Law Enforcement Officers Safety Act of 2004

 

Caution: This document may be revised periodically.  The 2005 version was amended in 2010, after the passage of S. 1132.  Deleted wording appears in red strikeout fonts and new wording is underlined in green. 

 

Comments and suggestions should be sent to aele@aol.com with “HR 218” in the subject line. Only remarks from persons who identify themselves will be considered.  Your suggestions or comments will not be attributed publicly.

 


 

[Name of Agency]

Policy & Procedure Manual

 

Subject: Federal authorization of qualified current and retired law enforcement officers to carry a concealed firearm.

 

Source: Law Enforcement Officers Safety Act of 2004

Directive Number: [#]   

Effective: [date]

Reviewed: [Agency legal counsel]

Review Date: [date]

Review Responsibility: [unit]

Rescinds: New

CALEA Standards: 1.3.9, 1.3.10, 1.3.11

Distribution: All Employees

Approval: [Agency head]

 

I. Policy:

 

A. H.R. 218, the Law Enforcement Officers Safety Act (LEOSA), was enacted July 22, 2004 as Pub. L. 108-277, and is codified as 18 U.S. Code §926B and §926C. In 2010 it was amended to include additional federal officers and to reduce the period of aggregate service required of former officers.

 

1. The Act permits the nationwide carrying of concealed handguns by qualified current and retired law enforcement officers and amends the Gun Control Act of 1968 (Pub. L. 90-618, 82 Stat. 1213) to exempt qualified current and retired law enforcement officers from state and local laws prohibiting the carry of concealed firearms.

 

2. It does not exempt current or retired officers from any state or local firearm owner registration laws.

 

3. It is the policy of the [Name of agency] to comply with the Act, under the following conditions and provisions [and subject to any applicable bargaining agreements].

 

II. Procedure:

 

A. Current law enforcement officers with the [Name of agency] must:

 

1. Possess statutory powers of arrest and be authorized by the [Name of agency] to carry a concealed firearm.

 

2. Successfully have completed the [Name of agency] designated firearms qualification course.

 

3. Not under be the influence of alcohol or drugs.

 

4. Not be prohibited by Federal or state law from possessing a firearm.

 

5. Not be subject to [Name of agency] disciplinary action preventing the officer from carrying a firearm per existing policy.

 

6. Not take a [Name of agency] owned firearm out of state except on official business and with the approval of the [agency head] or designated subordinates.

 

7. Not wear a concealed [Name of agency] owned firearm except as provided by [Name of agency] firearms regulations.

 

a. Although [Name of agency] firearms regulations may not restrict a current law enforcement officer’s right under the Federal LEOSA to carry a concealed, personally-owned off-duty firearm, as a condition of continued employment:

 

i. All current officers must register his or her personally-owned off-duty firearm(s) with the Rangemaster.

ii. All such weapons shall pass a safety inspection by the Rangemaster.

iii. Officers must pass the state’s firearms qualification test using each approved firearm.

 

B. Required identification

 

1. The officer must have his or her [Name of agency] photo identification card [and official badge/star].

 

C. Qualified retired law enforcement officers of the [Name of agency] must:

 

1. Have retired in good standing from service as a law enforcement officer for the [Name of agency], other than for reasons of mental instability.

 

a. The term “in good standing” means, at the time of retirement, the officer was not facing disciplinary action that could have resulted in his or her termination for misconduct or unfitness for office.

 

b. The term “mental instability” means that the officer either was medically separated for mental instability or, at the time of a years-of-service or disability retirement, the officer was facing removal for reasons of mental instability.

 

c. Interpretative guidance will be provided, on a case-by-case basis, by the [legal advisor/attorney] for the [Name of agency].

 

2. Have an aggregate of at least fifteen ten years of service as an active law enforcement officer or have retired from service after completing a probationary period, due to a service-connected disability, as determined by the [Name of agency].

 

3. Have a non-forfeitable right to benefits under the [Name of agency] retirement system.  Have separated from active service or retired.

 

4. Have successfully passed an annual [agency] background check indicating that he or she is not prohibited by Federal law from receiving or possessing a firearm.

