HR 218

[gianyveedub]

I was at work (correctional facility) and had a fellow CO ask me if we were allowed to carry under HR 218. I had looked at this in the past but never tried asking anyone other than the CCW forum. The forum was not that informative to it and I thought after my co-worker asked me, i would ask other LEO's out there on Cal Guns. We fall under PC 831.5 and I know in the definition it states "supervise the...incarceration of any person for, any violation of law, and has statutory powers of arrest," but does that apply to us? Thanks for any help.

[SJgunguy24]

Not a LEO but I know the law. I worked for an FFL holder and he had to obtain a CCW through the SO.

He was a LEO only at work and while he did qualify for large cap mags and exempted from the safe handgun roster he is not able to CCW without a permit.

If you were a fully sworn peace officer in CA then you have every right to CCW per HR 218, but 831.5 is a custodial officer and you have no right to carry a firearm during the course of your duty. Your not covered dude.

[gianyveedub]

Thank you for your help. much appreciated.

[CaptMike]

the problem for you guys under PC 831 is that the penal code states that you are not a Peace Officer but a Custodial Officer. The PC states your status in regards to being a LEO. If you are not classified as a Peace Officer in the California PC, then 218 does not apply. I feel for you guys, because you work with the same knuckleheads as the rest of us.

[BigDogatPlay]

the problem for you guys under PC 831 is that the penal code states that you are not a Peace Officer but a Custodial Officer. The PC states your status in regards to being a LEO. If you are not classified as a Peace Officer in the California PC, then 218 does not apply. I feel for you guys, because you work with the same knuckleheads as the rest of us.

Have to agree with the above. A peace officer with statutory authority to carry a firearm is the main thrust of LEOSA as respects California from my understanding. CDCR guys are peace officers, while county and city custodial officers are, typically public officers whose authority only exists while on duty. Limited scope peace officers are, sometimes, shanks mare and sometimes have no LEOSA coverage.

I also have to agree with the sentiment about having to deal with the same knuckleheads. My roommate way back when was a county CO and he obtained and kept a CCW license pretty much the whole time he worked there.

[RickD427]

All,

H.R. 218 makes no mention of “Peace Officers”. The qualifying standard is that a person possess “Statutory powers of arrest” and that they “be authorized to carry a firearm”. There is no requirement that they be designated a “Peace Officer.”

In California, nearly all persons who possess “Statutory powers of arrest” are also peace officers. But California also grants “Statutory powers of arrest” to some persons who are not peace officers – there’s a whole bunch of such folks defined in Penal Code section 830.7. Those folks would be able to carry under H.R. 218 if they meet the other test – being authorized to carry a firearm.

The other thing to remember is that H.R. 218 is a federal statute and one that is relatively new (remember that we’re talking federal law here – “new” is measured in decades) and the body of case law interpreting the statute is not yet well developed. It also means that H.R. 218 may not co-exist very easy with California law.

That second point is illustrated very nicely in the OP’s original question. Penal Code section 831.5 defines custodial officers and does not grant them powers of arrest – except for those in Santa Clara County. 831.5 also provides a limited authority to carry weapons at the direction of the Sheriff.

H.R. 218 is mute on how a limited authority to carry weapons affects a person’s entitlement to carry. I haven’t seen any published case on the point as yet.

I agree with the conclusion (unless the OP is from Santa Clara County), that H.R. 218 doesn’t apply.

For folks in the Santa Clara County situation, there’s a basis to argue that H.R 218 might apply. I’d strongly recommend following your agency’s direction on the question. You don’t want to be the losing party on the test case.

[Notorious]

LEOSA (HR218 is gone, having been passed into law and formalized as LEOSA) does not get into titles and such but only talks about having the statutory authority of arrest coupled with the ability to carry a firearm.

This was a big issue when it first passed in 2004. All of a sudden, all the reserve police officers who didn't have CCW's didn't need them anymore because LEOSA says they can carry 24/7 in any state and the opinion was that it superseded the state laws regarding non-designated reserves having peace officer status only while on duty. The only issue left is department policy which may limit their ability to carry off-duty.

Custodial officers got the shaft in CA because the way the law defines them as "public" officers and not peace officers, with the definitions and authorities therein, does not give them what they need to qualify under LEOSA.

[CSDGuy]

LEOSA (HR218 is gone, having been passed into law and formalized as LEOSA) does not get into titles and such but only talks about having the statutory authority of arrest coupled with the ability to carry a firearm.

