Off-Duty Officers and Firearms
By Michael J. Bulzomi, J.D.
People generally recognize law enforcement officers by their marked cruisers and uniforms, which include the display of symbols of authority—a badge and a gun. The public expects officers to be comfortable carrying a sidearm and to exercise precision and sound judgment when using it. officers are responsible for ensuring the safety and protection of citizens and, thus, expected to provide a calming presence. This is true when they are on duty, but does this extend to off-duty hours when there are no outward signs of authority?
The U.S. Congress has determined that in a post-9/11 world, the public is better served when off-duty officers are in a position to effectively respond in the face of a threat. To this end, the Law Enforcement officers Safety Act of 2004 (LEOSA) allows officers to carry concealed weapons not only in their jurisdictions but in all 50 states, and the territories of the United States, provided certain conditions are met.1 This article will explore LEOSA, address federal statutory limitations regarding firearms possession, and summarize a short legal history of the Second Amendment concerning the right to bear arms.2
THE SECOND AMENDMENT
The Second Amendment to the Bill of Rights was ratified on December 15, 1791. It reads, “(a) well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”3 History shows, however, that this simple amendment is anything but. Over the years, much debate has centered on whether the right referred to in the Second Amendment is an individual or a state right.4
In 1939, the U.S. Supreme Court offered some insight as to the context of the Second Amendment in deciding United States v. Miller.5 The case involved the interstate transportation of an unregistered shortbarreled shotgun in violation of the National Firearms Act of 1934.6 The Court decided that the Second Amendment’s “obvious purpose was to assure the continuation and render possible the effectiveness of militia forces.”7 The Court further stated that only weapons with a “reasonable relationship to the preservation or efficiency of a well regulated militia” would come under the Second Amendment definition of arms.8 Explaining that the militia meant “all males physically capable of acting in concert for the common defense,” the Court advised that these men would commonly provide their own customary arms when called to service.9 The Court, thus, upheld the ban of weapons having no connection to the militia or to the common defense.
Special Agent Bulzomi is a legal instructor at the FBI Academy.
From 1939 until recently, the Supreme Court steered clear of much of the debate regarding the meaning of the Second Amendment. In 2008, the Court offered guidance as to the meaning of the Second Amendment in Heller v. District of Columbia.10 The Supreme Court held that the District of Columbia’s ban on handguns and operable firearms in the home was unconstitutional. However, the Court did note that the Second Amendment does not allow an unfettered right to possess all kinds of firearms or permit all persons to possess them.
Heller, a special police officer in the District of Columbia, was denied a license to register a handgun for self-protection in his home even though he possessed one for his job. Citing the Second Amendment, Heller filed suit in federal district court challenging the city’s gun laws. This challenge was rejected and Heller appealed. The D.C. Circuit Court reversed the district court’s decision, holding that an individual has a right under the Second Amendment to possess firearms and that the city’s gun laws infringed upon that right. The U.S. Supreme Court affirmed the decision and discussed the extent of the right to bear arms.
The Court declared that an “inherent right to self-defense” is central to the Second Amendment and that a total ban on an entire class of firearms essentially serving as Americans’ first choice for self-defense of “the home, where the need for defense of self, family, and property is most acute” is an impermissible infringement upon one’s right to keep and bear arms.11 The Court clarified, however, that this right is not absolute. Further, the Court provided a nonexhaustive list of “presumptively lawful regulatory measures,” including restricting felons and mentally ill persons from possessing firearms, restricting the carrying of firearms into schools and government buildings, and imposing conditions or qualifications concerning the sale of commercial firearms.12 The Court concluded by ordering the District of Columbia to allow Heller to register his handgun and to issue him a license to carry it in his home.