 

5. Not be under the influence of alcohol or drugs.

 

6. Have, during the most recent twelve-month period, successfully passed the standards for training and qualification for active law enforcement officers to carry firearms in their primary state of residence.

 

D. On request, qualified retired law enforcement officers of the [Name of agency] who do not reside in this state, and who have not successfully passed this state’s standards for training and qualification for active law enforcement officers to carry firearms, will be sent a retirement identification card by mail, that indicates that the retired officer:

 

1. Is a nonresident of this state and has met all of the conditions in Part II-C, sections 1 through 5.

 

2. Must meet the standards for training and qualification for active officers in the retired officer’s primary state of residence.

 

3. Must submit, in acceptable size and format, [two recent facial color photographs or a digital image].

 

E. Retired officer identification cards

 

1. Type 1 – Federal LEOSA certification identification cards

 

a. In the case of retired officers who have met all of the conditions in Part II-C, sections 1 through 6, the [Name of agency] issued photographic certification card will indicate the date of the last qualification.

 

i. The date on the card must be less than one year from the time of possession.

ii. The card shall be replaced with the renewal qualification date.

 

2. Type 2 – Identification cards without Federal LEOSA certification

 

a. In the case of retired officers who have failed to pass this state’s standards for training and qualification for active law enforcement officers to carry firearms, the identification card will clearly state that the person has NOT qualified to carry a concealed weapon as a qualified retired law enforcement officer.

 

i. Note: Because of different qualification standards, such persons might lawfully possess a citizen’s Concealed Weapons permit, which is valid in the state that issues the permit, and in states that have reciprocal recognition agreements.

 

b. In the case of nonresidents who request an identification card to be mailed to them, the card will clearly state that the individual also must possess an additional card or appropriate document that indicates that he or she has met the standards for training and qualification for active law enforcement officers to carry firearms in the retired officer’s primary state of residence, to qualify for the Federal LEOSA concealed firearms exemption.  

 

c. Type 2 identification cards will indicate which option applies (a or b).          

 

F. Qualification for the [Name of agency] current officers

 

1. Current officers will comply with the Act by successfully completing the [Name of agency] firearms qualification course during the scheduled firearms training program.

 

2. The minimum qualifying score is [70] percent.

 

G. Qualification for the [Name of agency] qualified retired officers

 

1. The [Name of agency] Rangemaster or designee will schedule at least [four] periods each year for retired officers to qualify. Range times for the retiree qualifications will be announced on the [agency website].

 

a. These qualification dates may coincide with current officer qualification dates if time permits.

 

b. If time does not permit such scheduling, then the retired officer must schedule a range date and time acceptable to the Rangemaster or designee; and may be required to pay the cost of such scheduling and range use.

 

2. Qualified retired officers will be allowed to qualify on more than one concealable firearm, as time and scheduling permits. Such number shall be the decision of the Rangemaster or designee. Retired officers:

 

a. Must bring their own handgun(s), either a revolver or a semi-automatic capable of being loaded with 5 or more rounds.

b. Must bring [50] rounds of factory issued ammunition for the weapon for qualification.

c. Must bring their own cleaning supplies.

d. Must have a safe and secure holster.

e. All handguns and holsters must pass inspection by the Rangemaster.

 

3. The minimum qualifying score is [70] percent.

 

4. The [Name of agency] Rangemaster or designee shall keep a database of qualified retired officers, qualification dates, qualification course of fire, qualification score, and the type and serial number of the firearms used to qualify.

 

6. Qualified retired officers will be required to sign a waiver of liability of the [Name of agency] for all acts taken related to carrying a concealed firearm, acknowledging their personal responsibility as a private person for all acts taken when carrying a concealed firearm as permitted by the Act and not as an employee or former employee of the [Name of agency] or as a current law enforcement officer (unless currently employed as a law enforcement officer of another agency). Such disclaimer shall also release the [Name of agency] from any claim or action at law resulting from any injury or accident during the described firearms qualification activities.

 

H. Failure to qualify and remedial training.

 

1. Any qualified retired officer who fails to qualify will be given the option of basic remedial training and given one additional attempt as soon as practicable after the failed attempt.

 

2. If the qualified retired officer fails to qualify on the second attempt, the Rangemaster or designee will:

 

a. Notify the retired officer of the failure.

