UPDATE- June 2019

United States Court of Appeals (D.C.)

Ronald E. DuBerry v. District of Columbia

Summary: Court holds in part ’states’ & ‘localities’ cannot qualify or disqualify someone under LEOSA. LEOSA is a Federal Law. A Federal Court is the sole venue for someone seeking declaratory judgement to settle disputes or controversies arising from LEOSA. This decision invalidates the LEOSA language found within Va. Code Ann. 19.2-13 & 9.1-101. The General Assembly was cautioned about adding LEOSA language to the code in 2015 during the several revisions they made. This decision affirms that through judicial review. LEOSA has nothing to do with the conservator of the peace program, and should have never been added to begin with.


“A Law of Self-Analysis”

Law Enforcement Officers Safety Act

U.S.C.

§926B. Carrying of concealed firearms by qualified law enforcement officers

  1. 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).
  2. This section shall not be construed to supersede or limit the laws of any State that-
    1. permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or
    2. prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.
  3. 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 or apprehension under section 807(b) of title 10, United States Code (article 7(b) of the Uniform Code of Military Justice);
    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.
  4. The identification required by this subsection is the photographic identification issued by the governmental agency for which the individual is employed that identifies the employee as a police officer or law enforcement officer of the agency.
  5. 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-
      1. any machinegun (as defined in section 5845 of the National Firearms Act);
      2. any firearm silencer (as defined in section 921 of this title); and
      3. any destructive device (as defined in section 921 of this title).
  6. For the purposes of this section, a law enforcement officer of the Amtrak Police Department, a law enforcement officer of the Federal Reserve, or a law enforcement or police officer of the executive branch of the Federal Government qualifies as an employee of a governmental agency who 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 or apprehension under section 807(b) of title 10, United States Code (article 7(b) of the Uniform Code of Military Justice).

 

§926C. Carrying of concealed firearms by qualified retired law enforcement officers

  1. Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified retired 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).
  2. This section shall not be construed to supersede or limit the laws of any State that-
    1. permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or
    2. prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.
  3. As used in this section, the term “qualified retired law enforcement officer” means an individual who-
    1. separated from service in good standing from service with a public agency as a law enforcement officer;
    2. before such separation, was 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 had statutory powers of arrest or apprehension under section 807(b) of title 10, United States Code (article 7(b) of the Uniform Code of Military Justice);
    3. (A) before such separation, served as a law enforcement officer for an aggregate of 10 years or more; or (B) separated from service with such agency, after completing any applicable probationary period of such service, due to a service-connected disability, as determined by such agency;
    4. during the most recent 12-month period, has met, at the expense of the individual, the standards for qualification in firearms training for active law enforcement officers, as determined by the former agency of the individual, the State in which the individual resides or, if the State has not established such standards, either a law enforcement agency within the State in which the individual resides or the standards used by a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that State;
    5. (A) has not been officially found by a qualified medical professional employed by the agency to be unqualified for reasons relating to mental health and as a result of this finding will not be issued the photographic identification as described in subsection (d)(1); or (B) has not entered into an agreement with the agency from which the individual is separating from service in which that individual acknowledges he or she is not qualified under this section for reasons relating to mental health and for those reasons will not receive or accept the photographic identification as described in subsection (d)(1);
    6. is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and
    7. is not prohibited by Federal law from receiving a firearm.
  4. The identification required by this subsection is-
    1. a photographic identification issued by the agency from which the individual separated from service as a law enforcement officer that identifies the person as having been employed as a police officer or law enforcement officer and indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the agency to meet the active duty standards for qualification in firearms training as established by the agency to carry a firearm of the same type as the concealed firearm; or
    2. (A) a photographic identification issued by the agency from which the individual separated from service as a law enforcement officer that identifies the person as having been employed as a police officer or law enforcement officer; and (B) a certification issued by the State in which the individual resides or by a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that State that indicates that the individual has, not less than 1 year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the State or a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that State to have met-
      1. the active duty standards for qualification in firearms training, as established by the State, to carry a firearm of the same type as the concealed firearm; or
      2. if the State has not established such standards, standards set by any law enforcement agency within that State to carry a firearm of the same type as the concealed firearm.
  5. As used in this section-
    1. the term “firearm”-
      1. except as provided in this paragraph, 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-
        1. any machinegun (as defined in section 5845 of the National Firearms Act);
        2. any firearm silencer (as defined in section 921 of this title); and
        3. any destructive device (as defined in section 921 of this title); and
    2. the term “service with a public agency as a law enforcement officer” includes service as a law enforcement officer of the Amtrak Police Department, service as a law enforcement officer of the Federal Reserve, or service as a law enforcement or police officer of the executive branch of the Federal Government.

