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oddjob
07-25-2009, 5:00 PM
Is this mandatory for an agency to implement?

CSDGuy
07-25-2009, 5:48 PM
I don't think so... but then again, an amendment to the LEOSA (HR 218 has been reused a few times since then) that would have allowed Chief LEO's to opt their department OUT failed... The LEOSA may actually override off-duty carry policies, but that part has NOT been tested in court in any binding way that I'm aware of. There was a Utah LEO that was carrying under the LEOSA, against agency policy, that didn't get disciplined for it... don't know exactly why (policy change? public perception issues, Political issues?) but they decided against any discipline...

If anything, they would have to actively BLOCK their officers from carrying under the LEOSA, somehow.

Sacmedic
07-25-2009, 6:18 PM
Long time lurker, finally decided to join...

I believe that in California the employer cannot dictate off-duty carry policy as long as the weapon in question is not owned by the agency. That's the basis of the 1994 Ca Appeals Court ruling out of Orange about employer policies on off-duty carry. In that case the employer tried to tell its peace officers that they couldn't carry off duty. The court found that indeed the employee could carry off duty despite employer policy otherwise. Anyone know of more recent case law?

CSDGuy
07-25-2009, 6:29 PM
Sacmedic... hmmm I (used to) resemble that.... still licensed. ;)

Anyway, IIRC, that had to do with the OC Reserves. I don't know if that ruling is binding in ALL parts of California, or if it's just in one area (primarily OC). There's some language in the LEOSA that might have the very same effect on agency policy, essentially drawn from another Fed law that involved a railroad with the same language and it was determined (IIRC) that the language overrode agency policy even though agency policy isn't law, it has can have the effect of law on those subject to that policy...

The LEOSA does have very similar language to that other law.

Of course, I reserve the right to be wrong. ;)

Sacmedic
07-25-2009, 6:52 PM
CSDGuy-

Good to see another medic! :)

I hear what you're saying about the language issue. There is also a couple of Ca. Attorney General opinions on the issue of off duty carry in spite of agency policy to the contrary. All references I've found so far have agreed that the Legislature, in P.C. 12027, gave almost every peace officer in California the authority to carry off duty. Even if they don't carry at work (think Probation, Welfare Fraud, Agriculture Inspector, etc). The only peace officers required to have a "off duty endorsement" on ther I.D. are state Correctional Officers.

I, of course, also reserve the right to be wrong. :)

Sacmedic

alex00
07-26-2009, 12:09 AM
I have seen many discussions about HR 218. I think it's plain language is it's biggest strength, and weakness at the same time. It appears to remove any authority for an agency to dictate if officers can and can't carry. The plain text seems to exempt an officer even from department policy, simply because the agency is a "political subdivision" of a state. But, without case law there are no strict guidelines as to what is and is not allowed. I also understand that HR 218 is viewed by many as a defense, rather than a condition. HR 218 would come into play when you get arrested for carrying in another state. I find that hard to swallow, but look at South Dakota.

Ron-Solo
07-26-2009, 9:46 AM
Some agencies, such as LAPD, will not certify their retired officers for the annual 'qualification' requirement and most agencies (including LASD) will only certify thier own retirees for liability reasons.

And yes, agencies can dictate what you carry off duty while you are still active. You can be subject to disciplinary action for carrying an unauthorized weapon or ammunition. It gets challenged on our department and the courts and civil service have upheld it.

They just can't tell you that you can't carry, unless you've been relieved of duty for disciplinary action or investigation. They can dictate what you carry.

CSDGuy
07-26-2009, 3:06 PM
I have seen many discussions about HR 218. I think it's plain language is it's biggest strength, and weakness at the same time. It appears to remove any authority for an agency to dictate if officers can and can't carry. The plain text seems to exempt an officer even from department policy, simply because the agency is a "political subdivision" of a state. But, without case law there are no strict guidelines as to what is and is not allowed. I also understand that HR 218 is viewed by many as a defense, rather than a condition. HR 218 would come into play when you get arrested for carrying in another state. I find that hard to swallow, but look at South Dakota.
The plain text DOES exempt off-duty officers... however, there's not any binding case law that is directly on the LEOSA point that says so. IIRC there's a railroad case does involve the same language creating the exemption though. The LEOSA seems to be both a condition and a defense. The South Dakota case was an example of a defense.
Some agencies, such as LAPD, will not certify their retired officers for the annual 'qualification' requirement and most agencies (including LASD) will only certify thier own retirees for liability reasons.

