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In the case of People v. Drew Peterson, Case No. 08 CF 1169 (Oct. 1, 2010), by Judge Richard Schoenstedt of the 12th Judicial Circuit of the State of Illinois. Question: Whether or not the defendant, a police officer, could be charged with felony unlawful use of a weapon given the implications of the Federal LEOSA legislation passed into law in 2004. Will County prosecutors in May of 2008 had charged Mr. Peterson with felony unlawful use of a weapon, contending he had illegally modified the rifle (Colt Sporter) by shortening the barrel. Judge Schoenstedt said LEOSA precluded charging the defendant with the felony weapons charge. In his opinion, the judge wrote that:
“The defense argues simply that "LEOSA" applies to any firearm not specifically excluded (by LEOSA) whether or not that firearm is illegal by State law. The State's position is that "LEOSA" only applies to firearms that are legal by state law. The State argued that factors including concealed carry; possession; privately owned vs. department issued; and illegal firearms are not covered by "LEOSA" and are important considerations in their favor…[The judge found that] the intent of LEOSA is to allow qualified law enforcement officers to carry concealed firearms, so that if the need arises, such an officer may unconceal; show; and ultimately use his weapon. LEOSA does not provide definitions as to the issue of carry or concealment, including whether it is permissible to have the weapon in a case, holster, waistband, and so forth. Similarly, LEOSA does not indicate that the size of the weapon is a factor in determining whether it can be concealed and carried. In fact, machine guns are typically larger than handguns and the machine gun is the only true firearm excepted from LEOSA…Under LEOSA, there is no distinction found by this Court that would treat a qualified law enforcement officer differently whether he possessed a firearm while on duty or off duty. The protection provided by LEOSA is simply not reduced or eliminated because an otherwise qualified officer fails to obtain permission from his department to use the weapon; or to arrange to have that weapon issued by his department…The State is essentially requesting this Court to assume or infer that the drafters intended to provide immunity only for State sanctioned weapons. In fact, it is possible to assume or infer the opposite in part because the evidence here shows that under different circumstances the officers of the Bolingbrook Police Department would have been able to possess and conceal carry this very weapon…Regardless, at trial it is the State's burden to prove each element of the offense charged. By these findings, it would be impossible for the State to do so. The defense's renewed motion to dismiss is granted.” http://www.policelawblog.com/blog/20...ns-charge.html
“The defense argues simply that "LEOSA" applies to any firearm not specifically excluded (by LEOSA) whether or not that firearm is illegal by State law. The State's position is that "LEOSA" only applies to firearms that are legal by state law. The State argued that factors including concealed carry; possession; privately owned vs. department issued; and illegal firearms are not covered by "LEOSA" and are important considerations in their favor…[The judge found that] the intent of LEOSA is to allow qualified law enforcement officers to carry concealed firearms, so that if the need arises, such an officer may unconceal; show; and ultimately use his weapon. LEOSA does not provide definitions as to the issue of carry or concealment, including whether it is permissible to have the weapon in a case, holster, waistband, and so forth. Similarly, LEOSA does not indicate that the size of the weapon is a factor in determining whether it can be concealed and carried. In fact, machine guns are typically larger than handguns and the machine gun is the only true firearm excepted from LEOSA…Under LEOSA, there is no distinction found by this Court that would treat a qualified law enforcement officer differently whether he possessed a firearm while on duty or off duty. The protection provided by LEOSA is simply not reduced or eliminated because an otherwise qualified officer fails to obtain permission from his department to use the weapon; or to arrange to have that weapon issued by his department…The State is essentially requesting this Court to assume or infer that the drafters intended to provide immunity only for State sanctioned weapons. In fact, it is possible to assume or infer the opposite in part because the evidence here shows that under different circumstances the officers of the Bolingbrook Police Department would have been able to possess and conceal carry this very weapon…Regardless, at trial it is the State's burden to prove each element of the offense charged. By these findings, it would be impossible for the State to do so. The defense's renewed motion to dismiss is granted.” http://www.policelawblog.com/blog/20...ns-charge.html
-- Rifle, Pistol, Shotgun
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