Journalists Need to Explain How the Second Amendment Keeps Everyone More Safe

“Take no part in the worthless deeds of evil and darkness; instead, rebuke and expose them.”

Ephesians 5: 11

Reporters Without Borders reported that more journalists have been executed in the Philippines than anywhere in the world (they started counting in the 1980s), except Iraq. This is the list so far in 2007, just for the Philippines:

12 October 2007 – Iligan City radio journalist shot in the stomach;

26 June 2007 – Radio journalist gunned down, colleague wounded in Tawi-Tawi;

25 May 2007 – Photojournalist on critical newspaper murdered;

20 April 2007 – One journalist beaten and shot dead, another shot and wounded;

11 April 2007 – Radio journalist gets four and a half years in prison for defaming legislator;

23 February 2007 – President Arroyo urged to take energetic measures to end impunity;

19 February 2007 – Newspaper editor gunned down in Mindanao, first Filipino journalist killed this year.

But executing journalists is a phenomenon that is growing around the world; e.g., a Kyrgyz reporter killed this week. The allegation is that the Uzbekistan Government is crossing borders to silence its foes in any place where perceived enemies may expose the regime’s corruption.

In the Philippines, a proposal was explored to make it easier for journalists to get “away from home permits”. Apparently, “mainstream” Philippine journalists protested, arguing that such a move takes the onus off the government to protect people from violence. In the good old USA, however, the courts have stated unequivocally that the government has no such duty. Does this surprise you?

The reality is that corrupt government factions are behind many such executions. In the Philippines, journalists have alleged that the army is cooperating with rebels, Yakuza and other criminal enterprises. In many countries, distinctions between terrorist, bandit, soldier and politician are almost indistinguishable. Armed journalists that are trained to defend freedom of the press may be the best thing since Wyatt Earp when it comes to cleaning up Dodge Cities and Tombstones around the world.

Alisher Saipov’s courage in reporting the truth is being honored posthumously, however, and such journalists deserve international respect.

By DAVID L. STERN; New York Times
Published: December 3, 2007

OSH, Kyrgyzstan — In his short career as a journalist in this Silk Road city in Kyrgyzstan’s south, Alisher Saipov gained a reputation for being driven, thorough, impassioned, brave and insatiably curious — though sometimes arrogant and abrasive. Above all, he was known for being outspoken.

Colleagues, academics, diplomats and government officials described Mr. Saipov, 26, a former contract reporter for Voice of America and a Moscow-based web site (see link) that focuses on news from Central Asia, as one of the top reporters here, if not the best.

Mr. Saipov was renowned for his scoops and his extensive network of inside contacts, ranging from Islamic extremists to foreign ministers. For visiting journalists, including those from the BBC and The New York Times, Mr. Saipov’s offices were a required stop for a pot of green tea and a debriefing on the latest intricacies of the Ferghana Valley, the ethnically diverse geographic pocket that encompasses portions of Kyrgyzstan, Uzbekistan and Tajikistan.

But Mr. Saipov achieved a different sort of notoriety on Oct. 24 when around 7 p.m., while waiting for a taxi with a friend on one of the main thoroughfares here, a gunman stepped out of the tree-lined darkness and shot him in the leg, according to news reports. When Mr. Saipov fell to the ground, the gunman fired two shots to his head.

The shooting was apparently the first contract killing of a journalist in Kyrgyzstan, a country known for its relative media freedom compared with its authoritarian neighbors, and it sent shock waves through the region and beyond. The American Embassy in Bishkek, the Kyrgyz capital, joined by the European Union and the British government, called for a thorough investigation of the “outrageous crime.” The Kyrgyz president, Kurmanbek Bakiyev, announced that he was taking personal responsibility for the inquiry.

Among many international observers and the country’s news media, primary suspicion has fallen on the Uzbek security services. Mr. Saipov, who was a Kyrgyz citizen and an ethnic Uzbek, was a well-known opponent of the government of the Uzbek president, Islam A. Karimov.

His shooting, they maintain, is evidence of the long reach of the National Security Service of Uzbekistan, or S.N.B., using its Russian initials. Uzbekistan strives to suppress all opposition voices, even those outside the country. Although no proof has emerged of any Uzbek link, proponents of this theory say that they believe the circumstantial evidence is overwhelming.

