Question about off duty CCW

[RickD427]

OMGWTFBBQ:

Please provide the details - - I have no idea what it is you are talking about. What "courts" where and when. The details? Every decision that I am aware of has very clearly supported LEOSA as preempting State law. Please provide the specific information supporting your statement. I strongly disagree with your stated position.


"The courts have already interpreted LEOSA as not preempting state law. You can still be charged with a state offense even if you're "covered" under LEOSA."


[b]

If you just want case names:

The People of the State of New York v. Arthur Rodriguez (Indictment # 2917/06 (NY. Sup. Ct. 2006),

Superior Court of D.C. case of District of Columbia v. Barbusin (Criminal No. 2012-CDC-00913).

People v. Booth, 862 N.Y.S.2d 767, (NY. Co. Ct. 2008)

State of California v. Jose Diaz, Case No. 7GF00494 (Cal. Sup. Ct. 2007),

Article I linked in a prior post regarding an explanation of these cases:

http://www.policemag.com/channel/weapons/articles/2014/01/does-the-leosa-carry-law-apply-to-you.aspx

In the case of not pre-empting state law, I should have qualified that somewhat, it is in relation to Gun Free Zones and National/State Park Land. LEOSA does not exempt people from these prohibitions and in some areas, GFZs can take up nearly the entire town. From the Article:



As I've said in two separate prior posts. If you are an LEO and you want to carry an off-duty weapon, you should consult your Department and/or union's legal counsel before doing so. IANAL.

omgwtfbbg,

Please check out the cases that you've cited just a little more carefully.

NONE of them support the proposition that state law trumps LEOSA.

Booth, Rodriguez and Diaz all held the opposite - that LEOSA trumps state law.

The Barbusin case did not reach a decision. The case was tossed out of court due to prosecutorial misconduct.

[sacmedic01]

responsiblefreedom69,

I believe you are reading 830.55(b) a little more narrow than the law allows. That subsection specifically says that the referenced correctional officers "shall have no right to carry or possess firearms in the performance of his or her prescribed duties...". It does not suggest that the employer has any latitude to address off duty carrying of firearms. Whether a peace officer is actually armed at work has no bearing, under California law, on whether they can carry off duty within this state. If the LEO chooses to carry out of state under LEOSA there are different eligibility requirements. Again, I'm not saying the OP's daughter may not work for an employer who is more restrictive on this issue (whether that's actually legal or not), only that section 830.55 of the Penal Code does not put a constraint on what the duly appointed peace officer may do off duty in respect to carrying firearms.

Maybe this is her section? (if she works in CA, that is)...



830.55. (a) (1) As used in this section, a correctional officer is

a peace officer, employed by a city, county, or city and county that

operates a facility described in Section 2910.5 of this code or

Section 1753.3 of the Welfare and Institutions Code or facilities

operated by counties pursuant to Section 6241 or 6242 of this code

under contract with the Department of Corrections and Rehabilitation

or the Division of Juvenile Justice within the department, who has

the authority and responsibility for maintaining custody of specified

state prison inmates or wards, and who performs tasks related to the

operation of a detention facility used for the detention of persons

who have violated parole or are awaiting parole back into the

community or, upon court order, either for their own safekeeping or

for the specific purpose of serving a sentence therein.

(2) As used in this section, a correctional officer is also a

peace officer, employed by a city, county, or city and county that

operates a facility described in Section 4115.55, who has the

authority and responsibility for maintaining custody of inmates

sentenced to or housed in that facility, and who performs tasks

related to the operation of that facility.

(b) A correctional officer shall have no right to carry or possess

firearms in the performance of his or her prescribed duties, except,

under the direction of the superintendent of the facility, while

engaged in transporting prisoners, guarding hospitalized prisoners,

or suppressing riots, lynchings, escapes, or rescues in or about a

detention facility established pursuant to Section 2910.5 or 4115.55

of this code or Section 1753.3 of the Welfare and Institutions Code.

(c) Each person described in this section as a correctional

officer, within 90 days following the date of the initial assignment

to that position, shall satisfactorily complete the training course

specified in Section 832. In addition, each person designated as a

correctional officer, within one year following the date of the

initial assignment as an officer, shall have satisfactorily met the

minimum selection and training standards prescribed by the Board of

State and Community Corrections pursuant to Section 6035. Persons

designated as correctional officers, before the expiration of the

90-day and one-year periods described in this subdivision, who have

not yet completed the required training, may perform the duties of a

correctional officer only while under the direct supervision of a

correctional officer who has completed the training required in this

section, and shall not carry or possess firearms in the performance

of their prescribed duties.

