LEOs and high capacity AR magazines

[CalCop]

Again, I will disagree with you on the following statement you made, which I believe is inaccurate.

Again, from the LEOSA Summary:
The LEOSA has limits and exceptions. It does not apply to all firearms and weapons (emphasis mine). For example, it does not authorize either qualified law enforcement officers, or qualified retired law enforcement officers, to carry any of the following: machineguns, silencers, or destructive devices (emphasis mine)

Even the BATFE classifies silencers and destructive devices as a firearm in their National Firearms Act handbook, as such, not only are they not covered individually under HR218, once you attach a silencer or DD to a firearm you are carrying you are still not covered under LEOSA.

I think you are combining two different sections of LEOSA law. There is one section that describes a qualified LEO, and there is another section that describes protected weapons. Drinking alcohol removes your qualified LEO status and makes you vulnerable to all state laws against any firearms you are carrying. Carrying an illegal firearms does NOT remove your protected LEO status, it just means the specific illegal item you are carrying is not legal.

In other words, an unlicensed driver is illegal, and everything he is operating can be towed. So, you can tow the unlicensed driver's minivan and his trailer. However, a legal driver with a legal minivan and unregistered trailer.....you can only tow his trailer. The fact his minivan is towing an unregistered trailer does NOT make him unlicensed, nor does it make his minivan illegal.

Likewise. LEOSA says you are qualified if.....and lists several things. It does NOT say if you are carrying a destructive device or silencer that you are no longer a protected LEO and all the items you would have been allowed to carry are now suddenly illegal. The silencer itself is illegal, but the firearm it is attached to does not suddenly become illegal anymore than the minivan becomes illegal because of the trailer.

Drinking alcohol removes your protected LEO status. Carrying a silencer does not, it just means LEOSA doesn't cover silencers. It still covers all the LEO's firearms, other than machine guns.

[CalCop]

That may be true for active leos, however, the example that was given was IMO used to show that an active leo only needed to qualify with one weapon type instead of qualifying with every weapon type they wanted to carry (definately saves some time).

If CA DOJ didn't want LEOs to get the impression they could qual with a handgun and conceal and carry an AW, they are smart enough to have chosen different example.

[CalCop]

I guess the bottom line is until there is a test case in this state we'll really never have the complete answer.

As decided in Peterson, LEOSA covers state-defined illegal firearms, and Peterson's was a short-barreled Colt Sporter AR, in a very liberal, anti-gun state. That test case is enough to convince me that a CA LEO is covered under LEOSA to carry an unregistered AW. If there is ever a CA test case, it will have the same result, so it would be very anti-climactic for me.

[lrdchivalry]

I think you are combining two different sections of LEOSA law. There is one section that describes a qualified LEO, and there is another section that describes protected weapons. Drinking alcohol removes your qualified LEO status and makes you vulnerable to all state laws against any firearms you are carrying. Carrying an illegal firearms does NOT remove your protected LEO status, it just means the specific illegal item you are carrying is not legal.

In other words, an unlicensed driver is illegal, and everything he is operating can be towed. So, you can tow the unlicensed driver's minivan and his trailer. However, a legal driver with a legal minivan and unregistered trailer.....you can only tow his trailer. The fact his minivan is towing an unregistered trailer does NOT make him unlicensed, nor does it make his minivan illegal.

Likewise. LEOSA says you are qualified if.....and lists several things. It does NOT say if you are carrying a destructive device or silencer that you are no longer a protected LEO and all the items you would have been allowed to carry are now suddenly illegal. The silencer itself is illegal, but the firearm it is attached to does not suddenly become illegal anymore than the minivan becomes illegal because of the trailer.

Drinking alcohol removes your protected LEO status. Carrying a silencer does not, it just means LEOSA doesn't cover silencers. It still covers all the LEO's firearms, other than machine guns.

