I-594: Beware of Wolves in Billionaire’s Clothing

Initiative 594 is a proposed measure that its proponents claim will prevent mentally ill and other prohibited persons from obtaining firearms.

The campaign is being financed by former New York City Mayor Michael Bloomberg, Bill Gates, Nick Hanauer, Paul Allen and Steve Ballmer along with other leftist Billionaires. The anti-gun Bloomberg’s “grassroots” organization Everytown For Gun Safety filings with the Public Disclosure Commission reveal a $50 million action fund to support I-594.

The initiative, sponsored by the Seattle-based Washington Alliance for Gun Responsibility, is thus being promoted by Bloomberg and other out-of-state interests that seek to destroy the freedom that has made Washington a state where there is less crime than other states.

Unfortunately, we also have people like Bill Gates living in Washington State that fail to respect the many gun owners participating in all kinds of shooting activities who do so very safely and in a law abiding manner.

Initiative 594 contains language that demonstrates an agenda less to do with universal background checks and more to do with creating difficulties for those of us that own and train others in the use of firearms.

The measure will criminalize, with few exceptions, all temporary transfers of firearms that do not involve purchases, such as for safekeeping, hunting, loan, recreational sharing, safety training, coaching, transport, etc.

The Federal Way based Armed Defense Training Association is a good example of how the law may impact local gun owners. Founded in 2010, the non-profit group provides opportunities for education, training and gun safety. Many of the public service presentations involve members teaching gun safety to new gun owners and those who may be thinking of becoming first time gun owners.

The fact that the association’s members volunteer to let folks handle unloaded firearms in very closely supervised settings, often in a church, library or similar setting, raises the issue of whether we could be prosecuted for a crime just by letting someone handle a firearm.

It sounds ridiculous but the I-594 definition of transfer includes temporary handling of firearms. The Armed Defense Training Association is not a political group but many of the members have become concerned about how the law will be applied to our training activities.

But it is not just armed citizens like us that are concerned. The Washington Council of Police and Sheriffs voted to oppose I-594 and support I-591. Initiative 591 is a proposal that prevents government gun confiscation without due process and requires that background checks in Washington comply with a uniform national standard.

If the Legislature were dealing with such issues, I-594 would never even be reported out of committee. Legislators know what happened in Colorado when lawmakers were recalled for infringing on the right of the people to keep and bear arms. Voters should be clear and vote for I-591 to keep a clear national standard in place.

On the other hand, I-594 is deceptive and seems to be intentionally confusing. Bad legislation always has unintended consequences. The gun ban lobby wants Washington to believe that the NRA does not represent the large numbers of us that own firearms. The truth is that we should all be offended when Warren Buffett, Bill Gates and others pour millions into the radically deceptive agenda of the gun banners, saying and doing anything to turn the rest of us into helpless sheep.

FBI Clears Way for Restoration of Gun Rights After DV Conviction in Washington State

Until recently, anyone that had been convicted of a Fourth Degree Assault determined to be domestic violence in Washington State was in a tough position because the NICS did not recognize a Restoration of Rights for Washington state non-felony domestic violence convictions. State and federal laws on the subject of domestic violence and gun rightsContinue reading “FBI Clears Way for Restoration of Gun Rights After DV Conviction in Washington State”

NICS Reverses Stand on Gun Rights for Domestic Violence Convictions in Washington

http://www.firearmslawyer.net/index.htm

The FBI-NICS no longer issues denials for most non-felony convictions for domestic violence entered in Washington State. This is based on the 2013 case of Descamps v U.S. Up until recently, anyone that had been convicted of a Fourth Degree Assault determined to be domestic violence in Washington State was in a tough position because the NICS did not recognize a Restoration of Rights for Washington state non-felony domestic violence convictions. State and federal laws on the subject of domestic violence and gun rights are very technical and you should schedule a legal consultation in order to look carefully at any convictions that you think resulted from allegations of domestic violence.

