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THE NATIONAL CONCEALED CARRY FOR COPS LAW: WHAT DOES IT MEAN TO YOU?

 By Christa M. Miller

 Recently signed into law, H.R. 218 gives off-duty, as well as retired, police officers right to carry reciprocity throughout the nation. However, many questions still exist about the new law's applicability.

Drug dealers you’re investigating leave threatening notes and phone calls at your home, trying to intimidate you off the case. A recent parolee spots you in a restaurant and, in front of your family, tells you he “has something” for you – and you don’t think it’s a Hallmark card. Even your vacations aren’t sacred: Using an ATM while traveling out of state, you witness an attempt to rob an armored car.

These scenarios and many more inspired H.R. 218, the “National Concealed Carry for Cops” bill, introduced by U.S. Representative Randy Cunningham (R-CA) and backed by the Law Enforcement Alliance of America (LEAA). Twelve years in the making, H.R. 218’s intent is to allow law enforcement officers, regardless of whether they work in or visit a state which permits concealed carry, the latitude to intervene in situations requiring lethal force. The bill’s implications for both officer and public safety became especially clear after 9/1l, says Ed Nowicki, Executive Director of the International Law Enforcement Educators and Trainers Association (ILEETA) and a LEAA life member. “Lawmakers recognized the importance of having trained eyes and ears on the lookout for threats to human life.”

What Does the Law Cover?

H.R. 218 amends Chapter 44, Title 18 of the United States Code (“Firearms”). Also known as the Law Enforcement Officers Safety Act of 2004, H.R. 218 exempts current and retired law enforcement officers from state laws prohibiting them from carrying concealed firearms (other than machine guns, silencers, or other destructive devices).

However, the law shouldn’t be construed as a federal version of “higher duty of care” laws – state statutes stipulating that off-duty law enforcement officers, emergency medical technicians, and similar professionals must intervene in critical situations. “The key point is that the law recognizes law enforcement officers’ status, not their lawful authority,” says Nowicki. Adds Kevin Watson, spokesperson for the LEAA, “If you’re a California police officer carrying in New York, your police powers aren’t recognized, so you’re not bound by the higher duty of care law. But, if you’re an off-duty officer in California, you are bound by the law because the statute does exist and applies to you.” Out of state, Good Samaritan laws should apply to any course of action (or inaction) by a retired or off-duty officer.

Whom Does the Law Cover?

H.R. 218, by amending the USC’s “Firearms” Section 926 to include Sections 926B and 926C, covers both current and retired law enforcement officers who have (or had) the statutory power of arrest. Those who choose to carry concealed must not be under the influence of an “intoxicating” substance or prohibited by federal law from carrying a firearm; they must also meet all state qualification standards (retired officers must have qualified within the last 12 months).

Section 926B further requires qualified, currently employed law enforcement officers to carry proper photographic identification from their issuing agency; to be agency authorized to carry firearms; and to not be under agency disciplinary action at the time they choose to carry. Section 926C requires retired officers to carry photographic identification and qualification credentials issued by their former agency, or two forms of photographic ID – the first showing that they retired from a particular agency; the second showing that they have met state firearm qualification standards within the last 12 months.

Retired officers must also have retired “in good standing” – and not as the result of “mental instability” – from a law enforcement agency. They must have been regularly employed law enforcement officers for 15 or more total years, or retired before 15 years due to service-related disability. Finally, their right to retirement benefits must be “nonforfeitable” which, Nowicki says, means they weren’t fired or forced to resign.

Gray Areas

Watson acknowledges that even these guidelines don’t cover all of the gray areas. “The law contains many elements of what constitutes a law enforcement officer,” he says. “For instance, some college police officers have the statutory power of arrest, but they work for a private institution – not a government agency.” Nowicki adds that many colleges, even if they’re state institutions, don’t allow officers to carry firearms – so they don’t meet state qualification standards. Similarly, some states issue the power of arrest to probation/parole officers and prosecutors; others don’t. Whether these officers have that power is, again, the deciding factor in whether H.R. 218 applies to them.

Reserve, auxiliary, and part-time police officers may also have some difficulty with the law. “Some people define ‘employee’ only by a paycheck,” says Watson. “But, reserve officers sometimes receive the same benefits, such as workers’ compensation, that full-time employees do and many of them have the statutory power of arrest. That’s why we believe it’s not clear yet whether they’ll be covered.” Even so, says Nowicki, some of these officers may still not have enough experience to make the kind of judgment call required in a critical situation. “If you work one day a year to retain your status, it’s not the same as working every day,” he explains.

Military Police

Coverage of military police is also questionable. “There’s very strict separation between military police and those who enforce state laws,” says Watson. “Although military police occasionally have arrangements which allow them to enforce some state traffic laws on federal property, they operate under an entirely different set of rules and criminal procedure, the Uniform Code of Military Justice. As the guidelines come down for the official interpretation and enforcement of H.R. 218, it’s likely that this law won’t cover them.”

Finally, says Watson, the “mental instability” terminology will need further clarification as to the situations which would exclude an officer from coverage. “Whatever individual departments do now will probably serve as the legal guideline for the time being,” says Nowicki. “It’s just applied to a broader focus.” For officers disabled in the line of duty, the litmus test will be whether they’re still physically able to qualify within the allotted year.

Where Can You Carry Concealed?

Current and retired law enforcement officers can carry concealed in all 50 states. Watson expects that, through legislative intent, the District of Columbia and the U.S. territories, including Guam, Puerto Rico, and the U.S. Virgin Islands, will be included. Officers can’t, however, carry concealed on personal or private property where prohibited; state and local governments also have the specific right to prohibit concealed carry in government run locations.