(d) This section shall not be construed to confer any authority

upon a correctional officer except while on duty.

(e) A correctional officer may use reasonable force in

establishing and maintaining custody of persons delivered to him or

her by a law enforcement officer, may make arrests for misdemeanors

and felonies within the local detention facility pursuant to a duly

issued warrant, and may make warrantless arrests pursuant to Section

836.5 only during the duration of his or her job.

Sent from my iPhone using Tapatalk

[omgwtfbbq]

omgwtfbbg,

Please check out the cases that you've cited just a little more carefully.

NONE of them support the proposition that state law trumps LEOSA.

Booth, Rodriguez and Diaz all held the opposite - that LEOSA trumps state law.

The Barbusin case did not reach a decision. The case was tossed out of court due to prosecutorial misconduct.

Hmm. I think I must have misunderstood the question the other poster was asking then I thought he was asking for court cases I had used to inform my opinion on LEOSA generally, not the preempting of state laws in some cases. I should have read the post more carefully. My mistake.

My post, as I stated above is that LEOSA does not preempt state law in all cases such as in Gun Free Zone or state park.

[responsiblefreedom69]

responsiblefreedom69,

I believe you are reading 830.55(b) a little more narrow than the law allows. That subsection specifically says that the referenced correctional officers "shall have no right to carry or possess firearms in the performance of his or her prescribed duties...". It does not suggest that the employer has any latitude to address off duty carrying of firearms. Whether a peace officer is actually armed at work has no bearing, under California law, on whether they can carry off duty within this state. If the LEO chooses to carry out of state under LEOSA there are different eligibility requirements. Again, I'm not saying the OP's daughter may not work for an employer who is more restrictive on this issue (whether that's actually legal or not), only that section 830.55 of the Penal Code does not put a constraint on what the duly appointed peace officer may do off duty in respect to carrying firearms.







Sent from my iPhone using Tapatalk

Are you making reference to PC 25450(b)? If so, has there been any case law or AG opinion on that as it relates to limited-authority peace officers? Because on it's face, 25450(b) would mean that ANYBODY with a peace officer title could CCW w/o a permit. Due to the fact that many of the PC codes defining peace officers have specific language allowing or disallowing the carrying of firearms (both on and off-duty) would seem to counter that opinion. But I could be ignorant of any precedent.

[Sacmedic]

responsiblefreedom69,

I think I know the language you are referencing in many of the Penal Code sections defining peace officers other than sections 830.1 and 830.2. It reads, in almost every instance, as "These peace officers may carry firearms only if authorized and under terms and conditions specified by their employing agency". This language has been subject to multiple AG opinions and one state appellate court case that I am aware of. While the case and opinions I am posting below aren't specific to PC 830.55 peace officers their logic is pretty clear. The employer cannot prohibit off duty carry by "duly appointed peace officers". This issue was covered so long ago it predates the Penal Code renumbering of the CCW sections (and their peace officer exemptions) by twenty years.

The pertinent AG opinions and the appellate court opinion are below:

http://oag.ca.gov/system/files/opinions/pdfs/86-901.pdf

http://oag.ca.gov/system/files/opinions/pdfs/89-505.pdf

http://law.justia.com/cases/california/court-of-appeal/4th/14/575.html

The appellate court's reasoning, as well as that of the Attorney General, was that the peace officer's authority may end at the end of shift (for many peace officer classifications) but their status does not. Hence, PC 25450(b) provides the appropriate exemption to the general prohibition against carrying a concealed firearm.

Are you making reference to PC 25450(b)? If so, has there been any case law or AG opinion on that as it relates to limited-authority peace officers? Because on it's face, 25450(b) would mean that ANYBODY with a peace officer title could CCW w/o a permit. Due to the fact that many of the PC codes defining peace officers have specific language allowing or disallowing the carrying of firearms (both on and off-duty) would seem to counter that opinion. But I could be ignorant of any precedent.

[responsiblefreedom69]

responsiblefreedom69,

I think I know the language you are referencing in many of the Penal Code sections defining peace officers other than sections 830.1 and 830.2. It reads, in almost every instance, as "These peace officers may carry firearms only if authorized and under terms and conditions specified by their employing agency". This language has been subject to multiple AG opinions and one state appellate court case that I am aware of. While the case and opinions I am posting below aren't specific to PC 830.55 peace officers their logic is pretty clear. The employer cannot prohibit off duty carry by "duly appointed peace officers". This issue was covered so long ago it predates the Penal Code renumbering of the CCW sections (and their peace officer exemptions) by twenty years.

