J & M

 

J O N E S  &  M A Y E R

 

Attorneys at Law

3777 North Harbor Boulevard • Fullerton, California 92835

(714) 446-1400 • (562) 697-1751 • Fax (714) 446-1448

www.jones-mayer.com

 


 

“HR 218 - How to Implement”

 

International Association of

Chiefs of Police, Inc.

Los Angeles, California

November 14, 2004

 

By: Martin J. Mayer, Esq.

Jones & Mayer

 

Contents

HR 218 “Law Enforcement Safety Officers Act of 2004”  

Statement by IACP before Judiciary Committee, June 15, 2004

Comments, Findings and Actions by Judiciary -- Committee, June 22, 2004

Jones & Mayer Client Alerts, HR 218

National Association of Police Organizations (NAPO) -- Press Release, HR 218

Florida Division of Law Enforcement Notice -- HR 218

California Department of Justice Notice, HR 218  

Answers from Office of Congressman Randy Cunningham -- HR 218  

Vita, Martin J. Mayer

 


 

HR 218

“Law Enforcement Officers Safety Act of 2004”

 

ONE HUNDRED EIGHTH CONGRESS

of the

UNITED STATES OF AMERICA

 

At the second session

Begun and held at the City of Washington on Tuesday, the twentieth day of January, two thousand and four

 

An act

 

To amend title 18, United States Code, to exempt qualified current and former law enforcement officers from State laws prohibiting the carrying of concealed handguns.

 

            Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

 

SECTION 1. SHORT TITLE.

           

            This Act may be cited as the “Law Enforcement Officers Safety Act of 2004.”

 

SECTION 2. EXEMPTION OF QUALIFIED LAW ENFORCEMENT OFFICRS FROM   STATE LAWS PROHIBITING THE CARRYING OF CONCEALED FIREARMS.

 

            (a) IN GENERAL. - Chapter 44 of title 18, United States Code, is amended by inserting after section 926A the following:

 

§ 926B. Carrying of concealed firearms by qualified law enforcement officers

 

            “(a) Notwithstanding any other provision of the law of any State of any political subdivision thereof, an individual who is a qualified law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b).

            “(b) This section shall not be construed to supersede or limit the laws of any State that -

                        “(1) permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or

                        “(2) prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.

            “(c) As used in this section, the term ‘qualified law enforcement officer’ means an employee of a governmental agency who -

                        “(1) is 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 has statutory powers of attest;

                        “(2) is authorized by the agency to carry a firearm;

                        “(3) is not the subject of any disciplinary action by the agency;

                        “(4) meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;

                        “(5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and

                        “(6) is not prohibited by Federal law from receiving a firearm.

            “(d) 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.

            “(e) As used in this section, the term ‘firearm’ does not include -

                        “(1) any machinegun (as defined in section 5845 of the National Firearms Act);

                        “(2) any firearm silencer (as defined in section 921 of this title); and

                        “(3) any destructive device (as defined in section 921 of this title).”

 

            (b) CLERICAL AMENDMENT. - The table of sections for such chapter is amended by inserting after the item relating to section 926A the following:

 

“926B. Carrying of concealed firearms by qualified law enforcement officers.”

 

SECTION 3. EXEMPTION OF QUALIFIED RETIRED LAW ENFORCEMENT OFFICERS FROM STATE LAWS PROHIBITING THE CARRING OF CONCEALED FIREARMS.

 

            (a) IN GENERAL. - Chapter 44 of title 18, United States Code, is further amended by inserting after section 926B the following:

 

§ 926C. Carrying of concealed firearms by qualified retired law enforcement officers

 

            “(a) Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified retired law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b).

            “(b) This section shall not be construed to supersede or limit the laws of any State that -

                        “(1) permit private persons or entitles to prohibit or restrict the possession of concealed firearms on their property; or

                        “(2) prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.

            “(c) 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;

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

                        “(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;

                        “(4) has a nonforfeitable right to benefits under the retirement plan of the agency;

                        “(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;

                        “(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 section 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 form 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 of 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.

“(e) As used in this section, the term ‘firearm’ does not include -

                        “(1) any machinegun (as defined in section 5845 of the National Firearms Act);

                        “(2) any firearm silencer (as defined in section 921 of this title).”

 

            (b) CLERICAL AMENDMENT - The table of sections for such chapter is further amended by inserting after the item relating to section 926B the following:

 

“926C. Carrying of concealed firearms by qualified retired law enforcement officers.”

