Law Enforcement Officer Safety Act (LEOSA) & the Air Force

Purpose. Certain law enforcement officers who work for the Air Force, have requested that the Law Office of Mark Knapp draft an Opinion Letter analyzing issues related to Law Enforcement Officer Safety Act (LEOSA) Identification set forth below. The officers have indicated that they have been treated differently than other DOD and Air Force employees and that LEOs and their families are endangered thereby.

Facts. Law enforcement members of the 375th Security Forces Squadron have raised certain issues pertaining to the Qualified Law Enforcement Officer Identification cards. The LEOS asserted that their right to carry a weapon off duty is being violated by Air Force policy. One grievance has been filed via the officers’ collective bargaining representative which is National Association of Independent Labor (NAIL) Local 19. The grievance raised issues under the Second Amendment and Law Enforcement Officer Safety Act (LEOSA) of 2004 and as amended in 2008.

Officer Safety Issues. The fact that LEOs are required to pay for identification cards raises an issue as to whether the Air Force is undermining officer safety issue and unlawfully infringing on officer rights. The Air Force does not issue an Active Duty ID card identifying Police as Law enforcement officers. LEOSA does not require that any government agency issue identification cards. Although 18 USC § 926B requires Police Officers to carry photographic identification issued by the governmental agency for which the individual is employed; The DAF has promulgated rules of employment that prohibit officers from carrying a weapon without an identification card issued by Defense Consulting Services, a private contractor. The cards bear indication of the officers’ LEOSA status; Defense Consulting Services and/or DAF charge a fee for LEOSA ID cards which is approximately $150.00
Issues.

• Is the Air Force LEOSA credentialing process unduly restrictive and is the cost excessive when compared with other federal agencies?
• Is the Air Force promulgating employment regulations and issuing credentials in such a way as to inhibit the exercise of a fundamental right?
• Is there a reasonable basis for the Air Force to treat some of its LEO employees differently than other similarly situated LEO employees and personnel?

Analysis. The Law Enforcement Officers Safety Act (LEOSA) is a federal law that allows qualified current law enforcement officers and qualified retired law enforcement officers to carry a concealed firearm in any jurisdiction in the United States, regardless of state or local laws, with certain exceptions.

UNDER 18 USC§ 926B A “QUALIFIED LAW ENFORCEMENT OFFICER” IS DEFINED AS AN INDIVIDUAL 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);
• IS AUTHORIZED BY THE AGENCY TO CARRY A FIREARM;
• IS NOT THE SUBJECT OF ANY DISCIPLINARY ACTION BY THE AGENCY WHICH COULD RESULT IN SUSPENSION OR LOSS OF POLICE POWERS;
• 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.

Photographic Identification. Additionally, the statute requires that the individual must carry photographic identification issued by the governmental agency for which the individual is employed. The above referenced identification identifies the employee as a police officer or law enforcement officer of the agency.

Charging for active police credentials is unheard of in law enforcement. The Air Force allows a 3rd party to charge Officers $150-$200 for police credentials. Public policy has long ago established that officers do not need to pay for issued equipment in both municipal and federal departments, a credential is issued equipment and should be provided without a fee. Furthermore, under LEOSA, the CaC card is sufficient to show active duty status that satisfies the LEOSA criteria. Nevertheless, the fact that DAF will terminate officers for carrying without a LEOSA card issued by a DAF contractor, coerces an officer to submit to a process that is against public policy as expressed in LEOSA and the legislative history of the act.

Abrogation of Constitutional Right as Condition of Employment. Although LEOSA is a right, an officer that carries a weapon while off-duty who has not obtained the above referenced ID card (issued by an Air Force contractor and indicating LEOSA status) suffers the risk of being separated from employment. Thus, legal jeopardy and loss of employment accrue while an LEO protects himself or herself in a manner that is entirely lawful under LEOSA, other federal and state laws and the Second Amendment.

The administrative hurdles involved in attaining an Air Force LEOSA credential can indirectly cause an officer safety issue. Training errors on the unit’s part can result in an officer not being credentialed for over a year after hire at no fault to their own.

