Law Enforcement Officers Safety Act

The Law Enforcement Officers Safety Act (LEOSA) is a United States federal law, enacted in 2004, that allows two classes of persons -- the "qualified law enforcement officer" and the "qualified retired law enforcement officer" -- to carry a concealed firearm in any jurisdiction in the United States, regardless of any state or local law to the contrary, with certain exceptions.

The LEOSA was considered during the 108th Congress as H.R. 218. It was signed into law by President George W. Bush on July 22, 2004 as Public Law 108-277. It is codified as 18 U.S. Code 926B (qualified law enforcement officers) and 926C (qualified retired law enforcement officers).

cope of privilege conferred by the law

If a person is covered by the LEOSA, then "notwithstanding any other provision of the law of any State or any political subdivision thereof," he or she may carry a concealed firearm in any state or political subdivision thereof. See Title 18, USC, Section 921, which defines "state" to also include the District of Columbia, Puerto Rico and U.S. Possessions. Thus, the LEOSA-qualified person does not generally require a state-issued permit for carrying concealed firearms.

However, there are two types of state laws that are not overridden by the federal law, these being "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." This does not mean that LEOSA-qualified persons are prohibited from carrying concealed firearms in such areas, but only that they must obey whatever state laws apply on those two points. They are free to disregard all other state and local laws that govern the carrying of concealed firearms.

The LEOSA overrides state and local laws, but not other federal laws. Thus, LEOSA-qualified individuals must continue to obey federal laws and agency policies that restrict the carrying of concealed firearms in certain federal buildings and lands. Whether or not a person is covered by the LEOSA depends entirely on whether or not he or she meets the definitions in the federal law for either "qualified law enforcement officer" or "qualified retired law enforcement officer." It does not matter whether or not a given individual is defined as a "law enforcement officer" under the law of his state; only the definition in the federal law applies.

Requirements to be covered by the law

In order to be covered as a "qualified law enforcement officer," a person must meet each and every one of the following criteria: He or she must be (1) "an employee of a governmental agency"; (2) "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"; (3) has "statutory powers of arrest"; (4) "is authorized by the agency to carry a firearm"; (5) "is not the subject of any disciplinary action by the agency"; (6) "meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm"; and (7) "is not prohibited by Federal law from receiving a firearm." In addition, the privilege conferred by the law applies only when the individual "is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance.

In order to exercise the privilege, the LEOSA-qualified individual must carry "the photographic identification issued by the governmental agency for which the individual is employed as a law enforcement officer."

In order to be considered a "qualified retired law enforcment officer," one must be a person 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, or 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 . . ."

Even if the retiree does qualify under each numbered requirement quoted above, he must possess one of two types of permissible identification: Either "(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 from 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 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."

In all other respects, the provisions of the law that apply to a "qualified retired law enforcement officer" are the same as those for a "qualified law enforcement officer" (e.g., no carrying while intoxicated, etc.).

See the text of the law at [http://www.law.cornell.edu/uscode/18/usc_sec_18_00000926---B000-.html] The first known criminal prosecution involving LEOSA occurred in New York in People v. Rodriguez, Indictment No. 2917 (2006). [ [http://www.handgunlaw.us/documents/agopinions/NYCtLEOSARulingPeoplevsRodriguez.PDF People of NY v Rodriguez (N.Y. Co.Ct. 2006)] ] Rodriguez was a full-time construction worker who was also employed as a Pennsylvania constable. He was arrested in New York City for criminal possession of a weapon. He testified in a hearing that he was authorized, qualified, and certified to carry a weapon in his state as a constable. The Court took judicial notice of the various Pennsylvania statutes that authorize constables to carry firearms, make arrests, serve process, and enforce the law. Upon applying LEOSA in terms of the known facts, the Court dismissed the charge against Rodriguez and held that he was covered by section 926B though constables are elected law enforcement officers, lack government funding, wear plain clothes, receive no salary, use private vehicles, and are independent state employees.

