Law Enforcement Officers Safety Act of 2004
Caution: This document may
be revised periodically. The 2005
version was amended in 2010, after the passage of S. 1132. Deleted
wording appears in red
strikeout fonts and new
wording is underlined in green.
Comments and suggestions should be sent to aele@aol.com with HR 218 in the subject line.
Only remarks from persons who identify themselves will be considered. Your suggestions or comments will not be
attributed publicly.
[Name of Agency]
Policy & Procedure Manual
Subject: Federal authorization of qualified current and
retired law enforcement officers to carry a concealed firearm.
Source: Law Enforcement Officers Safety Act of 2004
Directive Number: [#]
Effective: [date]
Reviewed: [Agency legal counsel]
Review Date: [date]
Review Responsibility: [unit]
Rescinds: New
CALEA Standards: 1.3.9, 1.3.10, 1.3.11
Distribution: All Employees
Approval: [Agency head]
I. Policy:
A. H.R. 218, the Law Enforcement Officers Safety Act
(LEOSA), was enacted
1. The Act permits the
nationwide carrying of concealed handguns by qualified current and retired law
enforcement officers and amends the Gun Control Act of 1968 (Pub. L. 90-618, 82
Stat. 1213) to exempt qualified current and retired law enforcement officers
from state and local laws prohibiting the carry of concealed firearms.
2. It does not exempt current or
retired officers from any state or local firearm owner registration laws.
3. It is the policy of the [Name
of agency] to comply with the Act, under the following conditions and
provisions [and subject to any applicable bargaining agreements].
II. Procedure:
A. Current law enforcement officers with the [Name of
agency] must:
1. Possess statutory powers of
arrest and be authorized by the [Name of agency] to carry a concealed firearm.
2. Successfully have completed
the [Name of agency] designated firearms qualification course.
3. Not under be the influence of
alcohol or drugs.
4. Not be prohibited by Federal
or state law from possessing a firearm.
5. Not be subject to [Name of
agency] disciplinary action preventing the officer from carrying a firearm per
existing policy.
6. Not take a [Name of agency]
owned firearm out of state except on official business and with the approval of
the [agency head] or designated subordinates.
7. Not wear a concealed [Name of
agency] owned firearm except as provided by [Name of agency] firearms
regulations.
a. Although [Name of agency]
firearms regulations may not restrict a current law enforcement officers right
under the Federal LEOSA to carry a concealed, personally-owned off-duty
firearm, as a condition of continued employment:
i. All current officers must register his or her
personally-owned off-duty firearm(s) with the Rangemaster.
ii. All such weapons shall pass
a safety inspection by the Rangemaster.
iii. Officers must pass the states
firearms qualification test using each approved firearm.
B. Required identification
1. The officer must have his or
her [Name of agency] photo identification card [and official badge/star].
C. Qualified retired law enforcement officers of the [Name
of agency] must:
1. Have retired in good standing
from service as a law enforcement officer for the [Name of agency], other than
for reasons of mental instability.
a. The term in good standing
means, at the time of retirement, the officer was not facing disciplinary
action that could have resulted in his or her termination for misconduct or
unfitness for office.
b. The term mental instability
means that the officer either was medically separated for mental instability
or, at the time of a years-of-service or disability retirement, the officer was
facing removal for reasons of mental instability.
c. Interpretative guidance will
be provided, on a case-by-case basis, by the [legal advisor/attorney] for the
[Name of agency].
2. Have an aggregate of at least
fifteen ten years of service as an active law enforcement officer or
have retired from service after completing a probationary period, due to a
service-connected disability, as determined by the [Name of agency].
3. Have a non-forfeitable right
to benefits under the [Name of agency] retirement system. Have separated from active service or retired.
4. Have successfully passed an
annual [agency] background check indicating that he or she is not prohibited by
Federal law from receiving or possessing a firearm.
5. Not be under the influence of
alcohol or drugs.