Many Washington State citizens with misdemeanor DV convictions who had their right to possess firearms restored were seeing their rights denied by federal authorities. The intent of Congress has along been that a state court order restoring firearm rights should remove federal prohibitions on posssessing firearms.

“A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”

The FBI-NICS was taking the position that a Washington State court order restoring firearm rights to misdemeanants does not remove firearm prohibitions under federal law because the conviction does not result in the loss of civil rights.

Note that vacating a Washington conviction does not completely expunge or set-aside the conviction as required by federal law. Thus, restoring gun rights in Washington requires a Certificate of Rehabilitation and Restoration of Firearms Rights; merely vacating the conviction or expungement does not meet the requirements of Washington law nor will vacating a conviction satisfy federal criteria for restoration of the right to possess firearms.

If you have been convicted for felonies and Washington state restores your right to possess a weapon then the NICS will recognize Washington’s restoration of your gun rights and you will also be eligible for a Washington Concealed Pistol License. The federal government has now determined that conviction for a Fourth Degree Assault (DV) does not prohibit possession of firearms because the statute for that offense is too vague.

Nevertheless, there is still a need to obtain a restoration of firearms rights in order to satisfy state law requirements and federal interpretations of Washington State law related to firearms rights seem to change unexpectedly.

Note well: When answering the questions for a NICS background check: Question 11i on Form 4473 should be answered with strict accuracy: answer “yes” if, and only if, you have a conviction for an offense that meets the federal Misdemeanor Crime of Domestic Violence definition pursuant to 18 USC 922(g)(9).

Thus, you should state no regarding convictions for domestic violence if you only have a Fourth Degree Assault conviction that was entered in Washington State. All of those offenses listed in 9.41.040(2)(a)(i) fall outside the federal definition of Misdemeanor Crime of Domestic Violence.

Assault in the Fourth Degree, Coercion,
Stalking, Reckless Endangerment,
Criminal Trespass in the First Degree,
Violation of the provisions of a protection order or no-contact order restraining the person or excluding the person from a residence.

See RCW 9.41.040

On the other hand, when applying for a Washington State Concealed Pistol License the answer would be yes to the offenses listed above but not necessarily for every conviction identified as DV on your criminal history. Thus, you will need legal advice from an attorney with very technical expertise if you have a domestic violence conviction in Washington.

Benefits of a Washington Gun Trust or NFA Trust.

All Gun Trusts are not equal. A Gun Trust or NFA Trust should be designed for all of your firearms and will provide Asset Protection and multi generational ownership for your firearms. While a Professional Gun Trust with an ArmsGuard Protector is the most advanced Gun Trust, there are other options available and all ofContinue reading “Benefits of a Washington Gun Trust or NFA Trust.”

About Mark Knapp

Our firm advocates for the Second Amendment and strict compliance with Washington’s firearms preemption statute whenever an opportunity presents itself. When attorneys for various municipalities around Washington State issued legal opinions that RCW 9.41.290 “only applied to the regulation of firearms themselves” and excluded regulations that only secondarily affect firearms, many law firms and theContinue reading “About Mark Knapp”

Machine Guns & Automatic Weapons in Washington State

http://www.atg.wa.gov/AGO…archive&id=7708

We sometimes get questions as to whether a machine gun qualifies for Curio/Relic status under federal regulations. Any such items must comply with the National Firearms Act of 1934 and also local state law.

The Bureau of Alcohol, Tobacco, Firearms & Explosives will not allow transfer of ANY automatic weapon into Washington state since July 1, 1994 (except departmental purchases). Thus, there are no exceptions for antiques under Washington state law per RCW 9.41.190 and the definitions under RCW 9.41.010. Nevertheless, it is theoretically possible per Washington law to own an automatic weapon if you are in the armed forces, provided that BATFE will provide the $200.00 tax stamp.