Summary:

The Law Enforcement Officers Safety Act (LEOSA) is a federal law dealing with the carriage of firearms by individuals in the law enforcement community across state lines for personal protection. Like the title indicates this law is a law of “self analysis,” as it requires no certification or “sign off” by any governmental agency. LEOSA is in essence an “affirmative defense” to state laws requiring citizens to obtain permits, or meet certain qualifications to carry firearms for personal protection. An individual carrying under this federal law must be certain to meet the qualifications which in short requires an individual to qualify with a weapon on an annual basis, and carry a photo I.D. from a governmental agency indicating the person is or was a police or law enforcement officer. Police Officer and Law Enforcement Officer are not defined legal terms under the United States Code. The fact they are used in conjunction with one another indicates Congress had a broad view of what a “law enforcement officer” was. If one was to research debate on LEOSA in the archives of congress they’d find LEOSA’s intent was to cover individuals employed and retired who were authorized to carry firearms & possessed statutory powers of arrest. This ranges from constables to corrections officers to police officers. It would be extremely difficult for Congress to include every name of every employer in every state who employed person(s) meeting there intended use, hence why the use of broad based undefined terms in the laws language.

 

“Defining Qualifications”

“Most states define who a peace officer is and where the officer’s authority extends under law. Many agencies rely on these definitions when looking to apply or, more often, deny their officers the ability to qualify for LEOSA. This often comes through an agency’s refusal to issue the law’s required photographic ID to anyone but those defined as full-time active or separated/retired officers. Those that rely on the false assumption that LEOSA requires 24/7 law enforcement authority fail to comprehend that LEOSA contains its own definition of a QLEO/QRLEO, and that definition is what determines an individual’s qualification status for the LEOSA privilege. Furthermore, because LEOSA neither defines “employee” nor contains any limiting language on it, agencies that establish policies denying IDs to non-full-time officers may be exposing themselves to liability.” (James M. Baranowski, Esq.)

 

“Agency Control”

“Much like the many issues that arise under LEOSA, an entire book can be dedicated to the topic of employment, but the most important takeaway in relation to employment under LEOSA is that had Congress intended to limit the LEOSA privilege solely to full-time officers, it could have done so.

A review of LEOSA’s legislative history highlights the amount of consideration given to the law’s terms. H.R. Rep. No. 108-560, at 80 (2004) reads in part: “We think of a law enforcement officer as someone who is actively engaged in making arrests; however, this legislation uses an expanded definition…This broad definition could encompass different individuals in different states including probation and parole officers and jail or prison guards. These officers, while performing an admirable service, will not necessarily have the experience of the beat police officer, yet, this legislation insists we allow them the same authority to carry concealed weapons anywhere in the country.” This debate over the statute’s definitions of QLEO/QRLEOs not only highlights Congress’ understanding of the broad applicability of the law, but also the legislators’ understanding that limiting language such as a requirement for financial compensation could have been included had the desire been to limit the privilege solely to full-time officers. Absent any limits on the word “employee” it is clear that none are intended. But conveying that point to agencies hostile to the theory that non-full time officers qualify can be difficult without further support.

Most states have laws defining “employee,” but an analysis of the laws of all 50 states is impractical for the purpose of this. However, since most state laws mirror federal law, a simple, yet non-exhaustive review of how “employee” is defined at the federal level is instructive.

