LEOSA Certification: From Federal Way to Federal Law Enforcement

Amended LEOSA Empowers Retired Law Enforcement

LEOSA has been around for about seven years now; most officers across many states aren’t very familiar with the law. Despite the 2010 amendments, understanding the LEOSA and related laws seems to be subject to some interpretation but we have received some help from a federal law enforcement officer who is also a Federal Law Enforcement Training Center (FLETC) and NRA instructor. He keeps himself very well versed in Washington State and federal laws that relate to LEOSA.

Active and retired LEOs should fully educate themselves on the firearm laws of any jurisdiction in which they are traveling and strive to always be in compliance with the various laws because their knowledge is what will ultimately protect them. We choose to carry concealed firearms for one purpose- to preserve life. The moment when the off-duty officer or retiree has to present that firearm and pull the trigger is critical because whether he was fully justified or not, those moments may land him in court explaining his actions. Things will be far more complicated if the court finds that the officer or retiree was in illegal possession of that firearm when he made the decision to deploy deadly force.

The Opinion Letter referenced in an April 26th Mirror article was drafted before the Law Enforcement Officers Safety Act Improvements Act which was recently signed into law. The Washington legislature amended RCW 36.28A.090 last year. LEOSA Improvements Act amended LEOSA to allow the option of using a “certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that State” if the state does not have a certification standard.

• S. 1132/H.R. 3752 would reduce the period an officer must serve before gaining eligibility to carry firearms as a retiree. Under current law, only officers with 15 years of service are “qualified.” This arbitrary requirement discriminates against those who go into law enforcement as a second career–after retiring from the military, for example. S. 376 reduces the requirement to 10 years.

• S. 1132/H.R. 3752 eliminates the requirement that retirees have “nonforfeitable” retirement benefits to qualify. Some small agencies have no such benefits–but a retiree`s need to defend himself shouldn`t depend on his pension plan.

• S. 1132/H.R. 3752 would clarify training requirements–ensuring that a retiree can meet the mandatory re-qualification standard either through the agency he or she formerly served, or through the state where he or she currently resides.

• S. 1132/H.R. 3752 would create more flexibility in training. Currently, many retired police officers who are otherwise well qualified, can`t find a state agency willing to train them because of liability concerns. While those concerns are largely imaginary, S. 1132/H.R. 3752 would fix the problem; it would allow certification of the retiree`s training by any person authorized to test law enforcement officers` qualifications.

RCW 36.28A.090 was also amended to remove several sections including the FBI check requirement that required the retiree to apply for certificates at LEO agencies, allowing only LEO agencies to issue certificates, and requiring the retiree to pay fees.

Removing those sections from RCW 36.28A.090 made it even clearer that the agency, individual or entity does not face legal risk and liability for certifying retired officers. The agency role as certifier does not authorize anyone to carry or use a weapon. Once the agency hands that signed certificate over to that retiree, whether he is a Microsoft retiree or an LEO retiree, it is up to that retiree to make sure he or she acts properly under federal and state gun laws. If an agency is sued for damages where the allegation is that a retired officer is not competent to carry, the certificate becomes about as relevant as a score sheet from a bowling alley because the certifier’s job is simply to certify the retiree’s shooting ability to the standards of the state (or departmental standards), and that is where departmental responsibility begins and ends. It is the retiree’s responsibility to be in compliance with federal and state firearm laws.

With the amended RCW, it’s hard for WASPC and others to argue that agencies may be held liable. In fact, there aren’t any requirements to keep records or databases on any retiree who receives a qualification because all administrative requirements were removed from the RCW when it was amended.

Here is how LEOSA certifications work in one federal agency:

The Department’s policy prohibits its agencies from conducting qualifications for retirees, and directs retirees to seek qualification through their state’s standard. Of course, Washington does have a state qualification standard, (RCW 36.28A.090), but the standard allows the qualification to done by any of three means: a law enforcement agency or individual or entity certified to provide firearms training.