 


Judiciary Committee

Statement of Ronald Ruecker Superintendent,

International Association of Chief of Police

 

Committee on House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security

 

June 15, 2004

 

            Good Afternoon, Chairman Coble, Representative Charles and Members of the Subcommittee.

 

            I am pleased to be here on this afternoon to present the views of the International Association of Chief of Police on H.R. 218, the Law Enforcement Officers Safety Act of 2002. As you know, the IACP is the world’s oldest and largest association of law enforcement executives, with more than 19,000 members in 100 countries. Before I address our concerns with this legislation, I would like to express my gratitude and the gratitude of the IACP to this committee for your continuing support of this nation’s law enforcement agencies and law enforcement officers.

 

            As you know, the IACP is strongly opposed to the Law Enforcement Officers Safety Act. Our opposition is based primarily on the fundamental belief that states and localities should determine who is eligible to carry firearms in their communities. Over the years, IACP has consistently opposed any federal legislative proposals that would either pre-empt and/or mandate the liberalization of an individual state’s laws that would allow citizens of other states to carry concealed weapons in that sate without meeting its requirements. The IACP believes it is essential that state governments maintain the ability to legislate concealed carry laws that best fit the needs of their communities. This applies to laws covering private citizens as well as active or former law enforcement personnel. The IACP also believes that each sate should retain the power to determine whether they want police officers that are trained and supervised by agencies outside their state to carry weapons in their jurisdictions.

 

            In addition, authority for police officers to carry firearms when off-duty, use-of-force policies and firearms training standards vary significantly from state to state. Why should a police chief who has employed the most rigorous training program, a strict standard of accountability and stringent policies be forced to permit officers who may not meet those standards to carry a concealed weapon in his or her jurisdiction?

 

            However, in addition to these fundamental questions over the preemption of state and local firearms laws, the IACP is also concerned with the impact that this legislation may have on the safety of our officers and our communities.

 

            There can be no doubt that police executives are deeply concerned for the safety of our officers. We understand the proponents of H.R. 218 contend that police officers need to protect themselves and their families while traveling, and that undercover officers may be targets if recognized on vacation or travel. These are considerations, but they must be balanced against the potential dangers involved. In fact, one of the reasons that this legislation is especially troubling to our nation’s law enforcement executives is because they could in fact threaten the safety of police offices by creating tragic situations where offices from other jurisdictions are wounded or killed by the local officers. Police Departments throughout the nation train their officers to respond as a team to dangerous situations. This teamwork requires months of training to develop and provides the officers with an understanding of how their coworkers will respond when faced with different situations. Injecting an armed, unknown officer, who has received different training and is operating under different assumptions, can turn an already dangerous situation deadly.

 

            In addition, the IACP believes that this legislation would do little to improve the safety of communities. It is important to remember that a police officer’s authority to enforce the law is limited to the jurisdiction in which they serve. An officer, upon leaving his jurisdiction, has no arrest powers or other authority to enforce the law. That is the responsibility of the local law enforcement agencies.

 

            In addition, the IACP is concerned that the legislation specifies that only an officer who is not subject to a disciplinary action is eligible. This provision raises several concerns for law enforcement executives. For example, what types of disciplinary action does this cover? Does this provision apply only to current investigations and actions? How would officers ascertain that an out-of-state law enforcement officer is subject to a disciplinary action and therefore ineligible to carry a firearm?

 

            Additionally, while the legislation does contain some requirements to ensure that retires qualify to have a concealed weapon, they are insufficient and would be difficult to implement. The legislation fails to take into account those officers who have retired under threat of disciplinary action or dismissal for emotional problems that did not rise to the level of “mental instability.” Officers who retire or quit just prior to a disciplinary or competency hearing may still be eligible for benefits and appear to have left the agency in good standing. Even a police officer who retires with exceptional skills today may be stricken with an illness or other problem that makes him or her unfit to carry a concealed weapon, but they will not be overseen by a police management structure that identifies such problems in current officers.

 

            Finally, the IACP is also concerned over the liability of law enforcement agencies for the actions of off-duty officer who uses or misuses their weapon while out of state. If an off-duty officer who uses or misuses their weapon while in another state, it is likely that their department will be forced to defend itself against liability charges in another state. The resources that mounting this defense would require could be better spent serving the communities we represent.

 

            In conclusion, I would just like to state that the IACP understands that at first glance this legislation may appear to be a simple solution to a complex problem. However, a careful review of these provisions reveals that it has the potential to significantly and negatively impact the safety of our communities and our officers. It is my hope that this committee will take the concerns of the IACP into consideration before acting upon this legislation.