6. Have, during the most recent
twelve-month period, successfully passed the standards for training and
qualification for active law enforcement officers to carry firearms in their
primary state of residence.
D. On request, qualified retired law enforcement officers
of the [Name of agency] who do not reside in this state, and who have not
successfully passed this states standards for training and qualification for
active law enforcement officers to carry firearms, will be sent a retirement
identification card by mail, that indicates that the retired officer:
1. Is a
nonresident of this state and has met all of the conditions in Part II-C,
sections 1 through 5.
2. Must meet the standards for
training and qualification for active officers in the retired officers primary
state of residence.
3. Must submit, in acceptable
size and format, [two recent facial color photographs or a digital image].
E. Retired officer identification cards
1. Type 1 Federal LEOSA
certification identification cards
a. In the case of retired
officers who have met all of the conditions in Part II-C, sections 1 through 6,
the [Name of agency] issued photographic certification card will indicate the
date of the last qualification.
i. The date on the card must be less than one year from the
time of possession.
ii. The card shall be replaced
with the renewal qualification date.
2. Type 2 Identification cards
without Federal LEOSA certification
a. In the case of retired
officers who have failed to pass this states standards for training and
qualification for active law enforcement officers to carry firearms, the
identification card will clearly state that the person has NOT qualified to
carry a concealed weapon as a qualified retired law enforcement officer.
i. Note: Because of different qualification standards, such
persons might lawfully possess a citizens Concealed Weapons permit, which is valid
in the state that issues the permit, and in states that have reciprocal
recognition agreements.
b. In the case of nonresidents
who request an identification card to be mailed to them, the card will clearly
state that the individual also must possess an additional card or appropriate
document that indicates that he or she has met the standards for training and
qualification for active law enforcement officers to carry firearms in the
retired officers primary state of residence, to qualify for the Federal LEOSA
concealed firearms exemption.
c. Type 2 identification cards will indicate which option
applies (a or b).
F. Qualification for the [Name of agency] current officers
1. Current officers will comply
with the Act by successfully completing the [Name of agency] firearms
qualification course during the scheduled firearms training program.
2. The minimum qualifying score
is [70] percent.
G. Qualification for the [Name of agency] qualified retired
officers
1. The [Name of agency] Rangemaster or designee will schedule at least [four]
periods each year for retired officers to qualify. Range times for the retiree
qualifications will be announced on the [agency website].
a. These qualification dates may
coincide with current officer qualification dates if time permits.
b. If time does not permit such
scheduling, then the retired officer must schedule a range date and time
acceptable to the Rangemaster or designee; and may be
required to pay the cost of such scheduling and range use.
2. Qualified retired officers
will be allowed to qualify on more than one concealable firearm, as time and
scheduling permits. Such number shall be the decision of the Rangemaster or designee. Retired officers:
a. Must bring their own
handgun(s), either a revolver or a semi-automatic capable of being loaded with
5 or more rounds.
b. Must bring [50] rounds of
factory issued ammunition for the weapon for qualification.
c. Must bring their
own cleaning supplies.
d. Must have a safe and secure
holster.
e. All handguns and holsters
must pass inspection by the Rangemaster.
3. The minimum qualifying score
is [70] percent.
4. The [Name of agency] Rangemaster or designee shall keep a database of qualified
retired officers, qualification dates, qualification course of fire,
qualification score, and the type and serial number of the firearms used to
qualify.
6. Qualified retired officers
will be required to sign a waiver of liability of the [Name of agency] for all
acts taken related to carrying a concealed firearm, acknowledging their
personal responsibility as a private person for all acts taken when carrying a
concealed firearm as permitted by the Act and not as an employee or former
employee of the [Name of agency] or as a current law enforcement officer
(unless currently employed as a law enforcement officer of another agency).
Such disclaimer shall also release the [Name of agency] from any claim or
action at law resulting from any injury or accident during the described
firearms qualification activities.