RCW 9.41.190 states the following:

It is unlawful for any person to manufacture, own, buy, sell, loan, furnish, transport, or have in possession or under control, any machine gun or any part thereof capable of use or assembling or repairing any machine gun: Provided, however, That such limitation shall not apply to any peace officer in the discharge of official duty, or to any officer or member of the armed forces of the United States or the state of Washington: Provided,further, That this section does not apply to a person, including an employee of such person, who or which is exempt form or licensed under the National Firearms Act (26 U.S.C. section 5801 et seq.), and engaged in the production, manufacture or testing of weapons or equipment to be used or purchased by the armed forces of the United States, and having a United States government industrial security clearance.

See Washington State Attorney General Opinion.

If you are retired from the military, you may have to go to court and obtain a WRIT OF MANDAMUS (or a declaratory judgment- a legal determination of a court as to the legal position of litigants in cases where there is doubt as to their position in law) in order to get the stamp. A Writ of Mandamus orders officials to perform as required by law and is an extraordinary writ; i.e., a long shot where the BATFE’s decision on your application has been to deny the application. We wilI will be glad to draft an opinion letter as to the legal issues, litigation strategy and possible legal outcomes of any proposed litigation; e.g., pertaining to a WRIT OF MANDAMUS or potential declaratory judgment.

Opinion letters normally are limited to a well-defined purview (which will be stated in the letter) subject to certain disclaimers. The BATFE is notorious for changing its policies without notice especially when it comes to defining what makes certain weapons and parts for firearms legal. The definitions are published but subject to interpretation.

We have previously researched short-barreled shot guns and there are some like the Serbu Shorty, for example, that may be legal in Washington subject to getting a $5.00 stamp from the BATFE. Thus, there are many grey areas which are subject to interpretation but obtaining a legal opinion shows that you at least conducted your due diligence if you end up in court.

King County Lawyers Discuss Washington State Gun Law

https://www.kcba.org/news…D=article21.htm

Reprinted from King County Bar Association Bar Bulletin (September, 2011).

I read KCBA President Joe Bringman’s message in the Bar Bulletin (August, 2011 President’s Page). Many lawyers have the impression that the KCBA is taking political positions that conflict with the conservative principles which animate more than a few lawyers. The President’s comments related to state preemption of local gun control efforts might be commendable as an opinion piece or an expression of his personal opinion. Nevertheless, the fact that he was writing as President to KCBA members raises the issue of whether the President’s Page is an appropriate venue from which to advocate taking a questionable position regarding RCW 9.41.290.

Consider how many lawyers and even judges have CPLs and ask how those of us that “bear arms” as a normal part of our daily routine would be able to navigate our way down the freeway if we have to research the laws of every municipality into which we enter. If it is a challenge for lawyers that are experts when it comes to legal research then what about the non-lawyer that chooses to carry? If judges and lawyers adopt the approach that each man or woman that bears arms also bears the risks of running afoul of a patchwork of confusing laws, the chilling effect will hobble any meaningful exercise of our rights under the U.S. Constitution and SECTION 24 of the Washington State Constitution:

RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

If I go to a park in Seattle using public transportation would I check my gun in with the driver before I get on the bus? If I am walking around Seattle, will the City provide a lock box outside each entrance to a city park the way the courts are required to do by statute? And what about when I park in a municipally owner parking while stopping in a city that has decided to enact legislation prohibiting firearms in vehicles parked in municipal parking lots? The unpredictability and chaos will lead to utter disrespect for the law.

The impact of any potential modification concerning RCW 9.41.290 collides with common sense Local governments are not best situated to determine how to ensure the safety of their citizens. Local lawmakers react to local political pressures often without considering ramifications that involve travelers, visitors and business people that may be carrying large amounts of money with no place to safely store a weapon when they enter an area that restricts firearms. Many states have similar preemption laws and are safer than cities like Chicago where most residents have been prohibited from keeping guns- even in their homes- and the murder rate is out of control. Enacting the President’s proposals for Washington State would create legal chaos and make us less safe!