 

            This concludes my statement. I will be pleased to answer any questions you may have.

 


 

Comments, Findings and Actions by Judiciary Committee

June 22, 2004

 

108 H. Rpt. 560 (Judiciary Committee, June 22, 2004)

 

Purpose and Summary

4:

·    to override state laws and allow retired and active police officers to carry a concealed weapon anywhere within the U.S.

5:

Arguments by Supporters (including Fraternal Order of Police and the Law Enforcement Alliance of America)

·    to allow officers to serve and protect regardless of jurisdiction or duty status, and help protect citizens in the wake of a terrorist attack

·    to allow retired officers to enjoy the same privilege, because they are just as trustworthy as serving officers

·    to allow both current and retired officers to protect themselves and their families.

Arguments from the Opposition (including the Police Executive Research Forum and the International Association of Chiefs of Police)

·    State Sovereignty

·    Would force all states (even those who do not permit their own law enforcement officers to carry concealed weapons) to allow retired officers to carry a weapon

 

Committee Amendments

Adopted

·    Require retired officers to carry proof that they have qualified in the use of a firearm in the last 12 months

·    Exclude officers under the influence of drugs or alcohol

Rejected

7:

·    Allow states to opt out of the law for two years before the legislation took effect

8:

·    Provision that the exemption shall not be construed to supersede or limit the rules, regulations, policies, or practices of any State or local law enforcement agency

9:  

·    To specifically exclude semiautomatic assault weapons

10:

·    To require any current or retired law enforcement officer who wishes to carry a concealed weapon outside his State to be certified under national standards established by the ATF

 

16: Markup Transcript

·    Coble: to override State laws and mandate that retired and active police officers carry a concealed weapon anywhere within the U.S.

16-17

·    Legislation is broad: allow officers to carry anywhere in the country, and a broad definition of “law enforcement officers

Scott

·    Authorizes officers to carry concealed weapons interstate without regard to State and local laws prohibiting such carriage

18:

·    “law enforcement officer” includes not only police and sheriffs…but also includes corrections, probation, and parole judicial officers and just about anyone who has statutory power of arrest and who are engaged by their employment by a Government entity in the prevention, detection, investigation, supervision, prosecution or incarceration of law violators.

·    In this past, the bill has been titled the “Community Protection Act,” and the rhetoric surrounding the bill indicates that its intent is to protect the public; the statutory language is unchanged, although the name has been altered to emphasize officers’ safety

·    The bill not only takes away the ability of local law enforcement leaders to manage the concealed firearm activities of out-of-sate officers, but even of their own officers.

19:   Nadler:

·    No national standard of training

21:

·    Keller: [on the amendment to require officer to carry proof of recent certification] would the amendment gut the bill by effectively exempting States that don’t allow police officers to carry firearms, since in those states the officers could not get the qualifying ID?

26:

·    Scott: speculates that an officer who is under the influence and therefore should not be carrying, may regain his weapon after he sobers up

30:

·    Keller: [arguing against a proposed amendment to allow states to opt out] a police office wants to go on vacation from Florida to D.C., and travel through six different states; if any one of those opted out, it would gut the bill.

·    Federal government does some things better than the states

31:

·    Delahunt: New Jersey already has a state law allowing retired officers to carry concealed weapons, passed in response to the shooting of a retired police chief attempting to stop a robbery unarmed

·    The New Jersey law contains several safeguards which are conspicuously absent from this proposed law. For example, the New Jersey law: is limited to handguns, has a maximum age for retired officers (70), requires all officers to submit and renew applications yearly, requires such guns to be listed, and gives police departments discretion to deny permits to retirees

·    To say that an officer carrying his gun across a state line is interstate commerce is ridiculously expansive

37-38:

·    Scott: proposed amendment to subordinate the law to local and state standards

·    The bill supersedes the ability of the chief of police to control his own officers off-duty; he cannot say, for example, no firearms in bars, no firearms off duty

·    Lofgren: “peace officers” include park police, transit police, correctional officers, many of whom are not even trained in weapons

40:

·    Scott: definition of qualified law enforcement officer is so broad that it does not really even require that carrying of a firearm in the conduct of your normal business

41:

·    [Debate b/t Keller and Scott: Scott maintains that the language allows anyone under the broad definition of “law enforcement officer”

·    Waters: No provisions for verification of the identification

42:

·    Lofgren: in my country, correctional officers are trained and authorized to use firearms, but they don’t actually have them at work, and are not trained or authorized to carry them at home or off-duty.