I will still have to disagree, the firearm itself may not be illegal under HR218, however,an leo is not covered under HR218 if they are carrying a silencer, regardless if the silencer is attached to the weapon or in his pocket, HR218 specifically excludes protection for carrying one, therefore, if he/she doesn't have the protections afforded to him/her under HR218 for having a prohibited item in his/her possession, the leo can be prosecuted for crimes that they would normally be protected under HR218. There is no selective coverage, the leo is either covered or not.

From wikipedia:
General restrictions of the Act

In order to attract the protection of LEOSA, both serving and retired law enforcement officers must not:[3][4]

• be prohibited by Federal law from receiving a firearm, or
• be under the influence of alcohol or another intoxicating or hallucinatory drug or substance, or
• carry machine guns, destructive devices, or silencers.

The actual text from the enhancement for HR218 signed in 2010:

meaning as in section 921 of this title;

law or subject to the provisions of the National Firearms
Act; and


the National Firearms Act);

of this title); and

So it wouldn't matter if it was on the weapon or not, an leo is not covered under HR218 if they have one of the prohibited items in their possession while carrying under that law.

[CalCop]

[QUOTE=lrdchivalry;8653173]So it wouldn't matter if it was on the weapon or not, an leo is not covered under HR218 if they have one of the prohibited items in their possession while carrying under that law.[/QUOTE The section which describes a qualified LEO is a separate section from the prohibited items section. If you drink, you are no longer a qualified LEO. If you have a silencer, you are still a qualified LEO, with an illegal silencer. All other firearms covered by LEOSA are still protected by LEOSA. Just look at the law. If the law stated that a qualified LEO is one who is not drinking and not carrying a silencer, then you would be right. That is NOT what it says. It says a qualified LEO is one that is not drinking. It goes on to say what kind of weapons are not covered by LEOSA. So the LEO can be a qualified LEO with illegal items. While LEOSA does not protect the officer from prosecution for the silencer, he is still qualified and immune prosecution for the other state defined illegal weapons he has in the same bag with the silencer.

[lrdchivalry]

The section which describes a qualified LEO is a separate section from the prohibited items section. If you drink, you are no longer a qualified LEO. If you have a silencer, you are still a qualified LEO, with an illegal silencer. All other firearms covered by LEOSA are still protected by LEOSA. Just look at the law. If the law stated that a qualified LEO is one who is not drinking and not carrying a silencer, then you would be right. That is NOT what it says. It says a qualified LEO is one that is not drinking. It goes on to say what kind of weapons are not covered by LEOSA. So the LEO can be a qualified LEO with illegal items. While LEOSA does not protect the officer from prosecution for the silencer, he is still qualified and immune prosecution for the other state defined illegal weapons he has in the same bag with the silencer.

We will just have to agree to disagree.

[CalCop]

Let's look at the law itself in order to correctly interpret it.

USC 926B, subsection (a) is the law in a nutshell. The rest of the subsections are obscure exceptions or just definitions of the words in subsection (a).

Subsection (c)'s purpose is solely to define "Qualified Law Enforcement Officer."

Subsection (d) defines the ID required.

Subsection (e)'s sole purpose is to define "firearm."

So, here is the main body of the law:

"(a)Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b)."

A qualified LEO is defined as:

(c)As used in this section, the term “qualified law enforcement officer” means an employee of a governmental agency who—
(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;
(3)is not the subject of any disciplinary action by the agency which could result in suspension or loss of police powers;
(4)meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;
(5)is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and
(6)is not prohibited by Federal law from receiving a firearm.

So, as you can see, the type of firearm does not change or have anything to do with defining Qualified LEO. Only the above 6 items change the definition of Qualled LEO. In a nutshell, a qualled LEO is a cop who is allowed to carry a gun at work, is not in trouble, and is not drunk. (Please note that there is no number (7) stating, "is not carrying a silencer.") Only failure to meet one of the 6 requirements above would make a LEO "not qualified."