While a federal definition of employee can be found in specific contexts such as federal employment laws such definitions provide little assistance for LEOSA purposes. So we must look to case law. Again, while no direct definition can be found, the Supreme Court has found that when determining the meaning of an undefined word contained in a federal statute common law principles apply.

For purposes of LEOSA, the Supreme Court case of Nationwide Mutual Insurance Co. v. Darden (503 U.S. 318, 322-23, 112 S. Ct. 1344, 1348, 117 L. Ed. 2d 581—U.S. 1992) is instructive. It details that agency law principles, or what is more commonly known as the “agency control” test, is to be used to determine the definition of “employee” when a statute does not helpfully define it. Under the “agency control” test, your employment status is determined by an analysis of the amount of control the agency/department exerts over you. Broken down even further, employee status is found if the purported employer controls, or has the right to control, both the result that is accomplished and the means and manner used to accomplish it. Given the amount of oversight an agency has over the activity and conduct of its officers, little argument can be made that any law enforcement officer, regardless of status, does not qualify as an employee. While there is some limited case law examining this principle, The People of the State of New York v. Arthur Rodriguez (Indictment Number 2917/06 [November 2006]) provides us with the most thorough analysis.

Rodriguez, a Pennsylvania Constable paid on a per-job basis, was found to qualify for the LEOSA privilege because of the agency’s control over him. While termed an “independent contractor,” not subject to the same supervision as police officers or sheriff’s deputies, and not qualifying for state legal representation when sued in connection to his duties and lacking any municipal oversight for his actions, the court nevertheless found that “with respect to the work done by a constable for a court, the constable is performing ‘judicial duties’ and is in fact ’employed’ by the court, district or judge which engaged his services.”
Applying the agency control analysis, the Court reasoned that “the fact that Pennsylvania courts have full power to remove Pennsylvania State Constables from their positions, and the fact that they are elected officials, conflicts with the People’s theory that Pennsylvania State Constables are not government employees.”

Despite being labeled as independent contractors, the ability of the courts to remove state constables from their positions was both a clear indicator of the control they exercised over constables and that constables were in fact employees. Applying this universally, there can be little argument made that agencies do not control the conduct of their officers or have the ability to remove them, regardless of their status.

All of the other statutory requirements must be met in order to meet LEOSA’s definition of QLEO/QRLEO, the most applicable being statutory arrest authority and authorization to carry a firearm. But for the vast majority of LEOs, even those that do not receive any financial compensation, due to the amount of agency oversight they are subject to there can be little doubt that they qualify for the privilege LEOSA affords. It is important to recognize this both for administrative and enforcement functions.”
(James M. Baranowski, Esq.)

Va. Code Ann. 19.2-13(A) & LEOSA:

The order shall require the special conservator of the peace to comply with the provisions of the United States Constitution and the Constitution of Virginia. The order shall not identify the special conservator of the peace as a law-enforcement officer pursuant to § 9.1-101. The order may provide, however, that the special conservator of the peace is a “law-enforcement officer” for the purposes of Article 4 (§ 37.2-808 et seq.) of Chapter 8 of Title 37.2 or Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1, but such designation shall not qualify the special conservator of the peace as a “qualified law-enforcement officer” or “qualified retired law-enforcement officer” within the meaning of the federal Law Enforcement Officer Safety Act, 18 U.S.C. § 926(B) et seq., and the order of appointment shall specifically state this.

The Virginia General Assembly in essence made a qualification determination in reference to a federal law regarding one’s employment status with regards to 19.2-13. In fact many individuals appointed under 19.2-13 or employed under 19.2-12 who are government employees in fact do meet every qualification listed under LEOSA, indisputably. Since LEOSA in itself is a “affirmative defense” the judiciary branch of government would be the appropriate venue for one seeking relief or certification. Congress amending certain words or defining them would also be a form of clarification. If you have a question or concern regarding LEOSA and its application to you, it may always be best to obtain a legal opinion from a licensed lawyer, or consult with your agency/department/company policy beforehand.