And yes, agencies can dictate what you carry off duty while you are still active. You can be subject to disciplinary action for carrying an unauthorized weapon or ammunition. It gets challenged on our department and the courts and civil service have upheld it.

They just can't tell you that you can't carry, unless you've been relieved of duty for disciplinary action or investigation. They can dictate what you carry.
Ron-Solo, can you show any binding cases (on a statewide basis) that show this in a post-LEOSA world where the LEOSA was used as a defense against such disciplinary action? There was a memo/FAQ from the AG's office a few years ago that stated that restricting on-duty weapons/ammo was permissible, but off-duty carry restrictions/policies appeared to be superceded by the LEOSA.

I'm not busting your chops on this, I just haven't heard of anything since the LEOSA was signed into law as PL 108-277 along the lines you've stated. Retirees have been having quite a bit of an issue though with this and getting qualified annually or getting retiree ID cards...

Jonathan Doe
07-26-2009, 4:07 PM
My agency has a policy for the off duty weapons: it has to be authorized, you have to attend the class and qualify with it, and qualify every trimaster to carry.

Fire in the Hole
07-26-2009, 5:45 PM
Some agencies, such as LAPD, will not certify their retired officers for the annual 'qualification' requirement and most agencies (including LASD) will only certify thier own retirees for liability reasons.

And yes, agencies can dictate what you carry off duty while you are still active. You can be subject to disciplinary action for carrying an unauthorized weapon or ammunition. It gets challenged on our department and the courts and civil service have upheld it.

They just can't tell you that you can't carry, unless you've been relieved of duty for disciplinary action or investigation. They can dictate what you carry.

Wow! I was unaware of that. My old agency does not certify outside retirees, which I think is bad. I get certified annually, but I have to be very proactive about it, numerous phone calls. As they say, out of sight, out of mind. They make it so challenging, that very retirees actually bother with it. They can still CCW within CA without the HR-218 annual requalifications. I choose to take it to the next level.

joe schmoe
07-26-2009, 6:14 PM
All references I've found so far have agreed that the Legislature, in P.C. 12027, gave almost every peace officer in California the authority to carry off duty. Even if they don't carry at work (think Probation, Welfare Fraud, Agriculture Inspector, etc). The only peace officers required to have a "off duty endorsement" on ther I.D. are state Correctional Officers.

I, of course, also reserve the right to be wrong. :)

Sacmedic


Actually not every 'peace officer' has CCW authority. There are so many positions that have some type of peace officer authority it would make your head spin. Probation and welfare fraud are good to go, but I don't believe that is the case for ag inspectors, who at best are limited authority peace officers. Some job classifications who have peace officer authority are barred by the penal code from carrying on-duty.

Something to remember for the folks carrying strictly under the 'authority' of LEOSA in state (i.e. absent their agency authority/blessings). If something happens, you're on your own. Better have a good attorney and some liability insurance, because if something goes sideways your agency is under ZERO obligation to back you up. All California LEOs carrying off-duty out of state are pretty much on their own period as an agency can't *dictate* you carry outside of the officers jurisdiction..i.e. California (which for 830.1 and some others under similar PC's, the state is their jurisdiction).

alex00
07-26-2009, 6:50 PM
The plain text DOES exempt off-duty officers... however, there's not any binding case law that is directly on the LEOSA point that says so. IIRC there's a railroad case does involve the same language creating the exemption though. The LEOSA seems to be both a condition and a defense. The South Dakota case was an example of a defense.