One Year of Service for Eligibility. LEOSA does not require that active duty LEOs have one year of service in order to obtain LEOSA status, nor is it required that an LEO possess a card with indication of LEOSA status. The fact that such cards are issued creates a problem to those to whom they are not available. There is also the legal jeopardy of being detained and jailed to those officers for whom the expense may present a chilling effect. This is because local, state and federal agencies will now expect that failure to possess such a card means that LEOSA provision for carrying in all fifty states does not adhere to the officer without said credentials. Thus the expectation that such a card will be presented and the jeopardy to employment chills a constitutional right and exposes DAF officers to danger while going out in public while off duty.

Statutes.

Public Law 108-277, Public Law 110-272, 18 USC 926B
Policies.

DODI 5525.12 – DOD LEOSA POLICY, AFI 31-122 – DAF Police,
AF MAN 31-125 Air Force LEOSA Policy

Note: Air Force LEOSA Policy adds additional requirements for Police Officers.
: these additional standards are not In accordance with Public Law or DOD 5525.12.

UNDER AF MAN 31-125 A “QUALIFIED LAW ENFORCEMENT OFFICER” IS DEFINED AS AN INDIVIDUAL WHO:

blockquote>

• AT A MINIMUM AN OFFICER MUST BE EMPLOYED FOR THE AIR FORCE FOR 1 YEAR.
• THE OFFICER MUST COMPLETE THE OFFICER BASIC TRAINING ACADEMY.
• THE OFFICER IS NOT ALLOWED TO CARRY UNTIL 1 YEAR AFTER COMPLETING AN OJT COURSE OF TRAINING THAT IS NOT REQUIRED BY FEDERAL LAW.
• “AF MAN 31-125: 1.1.1.7. COMPLETE A PROBATIONARY PERIOD OF ONE YEAR AFTER ACHIEVING ALL POST STANDARDS.”
• *THE AIR FORCE SEEMS TO BELIEVE POST STANDARDS DO NOT INCLUDE THE ACADEMY WHICH IS IN ACCORDANCE WITH DOD 5525.15. THEY INCORPORATE CBTS, UNIT TRAINING, AND OTHER ITEMS.
• *$150 PROCESSING FEE TO A 3RD PARTY CONTRACTOR, NOT IN COMPLIANCE WITH LAW THAT THE IDENTIFICATION CARD CREDENTIAL SHALL BE ISSUED BY GOVERNMENT EMPLOYER. PROCESSING FEES ARE HIGHLY UNUSUAL AND UNHEARD OF FOR ACTIVE QLEOS.
• *$50 BACK GROUND CHECK FEES, NOT REQUIRED BY LAW.

*NOTE: THESE ADDITIONAL REQUIREMENTS ARE NOT APPLIED TO AIR FORCE OSI.

Disparate treatment towards DAF POLICE and OSI Concerning LEOSA. The Air Force has two different policing agencies with civilian employees. The DAF Police 0083s and the OSI Special Agents 1811s. The Air Force does not issue an active law enforcement ID to its 0083 Police Officers, it does however issue an active law enforcement credential at no cost to its 1811 investigators. Even though DAF and OSI are covered by the same rights under LEOSA the Air Force gives OSI far more rights and fewer restrictions. There is no reason for this disparate treatment. {*-See Attachment 1}

Why do police officers need a weapon off duty?

Officer Safety. LEOSA is premised on the notion that officers are vulnerable off duty. Criminals sometimes target them, as well as their families, for harm; these individuals also know that off-duty officers may be unarmed. LEOSA allows qualified officers to protect themselves, their families, and the community by being armed while off duty. {https://leb.fbi.gov/2011/january/off-duty-officers-and-firearms}.

Air Force leadership has advised that uniformed officers should travel in civilian clothes to maximize officer safety. The Air Force extended LEOSA to protect its plain clothes OSI Investigators for several years before 0083 police were eligible. Why weren’t OSI agents considered safe enough travelling in civilian clothes unarmed?

Obligation to the public. 0083 officers now have statutory arrest powers at the federal level and all the burdens associated with it. Public law 114 says LEOs are to enforce Federal laws and regulations for the protection of persons and property; carry firearms; make arrests without a warrant for any offense against the United States committed in the presence of the officer. This is huge responsibility and this law was written by the FOP to mimic the expansive powers of the Department of Homeland Security.