Subsection (e) is the section that defines firearms that LEOSA allows a LEO to carry and that LEOSA protects the LEO from being prosecuted for possessing:

(e)As used in this section, the term “firearm”—
(1)except as provided in this subsection, has the same meaning as in section 921 of this title;
(2)includes ammunition not expressly prohibited by Federal law or subject to the provisions of the National Firearms Act; and
(3)does not include—
(A)any machinegun (as defined in section 5845 of the National Firearms Act);
(B)any firearm silencer (as defined in section 921 of this title); and
(C)any destructive device (as defined in section 921 of this title).

This section basically says ANY firearm is protected by LEOSA...except specific items not covered by LEOSA: machine guns, DDs, and silencers. Note: after a qualled LEO is already defined, the law goes on to say what a qualled LEO is allowed to carry. What the officer is carrying is not part of subsection (c) which defines him as a qualled LEO. Therefore, carrying a non-covered item can NOT change the fact he is a qualled LEO.

So, let's go with a scenario. A sober, regularly employed Utah LEO, who is not in trouble, is currently qualified to carry on duty, and is carrying his ID, makes an extended visit to CA with his Utah legal silencer, a Colt AR-15, and an off-CA-list handgun. He clearly meets the definition of a qualled LEO, that is not in question, therefore, his AR-15 is exempt from the CA AWB due to LEOSA and he is exempt from the CA handgun importer law due to LEOSA.

However, since silencers are not one of the items protected by LEOSA, the Utah cop is vulnerable to prosecution for the silencer. He is NOT vulnerable to prosecution for the AR-15 or the handgun, because he is a qualified LEO under LEOSA and these are protected firearms. Possession of the silencer does NOT change his definition as a qualled LEO (subsection c), but LEOSA does not cover the silencer (because of subsection e). For possession of a silencer to remove his qualled LEO status, like being drunk would, it would HAVE to be in subsection (c).

To say possession of the silencer changes his definition as a qualled LEO and makes him just as vulnerable to prosecution of state laws as any other citizen, is a clear misreading of the law.

[NuGunner]

Im pretty sure the state would attempt to bring their definition of a "concealable firearm" in to play. Does federal law have a definition of a concealable firearm like our state law does?

[CalCop]

Im pretty sure the state would attempt to bring their definition of a "concealable firearm" in to play. Does federal law have a definition of a concealable firearm like our state law does?

The U.S. Supreme Court held in Muscarello v. U.S. in 1998 that USC924(c)(1) applies “to a person who knowingly possesses and conveys firearms in a vehicle, including in the locked glove compartment or trunk of a car, which the person accompanies.” Id. at 127, 118 S.Ct. at 1914. The Court noted “that neither the statute's basic purpose nor its legislative history support circumscribing the scope of the word … by applying an "on the person‟limitation.” It also found that “carry” “has many different meanings”, but that only two (on the person and in a vehicle) were relevant to the facts of that particular case and neither of those two meanings required immediate accessibility.

U.S. v. Flum, 518 F.2d 39 (8th Cir. 1975) held that the plain meaning of “concealed” is to be hidden from the ordinary view.

“Carry a concealed firearm” therefore reasonably means:
moving [a firearm which is hidden from plain view] to a location some distance away while keeping it off the ground to a location where the individual has dominion or control even without immediate access. http://www.SheepdogAcademy.com

Also, there have been a dozen or more LEOSA cases which have held long guns are protected by LEOSA.

Also, "notwithstanding" in LEOSA means state law is irrelevant and does not matter.

[TripleThreat]

Calcop,

Thanks for the above information, greatly appreciated.

Regarding Subsection (d) defines the ID required. Are you taking about Police I.D.? Not sure if that was listed as I specifically see see that Subsection B noted above[/I]). Only A and E.

So my question is, if someone is a Reserve Officer in California, meets all the requirements and carries on-duty, but their Dept. won't issue Reserves CCW's, are they still cover (allowed to) carry under HR218? And if yes, can they carry inside of California or only outside of California? I heard that HR281 supersede a PD duty manual.