I should have been clearer. When I say it does not provide a condition, I mean that according to the LEOSA, I should be able to carry a non bullet button AR pistol. With the only weapon restrictions in the LEOSA being machine guns, silencers and DDs, I read that to mean any weapon is good to go, despite state laws. My department's legal advisors feel differently, and feel it certainly does not apply to long guns. This is why I say many feel the LEOSA is a defense rather than a condition.

oddjob
07-26-2009, 7:41 PM
I should have been more clear in my original question. Does an agency have to implement hr 218 for retired LEO's?? I'm gonna be one in Dec. 2009.

CSDGuy
07-26-2009, 7:51 PM
oddjob: I would have to hazard a guess that they could... and probably should for standardization purposes. If they value their retirees, I would think they'd create such a policy... otherwise, it'd be at best, an informal program. The retiree carrying under the LEOSA would have as much liability to the department as they do now, with a retiree CCW endorsement.

5shot
07-26-2009, 8:03 PM
I should have been more clear in my original question. Does an agency have to implement hr 218 for retired LEO's?? I'm gonna be one in Dec. 2009.

They don't have to. I retired 5 years ago and just renewed my ccw a couple weeks ago. My agency is working on the procedure for retirees, but right now they only have to do our renewals every 5 years, instead of every year. So with budget cuts they're not in a big hurry to implement LEOSA for retirees yet.

CSDGuy
07-26-2009, 8:19 PM
I don't think that the actually have to implement anything wrt: LEOSA for the retirees... but I was also under the impression that qualification costs were supposed to be on the retiree, not the agency.

Ron-Solo
07-26-2009, 8:49 PM
Is this mandatory for an agency to implement?

No.

Ron-Solo
07-26-2009, 8:53 PM
The plain text DOES exempt off-duty officers... however, there's not any binding case law that is directly on the LEOSA point that says so. IIRC there's a railroad case does involve the same language creating the exemption though. The LEOSA seems to be both a condition and a defense. The South Dakota case was an example of a defense.

Ron-Solo, can you show any binding cases (on a statewide basis) that show this in a post-LEOSA world where the LEOSA was used as a defense against such disciplinary action? There was a memo/FAQ from the AG's office a few years ago that stated that restricting on-duty weapons/ammo was permissible, but off-duty carry restrictions/policies appeared to be superceded by the LEOSA.

I'm not busting your chops on this, I just haven't heard of anything since the LEOSA was signed into law as PL 108-277 along the lines you've stated. Retirees have been having quite a bit of an issue though with this and getting qualified annually or getting retiree ID cards...

Due to POBR this might be difficult, but I'll see what I can find. With our department, the minute you ID yourself in an off-duty situation, you immediately become 'on-duty' for liability and workers comp issues, so if you were carrying an un-authorized weapon, you are now carrying it on duty and subject to disciplinary action.

retired
07-26-2009, 8:57 PM
My former dept. (lasd) seems to make it a point whenever there is some info in the PPOA newsletter (I'm an assoc. now that I'm retired) about HR218/LEOSA, to mention one doesn't have to keep their dept. issued ccw if they have the LEOSA one. I don't know if that is to have us turn it in so they are liable for anything or what.

Well, I for one, will faithfully (as long as they let me of course) renew my dept. issued one every 5yrs. I also renew my HR218 one every year also. I do the former for a couple of reasons.

1. The dept. issued one is recognized in 13 other states IIRC, so that's good

2. I don't always remember to renew the HR218 one before it expires.:o By keeping the dept. issued one, I'm always covered, at least in this state.

Before I went on the Area 53 shoot in May, I checked my HR ccw and discovered it had expired in Aug. of 2008.:eek: Since I was going to Nevada, I needed it as they don't recognize a Ca. ccw. I went to the dept. range just before the shoot, paid my money for the ammo and qualified. (you would have to be blind not to IMO;))

For me, at least, it is hard to remember the date I obtained it the year before.:o

Sacmedic
07-27-2009, 6:23 AM
Joe Schmoe,

Please take a look at this link that Liberty1 posted last month. The court opinion seems to be pretty all-encompassing, excluding 830.5 P.C. officers (corrections).

http://www.calguns.net/calgunforum/showthread.php?t=198201&highlight=orange+county+off+duty+carry

I'm definitely not trying to be argumentative, but I don't understand which officers wouldn't have the ability to CCW according to your previous post.

