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View Full Version : Is an LEO who is drinking while CC breaking federal law?


SKSer
01-29-2010, 4:54 PM
Under HR 218

SEC. 2. EXEMPTION OF QUALIFIED LAW ENFORCEMENT OFFICERS 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:

`Sec. 926B. Carrying of concealed firearms by qualified 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 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 arrest;

`(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.

ETD1010
01-29-2010, 4:56 PM
I hope so!

a1c
01-29-2010, 4:58 PM
Hmm... Now I have to ask my buddies about this.

Being under the influence of alcohol (which constitutes a DUI) requires a certain level of intoxication: 0.08 BAC.

So I'm wondering... If you're having, say, half a beer, there is a good chance your BAC won't ever reach 0.08, right?

I know, I'm nitpicking. Just trying to think like a lawyer. :D

Cokebottle
01-29-2010, 5:14 PM
Hmm... Now I have to ask my buddies about this.

Being under the influence of alcohol (which constitutes a DUI) requires a certain level of intoxication: 0.08 BAC.

So I'm wondering... If you're having, say, half a beer, there is a good chance your BAC won't ever reach 0.08, right?

I know, I'm nitpicking. Just trying to think like a lawyer. :D
Agreed.
"under the influence" is not the same as "consuming".
A friend of mine worked vice and it was routine to sit in a strip club and "have" a beer while on duty.

I've had a couple of girls ask me if I was a cop because I wasn't drinking as much as "normal".

RomanDad
01-29-2010, 5:17 PM
First- They have to be travelling from their home state for The Law Enforcement Safety Act to even apply.

In California, there is no specific law prohibiting LEOs from drinking while carrying (or even getting drunk while carrying).... But MOST departments have strict policies against it.

ke6guj
01-29-2010, 5:17 PM
AFAIK, that would only apply when the LEO is physically using that law in order to CC. So, if he was out-of-state, then HR218 kicks in, and he would need to comply with it.

But, while in his home state, he merely needs to comply with state law, which may or may not have a BAC limit on an off-duty LEO carrying.

GrizzlyGuy
01-29-2010, 5:48 PM
Here is a FAQ on HR 218 from the National Organization of Police Organizations (http://www.njspba.com/Documents/FAQ.Right2Carry.pdf), and it suggests that they would be breaking the law in that case.

ke6guj
01-29-2010, 5:55 PM
Here is a FAQ on HR 218 from the National Organization of Police Organizations (http://www.njspba.com/Documents/FAQ.Right2Carry.pdf), and it suggests that they would be breaking the law in that case.that FAQ deals with off-duty LEOs who are carrying concealed across state lines. That FAQ does not say that a off-duty LEO in his own state would be violating federal law if intoxicated while carrying concealed.

GrizzlyGuy
01-29-2010, 6:13 PM
that FAQ deals with off-duty LEOs who are carrying concealed across state lines. That FAQ does not say that a off-duty LEO in his own state would be violating federal law if intoxicated while carrying concealed.

See Q1 here (http://ag.ca.gov/firearms/forms/pdf/leosiss.pdf), from the CA Attorney General, HR 218 trumps state and local laws for off-duty carry, but not on-duty carry. So it would depend if the LEO is on duty or off duty. Per our AG, the in-own-state LEO would still be breaking this law (HR 218) if carrying off duty while under the influence:

Does this Act trump state law, local ordinances, and local policy restricting carrying off-duty?

Yes, as it relates to an officer’s ability to carry a concealed weapon off-duty.
However, an officer is still subject to his/her employing agency’s policies and
conditions of employment.

The agency can develop a policy to dictate what the standards are for employees of that agency to carry firearms - such as qualification standards and frequency. An agency, it appears, is not free to develop a policy about how it will implement the provisions of this Act relative to other law enforcement officers. Per the author’s website, peace officer ID is sufficient evidence that the officer qualifies to carry under this Act

On-duty restrictions placed by the department appear to be permissible. Off-duty restrictions appear to be superceded by this Act.

ke6guj
01-29-2010, 6:24 PM
OK, you are reading HR218 wrongly. Being under the influence while carrying is not illegal per HR218, you just don't get the benefits of HR218 if you are carrying intoxicated.


`(c) As used in this section, the term `qualified law enforcement officer' means an employee of a governmental agency who--
`(5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; andif you are intoxicated while carrying, then you aren't a "qualified law enforcement officer" at that time, which means that HR218 does not apply to you.