Several months ago, the federal officer/FLETC certified instructor asked the Executive Director of the Washington Association of Sheriffs and Police Chiefs whether he and other FLETC certified instructors met the RCW 36.28A.090 definition of “an individual certified to provide firearms training” who can qualify retirees on the state standard. The Executive Director stated that the WASPC allows individual instructors who are CJTC and NRA certified, and because of that, they would also recognize individual instructors from Federal agencies who are FLETC certified.

Then our correspondent asked his agency for permission to conduct LEOSA qualifications during his off-duty, non-paid time, and the Ethics Office and chief executive approved his request. So now, even though the agency cannot allow him to conduct qualifications during paid time, he can provide the qualification as a self-employed individual instructor during off-duty time, and because of that, the agency retirees now have an easily accessible means to receive their Washington state annual qualifications. It’s his way to give back to co-workers when they retire.

Qualifications are conducted using the Washington state standard and the Model Certificate provided by the WASPC. The LEOSA (amended) directs certifications to be done according to “the standards used by a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that State.” Utilizing the state standard is allowable and proper because RCW 36.28A.090 directs “an individual certified to provide firearms training” to certify the retiree “according to the standards established by the criminal justice training commission,” and FLETC instructors meet the definition of “individual certified to provide firearms training” for that purpose. Also, using the state standard instead of the agency’s standard is more appropriate because it eliminates any perception that the instructor is representing the agency, or violating agency policy.

Law Enforcement agencies can conduct retiree qualifications under the analysis outlined above. Ordinarily, a firearm instructor would be certified by the CJTC, and if their agency offered a qualification program for retired officers, they would be the very same instructor administering the qualification during their paid shift.

Instructors from local agencies can assist retirees to qualify during off-duty, non-agency paid time while acting as self-employed individual firearm instructors. The individual’s status with his or her agency as Firearm Instructor signifies only that the instructor meets the skills recognized by the WASPC to do LEOSA qualifications in this state, but it does not mean the qualifications they do are endorsed by their agency. And instead of having the retiree qualify on their agency’s standard, they would be qualifying them on the state standard that is outlined on the WASPC Model Certificate.

Of course, there are often agency policies that have to be considered; e.g., requesting authorization for outside employment even though offering the service to retirees at no charge (they only cover the officer’s expenses such as ammo and targets).

Washington State may have the best program in terms of how much red tape the retiree has to deal with, cost, and availability. Also, it seems that Washington State’s standard is unique in that it allows individual instructors to conduct the qualification without requiring the retiree to go through a local LEO agency (and possible red tape) during any part of the process, thus making it easier for retirees to exercise this right.

Retired LEO’s who fell into the RCW 10.93.020 definition of “General authority Washington peace officer” when they retired may the only retirees who are fully exempted from concealed weapons licenses and may carry a concealed firearm within the state without such license. Nevertheless, we have it on good authority that retired King County Reserve Deputies receive a retirement card that exempts them from needing a CPL to carry within Washington State.

LEOSA also allows them to carry within the state and extends that privilege beyond the state’s borders. Any retiree who fell into the other three RCW 10.93.020 definitions of “Limited authority Washington peace officer,” “Specially commissioned Washington peace officer”, and “Federal peace officer” when they retired may not have the state exemption, and the only way they can legally carry a concealed weapon in WA state is under LEOSA- which means they must have an agency-issued photographic ID, a current WASPC Model Certificate, and a WA state Drivers License or ID card (the WADL proves to out-of-state authorities that the Model Certificate from WA state is the retiree’s proper state certification).

At first glance, RCW 9.41.060 seems to exempt ALL retired LEOs, but it does not. This is explained in the following Attorney General Opinions:

AGO 2006 No. 15
AGO 2009 No. 7

For example, “Federal Peace Officers” lack the full exemption under RCW 9.41.060 but are still eligible for LEOSA status.

Volunteer, uncompensated reserve officer; i.e., “Specially commissioned Washington peace officers” may not have an exemption to carry concealed while off-duty (absent specific authorization). But even though RCW 9.41.060 does not exempt a reserve officer, a retired reserve officer may be eligible to carry pursuant to LEOSA. If (s)he meets the LEOSA requirements (an LEO with at least 10 aggregate years of LEO authority with statutory powers of arrest, who carried a firearm, along with possessing an agency-issued photo ID, a current WASPC Model Certificate, and WADL). Thus, since LEOSA was enacted in early 2011, LEO’s from all RCW 10.93.020 definitions may have full off-duty exemption if they meet LEOSA requirements.