Thanks in advance,

Vffr1

[lrdchivalry]

Let's look at the law itself in order to correctly interpret it.

USC 926B, subsection (a) is the law in a nutshell. The rest of the subsections are obscure exceptions or just definitions of the words in subsection (a).

Subsection (c)'s purpose is solely to define "Qualified Law Enforcement Officer."

Subsection (d) defines the ID required.

Subsection (e)'s sole purpose is to define "firearm."

So, here is the main body of the law:


A qualified LEO is defined as:
So, as you can see, the type of firearm does not change or have anything to do with defining Qualified LEO. Only the above 6 items change the definition of Qualled LEO. In a nutshell, a qualled LEO is a cop who is allowed to carry a gun at work, is not in trouble, and is not drunk. (Please note that there is no number (7) stating, "is not carrying a silencer.") Only failure to meet one of the 6 requirements above would make a LEO "not qualified."

Subsection (e) is the section that defines firearms that LEOSA allows a LEO to carry and that LEOSA protects the LEO from being prosecuted for possessing:
This section basically says ANY firearm is protected by LEOSA...except specific items not covered by LEOSA: machine guns, DDs, and silencers. Note: after a qualled LEO is already defined, the law goes on to say what a qualled LEO is allowed to carry. What the officer is carrying is not part of subsection (c) which defines him as a qualled LEO. Therefore, carrying a non-covered item can NOT change the fact he is a qualled LEO.

So, let's go with a scenario. A sober, regularly employed Utah LEO, who is not in trouble, is currently qualified to carry on duty, and is carrying his ID, makes an extended visit to CA with his Utah legal silencer, a Colt AR-15, and an off-CA-list handgun. He clearly meets the definition of a qualled LEO, that is not in question, therefore, his AR-15 is exempt from the CA AWB due to LEOSA and he is exempt from the CA handgun importer law due to LEOSA.

However, since silencers are not one of the items protected by LEOSA, the Utah cop is vulnerable to prosecution for the silencer. He is NOT vulnerable to prosecution for the AR-15 or the handgun, because he is a qualified LEO under LEOSA and these are protected firearms. Possession of the silencer does NOT change his definition as a qualled LEO (subsection c), but LEOSA does not cover the silencer (because of subsection e). For possession of a silencer to remove his qualled LEO status, like being drunk would, it would HAVE to be in subsection (c).

To say possession of the silencer changes his definition as a qualled LEO and makes him just as vulnerable to prosecution of state laws as any other citizen, is a clear misreading of the law.

Your opinion of which I disagree with and since it seems to be a circular debate we will leave it at that.

[NuGunner]

http://www.SheepdogAcademy.com

Also, there have been a dozen or more LEOSA cases which have held long guns are protected by LEOSA.

Also, "notwithstanding" in LEOSA means state law is irrelevant and does not matter.

Well that answers that. Sweet! Thanks.

[003]

"Also, there have been a dozen or more LEOSA cases which have held long guns are protected by LEOSA."

I was not aware there were so many cases.

That is good news, as it certainly supports our position. Do you have the citations for the cases, or can you find them and quote them here?

If LEOSA was accepted by the California AG’s office as covering AW’s it would certainly make things easier for those covered by LEOSA.

[CalCop]

I heard that HR218 supersede a PD duty manual

Off-duty, yes, LEOSA definitely supersedes agency policy. Even if your agency did not ever allow you to carry off-duty prior to LEOSA, if you meet the qualifications described in LEOSA, your agency has absolutely no say regarding your off-duty carry. See below.

http://ag.ca.gov/firearms/forms/pdf/leosiss.pdf

http://www.SheepdogAcademy.com

[CalCop]

Regarding Subsection (d) defines the ID required. Are you talking about Police I.D.?

"USC 926B(d) The identification required by this subsection is the photographic identification issued by the governmental agency for which the individual is employed as a law enforcement officer."

So, for active LEOs, the only ID required is the regular ID issued which identifies you as a cop.