This was a big issue when it first passed in 2004. All of a sudden, all the reserve police officers who didn't have CCW's didn't need them anymore because LEOSA says they can carry 24/7 in any state and the opinion was that it superseded the state laws regarding non-designated reserves having peace officer status only while on duty. The only issue left is department policy which may limit their ability to carry off-duty.

Custodial officers got the shaft in CA because the way the law defines them as "public" officers and not peace officers, with the definitions and authorities therein, does not give them what they need to qualify under LEOSA.

The LEOSA doesn't differentiate between peace officers and public officers. It doesn't differentiate between full-time and the reserves. Level III Reserve Officers got shafted because they aren't expected to effect arrests. Level II's are covered, even though they must be supervised by a Full-Time or Level I while performing general Law Enforcement duties. Some public officers can be specifically empowered to enforce specific laws or specific levels of law (infraction/misdemeanors). Corrections Officers may not qualify if they're not authorized by their agency to carry firearms in the course of their duties. The Penal Code may limit which CO's can be authorized to be armed, and if you're not one of those, you're not covered by the LEOSA. The LEOSA was a good start, but poorly written/defined, but due to some variability in the types of LEOs that are in service, they had to write it in such a way as to cover them too.

You must meet all of the criteria to be considered "covered" by the LEOSA.

In fact, here's the stickiest part of the LEOSA:

‘‘(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"

That bolded phrase can mean "all codes" or it can mean specified ones. A Fire Investigator is a LEO, has to to through a specialized investigator academy, and the FD may authorize that employee to carry a firearm. That investigator may not be authorized to enforce the Vehicle Code or other parts of the Penal Code that do not relate to fire...

Is that Investigator a QLEO per the LEOSA?

How about that "Back East" Constable???

It's a big mess and very few people want to be the test case. Also, it should be noted that some certain language was put in there to override agency policy and in the legislative history, and amedment whose language that would have allowed individual agencies to opt out was defeated.

[Notorious]

The LEOSA doesn't differentiate between peace officers and public officers. It doesn't differentiate between full-time and the reserves. Level III Reserve Officers got shafted because they aren't expected to effect arrests. Level II's are covered, even though they must be supervised by a Full-Time or Level I while performing general Law Enforcement duties. Some public officers can be specifically empowered to enforce specific laws or specific levels of law (infraction/misdemeanors). Corrections Officers may not qualify if they're not authorized by their agency to carry firearms in the course of their duties. The LEOSA was a good start, but poorly written/defined, but due to some variability in the types of LEOs that are in service, they had to write it in such a way as to cover them too.

You must meet all of the criteria to be considered "covered" by the LEOSA.

In fact, here's the stickiest part of the LEOSA:
That bolded phrase can mean "all codes" or it can mean specified ones. A Fire Investigator is a LEO, has to to through a specialized investigator academy, and the FD may authorize that employee to carry a firearm. That investigator may not be authorized to enforce the Vehicle Code or other parts of the Penal Code that do not relate to fire...

Is that Investigator a QLEO per the LEOSA?

How about that "Back East" Constable???

It's a big mess and very few people want to be the test case. Also, it should be noted that some certain language was put in there to override agency policy and in the legislative history, and amedment whose language that would have allowed individual agencies to opt out was defeated.

I know, which is why I said CA law is the one that screws the custodial officers by defining them differently and giving them such limited powers. It wouldn't matter to LEOSA what you are called as long as you fit those parameters.

The recent rewrite of LEOSA was a good attempt to bridge some of the gaps such as Amtrak Police who were left out originally for some reason. I love the separation versus retirement rule though! This way, the department can't hold the power over you for however many years until you qualify to retire and make you jump through hoops for a retirement ID, as some departments are known to do. You can just leave after 10 years of service, aggregate, don't even have to be in the same department! Love it!

In any event, I have heard that LEOSA can override department policy and LEO's who were forbidden by department policy can carry under LEOSA. The only problem is they would not be covered by their department for off-duty incidents. Federal BoP is a perfect example. Those guys can carry now under LEOSA, and they are not general law enforcement, just like your arson investigator. If BoP guys can qualify, I would say the arson guy is also good to go.

The real question is not department policy... but what if state law forbids it? Penal Code still expressly forbids the LA General Services Police from carrying a firearm off duty even though they do everything any other officers do and wear an uniform, drive a marked unit, and carry a firearm on duty. The real sad part is that they were limited to a revolver on duty until as recently as 2004 or so... IIRC.

You are very right about the laws being very screwy when it comes to the various types of LE out there.