 

b. Complete a [memo or report form] outlining the retiree’s name, the course of fire, the firearm type, the score received on each attempt, and any remediation given.

 

c. Recommend that the retired officer seek additional or alternative remedial training.

 

d. Advise the retired officer to contact the Rangemaster or designee to arrange an additional attempt at qualification.

 

3. Qualified retired officers will be given a reasonable number of attempts, but not less than three, at qualifying during the scheduled retiree qualification dates, subject to range availability and the Rangemaster or designee’s time constraints. Any number beyond three attempts will be the decision of the Rangemaster appealable only to the [agency head] whose decision is final.

 

a. Should the retired officer fail to qualify, he or she will be allowed to attempt to qualify at the next scheduled retiree qualification shoot or at a date scheduled by the Rangemaster or Designee.

 

b. Upon the third or final failure, the Rangemaster or designee will submit a [memo or report form] to the [Agency head] outlining the failures.

 

I. Restrictions

 

1. The Rangemaster or designee’s determination will be final as to all issues of safety and equipment. Any weapon, holster, ammunition, or related equipment found unsafe for qualification and carry will be prohibited on the range and noted in writing and of record. The retired officer will be notified and required to sign a statement acknowledging the unsafe condition of the equipment and the reason for such removal and prohibition.

 

2. The Law Enforcement Officers Act does not authorize the retired officer to:

 

a. Carry a machine gun, silencer, or other destructive device.

 

b. Act in the capacity of a law enforcement officer of the [Name of agency].

 

c. Carry a firearm on any government property, installation, facility, building, base or park with laws or regulations prohibiting or restricting the carrying of firearms (such as airport boarding areas, courthouses, etc.).

 

d. Carry a firearm on any other public or privately owned property, facility, building or area, where the carrying of firearms is prohibited or restricted (such as private schools, commercial aircraft, etc.).

 

III. Content of liability waiver and release by a qualified retired officer

 

A. The “Waiver and Release Form” shall be titled, and provide:

 

I am a retired officer of the [Name of agency] who is eligible to attempt to qualify to carry a concealed firearm, pursuant to the Law Enforcement Officers Safety Act of 2004 (18 U.S. Code §926C).

 

I recognize that the [Name of agency] is not legally required to provide me with firearms instruction or a firearms qualification course.

 

I understand that to do so, I will be required to fire my weapon under the direct supervision of the [Name of agency] instructors.

 

I agree to indemnify and hold harmless the [Name of entity and agency], or its agents and employees, for any injury caused by my participation in this qualification process. I further waive any claim for damages against the [Name of entity and agency], or its agents and employees, for any injury suffered by me while participating in this qualification process.

 

Further, I hereby specifically agree to indemnity and hold harmless the [Name of entity and agency] and/or its officers and employees, from any and all liability resulting from my carrying and/or use of any weapon allowed under the Law Enforcement Officers Safety Act of 2004, including, but not limited to, civil litigation.

 

...............................................             .................................................

Name of retired officer                       Signature

 

...............................................           .................................................

Name of witness                                 Signature

 

...............................................            Doc. No. ..................

Date

 

IV. Qualifying checks of current and retired officers

 

A. Before issuing or renewing [Name of Agency] photo identification cards, the [Personnel Division] shall review the officer’s or retired officer’s firearms qualification record and updated criminal history record.

 

B. [Pertinent internal operating procedures].

 

V. Verification of LEOSA status of active and retired officers in field situations.

 

A. Current and retired officers of the [Name of Agency]

 

l. A list of all current and retired officers shall be kept in the [dispatch office]. It is the responsibility of the [Personnel Division] to promptly furnish a roster, whenever it is updated.

 

2. [Pertinent internal operating procedures to verify status].

 

B. Current and retired officers of other agencies

 

1. Requests for verification of the credentials of active and retired law enforcement and corrections officers shall be directed to the [dispatch office shift supervisor].

 

2. [Pertinent internal operating procedures to verify status].

 


 

Commentary

Prepared by AELE

 

I. Text of the Statute (click link)

 

II. Preliminary comments on the LEO Safety Act:

 

Nothing in the commentary, links or attachments should be considered legal advice!