As the District of Columbia is a federal enclave and not a state, the decision only impacts the federal government. However, this past term in McDonald v. City of Chicago, the Supreme Court addressed the role of the Second Amendment with respect to state gun control.13
In McDonald, the ban on handguns by the city of Chicago and one of its suburbs, the Village of Oak Park, Illinois, was challenged as violating the Second and Fourteenth Amendments to the U.S. Constitution. The plaintiffs contended that the Court’s decision in Heller14 should be applied to the states through the Fourteenth Amendment’s Due Process Clause—interpreted by the Supreme Court as allowing the Court to incorporate provisions of the Bill of Rights and apply them to the states. According to the Court, the issue is “whether the particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice”15 or, in other words, “deeply rooted in this Nation’s history and tradition.”16 The Court stated that its decision in Heller17 was clear on this point.
“...law enforcement officers retain their identity, training, experience, and dedication to the safety and welfare of the community regardless of whether they are on duty...”
Self-defense is a basic right recognized by various legal systems throughout the ages. More important, individual self-defense is a fundamental right from an American perspective, deeply rooted in the nation’s history and tradition. As such, it is a “central component” to the Second Amendment right to bear arms to include the protection of one’s home, self, family, and property, a right protected from infringement by the federal government, as well as from the states. The Court reversed the court of appeals and remanded the case for further proceedings.
Today, not only police officers but virtually all Americans may possess a handgun for home protection. As noted in Heller,18 this may be limited as a result of reasonable restrictions, such as mental instability and felony convictions. In addition, local and state restrictions concerning the storage and number of handguns still may be lawful. However, any restrictions that appear so restrictive as to circumvent this individual right to bear arms likely will be deemed unconstitutional.
In 1968, Congress enacted the Federal Gun Control Act,19 prohibiting convicted felons from possessing a firearm. Since the passage of this act, Congress has enacted additional pieces of legislation to further restrict firearm possession. Two of these acts in particular—the Lautenberg Amendment20 and the Brady Handgun Violence Prevention Act—could affect law enforcement officers and their employers.21
The Lautenberg Amendment
Enacted in 1996, the Lautenberg Amendment creates a prohibited-possessor status for persons convicted of a misdemeanor crime of domestic violence.22 There is a statutory stipulation that the convicted individual had legal counsel or knowingly, voluntarily, and intelligently waived it. If the conviction is set aside, it does not automatically mean that the prohibited-possessor status also is set aside. If the judge’s order contains restrictions on firearms possession, the prohibited-possessor status continues.23 The act permits an individual who is a prohibited possessor to petition to the U.S. attorney general for relief. If the relief is denied, the act allows for judicial review of the denial.24
In United States v. Hayes,25 the Supreme Court held that the statutory predicate requiring a “misdemeanor crime of domestic violence” does not have to include a crime establishing a specified domestic relationship.26 In other words, the statutory predicate is satisfied as long as it involves a misdemeanor crime of violence and the victim is a person who has a qualifying domestic relationship. To require the predicate offense to be a crime that specifically included the domestic relationship as an element to the underlying crime would have limited the reach of the statute.
In Hayes, police officers responded to a 911 call of domestic violence. They arrived at the home of Ronald Hayes, obtained his consent to search his home, and discovered a rifle, as well as two other firearms. Hayes was indicted on three charges of possession of firearms after having been previously convicted of a misdemeanor crime of domestic violence against his wife. He contested the indictment on the basis that battery was not a predicate offense under the Lautenberg Amendment. The U.S. District Court for the Northern District of West Virginia denied the motion to dismiss the indictment. Hayes then entered a conditional guilty plea and appealed the denial. The U.S. Court of Appeals for the Fourth Circuit reversed the district court, agreeing with Hayes that the underlying charge was not a qualifying predicate offense because it did not designate a domestic relationship as an element to the crime. The U.S. Supreme Court agreed to hear the case and reversed the Fourth Circuit decision.
The Supreme Court held that the government need only show beyond a reasonable doubt that the victim of domestic violence was the defendant’s current or former spouse or in some way related to the defendant. The Court stated, “but that relationship, while it must be established, need not be denominated as an element of the predicate offense.”27
Aside from the obvious suitability issues raised by the underlying conduct engaged in by the applicant or officer, which should be considered by the agency, Hayes may impact hiring and retaining officers by law enforcement agencies. For example, if a misdemeanor conviction pertaining to a crime of violence surfaces during the investigation, the department must determine whether the crime involved someone who had a domestic relationship with the applicant or officer.