Notwithstanding policy in AFI 31-122, 0083 Police Officers also have an obligation to the public. No matter how much it tries, policy cannot override or negate law.

Public Duty Doctrine. Some states like Illinois grant 0083’s full peace officer powers. Illinois adds an additional burden that comes with the repeal of “public duty rule” in that state. The rule has long provided that local governmental entities and their employees owe no duty of care to provide governmental services, such as police and fire protection, to individual members of the public. Now a first responder can be held legally liable for refusing aid in an emergency even off duty. With a base population of 30,000 during the duty day do you really think a DAF Police Officer should assume he can slink away from his duties unrecognized in an emergency?

Legislative History. The Air Force has added to LEOSA’s requirements. When LEOSA was under consideration in the United States House of Representatives Committee on the Judiciary, considerable representations were made to the effect that it would override agency-specific policies, leading to opposition to the Act from the International Association of Chiefs of Police, the Police Executive Research Forum, and the United States Conference of Mayors, which was expressed as a dissenting view in the report of the Committee. Congressman Bobby Scott (D-VA) proposed an amendment to the Bill to provide that it “shall not be construed to supersede or limit the rules, regulations, policies, or practices of any State or local law enforcement agency,” but this amendment was opposed by the sponsors of the bill, and was rejected by the Committee 21-11, so the enacted law contains no such exception.

Active law enforcement ID cards are a requirement of the job. Active Law Enforcement credentials also provide an active officer with evidence of the right to carry pursuant to LEOSA provisions. The fact that the Air Force declines to provide DAF Officers with Active Law Enforcement credentials exposes DAF officers to possible false arrest and costly misunderstandings. DAF Officers use a non-descript Common Access Card as identification. The CAC cards have no mention of police authority and Officers are not allowed to identify themselves using the 926B LEOSA credentials without purchasing them from the DCS and subject to the other time on the job and training restrictions enumerated above {AFI 31-122}.

Disparate treatment towards DAF POLICE and OSI Concerning LEOSA. The Air Force does not issue an active law enforcement ID to its 0083 Police Officers, it does however issue an active law enforcement credential at no cost to its 1811 investigators. There is no reason for this disparate treatment.

The Air Force has two different policing agencies with civilian employees. The DAF Police 0083s and the OSI Special Agents 1811s. Even though DAF and OSI are covered by the same rights under LEOSA the Air Force gives OSI far more rights and less restrictions. See attached Exhibits.

Threats to Officers. LEOSA also is premised on the notion that officers are vulnerable off duty. Criminals sometimes target them, as well as their families, for harm; these individuals also know that off-duty officers may be unarmed. LEOSA allows qualified officers to protect themselves, their families, and the community by being armed while off duty.

Legal Liability & Case Law. 42 USC 1983 does not apply to the federal government and is only applicable to the states and municipalities. There is a potential for a case under a BIVENS cause of action.

Bivens Action. BIVENS V. SIX UNKNOWN NAMED AGENTS, 403 U.S. 388 (1971), is a case in which SCOTUS ruled that an implied cause of action existed for an individual whose rights under the Fourth Amendment had been violated by the Federal Bureau of Narcotics. A victim of a violation of Constitutional rights can sue for the violation of the Second Amendment despite the lack of any federal statute authorizing such a suit. The existence of a remedy for the violation is implied by the importance of the right violated.

The BIVENS case has subsequently been interpreted to create a cause of action against the federal government similar to the one in 42 U.S.C. § 1983 against the states. Just as the Fourth Amendment right to freedom from search and seizure without a warrant has been held to be a fundamental right, the Second Amendment implicates the 14th Amendment’s recognition of a fundamental interest in protecting one’s own life and the rights of others. There are ample case law precedents that establishing that violation of the Second Amendment is a clearly established fundamental right that should be deemed a Constitutional tort for 42 USC 1983.

BIVENS issues. In DAVIS V. PASSMAN, 442 U.S. 228 (1979), SCOTUS upheld a Fifth Circuit opinion holding that Congress intended to recognize an alternative remedy directly under the FIFTH AMENDMENT.