The pertinent AG opinions and the appellate court opinion are below:

http://oag.ca.gov/system/files/opinions/pdfs/86-901.pdf

http://oag.ca.gov/system/files/opinions/pdfs/89-505.pdf

http://law.justia.com/cases/california/court-of-appeal/4th/14/575.html

The appellate court's reasoning, as well as that of the Attorney General, was that the peace officer's authority may end at the end of shift (for many peace officer classifications) but their status does not. Hence, PC 25450(b) provides the appropriate exemption to the general prohibition against carrying a concealed firearm.

Thanks for the AG info. Sounds to me that if a person has ANY kind of peace officer status, then they are good-to-go on off-duty CCW without a permit. They might have some trouble if they haven't at least had PC 832. I wonder how this applies to reserves?

[Sacmedic]

responsiblefreedom69,

That's correct. Just about anybody who is designated by statute and meets all the statutory requirements to be a peace officer, in California, is able to carry a loaded firearm off duty within this state, based on the only case law and AG opinions available. If there are any others to the contrary I welcome the citations. Laws prohibit certain activity, not allow it.

Reserve peace officers codified in Penal Code 830.6 are peace officers for the purpose of Penal Code section 25450(b), since they are a "duly appointed peace officer." Many of them are required by their employer to get a CCW, but they are defined in 25450(b) as being peace officers. Whether a person has peace officer authority off duty has no bearing on their ability to legally carry a loaded firearm off duty. Their status as a peace officer is the critical point.

Every peace officer in the state of California is required to attend the Arrest & Control portion of PC 832 training prior to exercising the powers of a peace officer. There is no requirement that a peace officer have the firearms portion of the PC 832 training in order to carry a firearm off duty, only on duty. Whether this is a good idea from a civil law standpoint is debatable.

The laws on this are Byzantine but there are multiple AG opinions and one case law citation to support the position. Of note, there isn't a significant case I am aware of for prosecution of PC 25450 against a reserve peace officer, or any other peace officer for that matter, in California since the AG opinions and appellate case I cited were recorded. Of course nobody wants to be a test case but it seems that there haven't been any in over twenty years.

Thanks for the AG info. Sounds to me that if a person has ANY kind of peace officer status, then they are good-to-go on off-duty CCW without a permit. They might have some trouble if they haven't at least had PC 832. I wonder how this applies to reserves?

[RickD427]

responsiblefreedom69,

That's correct. Just about anybody who is designated by statute and meets all the statutory requirements to be a peace officer, in California, is able to carry a loaded firearm off duty within this state, based on the only case law and AG opinions available. If there are any others to the contrary I welcome the citations. Laws prohibit certain activity, not allow it.

Reserve peace officers codified in Penal Code 830.6 are peace officers for the purpose of Penal Code section 25450(b), since they are a "duly appointed peace officer." Many of them are required by their employer to get a CCW, but they are defined in 25450(b) as being peace officers. Whether a person has peace officer authority off duty has no bearing on their ability to legally carry a loaded firearm off duty. Their status as a peace officer is the critical point.
Every peace officer in the state of California is required to attend the Arrest & Control portion of PC 832 training prior to exercising the powers of a peace officer. There is no requirement that a peace officer have the firearms portion of the PC 832 training in order to carry a firearm off duty, only on duty. Whether this is a good idea from a civil law standpoint is debatable.

The laws on this are Byzantine but there are multiple AG opinions and one case law citation to support the position. Of note, there isn't a significant case I am aware of for prosecution of PC 25450 against a reserve peace officer, or any other peace officer for that matter, in California since the AG opinions and appellate case I cited were recorded. Of course nobody wants to be a test case but it seems that there haven't been any in over twenty years.

Sacmedic,

Most reserve officers (excepting Designated Level 1's) are appointed as peace officers under Penal Code section 830.6 and are peace officers on duty only. There is no off-duty carry authority because they are not peace officers when off-duty. An agency has the authority to appoint a Designated Level 1 reserve under sections 830.1 or 830.2 in which case, they're peace officers at all times.

Thanks for doing the research into the AG Opinions and Orange County case. They're very instructive. However the AG Opinions and Orange County case only address the applicability of the penal code to the issue of carrying firearms.

More than twenty years ago there was an interesting case involving a Los Angeles County Deputy Marshal (back when there was a county Marshal's Office). I tried to locate the case citation for this posting but was unable to do so. The case is consistent with the AG Opinions, and Orange County case that you cited, but is also notable for the civil service aspects not contained in your citations. The case involved a deputy marshal who was suspended from his employment, and who was caught carrying a concealed weapon while so suspended. He was criminally charged with CCW. The court noted that he was an employee of the county, but was a peace officer of the state. The county could suspend him from employment, but the county could not suspend him as a peace officer (only the state could do that). Therefore, he was legally able to CCW, even though suspended.

