplinary action by the agency

 

• meets the standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm

 

• is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance, and

 

• is not prohibited by federal law from carrying a firearm.

 

What is a qualified retired law enforcement officer?

 

Any individual who:

 

• has retired in good standing from service with a government agency as a law enforcement officer for an aggregate of 15 years or more for reasons other than mental instability, or retired from such an agency due to a service-connected disability after completing any applicable probationary period of such service

 

• was authorized by law to engage in or supervise the prevention, detection, investigation, prosecution or the incarceration of any person for any violation of law

 

• has statutory powers of arrest

 

• has a nonforfeitable right to benefits under the retirement plan of the agency for which he was employed

 

• meets, at his own expense, the same standards for qualification with a firearms as an active officer within the state in which he resides

 

• is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance

 

• is not prohibited by federal law from possessing a firearm

 

What documentation is required for concealed carry rights?

 

Active law enforcement officers must carry the photographic identification issued by the agency for which they are employed. Retired law enforcement officers must carry the photographic identification issued by the agency for which they were employed and documentation which show they have met the qualification standards in their state of residence for the firearm they are carrying.

 

Are there any firearms-related items excluded?

 

Machine guns, silencers, explosives or other destructive devices are not covered under concealed carry rights.

 

Are non-government employees with statutory law enforcement authority eligible for concealed carry?

 

No. Individuals must be an employee of a local, state or federal governmental agency to qualify.

 

Does the bill allow qualified officers or retired officers to carry a firearm on a plane?

 

No. Carriage of firearms on aircraft are strictly regulated by other federal statutes.

 

How do retired law enforcement officers receive certification of training and qualification to carry a firearm?

 

Certification is a state function. While many states already have a process by which to receive certifications, several do not. It is likely that with passage of H.R. 218, those states which don’t have a certification system will be working to develop them.

 

When does this law go into effect?

 

The bill became effective upon its signing on July 22, 2004. However, in those cases where the states don’t have a process by which to certify retired law enforcement officers will not be able to carry until a certification process is established and they are in possession of the necessary identification.

 

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