·    Keller: until I see your policies and procedures and detailed information about what is authorized and what is not, I am in no real position to offer a legal opinion.

43:

·    Lofgren: so, can correctional agencies limit their officers from carrying firearms?

·    Coble: I guess the best answer I can give you would be…[requirement] that they meet the standard, if any, established by the agency which requires the employee to regularly qualify in the use of a firearm

·    Lofgren: but in this case they have qualified to use it, but the scope of use has been limited to only a particular place and time; so I guess if we agree that the local rules will prevail, then you have actually solved the problem. If a court were to look at our discussion here and what the intention of the author was, perhaps we have solved this.

44:

·    Lofgren: I guess the standard that applies could be local

54:

·    Scott: [on the proposed amendment to nationalize standards through the ATF] different standards in different police forces

 

Dissenting Views

64-65

·    Mandate to states to permit officers

·    Definition of law enforcement officer is very broad

 

Additional Dissenting Views

66

·    Nullify ability of PD’s to enforce rules and policies on when and how their own officers can carry firearms

 

67

·    Will override most “safe harbor” laws at the state level, override laws that prohibit guns in churches (since only laws that permit private entities to post signs prohibiting concealed firearms on their property will remain in force), or in places that serve alcohol.

68

·    Law is not limited to the carrying of authorized weapons

69

·    Retirees are not required to demonstrate a special need for a firearm

·    Plenty of officers who leave their departments “in good standing” have in fact retired rather than face disciplinary action or termination, without a formal finding of misconduct

·    The “laws” notwithstanding under the federal law include agency rules and regulations; the Supreme Court has ruled that this term specifically includes…work policies and practices promulgated by State and local police departments. Norfolk & Western Ry. Co. v. Am. Train Dispatchers’ Assoc., 499 U.S. 117 (1991)

 

 


 

Vol. 19 No. 10                                                                                                                                 July 21, 2004

JONES & MAYER

Attorneys at Law •3777 N. Harbor Blvd.  Fullerton, CA 92835 •Telephone:  (714) 446-1400 •  Fax:  (714) 446-1448 • Website: www.Jones-Mayer.com  

 

                                                                                    Client Alert Memorandum

 

To:                  All Police Chiefs & Sheriffs

                                                                                               

From:              Martin J. Mayer

 

 

 

Law Enforcement Officers Safety Act of 2004

 

New Federal Law Will Allow Police Officers to Carry Concealed Weapons Nationwide Without a Permit

 

On Thursday, July 22, 2004, President George W. Bush is expected to sign 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.

 

Under the new law, known as the “Law Enforcement Officers Safety Act of 2004,” qualified 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.

 


 

Vol. 19 No. 11                                                                                                                                July 26, 2004

JONES & MAYER

Attorneys at Law • 3777 N. Harbor Blvd.  Fullerton, CA 92835 • Telephone:  (714) 446-1400 ••  Fax:  (714) 446-1448 •  Website: www.Jones-Mayer.com   

 

Client Alert Memorandum

 

To:                  All Police Chiefs & Sheriffs

                                                                                                                               

From:              Martin J. Mayer

 

 

            Update re: Law Enforcement Officers Safety Act of 2004

 

We have received quite a few calls and/or e-mails with questions regarding the Client Alert Memo we published on July 21, 2004 informing our clients of this new law. There are, primarily, three questions being asked:

 

1.         Did the President sign the law?

 

                  Yes, he did.

 

2.         Does it take effect immediately?

 

                        Yes, he does.

 

3.         Does it affect an officer’s authority to be armed while flying?

 

                  No, it does not.

 

The rules regarding law enforcement officers being armed on planes is not affected by this legislation, in any way whatsoever. The new law authorizes law enforcement officers to be armed in states other than their own, dispute most local laws to the contrary. The law refers to concealed weapons being permitted after one is on the ground - not while in the air.

 

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

 


 

Vol. 19 No. 14                                                                                                                       September 16, 2004

JONES & MAYER

Attorneys at Law • 3777 N. Harbor Blvd. • Fullerton, CA 92835 • Telephone:  (714) 446-1400 \•  Fax:  (714) 446-1448 •  Website: www.Jones-Mayer.com

 

Client Alert Memorandum

 

To:                  All 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 ˝ 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

 


 

National Association of Police Organizations (NAPO)

 

Right to Carry Update

H.R. 218 / S. 253

 

President Bush signs right to carry into law effective immediately

 

July 22, 2004

President George W. Bush signed H.R. 218, the “Law Enforcement Officers Safety Act,” into law this morning at the White House. The bill became effective immediately upon the President’s signature. Now, qualified active and retired law enforcement officers are allowed to carry their firearm while off-duty for the protection of themselves, their families and our nation’s communities.