The twist came after the court decision. The employee had been administratively ordered not to exercise any of his peace officer powers during his period of suspension. The Marshal fired him. Not for carrying the concealed weapon, but for disobeying the order. The termination was upheld through civil service and in the subsequent court trial and appeal.

[Sacmedic]

authority and status. The status doesn't go away when off duty, just the authority to perform peace officer duties. I don't know of any cases decided specific to reserves as that's not my designation section in the PC. Maybe you or another member here does?

The LA Marshal case you discussed is pretty interesting. It seems to follow the same logic as the AG opinions and OC case. The employing agency was very crafty in handling the issue. It sounds like the employee was a train wreck to begin with. Thanks for sharing that.

Sacmedic,

Most reserve officers (excepting Designated Level 1's) are appointed as peace officers under Penal Code section 830.6 and are peace officers on duty only. There is no off-duty carry authority because they are not peace officers when off-duty. An agency has the authority to appoint a Designated Level 1 reserve under sections 830.1 or 830.2 in which case, they're peace officers at all times.

Thanks for doing the research into the AG Opinions and Orange County case. They're very instructive. However the AG Opinions and Orange County case only address the applicability of the penal code to the issue of carrying firearms.

More than twenty years ago there was an interesting case involving a Los Angeles County Deputy Marshal (back when there was a county Marshal's Office). I tried to locate the case citation for this posting but was unable to do so. The case is consistent with the AG Opinions, and Orange County case that you cited, but is also notable for the civil service aspects not contained in your citations. The case involved a deputy marshal who was suspended from his employment, and who was caught carrying a concealed weapon while so suspended. He was criminally charged with CCW. The court noted that he was an employee of the county, but was a peace officer of the state. The county could suspend him from employment, but the county could not suspend him as a peace officer (only the state could do that). Therefore, he was legally able to CCW, even though suspended.

The twist came after the court decision. The employee had been administratively ordered not to exercise any of his peace officer powers during his period of suspension. The Marshal fired him. Not for carrying the concealed weapon, but for disobeying the order. The termination was upheld through civil service and in the subsequent court trial and appeal.

[RickD427]

authority and status. The status doesn't go away when off duty, just the authority to perform peace officer duties. I don't know of any cases decided specific to reserves as that's not my designation section in the PC. Maybe you or another member here does?

The LA Marshal case you discussed is pretty interesting. It seems to follow the same logic as the AG opinions and OC case. The employing agency was very crafty in handling the issue. It sounds like the employee was a train wreck to begin with. Thanks for sharing that.

Sacmedic,

I see, and understand, the distinction you found regarding the status and the authority of non-designated reserve officers. However, I would strongly recommend that affected folks not take advantage of that distinction for two reasons:

1) The intent of the section was to deprive non-designated reserves of peace officer status during their off-duty hours. A criminally charged reserve officer may benefit from the rule of lenity in their criminal case, but the court is also going to look at the intent of the statute. If I were a gambling man, I would put my money on the intent of the statute argument winning.

2) Even if the affected reserve officer did prevail in a criminal case, the victory would certainly be fleeting. Every agency that I'm aware of, maintains their reserves as "at will" employees. You don't even need the creativity of the Marshal in the above case. Such a reserve would likely be an ex-reserve (without any peace officer status) in very short order.

[Sacmedic]

RickD427,

I agree with you. The wording in section 830.6 is significantly different than that used in every other subsection of 830. It appears as though the intent was to deprive the non-designated reserves of their peace officer status when off duty. It's just not well written and the interchangeable use of the words authority and status gets even more confusing in light of the previously mentioned case and AG opinions. I also agree that a non-designated reserve would be treading on rough ground administratively should they get picked up for carrying a loaded firearms sans CCW.

Sacmedic,

I see, and understand, the distinction you found regarding the status and the authority of non-designated reserve officers. However, I would strongly recommend that affected folks not take advantage of that distinction for two reasons:

1) The intent of the section was to deprive non-designated reserves of peace officer status during their off-duty hours. A criminally charged reserve officer may benefit from the rule of lenity in their criminal case, but the court is also going to look at the intent of the statute. If I were a gambling man, I would put my money on the intent of the statute argument winning.

2) Even if the affected reserve officer did prevail in a criminal case, the victory would certainly be fleeting. Every agency that I'm aware of, maintains their reserves as "at will" employees. You don't even need the creativity of the Marshal in the above case. Such a reserve would likely be an ex-reserve (without any peace officer status) in very short order.

