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  #1  
Old 05-01-2012, 8:16 PM
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Default Interesting LEOSA/HR218 case decision

In the case of People v. Drew Peterson, Case No. 08 CF 1169 (Oct. 1, 2010), by Judge Richard Schoenstedt of the 12th Judicial Circuit of the State of Illinois. Question: Whether or not the defendant, a police officer, could be charged with felony unlawful use of a weapon given the implications of the Federal LEOSA legislation passed into law in 2004. Will County prosecutors in May of 2008 had charged Mr. Peterson with felony unlawful use of a weapon, contending he had illegally modified the rifle (Colt Sporter) by shortening the barrel. Judge Schoenstedt said LEOSA precluded charging the defendant with the felony weapons charge. In his opinion, the judge wrote that:

“The defense argues simply that "LEOSA" applies to any firearm not specifically excluded (by LEOSA) whether or not that firearm is illegal by State law. The State's position is that "LEOSA" only applies to firearms that are legal by state law. The State argued that factors including concealed carry; possession; privately owned vs. department issued; and illegal firearms are not covered by "LEOSA" and are important considerations in their favor…[The judge found that] the intent of LEOSA is to allow qualified law enforcement officers to carry concealed firearms, so that if the need arises, such an officer may unconceal; show; and ultimately use his weapon. LEOSA does not provide definitions as to the issue of carry or concealment, including whether it is permissible to have the weapon in a case, holster, waistband, and so forth. Similarly, LEOSA does not indicate that the size of the weapon is a factor in determining whether it can be concealed and carried. In fact, machine guns are typically larger than handguns and the machine gun is the only true firearm excepted from LEOSA…Under LEOSA, there is no distinction found by this Court that would treat a qualified law enforcement officer differently whether he possessed a firearm while on duty or off duty. The protection provided by LEOSA is simply not reduced or eliminated because an otherwise qualified officer fails to obtain permission from his department to use the weapon; or to arrange to have that weapon issued by his department…The State is essentially requesting this Court to assume or infer that the drafters intended to provide immunity only for State sanctioned weapons. In fact, it is possible to assume or infer the opposite in part because the evidence here shows that under different circumstances the officers of the Bolingbrook Police Department would have been able to possess and conceal carry this very weapon…Regardless, at trial it is the State's burden to prove each element of the offense charged. By these findings, it would be impossible for the State to do so. The defense's renewed motion to dismiss is granted.” http://www.policelawblog.com/blog/20...ns-charge.html
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  #2  
Old 05-01-2012, 8:40 PM
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This was a state court decision and is not binding anywhere.

Drew Peterson is not someone we want to use as a rallying point.
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Old 05-01-2012, 8:47 PM
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still, thats something, coming from IL
and LEOSA cases are quite rare
unless anyone has references to any
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Old 05-01-2012, 9:21 PM
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The biggest reason they left the weapons wide open was because of magazine capacity limits and hollow point ammunition bans in several states.
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Old 05-01-2012, 11:36 PM
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Quote:
Originally Posted by tyrist View Post
The biggest reason they left the weapons wide open was because of magazine capacity limits and hollow point ammunition bans in several states.
Which was addressed by the second LEOSA, as amended 2010.
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Old 05-02-2012, 9:36 AM
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Anybody have any stories, cases, etc. on how "Qualified Law Enforcement Officers" (per LEOSA / 18USC926 A/B, et seq) who retired or honorably left a DISBANDED agency handled the ID issuance requirement? I'm a part time LE labor rep and there are honorably retired officers or officers who just left (under honorable circumstances) who are now seeking to exercise LEOSA rights but their former agency is gone. In one case, the former chief left law enforcement when his agency was acquired, but he was not given an LEOSA compliant ID and the new agency will not issue him one.