Sacmedic

Fire in the Hole
07-27-2009, 6:34 AM
If you go to this page from the CA Attorney General's web site, it should answer your questions. Click on LEOSA HR-218, and it explains it pretty well.

http://caag.state.ca.us/firearms/index.html

Sacmedic
07-27-2009, 6:46 AM
Additionally, the probation, welfare fraud and many other peace officer positions in the penal code all suffer from the following language in their respective identifying statutes "Those peace officers may carry firearms only if authorized and under terms and conditions specified by their employing agency." The OC case basically decided that the employer can regulate on-duty carry based on this language. It went further to state that off-duty carry was outside the control of the employer for these types of peace officers. The desigantion as a peace officer by the employer is all that's neccesary to obtain the exemption to a CCW found in P.C. 12027. This case and several AG opinions agree on the issue.

Ron-Solo
07-27-2009, 7:55 AM
Joe Schmoe,

Please take a look at this link that Liberty1 posted last month. The court opinion seems to be pretty all-encompassing, excluding 830.5 P.C. officers (corrections).

http://www.calguns.net/calgunforum/showthread.php?t=198201&highlight=orange+county+off+duty+carry

I'm definitely not trying to be argumentative, but I don't understand which officers wouldn't have the ability to CCW according to your previous post.

Sacmedic

This decision doesn't prohibit an agency from regulating what type of firearm you carry off duty.

Sacmedic
07-27-2009, 8:57 AM
Ron-Solo,

First my apologies to the OP, I may have hijacked the thread a bit.

I agree that the OC decision wouldn't effect 830.1, 830.2, etc (otherwise known as 24/7 peace officers). Obviously the employer can dictate firearms policy if you are in effect "on the clock" once you identify yourself. However, the large number of peace officers that fall into my earlier description (those whose employers can decide whether to arm them on duty or not) would be allowed to CCW the way this decision reads. In effect they would be CCW like a normal civilian since their peace officer powers are in effect only when at work. What the OC decision does is allow people such as un-armed PO's to adequately protect themselves and their families despite their agencies inability to see the need for this.

Fire in the Hole
07-27-2009, 9:09 AM
Ron-Solo,

First my apologies to the OP, I may have hijacked the thread a bit.

I agree that the OC decision wouldn't effect 830.1, 830.2, etc (otherwise known as 24/7 peace officers). Obviously the employer can dictate firearms policy if you are in effect "on the clock" once you identify yourself. However, the large number of peace officers that fall into my earlier description (those whose employers can decide whether to arm them on duty or not) would be allowed to CCW the way this decision reads. In effect they would be CCW like a normal civilian since their peace officer powers are in effect only when at work. What the OC decision does is allow people such as un-armed PO's to adequately protect themselves and their families despite their agencies inability to see the need for this.

And this would be a job for their unions, no?

Sacmedic
07-27-2009, 9:14 AM
Amen to that!

eltee
07-28-2009, 6:36 AM
I should have been more clear in my original question. Does an agency have to implement hr 218 for retired LEO's?? I'm gonna be one in Dec. 2009.

As a labor rep for cops, I've been working on this at a local, state and national level. Simple answer is NO. An agency can simply not issue a retiree an ID card which is a specified requirement under HR218 (aka LEOSA). Another issue is that some agencies will only do the 3 or 5 year retiree requal whereas LEOSA specifies an annual requal (although you do NOT have to requal with your former employer...you can requal anywhere inc. out of state). PORAC, a large law enforcement political and professional organization out here in Calif. has been working on some of these issues. I have been in recent communications with the president of PORAC as a rep for one department, and he supports the notion that retired LEO's should be able to carry under the act.

