A REVIEW OF THE LAW ENFORCEMENT OFFICERS SAFETY ACT AND RECENT CASE DEVELOPMENTS

Courtesy of James R. Touchstone, Esq.

The Law Enforcement Officers Safety Act (“LEOSA”) is a federal law that was enacted in 2004 which is set forth in 18 U.S.C. Sections 926B and 926C.  Generally, LEOSA provides that active and retired law enforcement officers who meet certain criteria may carry a concealed firearm, with certain restrictions. Since its enactment, LEOSA has subsequently been amended to expand its scope to include active and retired law enforcement officers for the Amtrak Police, Federal Reserve Police, law enforcement officers of the executive branch of the federal government and military police.

More specifically, Section 926B(a) provides that: “Notwithstanding any other provision of the law of any State or 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).”  Section 926B(b) somewhat limits the scope of Section 926B(a).  Namely, Section 926B(b) states that:  “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.”

Section 926B(c) defines a “qualified law enforcement officer” as a person 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 arrest or apprehension under section 807(b) of title 10, United States Code (article 7(b) of the Uniform Code of Military Justice);

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

(3) is not the subject of any disciplinary action by the agency which could result in suspension or loss of police powers;

(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.

The inclusion of the conjunction “and” indicates that, in order for a person to be qualified under LEOSA, he or she must meet all requirements set forth in the statute.

Similarly, Section 926C(c), defines a “qualified retired law enforcement officer” as one whom:

(1) separated from service in good standing from service with a public agency as a law enforcement officer;

(2) before such separation, was authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and had statutory powers of arrest or apprehension under section 807(b) of title 10, United States Code (article 7(b) of the Uniform Code of Military Justice);

(3) (A) before such separation, served as a law enforcement officer for an aggregate of 10 years or more; or (B) separated 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) during the most recent 12-month period, has met, at the expense of the individual, the standards for qualification in firearms training for active law enforcement officers, as determined by the former agency of the individual, the State in which the individual resides or, if the State has not established such standards, either a law enforcement agency within the State in which the individual resides or the standards used by a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that State;

(5) (A) has not been officially found by a qualified medical professional employed by the agency to be unqualified for reasons relating to mental health and as a result of this finding will not be issued the photographic identification as described in subsection (d)(1); or (B) has not entered into an agreement with the agency from which the individual is separating from service in which that individual acknowledges he or she is not qualified under this section for reasons relating to mental health and for those reasons will not receive or accept the photographic identification as described in subsection (d)(1);

(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.

Subdivision (d) states that, “The identification required by this subsection is the photographic identification issued by the governmental agency for which the individual is employed that identifies the employee as a police officer or law enforcement officer of the agency.”  Subdivision (e) of Section 926B defines “firearm” as “except as provided in this subsection, has the same meaning as in section 921 of this title [26 USCS § 921].”  Subdivision (e)(2) further states that the definition of “firearm,” “includes ammunition not expressly prohibited by Federal law or subject to the provisions of the National Firearms Act [26 USCS §§ 5801 et seq.]”  However, expressly excluded from the definition of “firearm,” are “(A) any machinegun (as defined in section 5845 of the National Firearms Act [26 USCS § 5845]); (B) any firearm silencer (as defined in section 921 of this title [26 USCS § 921]); and (C) any destructive device (as defined in section 921 of this title [26 USCS § 921]).” 18 U.S.C. § 926B(e)(3).

Cases Interpreting LEOSA

Despite the nationwide impact of the LEOSA, there is a surprising lack of legal decisions interpreting this statutory scheme.  However, there are several decisions worthy of discussion.  In Duberry v. District of Columbia, 106 F. Supp. 3d 245 (D.D.C. 2015), retired correctional officers filed suit under 42 U.S.C. § 1983 alleging that the District of Columbia deprived them of their federal right under the LEOSA to carry a concealed weapon. The District Court originally dismissed the retired officers’ complaint for failure to state a claim, finding that the LEOSA did not confer a right enforceable by Section 1983.  Upon appeal, the D.C. Circuit reversed, finding the retired officers had stated a claim under the LEOSA which “imposes a mandatory duty on the states to recognize the right it establishes.”  Duberry v. District of Columbia, 824 F.3d 1046, 1053 (D.C. Cir. 2016).  The D.C. Circuit also addressed the District of Columbia’s argument that the retired correctional officers were not entitled to claim any right under LEOSA because they lacked statutory powers of arrest. In addressing this argument, the D.C. Circuit stated:

To the extent these allegations present a legal question, it is not obvious that the District of Columbia’s interpretation of the LEOSA “powers of arrest” is correct.  In the LEOSA, Congress defined “qualified law enforcement officers” broadly, to include individuals who engage in or supervise incarceration. Given the breadth of Congress’s definition, the reference to “statutory powers of arrest” necessarily means some statutory power of arrest, such as a power to arrest parole violators, and not, as the District of Columbia suggests, only the police power to arrest upon probable cause.  Id. at 1052-53.