Application to agency internal policies

In enacting the LEOSA, Congress overrode the authority of any state or local government to deny LEOSA-qualified individuals, from any jurisdiction, the right to carry concealed firearms. However, there has been some debate over whether the heads of individual law enforcement agencies -- for example, a local police chief or county sheriff -- may order his own agency's employees not to exercise the right conferred by Congress.

It appears that most authorities believe that federal law now trumps the local chief's authority in this regard. The heads of state and local law enforcement agencies derive their authority from state and local law, and the LEOSA explicitly overrides "any other provision of the law of any Stateor any political subdivision. . ." (However, an agency can forbid an employee from carrying a specific weapon that is the property of the agency.)

A memo posted by the California Attorney General's office notes that the federal law overrides any local or agency internal policy regarding off-duty carry. The memo posed this question: "Does this Act trump state law, local ordinances, and local policy restricting carrying off-duty?," and gave this answer: "Yes, as it relates to an officer’s ability to carry a concealed weapon off-duty... Off-duty restrictions appear to be superceded [sic] by this Act." [ [http://ag.ca.gov/firearms/forms/pdf/leosiss.pdf Memorandum by California attorney general's office regarding LEOSA] ]

Moreover, during the congressional debates over the bill, both the authors of the bill and the opponents agreed that the legislation was intended precisely to confer on qualified officers the right to carry concealed in every state, regardless of any local laws or agency policies to the contrary. The most complete debate on the bill, including consideration of various amendments, occurred in the U.S. House of Representatives Judiciary Committee on June 16, 2004. The committee's report includes a transcript of the complete debate. A leading opponent of the LEOSA, Rep. Bobby Scott (D-Va.), complained that the bill "supersedes the ability of the chief of police to control his own officers. . . . If he should want to decide to prohibit his own officers from carrying concealed weapons when they are off duty, this bill will override his power over his own police officers.. . ." Scott then offered an amendment to add to the bill a restriction that it "shall not be construed to supersede or limit the rules regulations, policies, or practices of any State or local law enforcement agency." Scott explained that his amendment was necessary "so that the police chief can say no firearms in bars, no firearms when you are off duty, and that would be a decision that the police chief could make about his force. The bill overrides that. . . . The bill clearly prohibits the chief of police from prohibiting his officer going on vacation with a firearm. And . . .this is not just police and sheriff, that is anybody with arresting powers, game and fisheries, probation and parole officers, and everybody else." Scott concluded by arguing that unless his amendment was adopted, "they [the chiefs, et al] will have no say over what officers do off duty with their own guns." Several other Democratic members of the committee spoke up in support of Scott's Amendment. But the authors, sponsors, and supporters of the LEOSA uniformly opposed the Scott amendment. The bill supporters did not dispute Scott's interpretation of what the bill did -- rather, they argued that adoption of the Scott amendment would amount to a "back door opt-out" of the basic requirements of the legislation, defeating its purpose -- and they voted down the Scott amendment, 21 to 11. After the amendment process was completed, the final bill was approved 23 to 9. (No further amendments were adopted at any point in the entire legislative process in Congress.)

Six of the committee members who voted "no" on approval of the bill filed "dissenting views" in which they explained WHY they opposed the bill, including this reason: "Section 2 of the bill provides that regardless of 'any other provision of the law of any State or any political subdivision thereof,' any individual who qualifies as a law enforcement officer and who carries photo identification will be authorized to carry any firearm. In a variety of contexts, including the Federal preemption of State law, courts have interpreted the term 'law' to include agency rules and regulations. The Supreme Court has ruled that this term specifically includes contractual obligations between employers and employees, such as work rules, policies, and practices promulgated by State and local police departments. See Norfolk & Western Ry. Co. v. Am. Train Dispatchers’ Assoc., 499 U.S. 117 (1991)." [ [http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_reports&docid=f:hr560.108.pdf "Report to accompany H.R. 218"] , U.S. House of Representatives, Committee on the Judiciary, Report 108-560, June 22, 2004] (The Supreme Court decided the "Norfolk" case on a 7-2 vote.)