Although this includes schools, most state laws do exempt law enforcement officers from concealed carry prohibitions on school property. (LEAA uses the example of off-duty San Diego, California, police officer Robert Clark who, together with on-duty officers, forced the surrender of an armed high school student. Two students died and 13 people were injured in that incident; Clark received the San Diego Police Department’s Medal of Valor for his actions.)

Nowicki adds that, during air travel, officers must defer to the captain’s preference, as well as existing Federal Aviation Administration rules. “Some captains don’t want weapons on their planes, even for extradition,” says Nowicki. “But, for those who consent, it’s wise to tell the staff and any air marshals that you’re an off-duty or retired police officer and your seat assignment.”

When Can You Carry Concealed?

Nowicki says the only time H.R. 218 doesn’t apply is when a law enforcement agency’s own standard operating procedure prohibits concealed carry. “Some states allow law enforcement officers to carry blackjacks or other devices which SOPs prohibit,” says Nowicki. “It’s possible to do something legally, yet still violate department policy.”

Nowicki adds that, in critical situations to which uniformed police officers respond, in state or out of state, that jurisdiction always has the right to demand weapons surrender. “It’s no different from uniformed officers encountering an undercover police officer,” he says. “Always defer to uniformed officers’ requests.”

Finally, although most agencies require new recruits to be 21 years of age, some may swear in reserve or part-time officers who are just 18. “If you’re legally sworn and carrying a department issued or authorized weapon, you’re probably covered by this law,” says Nowicki.

How Will H.R. 218 Be Implemented?

Nowicki says that, although he believes the law will ultimately do more good than harm, many questions first need resolution. One of the most pressing questions many law enforcement officers have is how retired officers should requalify. For example, says Nowicki, “If an officer retires from a New York agency and permanently moves to Florida, how is he to meet New York state standards? Or, can he requalify in Florida?” Watson says the law is written to give retirees the choice. “They can either qualify in the state they retired from and carry that information on their retiree ID card, or they can carry the retiree ID card together with requalification information from an agency in their state of residence.”

However, as Nowicki points out, some agencies don’t provide any form of ID to retired officers. Furthermore, while the law requires retired officers to requalify at their own expense, it doesn’t specify whether this includes the instructor’s time in addition to targets and ammunition. This is especially important considering the extent to which standards can change over time. “Many retired officers left law enforcement when revolvers were still the standard issue firearms,” says Nowicki. “They may not [immediately] be able to meet standards built around semiautomatic handguns.”

Details Which Need Ironing Out

Nowicki hopes these issues won’t be resolved in the courts. “We need to address them before there’s a problem,” he says. “To do that, we need to work through organizations like the LEAA or even the [National Rifle Association’s] Law Enforcement Activities Division [LEAD] to develop standards and training.” The NRA agrees. “We believe the law is clearly a step in the right direction,” says Chris Conte, an NRA staff attorney. “However, as a product of the political process, it will need to be worked out with regulation and accommodation at both federal and state levels.”

What does this mean? For starters, says Conte, a “practical” definition of qualified current and retired law enforcement officers. “There needs to be procedures on how to document, obtain, and prove qualified status,” he says. For instance, unlike private citizens’ concealed carry licenses, an officer’s status isn’t recorded in a national computer database. Generally, only officers on official business across state lines carry letters of introduction.

How do you achieve these goals? Through NRA outreach to prosecutors and state attorneys general. “This is a very different approach to getting more qualified people to carry guns and, as such, isn’t an issue for law enforcement administrators,” says Conte. “It’s a matter of prosecutorial discretion and, if it isn’t worked out by the prosecutors at the policy level, it will be worked out on a case by case basis in court. That would leave an unpredictable patchwork which this law was supposed to avoid.”

Generally, law enforcement agencies set their policies according to such court cases. However, Conte argues that, in this case, court decisions may not be enough. “The law’s practical aspects aren’t where they need to be.  A test case in court doesn’t provide the same foundation which state AGs would,” he says. “For instance, if an officer retired from a SWAT team, would he have to qualify at that level? Probably not, but it needs to be determined by policy – by a national standard accepted by the majority of law enforcement officers. To get that done, it would be much more helpful for law enforcement officers to write to their states’ AGs.”

It might appear that agencies could avoid problems by covering themselves with blanket policies against off-duty or retired officers carrying weapons. However, Conte says it would be wiser to issue advisories. “Use common sense,” he says. “If an officer has adequate credentials, and is traveling to a state which already accepts citizen concealed carry, he’s probably fine. But, in a state prohibiting concealed carry, he’s better off not carrying. Every officer knows that regardless of how the judge sees the law – first comes the arresting officer’s interpretation. There is such a thing as professional discretion, but there are also misunderstanding and lack of knowledge.”

Watson adds that officers and retired officers should exercise extreme caution before attempting to take advantage of the H.R. 218’s benefits so soon after its passage. “Until the law has had time to go through the process of interpretation and implementation, there are a lot of questions with no clear answers which could leave an officer in the very uncomfortable position of being the test case for the law’s applicability,” he says, noting that the LEAA is working with legislative counsel, as well as state and federal attorneys, to develop the official answers to these and other questions about the bill’s intricate details. More information will be available as it develops at www.leaa.org/218.

About the Author: Christa M. Miller (cmmiller@psouth.net) is a freelance writer based in southern Maine. She specializes in public safety issues.