The Brady Handgun Violence Prevention Act
The Brady Handgun Violence Prevention Act also creates a prohibited-possessor status upon a finding based on reasonable cause to believe, after a hearing with notice and an opportunity to participate, that an individual is a “credible threat” to the safety of an intimate partner or child.28 An exception to the act exists whereby the prohibited possessor status does not extend to the “United States or any department or agency thereof or any state or department, agency, or political subdivision thereof or for military training or competitions.”29 The extent of this exception and whether it applies to individuals has yet to be fully determined. As with the prohibited-possessor status created by the Lautenberg Amendment, the provision in the Brady statute also could impact the ability of an officer to carry a firearm.
“LEOSA applies to qualified active duty and retired officers.”
LAW ENFORCEMENT OFFICERS SAFETY ACT OF 2004
On July 22, 2004, President George W. Bush signed into law H.R. 218, the Law Enforcement Officers Safety Act (LEOSA),30 which created a general nationwide recognition that the public is better served by allowing law enforcement officers to carry their firearms outside of their jurisdictions whether they are on or off duty. The theory behind LEOSA already was recognized among a number of states.31 That is, law enforcement officers retain their identity, training, experience, and dedication to the safety and welfare of the community regardless of whether they are on duty in their employer’s jurisdiction, going home to another community, or merely traveling for leisure purposes. However, the act creates a limited privilege to carry concealed weapons for law enforcement officers, not a right to bear arms.
Qualification Under LEOSA
LEOSA applies to qualified active duty and retired officers.32 Qualification under LEOSA requires employment by or retirement from a local, state, or federal law enforcement agency as someone charged with the ability to investigate, prosecute, and arrest people for violations of law.33 If an agency has firearms profi ciency standards, the offi cer must meet them to qualify to carry under this act.34 The statute also prohibits carrying firearms when under the influence of alcohol or any intoxicating or hallucinatory substance.35 If a current or retired officer is prohibited by federal law from possessing a firearm, they are not qualified to carry one under this legislation.36 It also is important to note that if an officer is under a disciplinary action that may result in suspension or termination by their agency, they are not qualified to carry under this act.37
Qualified retired officers must have retired in good standing for reasons other than mental instability and served at least an aggregate of 15 years.38 However, if the retirement was due to a service-related disability, the officer need only have completed the probationary period to qualify under this act.39 Retired officers also must have a nonforfeitable right to benefits under their agency’s retirement plan.40 At personal expense, the retired officer must meet the state standard for firearms qualification required for active law enforcement officers.41
Qualified active duty and retired officers must have photographic identification issued by the agency they work for or retired from.42 Retired officers’ identification must have some indication that they have been tested or have otherwise been determined by the issuing agency to meet the standards active officers must meet to carry concealed weapons.43 Retired officers do have the option of possessing the photographic identification with a certification from the state, rather than their former agency, that they have met the state’s requirements for active duty officers to carry concealed weapons within 12 months of the issuing date of the identification.44
LEOSA does not give qualified officers any special enforcement or arrest authority or immunity. It merely allows them to carry concealed weapons. If these weapons are used, there is no special protection from arrest. Qualified officers may find themselves acting only under the authority of a citizen’s arrest or self-defense claim or under authority established by the state.
“LEOSA allows qualified officers to protect themselves, their families, and the community by being armed while off duty.”
Qualified officers may use LEOSA only as an affirmative defense if prosecuted. An affirmative defense requires that the finder of fact, the judge, must make a determination of whether the person raising the defense is eligible to do so. To be eligible, the judge must have determined that the person raising the defense is, in fact, a qualified officer under LEOSA and was carrying the required identification at the time of the alleged violation. This means that the act will not keep officers from being arrested. However, LEOSA will stand as a defense at a hearing as to the legality of the arrest if the arrestee is, in fact, a qualified officer with the requisite identification.