AFAIK, HR is a "get of of jail free" card for those "qualified law enforcement officers" who are carrying concealed. It is an exemption to other laws, it is not a law that itself is enforceable.

hardrivr
01-29-2010, 6:35 PM
Well I know about two years ago a off duty Costa Mesa Officer shot and killed a guy who claimed started a fight with him after the officer "COP'D" a feel of the guys girlfriend... both had been drinking beers during the Rod Run here in Temecula, from what I heard via the grapevine the officer got off and even thought he started and stopped the fight he got off becuase the guy was bigger and had priors...

GrizzlyGuy
01-29-2010, 6:36 PM
OK, you are reading HR218 wrongly. Being under the influence while carrying is not illegal per HR218, you just don't get the benefits of HR218 if you are carrying intoxicated.

if you are intoxicated while carrying, then you aren't a "qualified law enforcement officer" at that time, which means that HR218 does not apply to you.

AFAIK, HR is a "get of of jail free" card for those "qualified law enforcement officers" who are carrying concealed. It is an exemption to other laws, it is not a law that itself is enforceable.

Ahhhh, I think you're right! I misread (a), but it does include a "may" in there (implying your 'optional get-out-of-jail-free' interpretation):

(a) 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).

SteveH
01-29-2010, 7:00 PM
OK, you are reading HR218 wrongly. Being under the influence while carrying is not illegal per HR218, you just don't get the benefits of HR218 if you are carrying intoxicated.


if you are intoxicated while carrying, then you aren't a "qualified law enforcement officer" at that time, which means that HR218 does not apply to you.

AFAIK, HR is a "get of of jail free" card for those "qualified law enforcement officers" who are carrying concealed. It is an exemption to other laws, it is not a law that itself is enforceable.

Exactly.

SteveH
01-29-2010, 7:04 PM
Well I know about two years ago a off duty Costa Mesa Officer shot and killed a guy who claimed started a fight with him after the officer "COP'D" a feel of the guys girlfriend... both had been drinking beers during the Rod Run here in Temecula, from what I heard via the grapevine the officer got off and even thought he started and stopped the fight he got off becuase the guy was bigger and had priors...

The officer saw a woman from the side/rear profile that he thought was an old friend. He hugged her and only then realized his mistake. He apologized to her but that wasnt good enough for her friends and they followed the cop outside and attached him with bottles/mugs/patiochairs. He used his gun to defend himself due to being attacked by a numerically superior force and suffering a head injury. It was a good shoot.

Doheny
01-29-2010, 7:06 PM
:popcorn:

SKSer
01-29-2010, 7:44 PM
OK, you are reading HR218 wrongly. Being under the influence while carrying is not illegal per HR218, you just don't get the benefits of HR218 if you are carrying intoxicated.


if you are intoxicated while carrying, then you aren't a "qualified law enforcement officer" at that time, which means that HR218 does not apply to you.

AFAIK, HR is a "get of of jail free" card for those "qualified law enforcement officers" who are carrying concealed. It is an exemption to other laws, it is not a law that itself is enforceable.

You could also take this as if you are intoxicated, then you are not a "qualified law enforcement officer" any longer, so at that point, you are carry illegally unless you also have a standard issue CCW permit, then regular CCW laws apply which is subject to the county laws/policy right? What a mess of laws.

dantodd
01-30-2010, 1:59 AM
Also, while not relevant to CA if an LEO is carrying out of state they MIGHT be carrying pursuant to reciprocity on a homestate CCW so even then LESO doesn't automatically kick in.

VictorFranko
01-30-2010, 3:19 AM
If it's not illegal for an off duty LEO to carry while drinking, it ought to be.
I know a dick, er, sorry, a detective who carries while drinking seven days a week.
Three times that I know of he has drawn his loaded weapon at the bar just clowning around. Once he dropped it, I swear to God.
I can't tell you the number of times he has whipped out his switch-blade.

socal2310
01-30-2010, 6:52 AM
Well I know about two years ago a off duty Costa Mesa Officer shot and killed a guy who claimed started a fight with him after the officer "COP'D" a feel of the guys girlfriend... both had been drinking beers during the Rod Run here in Temecula, from what I heard via the grapevine the officer got off and even thought he started and stopped the fight he got off becuase the guy was bigger and had priors...

Where the heck did you get that version of the story? There were two dozen witnesses including eighteen people who were not with either Dibble or Vilan.