[SansSouci]

My daughter's PD requires that their sworn LEOs apply for a City issued LTC permit and pay for the Live Scan to carry off duty.

Is this normal for other PDs?

A sworn, full-time cop needs nothing else other than his agency ID to carry a handgun anywhere he desires.

[RickD427]

A sworn, full-time cop needs nothing else other than his agency ID to carry a handgun anywhere he desires.

Wrong, just plain wrong.

If the full-time officer is employed by a California agency, then the officer is governed by Penal Code. Nearly all sworn officers are able to carry anywhere in the state.

A California officer carrying outside of California is governed by LEOSA. LEOSA does not permit unlimited carry. There are a number of restrictions on the location that a weapon may be carried, and there are additional limitations concerning the form of identification that must be carried. Additionally, the officer must be authorized to carry a firearm on duty. Not all California peace officers are so authorized.

[pitbuljake]

Sacmedic,

I see, and understand, the distinction you found regarding the status and the authority of non-designated reserve officers. However, I would strongly recommend that affected folks not take advantage of that distinction for two reasons:

1) The intent of the section was to deprive non-designated reserves of peace officer status during their off-duty hours. A criminally charged reserve officer may benefit from the rule of lenity in their criminal case, but the court is also going to look at the intent of the statute. If I were a gambling man, I would put my money on the intent of the statute argument winning.

2) Even if the affected reserve officer did prevail in a criminal case, the victory would certainly be fleeting. Every agency that I'm aware of, maintains their reserves as "at will" employees. You don't even need the creativity of the Marshal in the above case. Such a reserve would likely be an ex-reserve (without any peace officer status) in very short order.

Rick,

Here's something interesting for you. When I became a reserve officer back in 1986, I was actually sworn in by a member of the department I worked for. Some of the full timers liked to point out that reserves are not sworn personnel, needless to say I was confused on that point. I assume it's the "full-time" status that sets us apart.

I graduated from a local college reserve academy as a non-designated level one reserve officer, but had to complete an FTO program to be elevated to a level one status (non-designated) which allowed me to work alone and perform the exact same duties as a full time sworn peace officer.

It seems so stupid to remove the authority, but not status while not on-duty. Seems the intent was to control CCW's for reserve officers and possibly the liability for the agency should an off-duty reserve get involved in a shooting.

Since my appointment, POST has made it nearly impossible for the average Joe to become a reserve officer in California. For all the effort one might as well apply full-time. I suspect there were many police organizations behind the tighter requirements

[RickD427]

Rick,

Here's something interesting for you. When I became a reserve officer back in 1986, I was actually sworn in by a member of the department I worked for. Some of the full timers liked to point out that reserves are not sworn personnel, needless to say I was confused on that point. I assume it's the "full-time" status that sets us apart.

I graduated from a local college reserve academy as a non-designated level one reserve officer, but had to complete an FTO program to be elevated to a level one status (non-designated) which allowed me to work alone and perform the exact same duties as a full time sworn peace officer.

It seems so stupid to remove the authority, but not status while not on-duty. Seems the intent was to control CCW's for reserve officers and possibly the liability for the agency should an off-duty reserve get involved in a shooting.

Since my appointment, POST has made it nearly impossible for the average Joe to become a reserve officer in California. For all the effort one might as well apply full-time. I suspect there were many police organizations behind the tighter requirements

There's one statement in your posting that concerns me. Reserve officers are "sworn." With regard to being sworn, there is no distinction between reserve officers and full-time officers. The term "sworn" is not defined in the Penal Code, nor is it defined in POST regulations. The term is used interchangeably with "peace officer" in the statutes. A reserve is a peace officer while on duty.

There is a distinction with regard to peace officer status. Non-designated reserves do not possess that status when off-duty. I'm not sure of the exact reasons for that, the history goes way back to the origins of PC 830.6. My opinion is that the restriction is there for two reasons: 1) The agency has a reduced ability to supervise the employee they see infrequently compared to one they see 40+ hours/week. and 2) Reserves come with highly variable levels of training.

I'm actually a believer in having high standards for reservists, and then providing appropriate recognition for those that meet the standards, with the ultimate goal of becoming a Designated Level One. I like that approach for two reasons: 1) If you're always training, you're always improving. and, 2) It makes it possible for a person to enter the full time profession in a gradual manner. That suits some folks better than the full-time academy and FTO route. A reservist who completes the Designated Level One program and the FTO requirements in a part-time format is able to move on to a full-time position without needing to repeat the program.