HR218 and alcohol

[lrdchivalry]

It's a violation of my agency's policy to carry and drink, however, the summary for HR218 off of the website states "Not be under the influence of alcohol or any intoxicating or hallucinatory drug". IMO, if you are drinking alcohol you would not be covered under LEOSA.

[CalCop]

It's a violation of my agency's policy to carry and drink, however, the summary for HR218 off of the website states "Not be under the influence of alcohol or any intoxicating or hallucinatory drug". IMO, if you are drinking alcohol you would not be covered under LEOSA.

Agreed. But, the question was....if your department does NOT have a policy against drinking and carrying off duty......and you do that anyway, but nothing else at all wrong. Can your department administratively discipline you for "violation" of LEOSA?
I think the answer is No.....LEOSA is an exemption from local law, not a law you can violate, in and of itself. I have found about 5 cases where an off duty cop was intoxicated and did a bad shoot. All of them were prosecuted for the shoot. NONE of them were charged criminally nor punished administratively for "violating" LEOSA. I think that fact answers the question.

[BigDogatPlay]

Agreed. But, the question was....if your department does NOT have a policy against drinking and carrying off duty......and you do that anyway, but nothing else at all wrong. Can your department administratively discipline you for "violation" of LEOSA?
I think the answer is No.....LEOSA is an exemption from local law, not a law you can violate, in and of itself. I have found about 5 cases where an off duty cop was intoxicated and did a bad shoot. All of them were prosecuted for the shoot. NONE of them were charged criminally nor punished administratively for "violating" LEOSA. I think that fact answers the question.

You ask and answer your question in the same passage, largely.

LEOSA is not sanctionable in and of itself, it permits qualified active and retired LEO to carry across state lines. I think you need to separate within state and out of state for the purposes of your question.

You have carry in your own state by your department's authority and under the authority in the Penal Code of most classifications of peace officer. Your department doesn't have anything in policy about not carrying while consuming or being under the influence, which I find surprising and refreshing in this day and age, so by that measure you could carry while imbibing. If you did something stupid while under the influence I am sure your employer could find something to break your balls with. I often think that is what the catchall of CUBO was invented for.

Your out of state LEOSA exemption is null under the statute if you under the influence. By that measure if you did something stupid while under the influence and armed in another state you would have no LEOSA shield and could be sanctionable under that state's concealed carry laws. And your department still would most likely rake you over the coals when you got home. They'd find something... they always do.

[lrdchivalry]

Agreed. But, the question was....if your department does NOT have a policy against drinking and carrying off duty......and you do that anyway, but nothing else at all wrong. Can your department administratively discipline you for "violation" of LEOSA?
I think the answer is No.....LEOSA is an exemption from local law, not a law you can violate, in and of itself. I have found about 5 cases where an off duty cop was intoxicated and did a bad shoot. All of them were prosecuted for the shoot. NONE of them were charged criminally nor punished administratively for "violating" LEOSA. I think that fact answers the question.

Agreed, I don't think an agency can punish for violation of LEOSA, however, IMO I think you could be subject to criminal prosecution due to the removal of the protections afforded by the LEOSA if you violate it. An example would be a state that has a no gun in a bar law, if you are not drinking there is no violation of LEOSA, therefore, you are protected from prosecution for having the gun in the bar, however, if you were drinking in the bar which IMO is a violation of LEOSA you are no longer afforded the protections of LEOSA and subject to prosecution for having a gun in a bar.

[lrdchivalry]

You ask and answer your question in the same passage, largely.

LEOSA is not sanctionable in and of itself, it permits qualified active and retired LEO to carry across state lines. I think you need to separate within state and out of state for the purposes of your question.

You have carry in your own state by your department's authority and under the authority in the Penal Code of most classifications of peace officer. Your department doesn't have anything in policy about not carrying while consuming or being under the influence, which I find surprising and refreshing in this day and age, so by that measure you could carry while imbibing. If you did something stupid while under the influence I am sure your employer could find something to break your balls with. I often think that is what the catchall of CUBO was invented for.