This morning Rep. Cunningham, author and tireless supporter of H.R. 218 for more than fourteen years, witnessed President Bush sign the bill into law. Speaking on the passage of this legislation, Representative Randy “Duke” Cunningham passionately stated, “And I would say that if one takes a look also at who supports these positions, they wrote this, the law enforcement agencies helped over the years write this bill. It helps them. If one looks to Law Enforcement Alliance of America, LEAA, the National Association of Police Organizations, NAPO, the National Law Enforcement Council, all of them support this bill, Mr. Speaker.”

The National Association of Police Organizations (NAPO) sincerely thanks Rep. Cunningham for his unwavering dedication to the law enforcement community. His determination to ensure the bill’s passage has brought additional safety and security to America’s officers and communities.

Senator Ben Nighthorse Campbell (R-CO), sponsor of similar legislation in the Senate, Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT) and the Committee’s Ranking Member Patrick Leahy (D-VT) also played key roles in securing the President’s signature this morning. Due to the Senators’ unfailing commitment, the bill achieved overwhelming support and made its way to the President’s desk. NAPO would like to thank the House and Senate staffs, with whom NAPO, and other law enforcement groups, worked tirelessly. Such efforts should not go unnoted.

NAPO Executive Director Bill Johnson once again offered his thanks to all of the law enforcement organizations who have worked so hard to make this happen, including the International Brotherhood of Police Officers (IBPO), the International Union of Police Associations (IUPA), the Southern States Police Benevolent Association (SSPBA), the Federal Law Enforcement Officers Association (FLEOA), the Law Enforcement Alliance of America (LEAA), the National Law Enforcement Council and the National Troopers Coalition (NTC).

 


 

Florida Division of Law Enforcement Notice

HR 218

 

Florida Department of Law Enforcement (FDLE)

 

Information Regarding Florida’s Efforts To Implement H.R. 218 - New Federal Law Allowing Law Enforcement Officers To Carry Concealed Firearm Throughout the U.S.A.

 

The Law Enforcement Officers Safety of 2004 (HR 218) bill became law July 22, 2004. This law provides for the carrying of concealed firearms by law enforcement officers (both active and retired) nation-wide upon meeting certain state criteria.

 

The law does not provide “automatic” authority for officers to carry firearms throughout the country. Active and retired officers must possess proof of meeting the law’s requirements. There is a lot of misinformation circulating through the internet about what the law allows. Read the law yourself instead of relying on someone else’s “summary” of it. (A link to the law is provided, below.)

 

At this time, the State of Florida does not have a procedure or standards in place to provide the required certification for retired officers. A work group has been formed to develop those procedures and Florida may have to enact new legislation before some retired officers can be certified under the Federal law. In addition, FDLE, FHP and other state law enforcement agencies, in conjunction with Florida’s Sheriffs and Police Chiefs are working to develop a “model policy” for use in certifying active Florida law enforcement officers under the federal law so a uniform approach can be applied throughout the state.

 

Please be patient. Even though the Federal law is in place, Florida and other states need time to implement its provisions. Florida’s active and retired law enforcement officers will be advised how to obtain the certification required by the new law. As decisions are made, they will be communicated through this web notice. Please return to this site regularly for updates on the progress. Please do not call or email FDLE, other law enforcement agencies, the Governor’s Office, or the Department of Agriculture and Consumer Services for updates. This site conveys all known information and developments, to date. Changes and new developments will be posted at this site for your convenience.

 

To view the federal law online click this link: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_bills&docid=f:h218enr.txt.pdf

 


 

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

 


 

Answers from Office of Congressman

Randy Cunningham

 

H.R. 218 - Law Enforcement Safety Act

Signed into law July 22, 2004

 

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.

 

 
 



 

Vita

Martin J. Mayer

3777 North Harbor Boulevard

Fullerton, California  92835

(714) 446-1400 Telephone

(714) 446-1448 Facsimile

E-mail: mjm@jones-mayer.com

                                                           

The Law Offices of Jones & Mayer is located in the City of Fullerton.  The firm basically limits its practice to representing cities, counties and special districts on a variety of legal issues.  Martin Mayer limits his practice to representing cities, counties and the State as legal advisor to their Chiefs of Police or Sheriffs and in that capacity represents approximately seventy agencies throughout the California.  In addition, the firm serves as the City Prosecutor for seven municipalities.  Prior to establishing his original law firm, Mr. Mayer worked with the League of California Cities for four years as Director of its Criminal Justice Planning Unit.