Limitations of LEOSA
Type of Firearm
LEOSA allows qualifying officers to carry concealed firearms, but, at the same time, limits what qualifies as a firearm. The act’s definition of firearms does not include machine guns, silencers, or explosive or destructive devices.45
State Limitations on Carrying in Certain Locations
Limitations also exist as to where a concealed firearm may be carried. LEOSA exempts qualified officers from state laws limiting or prohibiting the carrying of concealed weapons.46 However, LEOSA does not supersede state laws permitting private property owners from limiting or prohibiting the carrying of concealed weapons on their property.47 This would include public bars, private clubs, and places, such as amusement parks. Nor does the act circumvent any state laws prohibiting carrying concealed weapons on state or local government property.48 Possible examples would be courthouses, schools, or parks.
Federal Limitations on Carrying in Certain Locations
Federal laws or regulations are not superseded by LEOSA. Qualified officers may not carry concealed weapons onto aircraft under the act. They also cannot carry firearms into federal buildings or onto federal property. However, in February 2010, a federal statute took effect authorizing individuals to carry concealed weapons into national parks if they have complied with the carry concealed rules of the state or states in which the park is located.49 Of course, this federal statute will not change the fact that it is unlawful to carry a firearm into federal buildings, even in a national park.50 This would include facilities, such as visitor’s centers, museums, and restrooms.
It is unclear whether LEOSA overrides an agency’s ability to limit an officer’s authority to carry a personally owned handgun off duty as part of off-duty restriction policies. Some agencies have continued to enforce such policies. Arguably, because LEOSA explicitly overrides state law provisions (except those addressing state facilities and property), and the head of an executive agency is given power by way of state law, it would appear that LEOSA would override off duty restriction policies. However, agencies with such a policy and officers working within these agencies should seek guidance and clarification in regard to the legality of such policies.
In recent opinions, the U.S. Supreme Court has clarified what previously was unclear for hundreds of years, that the Second Amendment does confer a right to bear arms for purposes of self-defense in the home, subject to reasonable restrictions. LEOSA, as noted above, does not confer a right to bear arms. The act merely confers a limited immunity from state and local laws dealing with concealed firearms and does not supersede any federal laws or regulations. Some jurisdictions outlaw the open display and carrying of firearms; however, LEOSA does not allow officers to carry firearms other than concealed. The authorization to carry concealed is not accompanied by any grant of extraterritorial arrest powers. Qualified officers must be aware of the laws of the state in which they are carrying concealed weapons, satisfy qualification standards, and carry proper identification.
The world changed on September 11, 2001. Through LEOSA, Congress reacted to this new age of terrorism, accepting the fact that America never has faced a greater need to have additional watchful eyes on the streets of its cities, towns, and rural areas. These eyes possess the training, skills, and resources necessary to stop rapidly evolving situations before they become disasters. They also provide an instantaneous, no-cost benefit to the country by simply allowing trustworthy officers to carry concealed weapons while off-duty. LEOSA allows qualified officers to protect themselves, their families, and the community by being armed while off duty.
Law enforcement officers know that criminals are never off duty. LEOSA also is premised on the notion that officers are vulnerable off duty. Criminals sometimes target them, as well as their families, for harm; these individuals also know that off-duty officers may be unarmed. LEOSA allows qualified officers to protect themselves, their families, and the community by being armed while off duty.
