[yothem10s]

The following is a message which I sent to Team Billy Jack. Unfortunately, they say that they don't really have expertise/experience in this area. I wanted to throw this open for discussion here. I am not really in the market for peoples' opinions of how they think things should be, but rather, how the law actually gets applied when a departmental policy is in apparent conflict with Federal law. Man, I wish I could get a straight answer on this. Any legal experts out there on this?

-thanks!



Hello there--

I am in need of some legal advice regarding CCWs in CA as they pertain to reserve police officers. I am a sworn, gun-carrying, badge-holding reserve officer in a South Bay PD. I have been told by our reserve office that, despite HR 218, reserve officers in our dept. are specifically prohibited from carrying their firearms off-duty (apparently because a few knuckleheads have done knucklehead things in the past while off-duty). This raises the obvious contradiction in my mind: if HR 218, referred to as the Law Enforcement Officers' Safety Act (LEOSA) (signed into law by President Bush in 2000), is intended to grant sworn peace officers the right of self protection with their firearm while off duty-- since they are presumably trained, range qualified on the weapon in question, and they have gone through the PD psych., background investigation, oral interviews, etc., etc.... AND they are considered responsible enough by the city to carry a firearm while on-duty-- how can that right be denied to sworn reserve peace officers? Presumably the thought was that a sworn peace officer might run into a bad guy while off-duty and not have any option but to defend himself with his firearm. A bad guy won't know or care whether or not the officer he intends harm to is a reservist or a full-time officer. Does the Federal law trump state law for reserve officers as it does for full-time officers? How can a department have a policy towards their reservists that goes against Federal law?

I have read as much as I possibly can on this subject and I have contacted Reserve Chief Lombardi, who has written on the subject for the California Reserve Peace Officers' Association crpoa.org Backup Magazine, to ask him what the official word is. The response was basically: Well, no one knows... it seems to depend on your specific department policy.

I also spoke with the assistant chief of the Firearms Division of the CA DOJ. He told me that all sworn CA peace officers are covered by HR128, but also that the bill was poorly written (by a congressman who is now in jail because of felonies he committed while in office). I asked him how I could be told that our department policy is exactly the opposite of this, especially considering the CA Attorney General's opinion found at: http://caag.state.ca.us/firearms/forms/pdf/leosiss.pdf

The asst. chief of the firearms division of CA DOJ told me that he thought that my departmental policy is probably a violation of my federal rights as a sworn peace officer. Then he told me that our Chief and City Attorney should consider what their liability would be if one of their off-duty reservists were hurt or killed by a bad guy because they were following the department policy of being unarmed while off-duty. He also said that if I were to carry off-duty and be "caught" breaking the law (though I don't understand how I could be breaking the law, given HR 218), that, "It's only a misdemeanor." Hah! I don't want to break _any_ laws, and I don't want to lose my status as a reserve officer. I just want to do the right thing and be able to protect myself while off-duty. Obviously, as someone who has made the commitment to stand on the right side of the thin blue line (for free!), I am at more risk than the average person.

The reason that I am being anonymous right now and also not mentioning my department in question is because, as a reservist, I am an At-Will employee. Meaning that, if the Chief decides for any reason that he doesn't want me around, then he can just say, "Thank you, goodbye." No explanation, no cause... nothing. Again, I really don't want to lose my position as a reserve officer, which would nullify any chance of every being covered under HR218.

I apologize if this message is a bit convoluted, but I have really reached an impasse here. I am wondering if you have any advice which you can offer me. I have considered consulting a lawyer, but I do not want to get into an adversarial relationship with my department, which would spell the end of my career as a reservist. I would, however, like to get all of this clarified and, if there is some reason that LEOSA rights do not apply to me as a reservist, find out why. The ideal situation for me would be for some third party to contact my Chief and City Attorney and encourage them to take a closer look at whether or not the department policy is in violation of Federal law. I am not asking you to do this, just letting you know what I consider the "best case."

Any guidance that you can give me on this topic would be greatly appreciated. Please contact me at yothem10s@yahoo.com.

-yours
-super-confused

[hoffmang]

One important but small question. You stated that you can't carry your department issued firearm. Have you asked whether you can carry a different firearm? You may not want to ask that but read the policy and see what it actually states.

-Gene

[FreedomIsNotFree]

You said it yourself....you are an "at will" employee. Why are you even pressing this issue?

So, lets say you convince "someone" that you are right....then what? Would you be happy if all other reserve officers were then able to carry off duty while you are no longer a reserve officer able to benefit from the policy change?

Be careful what you wish for....you just might get it.

[EMT007]

The issue might be whether you have full-time (ie 24-hour, on and off duty) statutory powers of arrest.

An example of this distinction is LAPD Reserves. They have three levels. Level 1 reserves are sworn, fully POST-certified officers who are granted 24-hour peace officer status and therefore have the CCW endorsement. Level II reserves, who also complete a more limited POST curriculum (and are still required to complete CPT each year), are sworn officers but only have peace officer status while on duty. So they don't get CCW status simply by virtue of being a sworn reserve officer. The chief will grant them a CA CCW license, but it won't be a CCW endorsement as a peace officer.

[Mark in Eureka]

Years ago, the laws might have changed since then, a reserve officers was a "peace officer" ONLY when on scheduled duty. At all other times he was a citizen only. Yes, I know they modified the law for Level 1A's, but I do not think it has changed for the other levels.

However, in Humboldt County even level 4's could get a CCW. Of course honest citizens can still get a CCW in Humboldt County.

[tango-52]

Try posting your question at
www.calccw.com
There are people there who have the knowledge and will answer your question.