 

Martin Mayer received his undergraduate degree from the City University of New York and his law degree from St. John’s University, also located in New York.  Mr. Mayer is admitted to practice law in all lower courts in the states of New York and California, the United States Federal Courts, and the United States Supreme Court.

 

Mr. Mayer lectures extensively on matters involving civil liability and law enforcement on behalf of the California POST Commission, California Peace Officer’s Association, California State Sheriff’s Association, the Department of Justice, and Americans for Effective Law Enforcement.  Mr. Mayer was a member of the faculty of California State Polytechnic University, Pomona, Kellogg West, for eight years, teaching in their Executive Development Program for law enforcement managers.

 

Mr. Mayer serves as Legal Advisor to the California Police Chief’s Association, the California State Sheriff’s Association and the California Peace Officers’ Association.  He also served, for 10 years, as the State Chairman of the Police Legal Advisors’ Committee for the California Peace Officer’s Association.  Mr. Mayer is a graduate of the Sixth FBI National Law Institute at Quantico, Virginia and was the first attorney in private practice to be included in the program.  Mr. Mayer also served as a POST certified reserve with the Downey Police Department for approximately nine years.  Mr. Mayer also serves as a member of, and legal advisor to, the Advisory Council for the National Law Enforcement and Corrections Technology Center (Western Region) which is funded by the National Institute of Justice and the U.S. Department of Justice. 

 

Published Articles

 

• Utilizing the Department’s Legal Counsel at Major Incidents

     The Police Chief, Published by IACP, May 1998, Vol. LXV, Number 5

 

• Fair Labor Standards Act & Police Personnel Administration

     Journal of California Law Enforcement, Vol. 29, No. 2, 1995

     The Police Chief, Published by IACP, April 1997, Vol. LXIV, Number 4

 

• The ADA:  Psych Evaluation; Background Investigation; Conditional Offer

     of Employment; Grievance Procedure

     California Peace Officer, Vol. __, No. _, 1994

 

• ADA:  Some Questions & Answers

     California Peace Officer, Vol. 13, No. 4, 1993

 

• Americans with Disabilities Act:  Some Do’s and Don’ts

     Journal of California Law Enforcement, Vol. 26, No.1, 1992

 

• Penal Code Section 618--A Reason for Concern?

     Journal of California Law Enforcement, Vol. 24 No. 3, 1990

 

• To Provide or Not to Provide:  No Longer a Question for Internal Affairs Investigations

     Journal of California Law Enforcement, Vol. 24 No. 4, 1990

 

• The Special Relationship Syndrome

     California Peace Officer, December 1989

 

• Officer Involved Shootings:  A Procedural and Legal Analysis

     Journal of California Law Enforcement, Vol. 23, No. 2, 1989

 

Representative Speaking Engagements

 

• California Commission on Peace Officer’s Standards & Training (POST) 1980 - present

     Executive Development Program

     Police Mid-management Course

     County Chiefs and Sheriff’s Associations Annual Training Retreats

 

• California Peace Officer’s Association (CPOA) 1979 - present

     Role of the Chief of Police

     Discipline and Due Process

     Legal Update (2 day session)

     American’s With Disabilities Act (ADA)

 

• American’s for Effective Law Enforcement (AELE) 1989 - present

     Civil Liability Issues Affecting Law Enforcement

     Discipline and Law Enforcement

 

• Labor Relations Information System (LRIS) 1995 - present

     Labor Relations and Disciplinary Procedures

• International Association of Chief’s of Police (IACP) 1997 - present

     Police Psychologist Committee – “Impact of Psychologists on Law Enforcement

     Legal Officer’s Section – “Union Impact on Internal Affairs Investigations”

                        

• California State Sheriff’s Association (CSSA) 1990 - present

     Legal Update at Annual Conference

 

• California State University at Long Beach,

     Department of Criminal Justice 1992 - present

     Legal Issues Affecting Internal Affairs Investigations

 

• California Association of Law Enforcement

      Background Investigators 1997 - present

     Legal Update Impacting Upon Background Investigations

 

• League of California Cities Annual Conference 1998 - present

     Chief of police Department – Legal Update

     City Attorney Department – Civilian Review Boards

 


 

© 2004, Jones & Mayer