Your out of state LEOSA exemption is null under the statute if you under the influence. By that measure if you did something stupid while under the influence and armed in another state you would have no LEOSA shield and could be sanctionable under that state's concealed carry laws. And your department still would most likely rake you over the coals when you got home. They'd find something... they always do.

Agreed!

[CalCop]

Agreed, I don't think an agency can punish for violation of LEOSA, however, IMO I think you could be subject to criminal prosecution due to the removal of the protections afforded by the LEOSA if you violate it. An example would be a state that has a no gun in a bar law, if you are not drinking there is no violation of LEOSA, therefore, you are protected from prosecution for having the gun in the bar, however, if you were drinking in the bar which IMO is a violation of LEOSA you are no longer afforded the protections of LEOSA and subject to prosecution for having a gun in a bar.

Agreed.

[CalCop]

Cases of LEOs drinking and shooting

--Off-duty drunk Baltimore Police Officer Gahiji Tshamba guilty of "manslaughter” and “use of a handgun in a crime of violence” in the June 5, 2010, shooting death of Tyrone Brown outside a bar in Baltimore. Judge Hargadon said Tshamba had “grossly overreacted.”

--November 9, 2008, off-duty St. Louis, Missouri Police Officer Bryan Pour was intoxicated and ejected from a bar in Illinois. He shot Mr. Bladdick in the chest. He was fired and charged with aggravated battery with a firearm. Pour pled guilty in August 2009, to a reduced charge of “aggravated discharge of a firearm” and received four years probation.

--September 30, 2009: Federal corrections officer Alberto Lafontaine was arrested in NYC and charged with unlawful possession and menacing for events that transpired on January 27, 2007. According to Lafontaine, the complainant had threatened him with a knife after a dispute over the bathroom at a restaurant. He identified himself and enhanced his presence with his firearm until the other man, who appeared to be using cocaine, dropped the knife. Lafontaine took no other action, did not call local police and drove away. The other man called the police and reported that Lafontaine “pull a gun” for no reason. When NYPD arrived and stopped Lafontaine’s car, Lafontaine appeared to have “been drinking,” but was not given a sobriety test, and was arrested and released on his own recognizance. Lafontaine was indicted, but the charges were later dismissed after the complainant refused to appear in court. Lafontaine sued for false arrest. The Court denied finding probable cause for arrest on the possession charge, citing the Booth LEOSA case but stating there was a factual dispute as to whether LEOSA applied to Lafontaine because he later admitted to having had a couple of beers. The LEOSA defense was denied because Lafontaine took no action toaddress the other man’s alleged illegal drug use, which was contrary to the intent of LEOSA. (Lafontaine v. City of New York, 2009 U.S.Dist.LEXIS 105838, S.D.N.Y. 2009).

--Dayle William Long, 10-year-veteran of the Riverside County Sheriff’s Department, was off-duty and had been drinking heavily at Spelly’s Pub & Grille, in Murrieta CA the evening of December 21, 2011. Long was being belligerent and got into a verbal altercation with Samuel Vanettes, who he had been playing darts with. Long called the bar manager over and told him to call police. Then Long displayed his firearm and Vanettes begged him not to use it. Long shot Vanettes several times, killing him. Long was arrested and held on $1 million bail. He was arraigned on January 12, 2012, on a murder charge, with sentence enhancements for use of a firearm and great bodily injury. During a March 5, 2012, preliminary hearing, a judge ruled Long would stand trial for murder with the enhancement of discharging a firearm.

These cases are good examples of when a "violation" of LEOSA could be charged IF that were appropriate, which it appears it is NOT. I have not been able to find any case where a "violation" of LEOSA has been charged either administratively or criminally. I think that is sufficient to show lawyers understand it is inappropriate. I think it is clear you cannot "violate" LEOSA, you can only lose its protections if you fail to meet its requirements.

I did a bit of research to come to this conclusion. I think it is sound.