RCW 9.41.290 states:

The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

Given the harm all too frequently associated with statist theoreticians, it’s time that we ask whether the benefits provided by our state’s firearms preemption law outweigh any short term political advantages to be gained by modifying state law.

A few years back, the Bar Bulletin published a great article entitled PRYING THE SECOND AMENDMENT’S MEANING FROM THE FOUNDERS’ COLD DEAD HANDS. The well written legal analysis of the Second Amendment was written by a young attorney that started out with negative assumptions about the Second Amendment but she discovered that its provisions are actually very meaningful.

There are presently lawsuits pending in Illinois that will almost certainly establish a right to carry a firearm in many public places. The Washington State Constitution is unequivocal in its legal protection for gun owners and those of us that bear arms. Proposals to modify firearms preemption are actually a giant step back to the patch work laws that have worked to completely deprive many people in Illinois from enjoying a right that residents of most states take for granted; i.e., the right to simply possess a firearm within their own homes!

Things have changed a lot since most of us were in law school. One reason to think soberly and clearly about such proposals is because, as lawyers, we are more likely to be threatened with violence than most people. The threats to judges and prosecutors in particular have been escalating according to a study by the Washington State Board for Judicial Administration (BJA).

See article.

There is no evidence that armed citizens are creating a threat by wearing pistols in public places and a concurring opinion in the NORDYKE V KING case (Ninth Circuit, 2009) contained a strong comment as to how effectively the Second Amendment protects Americans from the promiscuous carnage that occurred during the attacks in Mumbai by terrorists armed with automatic rifles. A few guns at the youth camp in Norway could also have saved many lives. An unarmed officer in uniform was one of the victims in the early stages of that attack.

More lawyers should get involved in the full debate about guns. The issues are serious and the public needs the rigorous analysis lawyers can provide on the subject of gun law, not the kind of superficial analyses that politicians and news media often produce.

Use of Silencers Soon to be Legal in Washington State

Christine Gregoire gave the legislature an additional thirty days- starting April 22nd- to produce a two-year state budget and it looks like the law makers finally have a budget after a special session that looked like it was about to go into another overtime. Gov. Gregoire signed three gun bills into law passed by lawmakers during the regular session. HB 1016 allows use of suppressors. Known as silencers, suppressors are common in many other states. Federal law requires some red tape with the BATFE, however. European gun enthusiasts have used silencers for years because it eliminates many of the complaints about noise that plague gun ranges.

HB 1455 deals with where to petition the courts for the right to possess firearms. People previously convicted of certain crimes or involuntarily committed on psychiatric grounds are presently able to petition for their gun rights in any county within the State of Washington. After July 22, 2011, petitioners must file in the county where he or she resides or in the county where the conviction or commitment occurred.

Under SHB 1923, a check with the National Instant Criminal Background Check System (NICS) will determine whether individuals can obtain a Concealed Pistol License. Thus, a person with a valid, current CPL issued after July 22nd will not be required to undergo a NICS check when purchasing a firearm from a licensed dealer. But BATFE will have to make a formal determination that the new law meets the federal standard.

The legislative enactment that has gotten the most attention is the legalization of firearms suppressors. Neighboring states like Oregon permit silencers; Washington has permitted possession but not the actual use of a silencer. The BATFE issues tax stamps to gun owners in Washington- as they do in many other states. The stamp costs $200.00 and requires permission from a Chief Law Enforcement Officer; e.g., a Washington sheriff or police chief. The red tape involves a good deal of time and expense to own something that could not be used! Now shooting a round through your silencer in this state will no longer be a crime.

I advise an NFA Gun Trust. Federal law still requires the signature of a chief LEO but an NFA Trust makes the signature unnecessary. I am told that in the Seattle area obtaining the required signature can be problematic. Thus, people wanting to own silencers will now get more benefit from an NFA Trust because they can actually get out and shoot in peace and quiet without going to Oregon or Idaho! You also need to go to other states to own fully automatic weapons. The legislature is unlikely to allow private ownership of full auto weapons very soon, however!