According to the witnesses:

Dibble approached a woman he believed to be with his party and patted her on the backside. He immediately apologized when he realized his mistake.

After Dibble left the bar to sit outside, he was suddenly struck in the back of the head with a metal chair, inflicting an injury that was later repaired with six staples. Lying on the ground, dazed and still being set upon by a group of men after having identified himself as a police officer he drew his weapon and fired.

I will grant that police are granted tremendous latitude in use of deadly force that we can only dream of. I will also grant that police are usually exonerated even in questionable shoots. That doesn't justify automatically spinning a story against an officer. Bear in mind that I'm not saying you are doing so, but some of the news stories certainly did. They were somewhat misleading even in print media, I can only imagine what the television newscasts might have been like.

Ryan

SteveH
01-30-2010, 8:29 AM
If it's not illegal for an off duty LEO to carry while drinking, it ought to be.
I know a dick, er, sorry, a detective who carries while drinking seven days a week.
Three times that I know of he has drawn his loaded weapon at the bar just clowning around. Once he dropped it, I swear to God.
I can't tell you the number of times he has whipped out his switch-blade.

Call 911 next time he displays his weapon or an illegal switchblade knife.

davescz
01-30-2010, 8:49 AM
I like the part in the law that says that a private person can restrict guns on his property. so if the cops come a calling, can i force them to leave their guns at the door? after all it is for the children, guns = bad.

dantodd
01-30-2010, 9:12 AM
I like the part in the law that says that a private person can restrict guns on his property. so if the cops come a calling, can i force them to leave their guns at the door? after all it is for the children, guns = bad.

If they are there based on your invitation you absolutely can restrict their right to carry. I believe the same holds true for a business, if you ask them to disarm or leave they have to leave unless they have some reason to be on your property against your will, (e.g. warrant, RAS of a crime)

Roadrunner
01-30-2010, 11:14 AM
You don't even want to get me started on cops drinking and driving. I know for a fact that LAPD doesn't bust their cops for drunk driving.

Swatter911
01-30-2010, 11:43 AM
If it's not illegal for an off duty LEO to carry while drinking, it ought to be.
I know a dick, er, sorry, a detective who carries while drinking seven days a week.
Three times that I know of he has drawn his loaded weapon at the bar just clowning around. Once he dropped it, I swear to God.
I can't tell you the number of times he has whipped out his switch-blade.

You should report him to his Internal Affairs Division.

tyrist
01-30-2010, 12:31 PM
If it's not illegal for an off duty LEO to carry while drinking, it ought to be.
I know a dick, er, sorry, a detective who carries while drinking seven days a week.
Three times that I know of he has drawn his loaded weapon at the bar just clowning around. Once he dropped it, I swear to God.
I can't tell you the number of times he has whipped out his switch-blade.

Call his watch commander and make a complaint then. Have some evidence though. If he is drawing and exhibiting his firearm illegally he should be punished.

tyrist
01-30-2010, 12:32 PM
You don't even want to get me started on cops drinking and driving. I know for a fact that LAPD doesn't bust their cops for drunk driving.

Then why don't you call internal affairs and report it? How do you know the guy was legally drunk?

Cokebottle
01-30-2010, 12:48 PM
Then why don't you call internal affairs and report it? How do you know the guy was legally drunk?
0.04% is enough for a conviction if it causes enough impairment to be obsevable/cause an accident.
0.08% is an automatic conviction.
2 drinks will put a 200lb male at 0.04%

Roadrunner
01-30-2010, 1:33 PM
Then why don't you call internal affairs and report it? How do you know the guy was legally drunk?

One, because I no longer live in L.A. (thank God for that) and 2 because it was several years ago that the cops flippantly commented how cops don't bust cops for "$#!T" like that.

tyrist
01-30-2010, 2:04 PM
One, because I no longer live in L.A. (thank God for that) and 2 because it was several years ago that the cops flippantly commented how cops don't bust cops for "$#!T" like that.

I know a few Officers who have been busted for DUI. One even has to wear a gps unit on his ankle.

Roadrunner
01-30-2010, 2:06 PM
I know a few Officers who have been busted for DUI. One even has to wear a gps unit on his ankle.

Ok, are they LAPD? Were they busted by LAPD?

tyrist
01-30-2010, 2:11 PM
Ok, are they LAPD? Were they busted by LAPD?

Yes they are Los Angeles Police Officers and they were busted by different agencies including the LAPD.

