H.R. 218

[oddjob]

Is this mandatory for an agency to implement?

[CSDGuy]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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.