H. Failure to qualify and remedial training.
1. Any qualified retired officer
who fails to qualify will be given the option of basic remedial training and
given one additional attempt as soon as practicable after the failed attempt.
2. If the qualified retired
officer fails to qualify on the second attempt, the Rangemaster
or designee will:
a. Notify the retired officer of
the failure.
b. Complete a [memo or report
form] outlining the retirees name, the course of fire, the firearm type, the
score received on each attempt, and any remediation given.
c. Recommend that the retired
officer seek additional or alternative remedial training.
d. Advise the retired officer to
contact the Rangemaster or designee to arrange an
additional attempt at qualification.
3. Qualified retired officers
will be given a reasonable number of attempts, but not less than three, at
qualifying during the scheduled retiree qualification dates, subject to range
availability and the Rangemaster or designees time
constraints. Any number beyond three attempts will be the decision of the Rangemaster appealable only to the [agency head] whose
decision is final.
a. Should the retired officer
fail to qualify, he or she will be allowed to attempt to qualify at the next
scheduled retiree qualification shoot or at a date scheduled by the Rangemaster or Designee.
b. Upon the third or final
failure, the Rangemaster or designee will submit a [memo
or report form] to the [Agency head] outlining the failures.
I. Restrictions
1. The Rangemaster
or designees determination will be final as to all issues of safety and
equipment. Any weapon, holster, ammunition, or related equipment found unsafe
for qualification and carry will be prohibited on the range and noted in
writing and of record. The retired officer will be notified and required to
sign a statement acknowledging the unsafe condition of the equipment and the
reason for such removal and prohibition.
2. The Law Enforcement Officers
Act does not authorize the retired officer to:
a. Carry a machine gun,
silencer, or other destructive device.
b. Act in the capacity of a law
enforcement officer of the [Name of agency].
c. Carry a firearm on any
government property, installation, facility, building, base or park with laws
or regulations prohibiting or restricting the carrying of firearms (such as
airport boarding areas, courthouses, etc.).
d. Carry a firearm on any other
public or privately owned property, facility, building or area, where the
carrying of firearms is prohibited or restricted (such as private schools,
commercial aircraft, etc.).
A. The Waiver and Release Form shall be titled, and
provide:
I am a retired officer of the
[Name of agency] who is eligible to attempt to qualify to carry a concealed
firearm, pursuant to the Law Enforcement Officers Safety Act of 2004 (18
I recognize that the [Name of
agency] is not legally required to provide me with firearms instruction or a
firearms qualification course.
I understand that to do so, I
will be required to fire my weapon under the direct supervision of the [Name of
agency] instructors.
I agree to indemnify and hold
harmless the [Name of entity and agency], or its agents and employees, for any
injury caused by my participation in this qualification process. I further waive
any claim for damages against the [Name of entity and agency], or its agents
and employees, for any injury suffered by me while participating in this
qualification process.
Further, I hereby specifically
agree to indemnity and hold harmless the [Name of entity and agency] and/or its
officers and employees, from any and all liability resulting from my carrying
and/or use of any weapon allowed under the Law Enforcement Officers Safety Act
of 2004, including, but not limited to, civil litigation.
...............................................
.................................................
Name of retired officer Signature
............................................... .................................................
Name of witness Signature
............................................... Doc. No.
..................
Date
IV. Qualifying
checks of current and retired officers
A. Before issuing or renewing [Name of Agency] photo
identification cards, the [Personnel Division] shall review the officers or
retired officers firearms qualification record and updated criminal history
record.
B. [Pertinent internal operating
procedures].
V. Verification
of LEOSA status of active and retired officers in field situations.
A. Current and retired officers of the [Name of Agency]
l. A list of all current and
retired officers shall be kept in the [dispatch office]. It is the
responsibility of the [Personnel Division] to promptly furnish a roster,
whenever it is updated.
2. [Pertinent internal operating
procedures to verify status].
B. Current and retired officers of other agencies
1. Requests for verification of
the credentials of active and retired law enforcement and corrections officers
shall be directed to the [dispatch office shift supervisor].