Roadrunner
01-30-2010, 2:18 PM
Yes they are Los Angeles Police Officers and they were busted by different agencies including the LAPD.

Then perhaps there is hope for the city of Los Angeles. Perhaps FBI oversight has actually snapped them back into some form of professionalism.

Liberty1
01-30-2010, 5:05 PM
If it's not illegal for an off duty LEO to carry while drinking, it ought to be.
I know a dick, er, sorry, a detective who carries while drinking seven days a week.
Three times that I know of he has drawn his loaded weapon at the bar just clowning around. Once he dropped it, I swear to God.
I can't tell you the number of times he has whipped out his switch-blade.

If you believe he is/was a danger you should have called 911 and his IA dept. Punish action not possession. I've been drinking and packin in various states for 10 years with no problem, yet you want to punish me for your friends criminal actions you witnessed THREE TIMES.

Should I leave it in the car so it can get stolen? I've got guns and alcohol at home too. I've yet to shoot up the place...:rolleyes:

Check out this map http://www.opencarry.org/restaurant.html

It's not carry of guns in alcohol serving establishments that appears to be the problem here but that perhaps some segments of society think that they are above the law and can behave badly? That assumption has seen the end of many an otherwise good man's career and for good reason.

1911su16b870
01-30-2010, 7:44 PM
If you are CCW-ing you should not be using anything that can impair your decision making IMO.

tyrist
01-30-2010, 8:36 PM
If you are CCW-ing you should not be using anything that can impair your decision making IMO.

So how exactly is undercover ABC enforcement suppose to work?

Roadrunner
01-30-2010, 8:56 PM
I've got guns and alcohol at home too. I've yet to shoot up the place...:rolleyes:

I also have guns and alcohol at home, and just like you, I 've never had a desire to get drunk and then shoot up the neighborhood. However, citizens in various states are restricted in different ways, depending on the state, from taking their firearm into an establishment that serves alcohol, or prevented from consuming alcohol on the premises. As I understand it, those who are lucky enough to get a CCW in California have that kind of restriction on their CCW. So, police may be able to carry their concealed weapon into a bar off duty and drink, but police also restrict citizens from doing the same thing. I'm not bagging on you, but do you see the hypocrisy?

Cokebottle
01-30-2010, 9:07 PM
So how exactly is undercover ABC enforcement suppose to work?
Water it down.

When I was in college, I got to the point that I was spending too much in clubs.
I carried a pill bottle of instant tea in my jacket.
I'd order a beer, then follow it up with two glasses of water with lemon that I'd drop in just enough tea to color it.

Nobody ever caught on... I had a lot of people warn me that I shouldn't be mixing beer with the hard stuff.

Beer out of a tinted bottle, you can nurse one all night and nobody knows how many you've had... nor can they tell how much is in the bottle once it warms up enough to clear the condensation.

VictorFranko
02-01-2010, 6:34 AM
Call 911 next time he displays his weapon or an illegal switchblade knife.

You should report him to his Internal Affairs Division.

Call his watch commander and make a complaint then. Have some evidence though. If he is drawing and exhibiting his firearm illegally he should be punished.

He lives in my neighborhood, and I am 100% sure there would be major repercussions for me if I ever turned him in, and I mean serious repercussions.
I just don't hang around when he shows up, and I'm not the only one, many feel as I do.
Thanks for the advice though!

dantodd
02-01-2010, 7:25 AM
Victor. If you do not take action how can you blame the department for not moving against this guy? It's like saying you're angry because the police don't do anything about car thefts and you know because your car's been stolen 3 times and they never did anything about it even though you never called to report them stolen. As for repercussions, I can't give much guidance there except to say be sure and visit whoever he shoots when they're in the hospital and tell them that you just knew this would eventually happen but you never called anyone.

As for everything else; tryist sums it up pretty well. If you are going to ask everyone who has a single drink to immediately disarm why not have everyone disarm at midnight, sleep deprivation is much more debilitating that 1 drink a night. We constantly beat the drum of don't outlaw possession of weapons outlaw the misuse of them, yet when it comes to alcohol we assume that everyone loses that lauded self-regulation with the passage of one gram of ethanol over their lips.

1911su16b870
02-01-2010, 9:20 AM
So how exactly is undercover ABC enforcement suppose to work?

On duty is different situation obviously as an officer safety/effect an arrest reqiurement of the assignment. My understanding of the OP was off duty CCW. Thanks for pointing that out.