+1 that Drew Peterson is not a posterboy cop / ex-cop but his decision may help others.
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Old 05-02-2012, 9:55 AM
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How about figuring out a system for cops who have served their ten years minimum and left LE for whatever reasons, non retirement related, and their agency still exists? LEOSA provides for separatees with ten years to qualify as well but nobody I know has ever gotten an ID that says "SEPARATED" instead of "RETIRED".
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Old 05-02-2012, 10:46 AM
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Yes. I counseled a former arson investigator from a small Southern California jurisdiction. He left under honorable conditions. He was bounced back and forth between his employing FD and the PD that trained him in arrest, firearms, etc. and authorized him to exercise LE authority. He was unable to get a resolution.

There are alot of issues nationwide like this and it is hoped that an amended LEOSA will accomodate situations like this. From the former officers I've represented, their respective former employing agencies simply do not want to issue an "ex" member any sort of ID and /or facilitate their exercising their LEOSA rights.

In some cases, cops are simply carrying their last, expired ID and qualifying locally. Retirees do the same, and keep a pension check stub in their wallet.

No clear, solid resolution I know of yet.

Last edited by eltee; 05-02-2012 at 10:48 AM..
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Old 05-02-2012, 11:14 AM
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Wow. Some serious issues here that need to be addressed.
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Old 05-02-2012, 7:11 PM
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The separated individual must have one of the following:
(a) a valid photograph identification card issued by their government employer, or if retired,
(b) a valid photograph identification card issued by the government employer from which they separated which states that the person is qualified to carry and
has qualified within the last 12 months,
or,
(c) a valid photograph identification card issued by the government employer from which they separated and either a state certification or firearms instructor certification which states that the person is qualified to carry and has qualified within the last 12 months.

In cases where the agency is now defunct, the officer can petition the governing body....i.e. if a state agency closed, the separated officer can go to the state, or if a City PD dissolved, the officer can go to the city manager and try to get the ID issued. This is the only area of LEOSA that seems not to have any teeth. Retired cops have tried to force their former agencies to issue IDs, and judges have said the agencies don't have to.
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Old 05-03-2012, 6:17 AM
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the ID expiring in 12 months seems to be the most common mistake among those thinking they have a valid LEOSA credential
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Old 05-03-2012, 6:58 AM
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Quote:
Originally Posted by CalCop View Post
The separated individual must have one of the following:
(a) a valid photograph identification card issued by their government employer, or if retired,
(b) a valid photograph identification card issued by the government employer from which they separated which states that the person is qualified to carry and
has qualified within the last 12 months,
or,
(c) a valid photograph identification card issued by the government employer from which they separated and either a state certification or firearms instructor certification which states that the person is qualified to carry and has qualified within the last 12 months.

In cases where the agency is now defunct, the officer can petition the governing body....i.e. if a state agency closed, the separated officer can go to the state, or if a City PD dissolved, the officer can go to the city manager and try to get the ID issued. This is the only area of LEOSA that seems not to have any teeth. Retired cops have tried to force their former agencies to issue IDs, and judges have said the agencies don't have to.
Maybe a class action against the state mandating some sort of central body who issues or controls this area with all the retirees and separatees need to take place to force the issue to say that otherwise federal law which is unenforceable at the whims of the state makes it moot?
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Old 05-03-2012, 7:32 AM
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Going back full circle: out of state LEOs can bring in SBRs correct? Because I do, and was stopped by CHP on I-10, he told me that he wasn't sure but frankly didn't care.....
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Old 05-03-2012, 1:02 PM
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Quote:
Originally Posted by hitman13 View Post
Going back full circle: out of state LEOs can bring in SBRs correct? Because I do, and was stopped by CHP on I-10, he told me that he wasn't sure but frankly didn't care.....
My thinking is that if the SBR is the department's then it's not an issue. Privately owned would be, I think, a different story as there is no peace officer exemption for a privately owned SBR in California. I could just as well be wrong, but that's just how I see it.