2. [Pertinent internal operating
procedures to verify status].
Commentary
Prepared
by AELE
I. Text of the Statute (click link)
II. Preliminary comments on the LEO Safety Act:
Nothing in the commentary, links or attachments should be
considered legal advice!
There is fundamental disagreement among law enforcement
legal advisors as to what restrictions management can lawfully impose on active
officers, and what legally enforceable rights inure to retired officers.
Most states have a concealed weapons permit law and many
former and retired officers have a permit to carry concealed firearms. H.R. 218
creates a second, overlapping circle of weapons authority. For example:
A qualified and credentialed
active or retired officer can carry a weapon in
Some states do not have a
state law imposing a continuing firearms qualification requirement, and it is
up to each employing agency to adopt a standard. What standard, if any, does a
retired officer have to meet?
A qualified and credentialed
active or retired officer might not be authorized by his or her current or
former employer to carry a firearm that is not on a list of approved weapons, or to carry a weapon that he or she did not qualify
with. But that weapon could be lawfully carried in a state that has issued the
officer a CW permit, as well as in other reciprocal states. Whether current
officers who also have a valid CW permit can be disciplined for carrying an
agency unapproved weapon is another unanswered question.
To qualify for the exemption, retired officers must:
1.
At their own expense
and in the past 12-month period, meet the State's standards for training and
qualification for active law enforcement officers to carry firearms.
[926C(c)(5)] - and
2.
Possess a [Name of
Agency] identification card
(a)
that 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 standards established by the agency for training and
qualification for active law enforcement officers to carry a firearm of the
same type as the concealed firearm [926C(c)(7)(d)(1)] - or -
(b)
photo ID issued by
[Name of Agency} and a certification issued by the State in which the
individual resides that 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 State to meet the standards established
by the State for training and qualification for active law enforcement officers
to carry a firearm of the same type as the concealed firearm.
[926C(c)(7)(d)(2)]
Some states impose a firearms qualification requirement on
academy trainees, but do not have a mandatory standard for active officers.
That can be interpreted three ways:
1.
A retired officer does
not have to qualify on a firearms course because there is no minimum standard
for active officers, i.e., no standard is the standard.
2. A retired officer must meet the standards for active
officers of the agency that he retired from, because the state has left, to
each agency, the authority to establish continuing standards.
3. Even if a retired officer satisfies the internal
requirements imposed by his or her former agency, he or she can never qualify for
the exemption, because the state has not adopted a minimum standard.
The Specimen Policy was written to suggest wording to cover
inclusions, and if retired officers are not able to qualify in a particular
state, appropriate language must be substituted.
Until the law is amended or interpreted by the courts, it
is wise for active and retired officers to obtain a citizens CW permit (if
available) because it preempts any misinterpretation of H.R. 218 by officers in
another CW licensing state. It also is a good idea to purchase an umbrella
personal liability policy, to augment the coverage of a home or condo owner or
tenant policy.
III. Specific
Comments on the Specimen Policy:
As noted, the Specimen Policy is an inclusive document, and
some agencies may want to be more restrictive. In presenting a specimen policy,
there was no intent to endorse any provision not required by federal law only
to draft the appropriate language, should an agency want to include some or all
of the non-mandatory provisions. An example is II-D and II-E-2-b, providing for
mailed ID cards to retired officers.
The head of an agency needs to consult with local legal
counsel before adopting any policy that implements the Federal LEO Safety Act.
There will be litigation in some communities which is why the head of the
agency and the attorney that will guide the defense to a lawsuit need to
jointly consider the contents.
1. I-A-2
State firearms registration laws commonly exempt current
officers from any state or local firearm owner registration, such as
2. I-A-2
A collectively bargained agreement might impede management
from restricting the off-duty carrying of agency-owned firearms, such as when
an officer is working at an approved secondary employment position.