All three of the bills above will take effect on July 22, 2011. Joe Waldron publishes a regular legislative update from which we obtained much of the legislative information above. There has not normally been too much gun legislation enacted in Olympia because the anti-gun legislators have been in a prolonged stalemate with pro-gun law makers. Every session, however, a number of proposed bills- both pro and anti-gun- die a natural death, often without being reported out of committee!

One of the most interesting developments, according to an addendum to the Goal Post for the month of May:

The week before the regular session ended, Rep. Brian Blake (D-19), one of the strongest proponent of our right to keep and bear arms in Olympia, introduced HB 2099. The bill would open the door once again to lawful possession of short-barreled rifles and short-barreled shotguns. The bill was filed too late for consideration in this year’s session, but will be at the top of the stack for 2012.

Up until 1994, there was no restriction on the possession of short-barreled rifles and shotguns in Washington, provided they were possessed in compliance with federal law (just as suppressors are lawfully possessed). Back when Rep. Marlin Appelwick (D-Seattle), and Senators Phil Talmadge (D-Seattle) and Adam Smith (D-Federal Way) were drafting the so-called “Youth Violence Act” (E2SHB 2319), they added a provision banning the possession of these heavily (federally) regulated firearms. There was no good reason for the ban then, nor is there one today. Hopefully the bill will move forward next regular session.

Contact Joe Waldron at jwaldron@halcyon.com.

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

Deadly Force Training

The purpose of the LAW ENFORCEMENT OFFICERS’ SAFETY ACT OF 2004 (18 U.S.C. Sec. 926B and 926C) is to supplement active law enforcement personnel in order to deter crime and prevent terrorist activity. The federal law accomplishes this by anticipating that additional armed law enforcement personnel that have already been trained will be present within each jurisdiction as officers travel from one jurisdiction to another while on business, vacationing or for any other reason.

The Act authorizes retired officers and active police officers from any jurisdiction within the United States to carry a concealed firearm within any jurisdiction of the United States; thus, increasing the likelihood that an armed officer will be present if circumstances warrant appropriate use of armed force. The retired officer must qualify annually per the standards that officers are required to meet for firearms proficiency within the agency from which he or she retired. For a retired officer to carry a weapon in all fifty states, the federal statute requires:

“… 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.”

The LAW ENFORCEMENT OFFICERS’ SAFETY ACT OF 2004 is an aid to law enforcement and the public that costs the state or the federal government very little because the training has already been provided at the state level and each retired officer essentially becomes a volunteer who must pay the cost of maintaining his/her qualifications at the state and/or local level.

RCW 36.28A.090 reads in part:

Firearms certificates for qualified retired law enforcement officers.

(1) The purpose of this section is to establish a process for issuing firearms certificates to residents of Washington who are qualified retired law enforcement officers for the purpose of satisfying the certification requirements contained in the federal law enforcement officers safety act of 2004 (118 Stat. 865; 18 U.S.C. Sec. 926B and 926C).

(2) The Washington association of sheriffs and police chiefs shall develop a firearms certificate form to be used by local law enforcement agencies when issuing firearms certificates to retired law enforcement officers under this section.

(3) A retired law enforcement officer who is a resident of Washington may apply for a firearms certificate with a local law enforcement agency. The local law enforcement agency may issue the firearms certificate to a retired law enforcement officer if the officer:

(a) Has been qualified or otherwise found to meet the standards established by the criminal justice training commission for firearms qualifications for active law enforcement officers in the state; and…

We have produced a legal opinion letter that we will make available to any law enforcement agency in Washington State.

Liability for Mistakes in Low-Light Environments

Nevertheless, the question of liability for officer shootings in situations where justifiable use of deadly force becomes an issue is a very common situation for officers that needs to be addressed at a number of different levels according to experts.

The following information is from the Police Policy Studies Council and Law Enforcement News (a publication of John Jay College of Criminal Justice/CUNY):

Police shootings involving unarmed suspects often occur in a darkened setting. Many law enforcement agencies do not train their officers how to shoot under such conditions.