While on this topic, here are some other notes about off-duty active and retired LEOs in Washington State:

Active “General authority Washington peace officers” are the only LEOs who have FULL exemption under RCW 9.41.060 when they are off-duty. The other three categories of peace officers have only a LIMITED exemption when off-duty, and it is mostly limited to off-duty periods when they are authorized by the proper authorities in their chain of command to carry a concealed firearm when off-duty such as when commuting to and from work with their service pistol.

A limited authority Washington peace officer is defined in RCW 10.93.020 as:

“[A]ny full-time, fully compensated officer of a limited authority Washington law enforcement agency empowered by that agency to detect or apprehend violators of the laws in some or all of the limited subject areas for which that agency is responsible.”

RCW 10.93.020(4).

On the other hand, Washington law identifies a reserve officer, as a “Specially commissioned Washington peace officer” defined as follows:

(5) “Specially commissioned Washington peace officer”, for the purposes of this chapter, means any officer, whether part-time or full-time, compensated or not, commissioned by a general authority Washington law enforcement agency to enforce some or all of the criminal laws of the state of Washington, who does not qualify under this chapter as a general authority Washington peace officer for that commissioning agency, specifically including reserve peace officers, and specially commissioned full-time, fully compensated peace officers duly commissioned by the states of Oregon or Idaho or any such peace officer commissioned by a unit of local government of Oregon or Idaho. A reserve peace officer is an individual who is an officer of a Washington law enforcement agency who does not serve such agency on a full-time basis but who, when called by the agency into active service, is fully commissioned on the same basis as full-time peace officers to enforce the criminal laws of the state.

RCW 10.93.020 (5)

Under the amended LEOSA, retired officers must have separated from service in good standing from service with a public agency as a law enforcement officer, before such separation, have been 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. Additionally, either before such separation, he or she must have been regularly employed as a law enforcement officer for an aggregate of 10 years or more, or be retired 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. Thus, a “specially commissioned Washington peace officer” (i.e., reserve officer) qualifies to carry under LEOSA if he or she qualifies every year and meets the other criteria.

We are still working on this project to assist agencies and individuals to deal with some very fact-specific determinations that can have critical results if misinterpreted. For instance, the U.S. Coast Guard has promulgated a guideline policy stating that a LEOSA “Qualified Law Enforcement Officer” includes only:

(1) COMMISSIONED, WARRANT, AND PETTY OFFICERS, INCLUDING RESERVISTS COVERED BY CHAPTER 3.C.1.B.3 OF REFERENCE (C), WHO HOLD A CURRENT, EFFECTIVE, AND PROPERLY ISSUED COMMAND DESIGNATION LETTER AS A BOARDING OFFICER OR BOARDING TEAM MEMBER IN ACCORDANCE WITH CHAPTER 3.C.1.B.1 OF REFERENCE (C)…. LEOSA EXTENDS THE DEFINITION OF QUALIFIED LAW ENFORCEMENT OFFICER TO THOSE AUTHORIZED TO SUPERVISE LAW ENFORCEMENT ACTIVITY PROVIDED ALL OTHER CRITERIA ARE SATISFIED. ALTHOUGH STATE COURT DETERMINATIONS WILL GOVERN INDIVIDUAL CASES, THE USCG INTERPRETS THIS TO MEAN THOSE PERSONNEL WHO ARE IN THE DIRECT OPERATIONAL CHAIN OF COMMAND AND WOULD INCLUDE: COMMANDING OFFICERS AND OFFICERS-IN-CHARGE OF UNITS SUPERVISING AT LEAST ONE FULL-TIME BOARDING TEAM AS THAT TERM IS DEFINED IN REFERENCE (C), CHIEFS OF RESPONSE OF AREAS, DISTRICTS, AND SECTORS, CHIEFS OF LAW ENFORCEMENT OF AREAS, DISTRICTS, AND SECTORS, AREA COMMANDERS, CG-DCO, DISTRICT COMMANDERS, DOG COMMANDER, COMDT (CG-5), COMDT (CG-53), COMDT (CG-531), AND DOG (DG-3) PROVIDED SUCH PERSONS ARE, AT THE TIME OF CONCEALED FIREARM CARRIAGE, AUTHORIZED TO CARRY A GOVERNMENT ISSUED PERSONAL DEFENSE WEAPON (GI-PDW) IN ACCORDANCE WITH REFERENCE (D) AND APPENDIX H OF REFERENCE (C).