[joebrock]

Here is some answers that the DOJ put out (don't even say what you are thinking). The way I understand it, Department policy is still in effect. I did call DOJ and asked if the LEOSA covered Reserve Police Officers then I did not need a CCW. He said that I still needed a Calif CCW. Also at the same time He said a Reserve could not buy high capacity mags. I told him the law did not exclude reserves and he said he would get back to me.

http://caag.state.ca.us/firearms/forms/pdf/leosiss.pdf

[scootergmc]

It's pretty black and white reading the text of 18 USC Chap. 44 Sec 926(b):

(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.

You're good to go as far as federal law, as long as you have Government photo ID and you're qualified. It doesn't differentiate between reserve and otherwise. Department policy may conflict w/ federal law, so pick your battles. If I were you, I would just carry (a non-department issue weapon), not say anything, and go on as normal.

And it was enacted in 2004, not 2000.

[scootergmc]

Originally Posted by joebrock

Here is some answers that the DOJ put out (don't even say what you are thinking). The way I understand it, Department policy is still in effect. I did call DOJ and asked if the LEOSA covered Reserve Police Officers then I did not need a CCW. He said that I still needed a Calif CCW. Also at the same time He said a Reserve could not buy high capacity mags. I told him the law did not exclude reserves and he said he would get back to me.

http://caag.state.ca.us/firearms/forms/pdf/leosiss.pdf

That link from DOJ specifically has says yes, active reserve officers qualify under LEOSA, as long as they meet the requirements.

[ryang]

As a reserve, you deal with resolving confrontational situations on every shift. This should not be any different. Follow your chain of command and ask your immediate superior this question, citing CA AG's opinion it applies to reserves who carry on duty. Ask them for clarification because HR218 allows reserve off-duty CCW but your departmental policy does not.

Here are the facts:
HR218 has been interpreted by CA AG to apply to sworn reserves who are issued a duty firearm.
Just because something is allowed by law doesn't mean it's allowed by department policy. It's perfectly legal to associate with known felons but policy means you could be terminated for doing that. The same applies here.
Some departments issue CCWs to reserves. The implication is that department's policy does not automatically "recognize" HR218 for reserves but allows them an alternate method.

Here is my opinion:
HR218 gives you the legal right, but using it in violation of department policy will probably result in your termination. Therefore you have three options:
1. Live with policy and don't CCW.
2. Ask Chief if he'll reconsider policy given CA AG's interpretation.
3. Ask Chief if he'll issue CCW to qualified reserves.
4. Consider applying as a reserve at another department that either recognizes HR218 or issues CCWs.

[ryang]

Oh, here's another example of law vs. policy: One bay area PD requires any full-time officer who wants to carry off duty must qualify with every weapon they choose to carry.

[code33]

Dept policy can be more restrictive than what the law allows.

If dept policy does not allow for off-duty CCW, you are breaking policy and not law by carrying. If dept finds out, they may let you go or discipline. When this happens, LEOSA goes out the door; permanently if you are fired or temporarily if disciplinary action is taken.

[Mr. Beretta]

It sounds like you're a "Level 1" (like EMT007 explianed).

Keep it simple. Ask your chief for a CCW letter to present to the sheriff in your county for a CCW permit. Next have your PD issue you a new ID card with with " CCW Qualified per 18 USC 926C " along with the date of issuance clearly printed on it. Then you're good to go.

If the chief declines, then respectfully tell him you quit! Active, certified reserved officers are in high demand by many departments. Believe me, you won't have a problem "sticking your neck out for free" at another department and they'll issue you what you need.

Good Luck!

[ask80]

do all LE ID cards have a CCW endorsement? specifically LASD? just curious. is it required? level 1 LASD and full time LASD's don't have anything about a CCW, i think?

and reserves can purchase hi cap mags.

i think most LE agencies require you to qualify with guns you carry off duty/on duty/backup...some agencies have limits too (SDSO = 3 guns max)

[1911_sfca]

What part of "no one knows" is confusing you? Are you unfamiliar with the concept of unsettled law? As a reserve officer, have you ever been introduced to the concept of medical marijuana, a state law that is hugely in conflict with federal law and federal law enforcement?

From one reserve officer to another, my advice is.. follow your departmental policy. If it says not to ever carry off duty, then don't. Unless you have lots of $$ and want to be the test case for reserve officer LEOSA in California, in which case, more power to ya..

[ryang]

Originally Posted by ask80

do all LE ID cards have a CCW endorsement?

No. There is no state-wide policy regarding this matter.

[rorschach]

Originally Posted by EMT007

The issue might be whether you have full-time (ie 24-hour, on and off duty) statutory powers of arrest.

An example of this distinction is LAPD Reserves. They have three levels. Level 1 reserves are sworn, fully POST-certified officers who are granted 24-hour peace officer status and therefore have the CCW endorsement. Level II reserves, who also complete a more limited POST curriculum (and are still required to complete CPT each year), are sworn officers but only have peace officer status while on duty. So they don't get CCW status simply by virtue of being a sworn reserve officer. The chief will grant them a CA CCW license, but it won't be a CCW endorsement as a peace officer.

The 3 levels are not just LAPD designations, but POST designations.

The 3rd is technical reserves/support, but I believe they are unsworn.

http://www.post.ca.gov/training/rpop/

[code33]

Level 3 is sworn.

[ryang]

Oh, one last comment: If you are asking about HR218 now, chances are you were recently sworn in and trying to understand "the system". (Which means you may also know me from CSM. Hi!) If that's the case then my best advice is wait until you get past your probationary period before you ask about any of this.