Nevertheless, some local agencies continue to assert that they have the legal right to instruct their own officers not to exercise the privilege conferred by Congress though enactment of the LEOSA. [ [http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=425&issue_id=102004 "Law Enforcement Safety Act of 2004"] , by Craig E. Ferrell Jr., "The Police Chief", vol. 71, no. 10, October 2004.]

Application to employees of federal agencies

The U.S. Government Accountability Office Report to the House of Representatives, Committee on the Judiciary on its 2006 Survey of Federal Civilian Law Enforcement Functions and Authorities found that as of June 30, 2006, 104 federal components employed "137,929 LEOs"." [ [http://www.gao.gov/new.items/d07121.pdf GAO 2006 Report] ] "The components reported using 211 different job series titles for their LEOs", which included, "inter alia", criminal investigators, correctional officers, and U.S. Coast Guard maritime law enforcement boarding officers. The Report also included a summary table of the authorities and mission of each Federal LEO. [ [http://www.gao.gov/special.pubs/gao-07-223sp/law_enforcement_survey_table.html GAO 2006 Summary Table] ] A New York state trial court held on May 29, 2008 in "People v. Benjamin Booth", __ N.Y.S.2d __, 2008 W.L. 2247068 (N.Y.Co.Ct 2008) that Coast Guard boarding officers are qualified LEOs within the meaning of LEOSA. [ [http://handgunlaw.us/documents/LEOSACoastGuardCarryCourtCase.pdf People of NY v. Booth, __ N.Y.S.2d __, 2008 W.L. 2247068 (N.Y.Co.Ct 2008)] ]

According to a January 31, 2005 memorandum from the Attorney General of the United States, certain employees of some branches of the federal Justice Department are among those covered by the LEOSA. The memo said: "The [Justice] Department considers the following components to be agencies whose current employees may qualify as LEOs for purposes of the Act: the Bureau of Alcohol, Tobacco, Firearms, and Explosives; the Drug Enforcement Administration; the Federal Bureau of Investigation; the Federal Bureau of Prisons; the Office of the Inspector General; and the United States Marshals Service. Of course, any particular employee of one of these components independently must meet each of the specified statutory qualifications to qualify as an LEO under the Act." [ [http://www.usdoj.gov/olp/agmemo01312005.pdf Memorandum from the Attorney General] , "Guidance on the application of the Law Enforcement Officers Safety Act of 2004 to current and retired Department of Justice law enforcement officers," January 31, 2005.]

(In addition, there are other federal laws that empower those who are actively employed in federal law enforcement activities, such as ATF and DEA agents, to carry concealed firearms in all jurisdictions.)

The attorney general's memo also stated, "The [Justice] Department considers the following components to be agencies whose retired employees may qualify as LEOs for purposes of the Act: the Bureau of Alcohol, Tobacco, Firearms, and Explosives; the Drug Enforcement Administration; the Federal Bureau of Investigation; the Federal Bureau of Prisons; the Office of Inspector General, insofar as the retiree exercised statutory law enforcement authority at the time of his retirement; and the United States Marshals Service. As with current employees, any particular retired employee of one of these components independently must meet each of the specified statutory qualifications to qualify as a retired LEO under the Act."

The U.S. Immigration and Customs Enforcement agency issued a LEOSA Policy for its retired members and those of the former Immigration and Naturalization Service and United States Customs Service, which were merged to form ICE, on October 12, 2007. [ [http://handgunlaw.us/documents/ICE-LEOSAPolicy.pdf ICE LEOSA Policy, Octber 12, 2007] .]

As noted above, the LEOSA confers a limited immunity to state and local laws dealing with concealed firearms, but no immunity to any other federal laws or federal agency policies established before LEOSA or based upon other federal law.

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