[Tallship]

The LEOSA doesn't differentiate between peace officers and public officers. It doesn't differentiate between full-time and the reserves. Level III Reserve Officers got shafted because they aren't expected to effect arrests. Level II's are covered, even though they must be supervised by a Full-Time or Level I while performing general Law Enforcement duties. Some public officers can be specifically empowered to enforce specific laws or specific levels of law (infraction/misdemeanors). Corrections Officers may not qualify if they're not authorized by their agency to carry firearms in the course of their duties. The Penal Code may limit which CO's can be authorized to be armed, and if you're not one of those, you're not covered by the LEOSA. The LEOSA was a good start, but poorly written/defined, but due to some variability in the types of LEOs that are in service, they had to write it in such a way as to cover them too.

You must meet all of the criteria to be considered "covered" by the LEOSA.

Actually. Level IIIs are covered under the DoJ letter (http://ag.ca.gov/firearms/forms/pdf/leosasummary.pdf :



Since Level IIIs are peace officers under 830.6, they are covered, according to the DoJ

[BigDogatPlay]

I know, which is why I said CA law is the one that screws the custodial officers by defining them differently and giving them such limited powers.

Which was the point of my earlier, perhaps poorly worded, post. In California the people who fit the prerequisites of LEOSA are, almost exclusively, classified as peace officers under our state's laws. I guess we / I just fall back on that descriptive because it draws a bright line in our laws as to who is who.

[kw91364]

deleted

[Sacmedic]

I would maintain that there is no question fire investigators identified as peace officers are covered by LEOSA. Their authority is found in the very Penal Code sections identified in the DOJ letter mentioned above. While they have this authority during and in the scope of their employment, they are empowered to enforce any California code if it is done during the course and scope of their employment. For instance, insurance fraud committed as part of a arson case. Or a vehicle code violation occurring during the arrest of an arson suspect. All of these could be cited/arrested by the FD Investigator. They most certainly meet the LEOSA criteria as a qualified LEO. Of interest is a case out of Sacramento County approximately 10-12 years ago where a Sac County FD Investigator performed a vehicle stop on an obviously dangerous/reckless driver. She attempted appeal of her convictions but the state appellate court upheld the trial court convictions that were a result of this FD Investigators traffic stop.

[CSDGuy]

I know, which is why I said CA law is the one that screws the custodial officers by defining them differently and giving them such limited powers. It wouldn't matter to LEOSA what you are called as long as you fit those parameters.

The recent rewrite of LEOSA was a good attempt to bridge some of the gaps such as Amtrak Police who were left out originally for some reason. I love the separation versus retirement rule though! This way, the department can't hold the power over you for however many years until you qualify to retire and make you jump through hoops for a retirement ID, as some departments are known to do. You can just leave after 10 years of service, aggregate, don't even have to be in the same department! Love it!

In any event, I have heard that LEOSA can override department policy and LEO's who were forbidden by department policy can carry under LEOSA. The only problem is they would not be covered by their department for off-duty incidents. Federal BoP is a perfect example. Those guys can carry now under LEOSA, and they are not general law enforcement, just like your arson investigator. If BoP guys can qualify, I would say the arson guy is also good to go.

The real question is not department policy... but what if state law forbids it? Penal Code still expressly forbids the LA General Services Police from carrying a firearm off duty even though they do everything any other officers do and wear an uniform, drive a marked unit, and carry a firearm on duty. The real sad part is that they were limited to a revolver on duty until as recently as 2004 or so... IIRC.

You are very right about the laws being very screwy when it comes to the various types of LE out there.

The LEOSA would likely override that portion of law. If anyone in the LA General Services Police Department who would be covered by the LEOSA wanted to challenge that part of the Penal Code, the suit should be filed in Federal Court... unless he or she wanted to be a test case. Same with an agency policy override.

[CSDGuy]

Actually. Level IIIs are covered under the DoJ letter (http://ag.ca.gov/firearms/forms/pdf/leosasummary.pdf :



Since Level IIIs are peace officers under 830.6, they are covered, according to the DoJ

If a Level III is covered by the LEOSA, so are public officers that also do law enforcement and are authorized to be armed in the course and scope of their duties. Why do I say that? A Level III isn't authorized to do General Law Enforcement... and the LEOSA doesn't specify the "level" of LE that must be performed. Public Officer functions aren't well defined, but they may also perform LE functions as well, to include making arrests and cites in response to violations of law... and these arrests aren't done under PC 837.

The LEOSA was intended to allow Peace Officers to carry, but because there are lots of ways to describe Law Enforcement Officers and all their various functions, the LEOSA had to be written very broadly, and the unintended consequence is that lots of non-traditional non-cop types got covered too.