The court has held that a damages remedy would be available under a BIVENS analysis despite the absence of any statute conferring such a right, unless: (1) Congress had provided an alternative remedy which it “explicitly declared to be a substitute for recovery directly under the Constitution”; or (2) the defendant could demonstrate any “special factors counseling hesitation.”

In Bush v. Lucas, 462 U.S. 367 (1983),[5] the Court refrained from implying a Bivens remedy due to the availability of alternative remedies for the first time.[ In FDIC v. Meyer, 510 U.S. 471 (1994),[6] and CORRECTIONAL SERVICES CORPORATION V. MALESKO, 534 U.S. 61 (2001), the court held that the fundamental logic supporting BIVENS was to deter constitutional violations by individual officers, not federal agencies.

In WILKIE V. ROBBINS, 551 U.S. 537 (2007),the court held that the difficulty inherent in “defining limits to legitimate zeal on the public’s behalf in situations where hard bargaining is to be expected” was a “special factor” that counseled against the availability of a Bivens remedy.

The court has denied a BIVENs action for Eighth Amendment violations committed by employees of a private prison because “state tort law authorizes adequate alternative damages actions … that provide both significant deterrence and compensation”, despite acknowledging that these officials were “act[ing] under color of federal law”. MINNEWIT V. POLLARD, 565 U.S. ___ (20110.

Standing. Given the facts herein, there can also be issues of standing and what it takes for a court to find justiciable issues required to assert the BIVENS action. Some courts may require an actual showing of death or grave bodily harm proximately caused by the inability to carry off-duty. Nevertheless, it is more likely that the courts would rule that officer safety is seriously curtailed without the requirement an officer experience physical injury. Courts require some legal harm in order to find standing. Harm can potentially be the manner in which DAF policy lacks any rational basis for limiting a fundamental right to defense of self and others which capriciously treats one group of officers differently than others despite the absence of any governmental interest in doing so.

Thus, a BIVENS case needs to be against individuals and not the agency. There also needs to be a clear violation of a recognized Constitutional right and Plaintiffs who have suffered actual damage by the violation of a fundamental Constitutional right.

A WRIT OF MANDAMUS may have less chance of success because there is no statutory duty to issue LEOSA cards.

Officer Safety. Air Force leadership has advised that uniformed officers should travel in civilian clothes to maximize officer safety. The Air Force extended LEOSA to protect its plain clothes OSI Investigators for several years before 0083 police were eligible. Why weren’t OSI agents considered safe enough travelling in civilian clothes unarmed.

Do police officers need a weapon off duty? Notwithstanding policy in AFI 31-122, 0083 Police Officers have an obligation to the public. No matter how much it tries, policy cannot override or negate law.

Obligation to the public. 0083 officers now have statutory arrest powers at the federal level and all the burdens associated with it. Public law 114 says LEOs are to enforce Federal laws and regulations for the protection of persons and property; carry firearms; make arrests without a warrant for any offense against the United States committed in the presence of the officer. This is huge responsibility and this law was written by the FOP to mimic the expansive powers of the Department of Homeland Security.

Some states like Illinois grant 0083’s full peace officer powers. Illinois adds an additional burden that comes with the repeal of “public duty rule” in that state. The rule has long provided that local governmental entities and their employees owe no duty of care to provide governmental services, such as police and fire protection, to individual members of the public. Now a first responder can be held legally liable for refusing aid in an emergency even off duty. With a base population of 30,000 during the duty day do you really think a DAF Police Officer should assume he can slink away from his duties unrecognized in an emergency?

Conclusion. With a duty to assist and commitments to protect DAF, Police Officers need the tools their profession on duty and off. The level of protection for an LEO should not be diminished by the Air Force while off-duty to less than what an LEO would possess were he or she simply an armed citizen.

Nevertheless, the availability of a BIVENS action is limited by the difficulty of finding a Plaintiff who clearly has standing. The best defendant would be one who has been denied LEOSA rights, possibly during the initial first year when DAF policy denies issuance of the LEOSA card, with a subsequent termination of employment and/or injuries perpetrated during an attack against the Plaintiff officer.

Finding the appropriate individual defendants may also be difficult without a violation of the Constitution by an individual or individuals within the DAF who have taken some kind of action that can be characterized as outside the scope of agency policy.