But, like the CHP guy who stopped you, I likely wouldn't care unless you were doing something stupid with the SBR as an instrumentality.
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Old 05-03-2012, 4:39 PM
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Quote:
Originally Posted by hitman13 View Post
Going back full circle: out of state LEOs can bring in SBRs correct? Because I do, and was stopped by CHP on I-10, he told me that he wasn't sure but frankly didn't care.....
I'm not 100% positive, but I think you run into issues with ATF if you cross a state line with NFA firearms unless you file certain paperwork with them.

I'm retired, so I wouldn't give you any grief over one.
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Old 05-03-2012, 4:48 PM
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The only case to specifically address this issue took place in Illinois, just as gun-hating as CA. The judge said Peterson was exempt from both federal and state law which made the Colt Sporter SBR a felony to possess in Illinois. The judge said LEOSA exempted any qualified active officer from possession of any firearm other than a machine gun. The judge specifically said LEOSA exempts LEOs from any state law banning any rifle.

I wouldn't say don't count on not getting arrested by an overzealous gun-hating LEO.....but plan on winning in court if you do.

Consider the following:
• Rep. Scott offered an amendment to limit the weapons an officer could carry in other States to exclude semiautomatic assault weapons. This amendment was defeated by a vote of 13 yeas to 19 nays. (H.R. Rep. No. 560, 108th Cong., 2nd Sess. 2004 pg. 64-67)
• “If Congress enacts this legislation (LEOSA), police chiefs will be stripped of their authority to tell their own officers, for example, that they cannot bring guns into bars while off-duty; that they cannot carry…certain shotguns, rifles, or handguns….” (H.R. Rep. No. 560, 108th Cong., 2nd Sess. 2004 p. 85.)
• CA DOJ says, “An active officer can qualify with a pistol and carry an assault weapon. Doing so may violate departmental policy, though. Technically, a retired officer may carry anything that he can lawfully possess that is of a type of firearm with which he can qualify.” http://ag.ca.gov/firearms/forms/pdf/leosiss.pdf
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Last edited by CalCop; 05-03-2012 at 4:51 PM..
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Old 05-03-2012, 6:52 PM
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Originally Posted by Ron-Solo View Post
I'm not 100% positive, but I think you run into issues with ATF if you cross a state line with NFA firearms unless you file certain paperwork with them.

I'm retired, so I wouldn't give you any grief over one.

I cant remember what the form is, but I have one approved and stuck in the pistol grip, along with a copy of the taxstamp....
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Old 05-03-2012, 7:08 PM
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Quote:
Originally Posted by hitman13 View Post

I cant remember what the form is, but I have one approved and stuck in the pistol grip, along with a copy of the taxstamp....
I'm jealous. I have been doing a little research on it because I'm thinking about building an SBR at my Arizona location that I live at part of the year.

The perils of having a stripped lower and not knowing what to do with it.

Most LEOs would take one look at the ATF paperwork authorizing an NFA firearm and probably wouldn't even know that CA laws also require a CA Dangerous Weapons permit.

Ca laws are that confusing.
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Old 05-04-2012, 1:54 AM
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Let me know of you need any help, I did the trust route by myself, real easy to do!
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Old 05-04-2012, 8:58 AM
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I need help with the trust route.
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Old 02-04-2013, 11:48 PM
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Sorry to bring back this old thread, but as I am doing more and more research into the 300 Blackout, I am thinking of building a pistol.

Now with the Peterson case in mind as applied to rifles, what about AR pistols?
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Old 02-05-2013, 6:07 AM
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Originally Posted by fullrearview View Post
Sorry to bring back this old thread, but as I am doing more and more research into the 300 Blackout, I am thinking of building a pistol.

Now with the Peterson case in mind as applied to rifles, what about AR pistols?
Do you really want to be the test case?
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Old 02-05-2013, 7:46 AM
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ALL FIREARMS other than machine guns are covered by LEOSA. However, the first CA test case could be expensive.
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