One of the best things an agency can do for their officers and retirees is to write a well-written LEOSA policy. The agency might already have a written policy on carrying personal firearms off-duty within the state based on state statutes, and if that’s the case, then it only needs to be update so that it includes interstate possession under LEOSA. It is important to bear in mind, however, that administrative policies do not determine an officer’s status under LEOSA. Anindividual’s status as a qualified law enforcement officer is determined by his or her statutory power of arrest along with the other criteria enumerated pursuant to LEOSA.

The City of San Fernando Police Department settled with a member of the U.S. Coast Guard, Jose Diaz, in the amount of $44,000.00 after they ignored his right to carry under LEOSA. The following excerpt is from a brief filed by the Plaintiff’s attorney, Jason Davis, in opposition to the City of San Fernando’s Motion for Summary Judgment in the case of Jose Diaz vs City of San Fernando. The E-4 Coast Guard Petty Officer Third Class was arrested and booked into jail for having an unloaded Glock pistol in his vehicle:

C. LAW ENFORCEMNT OFFICER SAFETY ACT (LEOSA) PERMITS DIAZ TO CARRY A FIREARM AS A MATTER OF LAW

Mr. Diaz is a member of the United States Coast Guard Reserves. The United States expressly permits certain qualified law enforcement officers to possess firearms, regardless of state laws. Specifically, 18 U.S.C. section 926B(a), also known as the Law Enforcement Officers Safety Act of 2003 (LEOSA), states as follows:
Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who [1] is a qualified law enforcement officer and [2] who is carrying the identification required by subsection (d) may carry a concealed firearm that [3] has been shipped or transported in interstate or foreign commerce, subject to subsection (b).

Each of these three requirements are discussed below.

i. Plaintiff was, at the time of the incident, a Qualified Law Enforcement Officer:

Qualified law enforcement officer, is defined by 18 U.S.C. 926B(c) 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;
• is authorized by the agency to carry a firearm;
• is not the subject of any disciplinary action by the agency;
• meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;
• is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and
• is not prohibited by Federal law from receiving a firearm.

Nothing in LEOSA requires that the Officer be issued a firearm. LEOSA applies to persons “authorized by the agency to carry a firearm.”

A Petty Officer in the Coast Guard has the general authority of the power to arrest and the authority to carry a firearm are also provided within 14 U.S.C. 89(a), which states in part:

The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States.

For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. (Multiple emphasis added.)

Here, the authority to carry firearms for petty officers is found within the phrase “use all necessary force to compel compliance.” That LEOSA applies to members of the Coast Guard, has already been established:
Under New York law there is a presumption that possession of a weapon is evidence of intent to use the weapon unlawfully against another. N.Y. Penal Law § 265.15 (4). However, this presumption is questionable in light of plaintiff’s arguable entitlement to carry a concealed weapon under federal law. See People v. Booth, 20 Misc. 3d 549, 552-53, 862 N.Y.S.2d 767, 770 (N.Y. Co. Ct. 2008) (member of Coast Guard covered by section 926B held to be exempt from prosecution for Criminal Possession of Weapon in the Second Degree).

(See LaFontaine v. City of New York (2009) 2009 U.S. Dist. LEXIS 105838, RFJN Exhibit 8; UMF No. 12; Exhibit A, Mack Depo., pp. 26, 54-55; Exhibit B, Diaz Depo. ¶¶2-9, Internal Exhibit 16 [Plaintiff’s Coast Guard identification card].) As such, at least one court has found that LEOSA does permit members of the Coast Guard to carry concealed firearms as a matter of law.

ii. Plaintiff Carried and Provided Officer Mack with Proper Identification:

Proper Identification is defined by 18 U.S.C. section 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.”