 

There is fundamental disagreement among law enforcement legal advisors as to what restrictions management can lawfully impose on active officers, and what legally enforceable rights inure to retired officers.

 

Most states have a concealed weapons permit law and many former and retired officers have a permit to carry concealed firearms. H.R. 218 creates a second, overlapping circle of weapons authority. For example:

 

• A qualified and credentialed active or retired officer can carry a weapon in Illinois, but CW permits are not issued to anyone, and there is no reciprocity for residents of other states who visit Illinois.

 

• Some states do not have a state law imposing a continuing firearms qualification requirement, and it is up to each employing agency to adopt a standard. What standard, if any, does a retired officer have to meet?

 

• A qualified and credentialed active or retired officer might not be authorized by his or her current or former employer to carry a firearm that is not on a list of approved weapons, or to carry a weapon that he or she did not qualify with. But that weapon could be lawfully carried in a state that has issued the officer a CW permit, as well as in other reciprocal states. Whether current officers who also have a valid CW permit can be disciplined for carrying an agency unapproved weapon is another unanswered question.

 

To qualify for the exemption, retired officers must:

 

1.      At their own expense and in the past 12-month period, meet “the State's standards for training and qualification for active law enforcement officers to carry firearms. [§926C(c)(5)] - and –

 

2.      Possess a [Name of Agency] identification card 

 

(a)    “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” [§926C(c)(7)(d)(1)] - or -

 

(b)   photo ID issued by [Name of Agency} 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.” [§926C(c)(7)(d)(2)]

 

Some states impose a firearms qualification requirement on academy trainees, but do not have a mandatory standard for active officers. That can be interpreted three ways:

 

1.      A retired officer does not have to qualify on a firearms course because there is no minimum standard for active officers, i.e., no standard is the “standard.”

 

2.      A retired officer must meet the standards for active officers of the agency that he retired from, because the state has left, to each agency, the authority to establish continuing standards.

 

3.      Even if a retired officer satisfies the internal requirements imposed by his or her former agency, he or she can never qualify for the exemption, because the state has not adopted a minimum standard.

 

The Specimen Policy was written to suggest wording to cover inclusions, and if retired officers are not able to qualify in a particular state, appropriate language must be substituted.

 

Until the law is amended or interpreted by the courts, it is wise for active and retired officers to obtain a citizen’s CW permit (if available) because it preempts any misinterpretation of H.R. 218 by officers in another CW licensing state. It also is a good idea to purchase an “umbrella” personal liability policy, to augment the coverage of a home or condo owner or tenant policy.

 

III. Specific Comments on the Specimen Policy:

 

As noted, the Specimen Policy is an inclusive document, and some agencies may want to be more restrictive. In presenting a specimen policy, there was no intent to endorse any provision not required by federal law – only to draft the appropriate language, should an agency want to include some or all of the non-mandatory provisions. An example is II-D and II-E-2-b, providing for mailed ID cards to retired officers.

 

The head of an agency needs to consult with local legal counsel before adopting any policy that implements the Federal LEO Safety Act. There will be litigation in some communities – which is why the head of the agency and the attorney that will guide the defense to a lawsuit need to jointly consider the contents.

 

1. I-A-2

State firearms registration laws commonly exempt current officers from any state or local firearm owner registration, such as Illinois [430 ILCS 65/2(c)].

 

2. I-A-2

A collectively bargained agreement might impede management from restricting the off-duty carrying of agency-owned firearms, such as when an officer is working at an approved secondary employment position.

 

3. II-A-7-a-i

There is nothing in the federal law that authorizes or prevents a management imposed internally registration and inspection requirement for personally owned weapons. Although it is not a violation of gun laws to disobey an employer’s rules pertaining to personally-owned firearms, state and federal gun control laws do not preempt an employer’s work rules, absent a clear legislative intent to do so. Recently, the Utah Supreme Court allowed a private employer to discipline workers who violated company policies and had a firearm in their private vehicles, while parked in an employer-provided parking lot. Hansen v. America Online, #20020288, 96 P.3d 950, 2004 UT 62 (2004).


In some states, a newly adopted registration and inspection requirement is a term and condition of employment, subject to mandatory bargaining.