3. II-A-7-a-i
There is nothing in the federal law that authorizes or
prevents a management imposed internally registration and inspection
requirement for personally owned weapons. Although it is not a violation of gun
laws to disobey an employers rules pertaining to personally-owned firearms,
state and federal gun control laws do not preempt an employers work rules,
absent a clear legislative intent to do so. Recently, the Utah Supreme Court allowed
a private employer to discipline workers who violated company policies and had
a firearm in their private vehicles, while parked in an employer-provided
parking lot. Hansen v. America Online, #20020288,
96 P.3d 950, 2004 UT 62 (2004).
In some states, a newly adopted registration
and inspection requirement is a term and condition of employment, subject to
mandatory bargaining.
4. II-C-1
The terms in good standing and mental instability, are
not defined by the Act, are not illuminated in the legislative history, and the
language in the specimen policy is simply a managerial best practice rule. Some
officers who chose to retire, rather than battle disciplinary charges, may
argue that they were innocent of wrongdoing but felt they could not receive a
fair hearing from the then members of the civil service commission. Other
officers might claim that a medical review panel would not have treated them
objectively. II-C-1-c moves the decision over to the agencys legal advisor or
attorney, who presumably would assess the likelihood of a retired officer
prevailing in a lawsuit.
5. II-D
There is no requirement that an agency send a retired
officer ID card in the mail. However, retiree morale is impaired if a retired
officer living in
6. II-E
The Act contemplates a two kinds
of ID for retired officers. one with, and the other
without the LEOSA certification. The Type-2 card mentioned in the Specimen
Policy covers both of the situations where a retired officer is issued an ID
without the LEOSA certification.
A retired officer who did not
take, or who failed the qualification test, is still entitled to a card
identifying his or her former employment.
A non-resident retiree needs
the card, in addition to the firearm qualification card (from his or her state
of residence) to comply with the Act.
7. III-A
A more comprehensive waiver and release form was prepared
by LAAW International, and appears as Attachment D.
IV. Attachments
and Links:
Except where so stated, the viewpoints expressed
in the following documents do not necessarily reflect the positions of AELE or
the IACP.
A. Presentation on the
LEOSA at the Nov. 2004 IACP annual conference
Outline by
Martin J. Mayer,
B. The Police Chief magazine, Oct. 2004 [IACP link]
Article by Craig E.
Ferrell Jr., General Counsel, Houston Police Dept.
C. Information
Regarding Florida's Efforts to Implement H.R. 218 [FDLE link]
D. Memorandum of Understanding (between a retired
officer and the agency)
By Michael Brave, President of LAAW
International, Inc. [PDF]
E. Position
of the IACP opposing H.R. 218 (
F. Business Meeting Minutes, International Association of Directors of Law Enforcement
Standards and Training,
G. Bulletin 2004-13 (
H. League of
Minnesota Cities Insurance Trust, (Jan. 2005) risk-management and liability
memorandum. [PDF]
I. U.S. Attorney
Generals Memo, Guidance on the application of the LEOSA of 2004 issued
J. Policy and
Procedure: Firearms and Police Identification,
K. Illinois statutory
amendment to authorize the states law enforcement training board to
annually certify qualified retired officers. (July, 2005) [PDF]
L. Policy on carry of concealed weapons
by off-duty and retired officers,
M. Retired and active Treasury agents credentials guidance (
N. IACP 2005 annual conference
slide presentation (
Law Enforcement Safety Act of 2004 by Craig
Ferrell,
O. Reza
v. St. of Calif. Dept. of Justice, #05CC08053, Orange Co. Super.
P. IRS
guidance and application forms for retired agents (Jan. 2006). [PDF]
Q.
Qualification procedures for retired
officers,
R. Retired
officer concealed firearm qualification procedures and form, Oregon State Police [PDF]
S. Retired Officers Concealed Weapons Carry Requirements,
Quincy, IL, Police Dept. [PDF]
T. FLETC article, Concealed Carry by Qualified
LEOs and Qualified Retired LEOs (Jun. 2009).