According to the Houston Chronicle, 59 percent of the 189 shootings that occurred in Harris County from 1999-2004 occurred between sunset and sunrise. In at least five cases involving unarmed suspects officers appeared to have mistaken an object for a gun in low light.

Research conducted in Los Angeles County, Baltimore County and New York City by Tom Aveni, a sworn officer, and trainer with the New Hampshire-based Police Policy Studies Council, turned up similar results.

Since most shootings occur under low light conditions, it makes sense for armed citizens and police officers to get specialized training in low-light combat shooting tecniques. The Firearms Academy of Seattle provides such training along with training in most aspects of rifle, pistol and shot gun tactics.

Although most state officer training only requires qualifying under daylight conditions that bear little resemblance to the environment in which police officers do their job, the study indicates that such training is critical.

In many if not most of these shootings, the low light conditions are such that a cell phone is mistaken for a gun especially where the suspect acts in such a way that the suspect’s body language is interpreted as intense or aggressive.

“When I see officers getting into trouble, it’s because they’re shooting at things they haven’t clearly identified.”

David Klinger, an associate professor of criminology at the University of Missouri in St. Louis, and the author of “Into the Kill Zone: A Cop’s-Eye View of Deadly Force,” believes that as much information as can be gleaned from real-life situations should be integrated into training.

“I can’t say that no police are ever trained [in low-light conditions], but it’s a training issue where many officers don’t get the opportunity to fire under those circumstances, absolutely.” He told LEN. “We want to make our training as realistic as possible so police officers are able to have spent some time in a variety of environments if they find themselves having to make a life and death decision. To the extent to which officers are not getting realistic training is the extent to which we’re not preparing them as well as we should.”

Just shooting at targets is not the kind of training that is needed in order to protect the officer and the public from the shootings that occur with a great deal of frequency, usually under low light conditions. Many shooting schools provide low light training for officers and non-police civilians; e.g., Firearms Academy of Seattle.

One example of an innovation that augments the traditional firearms training is the situation created at a recent IPSIC competition at Paul Bunyan Shooting Range in Puyallup. I participated in a scenario that created the sort of chaos present in the street environments faced by officers in real life where we started out in a mocked-up drivers seat, exited from a vehicle while engaging multiple targets that were behind partial cover and shot at moving targets.

Another situation involves engaging targets where lights may be bright in one room, dark in another and you have to move from a low-light environment to a brightly lit room.

I recently completed the defensive handgun class at FAS in which we were introduced to low-light combat techniques and learned the basics of shooting from cover. The low-light training is conducted in a darkened room with dimmer-controlled lighting. We learned two different methods of deploying a flashlight while shooting. The learning curve is rapid at FAS and by the end of the two day class all of us were shooting multiple shots with accuracy and speed that I never expected to achieve even after quite a bit of previous training and competition.

Incidentally, experts like Massad Ayoob recommend IPSIC and IDPA competitions because the degree of stress engendered in racing through multiple targets creates enough stress that a shooter begins to function like he will under the extreme stress of a gun fight. Continuing to function after your gun jams is a matter of survival that is inculcated by such competitions in which you find yourself racing through a maze of targets, making tactical decisions as to when to load another magazine and which target to engage first.

Perpetrators tend to run in packs and malfunctions are almost inevitable, especially during rapid fire shooting. Good shooters continue to move while they clear a jam (or stay behind cover). And the first rule in real life combat is that the situation is constantly changing. You may look up and find an innocent bystander standing in the doorway from which shots were fired a moment before. The ability to keep on thinking and functioning in these situations develops from constant repitition under stress with a professional trainer to push you past your normal limits of endurance.

Competition will also get you out there pushing your comfort level. So what makes the difference between officers that survive gunfights and those who don’t survive or make critical mistakes at the expense of unarmed civilians?

“The answer, simply put: ‘It is the difference in training.’ ”