 

4. II-C-1

The terms “in good standing” and “mental instability,” are not defined by the Act, are not illuminated in the legislative history, and the language in the specimen policy is simply a managerial best practice rule. Some officers who chose to retire, rather than battle disciplinary charges, may argue that they were innocent of wrongdoing but felt they could not receive a fair hearing from the then members of the civil service commission. Other officers might claim that a medical review panel would not have treated them objectively. II-C-1-c moves the decision over to the agency’s legal advisor or attorney, who presumably would assess the likelihood of a retired officer prevailing in a lawsuit.

 

5. II-D

There is no requirement that an agency send a retired officer ID card in the mail. However, retiree morale is impaired if a retired officer living in Arizona has to return to Pennsylvania every year to renew his ID card. It is easy to embed a digital photo, sent by e-mail attachment, into a ID card-making device.

 

6. II-E

The Act contemplates a two kinds of ID for retired officers. – one with, and the other without the LEOSA certification. The “Type-2” card mentioned in the Specimen Policy covers both of the situations where a retired officer is issued an ID without the LEOSA certification. 

 

– A retired officer who did not take, or who failed the qualification test, is still entitled to a card identifying his or her former employment.

 

– A non-resident retiree needs the card, in addition to the firearm qualification card (from his or her state of residence) to comply with the Act.

 

7. III-A

A more comprehensive waiver and release form was prepared by LAAW International, and appears as Attachment “D”.

 

 

IV. Attachments and Links:

 

Except where so stated, the viewpoints expressed in the following documents do not necessarily reflect the positions of AELE or the IACP.

 

A. Presentation on the LEOSA at the Nov. 2004 IACP annual conference

     Outline by Martin J. Mayer, General Counsel, California Police Chiefs Assn.

 

B. The Police Chief magazine, Oct. 2004  [IACP link]

     Article by Craig E. Ferrell Jr., General Counsel, Houston Police Dept.

 

C. Information Regarding Florida's Efforts to Implement H.R. 218 [FDLE link]

 

D. Memorandum of Understanding (between a retired officer and the agency)

     By Michael Brave, President of LAAW International, Inc. [PDF]

 

E. Position of the IACP opposing H.R. 218 (6/15/2004 – before passage) [IACP PDF link]

 

F. Business Meeting Minutes, International Association of Directors of Law Enforcement Standards and Training, Nov. 13-14, 2004.

 

G. Bulletin 2004-13 (Sep. 28, 2004) California Cmsn. on Peace Officer Standards and Training.

 

H. League of Minnesota Cities Insurance Trust, (Jan. 2005) risk-management and liability memorandum. [PDF]

 

I. U.S. Attorney General’s Memo, “Guidance on the application of the LEOSA of 2004” issued Jan. 31, 2005. [PDF]

 

J. Policy and Procedure: Firearms and Police Identification, Orlando, Florida, Police Dept. (issued Apr. 27, 2005). [PDF]

 

K. Illinois statutory amendment to authorize the state’s law enforcement training board to annually certify qualified retired officers. (July, 2005) [PDF]

 

L. Policy on carry of concealed weapons by off-duty and retired officers, Hastings, Nebraska (Jan. 2011).

 

M. Retired and active Treasury agents credentials guidance (Sep. 8, 2005). [PDF]

 

N. IACP 2005 annual conference slide presentation (Sep. 25, 2005). [PDF]

     “Law Enforcement Safety Act of 2004” by Craig Ferrell, Houston Police

 

O. Reza v. St. of Calif. Dept. of Justice, #05CC08053, Orange Co. Super. Ct. (filed July 11, 2005). Complaint seeking injunction relief for a willful refusal to issue a retired officer an ID card, authorizing him to carry a concealed firearm. [PDF]

 

P. IRS guidance and application forms for retired agents (Jan. 2006). [PDF]

 

Q. Qualification procedures for retired officers, Birmingham, Ala., Police Dept. [PDF]

 

R. Retired officer concealed firearm qualification procedures and form, Oregon State Police [PDF]

 

S. Retired Officers Concealed Weapons Carry Requirements, Quincy, IL, Police Dept. [PDF]

 

T. FLETC article, Concealed Carry by Qualified LEOs and Qualified Retired LEOs (Jun. 2009).

 

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