Plaintiff stated he was a maritime law enforcement officer. (UMF NO. 11; Exhibit A, Mack Depo., pp. 26, 54-55; Exhibit B, Diaz Depo., p.30) Officer Mack looked at the Coast Guard identification card presented by Plaintiff, which did not state that Plaintiff was a law enforcement officer with privilege of carrying a loaded firearm. (UMF No.12; Exhibit A, Mack Depo., pp. 26, 54-55; Exhibit B, Diaz, Depo., Internal Exhibit 16 [Plaintiff’s Coast Guard Identification Card].)

It is undisputed by Defendants that Plaintiff provided Officer Mack with his photographic identification card identifying Plaintiff as a law enforcement officer for the Coast Guard reserves. A review of the license identifies Plaintiff as an “E4” “PO3,” which is a Petty Officer – Third Class. As noted above, Petty Officers meet the criteria of qualified law enforcement officer for the purposes of LEOSA. (UMF No. 12; Exhibit A, Mack Depo., pp. 26, 54-55; Exhibit B, Diaz Depo. ¶¶2-9, Internal Exhibit 16 [Plaintiff’s Coast Guard identification card]).

iii. It is undisputed that the firearm is a Glock that was Shipped In Interstate Commerce:

Defendants do not dispute that the firearm is a Glock 9mm. Glock, Inc., which manufactures Glock firearms in the United States, is based in Smyrna, Georgia. (See UMF No. 38; Plaintiff’s RFJN ¶10.) As such, Plaintiff requests that the court take judicial notice of the fact that the firearm at issue, a Glock 9mm, was manufactured and shipped in interstate commerce, as required by 18 U.S.C. section 926B(a) . If this matter is not deemed judicially noticed, then this is a material fact for the Jury to determine that goes to the lawfulness of Plaintiff carrying his firearm at the time of the incident.

iv. LEOSA Exempted Plaintiff as a Matter of Law

There are no material facts in dispute regarding the application of LEOSA to Plaintiff. In fact, the question is a question of law. As discussed in above Plaintiff is a Qualified Law Enforcement Officer, which entitles him to the legal right to carry a concealed firearm, provided he show proper identification, which he did.

The USDOJ has a policy for it’s officers and different agencies within the DOJ also have a written policy of their own that breaks down the USDOJ’s policy into instructions that are more specific to the different categories and positions within the agency. A lot of staff did not welcome those two policies when it came out because the policy was regarded as the USDOJ and agency trying to interfere with legal rights.

But after enough off-duty officers carrying under LEOSA were arrested, and LEOSA litigation ensued the DOJ came to realize that writing the policies was a good thing.

Note well: The policy cannot override or restrict LEOSA. The policy gives the officer and retiree everything the LEOSA grants him but in addition to that, it gives the officer clear guidance on how to practice it so that he does not break agency policies. Agency policy should cover such things as:

Official use of agency ID’s (shown only to prove LEOSA eligibility—not to imply they are carrying to further their official duties outside of jurisdiction or state);

LEO arrest authority off-duty (the LEOSA does not grant this);

Reiterate the fact that LEOSA only exempts state CWP requirements, but it does not exempt other state/local laws such as possession in off-limit areas

Provide guidance as to which officer/staff positions in the agency are not qualified under LEOSA;

Guidance for retirees such as annual certifications (does the agency provide this? If not, then how?);

Such a policy is a pro-active way for an agency to take care of it’s staff when they go off-duty. Occasionally officers get into trouble while carrying under LEOSA and it turns out to be something that could have been alleviated if the officer had an agency policy to follow. It doesn’t take classroom time to have officers understand the interpretation of a law that widely covers LEO’s nation-wide. LEOs know how to read and understand regulations, so all it takes is a well-written agency policy that closes up the gray areas within the LEOSA that specifically apply to that officer’s position in his or her agency.

After several cases of US Coast Guard officers getting into trouble with this law, the Coast Guard finally issued it’s own LEOSA policy just 5 months ago. Some of the problems in the past could have been cleared up if that policy was written six years ago. Here’s the USCG policy: http://www.uscg.mil/announcements/alcoast/549-10_alcoast.txt