Subsequent to the D.C. Circuit’s reversal, and decision that plaintiffs had stated a claim, the plaintiffs brought a Motion for Summary Judgment (“MSJ”) that recently was granted.  Duberry v. District of Columbia, 2018 U.S. Dist. LEXIS 95743 (June 7, 2018).  In opposition to the MSJ, the District of Columbia again argued that the retired correctional officers lacked “statutory powers of arrest” sufficient to meet the requirement of LEOSA, subsection (c)(2).  In granting the MSJ, the District Court noted that: “the Circuit already rejected the District’s definition of ‘statutory powers of arrest’… Specifically, in the course of determining whether Congress intended LEOSA to benefit Plaintiffs, the Circuit explained that ‘the reference to ‘statutory powers of arrest’ necessarily means some statutory power of arrest such as a power to arrest parole violators, and not, as the District of Columbia suggests, only the police power to arrest upon probable cause.’” Id. at *19-20 [emphasis added].

Other federal district courts, however, have distinguished or limited the holding of the Duberry case.  Specifically, several courts have determined that a state is not mandated to issue an identification card to retired law enforcement officers, and therefore, the officers have no enforceable rights under the LEOSA because they do not meet all qualification criteria under the federal statute.  See Burban v. City of Neptune Beach, 2018 U.S. Dist. LEXIS 50405 (2018); Henrich v. Ill. Law Enf’t Training & Stds. Bd., 2018 U.S. Dist. LEXIS 12836 (2018).

Another such case that recently discussed the matter of issuance of LEOSA identification cards is D’Aureli v. Harvey, 2018 U.S. Dist. LEXIS 17276 (2018).  In D’Aureli, the plaintiff filed a lawsuit seeking declaratory and prospective relief under 42 U.S.C. § 1983 for violating the LEOSA.  The plaintiff had served as a state park police officer for the New York State Office of Parks, Recreation and Historic Preservation (the “OPRHP”) for over twenty-one years.  Id. at *3.  OPRHP denied the plaintiff’s request that he be issued a retirement identification card, stating “LEOSA does not mandate that State officers modify existing policies or procedures to help implement the federal statute.”  Id. at *6.  State policy on the issue required that an OPRHP officer serve for 25 years before he or she was entitled to a retirement identification card.

In analyzing the plaintiff’s claims under the LEOSA and the defendant’s motion to dismiss the case, the District Court stated “the text of LEOSA ‘is bereft of any indication that Congress, on passing the Act, intended to mandate that the various States implement a procedure for issuing certifications in accordance with 18 U.S.C. § 926C(d).’” [Citation omitted.] In distinguishing Duberry, the Court noted that the “´decision explicitly stated there was ‘no occasion to consider’ the implications of whether LEOSA would require states ‘to issue the photographic identification in subsection (d)(1) & (2)(A).’”  Id. at *14, quoting Duberry at 1057.  The Court held, “[t]herefore, the Court must conclude that LEOSA does not create an obligation for states to issue identification to retired officers and Defendant’s motion to dismiss is granted.”  Id. at 16.

HOW THIS AFFECTS YOUR AGENCY

The LEOSA is an important statutory scheme that benefits law enforcement officers, both active and retired, throughout the United States. Ultimately, the determination as to whether one of your officers qualifies under the LEOSA requires an examination of each of the qualifying factors set forth in the statutory scheme, as well as application of this law to the circumstances of service of active or retired officers within your agency.  For example, if a certain classification of officer is not permitted to carry a firearm while on duty, that category of an active peace officer would not meet the criteria under the LEOSA as a “qualified law enforcement officer.”  As such, determinations under the LEOSA are somewhat fact specific.  We urge you to consult with your department legal advisor prior to making such determinations regarding a specific officer to ensure that you are in compliance with this federal law.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.





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