There are some retirees who worked for agencies that do not support the notion of retirees carrying. Some retirees in this instance (from various states) have done the following:

Carried their last, expired, active-duty ID card in lieu of a "retiree" ID card. Some legal experts feel this meets the spirit of the law in that it is evidence that the person worked as a "Law Enforcement Officer"
Carried a copy of their retiree pension check stub as proof of honorable retirement after serving the required # of years (or retirement due to injury) as an LEO.
Qualified at another jurisdiction under the conditions contained within LEOSA. This is pretty common, especially for retirees who move away.
Had their union's legal counsel draft an agreement wherein the retiree agrees to assume full responsibility for any use of a CCW, and the document declares that the head of the agency is complying with federal law and that the approval to CCW retired is not his command decision. This gives the head of the dept. a way out, even if it is simply symbolism over (legal) substance.
Have a supplemental, card sized document supplied by a third party (police union, police legal counsel, association, etc.) which states that the bearer meets the terms and conditions of the LEOSA. This document has a photo and resembles an ID but is merely a card declaring the bearer's qualifications and some have the LEOSA printed on the back. This is carried along with proof of range qual.


None of the above has been, to my knowledge, put to the test.

In the OC case and the AG written opinion, the favorable written opinion from the AG that has been used for over a decade by many people who work for agencies as peace officers but were told by their emplyer they could not carry off duty (and, in some instances, could not carry ON duty...creating circumstances wherein a P.O. could not pack while working but COULD pack off duty). I have heard of no person arrested for CCW under these circumstances. I have not seen any case law or AG opinions negating that original doc. One of the agencies I've done labor/legal work for is one of those where the members keep a copy of the opinion handy when off duty and CCW. No member has been arrested but a couple have been detained briefly while a cop checked the validity of the document.

The list of peace officer classifications in Ca. is very long, and only a handful have a specification that they not carry off duty. Many have a condition in the PC that the carrying of firearms is determined by the agency/dept. head but the AG opinion has, to date, held up the right of the members of those PO agencies to carry off duty regardless of their on-duty carry status and regardless of their employers' assertions about off duty carry. An important issue is the fact that "peace officer" status is NOT a requirement to CCW off duty or when retired. LEOSA knowingly makes no requirement of "status" (i.e., sworn, commissioned, peace officer, etc.) to implement the act, the member must simply meet the conditions of being a "Law Enfocement Officer" and even in legalistic California there are people who meet the federal standard but are not enumerated in the PC as peace officers of any level.

The people behind the original LEOSA anticipated resistance at many levels, so they got the original act passed, knowing that it might need to be fine tuned through additional legislation. There are currently many people working to improve the act for the benefit of LEOs.

bshnt2015
07-28-2009, 7:00 AM
good read, there are a lot of problems ahead and currently, management seems to lack the will to cover our collective rears. We brought this up with our folks who retired recently, some retirees could not care less about why they need to carry any more, others become reserves, some work at other agencies and some ask to reqaul but no support.

Sacmedic
07-28-2009, 7:41 AM
Thank you eltee. Very well written. There are several AG opinions about this, the most recent is regarding investigators of the Prison Terms Board. All of the opinions read as you have summarized and have remained consistent for about 25 years now. So has the case law. I'm glad those folks you rep for were treated well when they encountered an LEO while carrying.

Sacmedic

eltee
07-28-2009, 9:20 AM
Thank you eltee. Very well written. There are several AG opinions about this, the most recent is regarding investigators of the Prison Terms Board. All of the opinions read as you have summarized and have remained consistent for about 25 years now. So has the case law. I'm glad those folks you rep for were treated well when they encountered an LEO while carrying.

Sacmedic

You're welcome, and thank you for your compliments.

For one agency I rep, we solicted four independant legal opinions from law firms that represent law enforcement officers. They did not work in unison, but their opinions were unanimous: Off-duty or retired California Law Enforcement Officers regardless of "peace officer" status (or lack, thereof) who meet the federal standard of Qualified Law Enforcement Officer under the LEOSA were entitled to benefits under the act.

I was pleasantly pleased at the response I received from PORAC. The president of that organization called me personally to discuss the issues surrounding its unequal implementation in California (PORAC also has members in Nevada) and assured me that the PORAC legal department will conduct research in support of members working for agencies that do not support the act.

As developments occur, I will post.