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
1 Title 18 U.S.C. § 926 B and C.
2 U.S. Constitution, amend. II.
4 In 1875, the U.S. Supreme Court in United States v. Cruikshank, 92 U.S. 542, dismissed an indictment for two individuals charged with denying freemen their Second Amendment right to keep and “bear arms for a lawful purpose.” The Court advised that citizens must look to the state’s police power for protection against other parties infringing upon their right to bear arms as the amendment wording “shall not be infringed…means no more than it shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government.” The Court concluded that under the laws of the United States there were no applicable federal charges in the indictment. The Court continued along this trail of precedent that the Second Amendment limits only the federal government when it upheld a state prohibition against participation in an unauthorized militia in the 1886 case Presser v. Illinois,116 U.S. 252 (1886). Presser was an unlicensed militiaman who, along with 400 others, marched through the streets of Chicago with swords and rifles in violation of Illinois state law, exercising what Presser and the others claimed was their right to bear arms. The Court decided that the states, unlike the federal government, were free to regulate the right to keep and bear arms. The Court also emphasized that the Second Amendment protects only a legitimate reserve militia meant to serve the states and the federal government. The Court cautioned, however, that the states cannot disarm the people so as to deny the United States this military resource regardless of the Second Amendment.
5 307 U.S. 174 (1939).
6 Id. at 175-76, (National Firearms Act, Pub. L. No. 90-618, 48 Stat. 1236 (1934) (codified as amended in scattered sections of 28 U.S.C.) was the first federal regulation of private firearms).
7 Id. at 178.
9 Id. at 179-80.
10 128 S. Ct. 2783 (2008).
11 Id. at 2817-18.
12 Id. at 2816-17.
13 130 S. Ct. 3020 (2010).
14 128 S. Ct. 2783 (2008).
15 Id. at 3034.
17 128 S. Ct. 2783 (2008).
19 Pub. L. No. 90-618 (1968), codified in chapter 44 of Title 18 of the U.S. Code.
20 Title 18 U.S.C. § 922.
21 The short title of the 1993 amendment, which included amendment to § 922 and 924.
22 The Lautenberg Amendment contains § 922(d)(9) and (g)(9), passed in 1996, which was part of the Omnibus Consolidated Appropriations Act of 1997. This act was challenged in United States v. Hayes, 129 S. Ct. 1079 (2009), without success.
23 See Title 18 § 921 (33)(B)(ii).
24 See Title 18 U.S.C. § 925 (c).
25 129 S. Ct 1079 (2009).
26 Id. at 1090.
27 Id. at 1088.
28 See Title 18 U.S.C. § 922 (g)(g).
29 See Title 18 U.S.C. § 925 (a)(1).
30 Title 18 U.S.C. § 926 (B) and (C).
31 All 50 states exempt their own on-duty police officers from statutes governing the right to carry concealed weapons. A majority of states allow within their borders other states’ peace officers to carry concealed weapons if on official business. Kansas, Michigan, Minnesota, Pennsylvania, Wyoming, and Vermont allow on and off-duty out-of-state officers to carry concealed weapons. California, Connecticut, Delaware, Florida, Idaho, Indiana, Maryland, Mississippi, Nevada, New York, Oregon, Vermont, and Wyoming allow carry-concealed permits or rights for retired officers.
32 Title 18 U.S.C. § 926B (qualified law enforcement officers) and § 926C (qualified retired law enforcement officers).
33 Id.; and Id. at Sec. 926B(1) and 926C(1).
34 Id. at § 926B (C)(4).
35 Id. at § 926B (C)(5) and 926C (C)(6).
36 Id. at § 926B (C)(6) and 926C (C)(7).
37 Id. at § 926B (C)(3).
38 Id. at § 926C (c)(3)(A).
39 Id. at § 926C (c)(3)(B).
40 Id. at § 926C (c)(4).
41 Id. at § 926C (c)(5).
42 Id. at § 926B(d) and § 926C(d)(1).
43 Id. at § 926C(d)(1).
44 Id. at § 926C(d)(2)(A) and (B).
45 Id. at § 926B(e)(1)-(3) and § 926C(e) (1)-(3).
46 Id. at § 926B(a) and § 926C(a).
47 Id. at § 926B(b)(1) and § 926C(b)(1).
48 Id. at § 926B(b)(2) and § 926C(b)(2).
49 See Title 36 U.S.C. § 2.4.
50 See Title 18 U.S.C. § 930, Possession of Firearms and Dangerous Weapons in Federal Facilities.
“The authorization to carry concealed is not accompanied by any grant of extraterritorial arrest powers.”