Kyrgyzstan’s ombudsman for human rights, Tursunbai Bakiruulu, says he believes firmly that the S.N.B., Uzbek’s successor to the K.G.B., ordered Mr. Saipov’s death. “Logically there is only one scenario,” he said, though he conceded that he had no evidence.

The Kyrgyz-Uzbek border is porous, and Uzbek agents operate freely in Kyrgyzstan’s section of the Ferghana Valley, numerous specialists and diplomats interviewed for this article said.

In May 2005, after Uzbek government troops brutally suppressed an uprising and political demonstration in Andijan, refugees streamed over the border into southern Kyrgyzstan.

According to witnesses, Uzbek agents in the immediate aftermath crossed the border, which is a few hours away by car, rounded up hundreds and sent them back. In mid-2006, five more political opponents to the Uzbek government who had taken refuge in Kyrgyzstan disappeared, international agencies like Human Rights Watch say, and they are feared to have been kidnapped and taken back to Uzbekistan.

Uzbekistan is scheduled to hold presidential elections on Dec. 23. President Karimov, who runs a police state governed by fear and has never held an election deemed free, is expected to glide to victory, though five other people have also announced their candidacy.

The country, many say, could experience a vicious power struggle once President Karimov, 69, departs. Unrest and a subsequent refugee crisis in Uzbekistan, which has the largest population of Central Asia’s five former Soviet states, could prove a destabilizing factor for the entire region.

Mr. Saipov commented critically on developments in Uzbekistan, and his killing, friends and analysts believe, may have been a direct result of his reporting. He was virtually alone among the Ferghana Valley press corps in writing regularly on torture in Uzbek prisons, the plight of the refugees and political unrest across the border.

“Alisher was killed because he was an Uzbek,” said Sultan Kanazarov, an independent journalist who used to work for Radio Free Europe and who said Mr. Saipov was a close friend. “He was the only one who wrote about Uzbekistan, and he never left the Ferghana Valley.”

Earlier this year, Mr. Saipov left Ferghana.ru and Voice of America to start a pan-regional Uzbek-language newspaper, Siyosat, which means politics. The weekly provided original reporting and reprints from news Web sites, and it was underwritten by a $26,500 grant from the National Endowment for Democracy, a Washington-based foundation.

Siyosat struck a visible nerve with the Uzbeks. Soon after Mr. Saipov began to publish, a public campaign began against him on Uzbekistan’s state-controlled television and Internet. One Uzbek Web site ran a piece titled “Saipov Is Traitorous Knife in the Back From Our Neighbor and Partner Kyrgyzstan.”

Mr. Saipov, in the weeks before his death, said he believed he was being trailed by Uzbek security services. He also said he had received warnings and told a number of colleagues that he had heard a rumor that Uzbek officials had placed a $10,000 bounty on his head. Colleagues say that they, too, have been followed in the past, and added that in the days before Mr. Saipov was killed, two unknown men were seen regularly around his offices.

“He said that he felt that the circle was tightening around him,” said Elmurad Jusupaliev, Mr. Saipov’s journalism teacher and a former business partner.

For the journalists, human rights workers and Uzbek opposition members living in southern Kyrgyzstan, given the brutal and public nature of Mr. Saipov’s shooting, the consensus is that he was killed to send a message to anyone interfering — or even thinking of getting involved — in Uzbek politics.

“This was not an assassination, but an execution,” said one Western diplomat working in Kyrgyzstan, who spoke on condition of anonymity given the delicacy of the issue. “It was a message saying, ‘We can get anyone, anytime, anywhere.’”

The Time to Stop the Carnage is Now; Enforcing Washington State’s Firearms Preemption Law

Advocates for Change. The Law Office of Mark Knapp PLLC has persuaded many municipalities to make municipal laws and policies compliant with Washington State’s Firearms Preemption law.  Thus, state, municipal, and private institutions are discussing whether to change their policies. There is increasing recognition that armed citizens can help stop random violence. Throughout these institutions thereContinue reading “The Time to Stop the Carnage is Now; Enforcing Washington State’s Firearms Preemption Law”

Proposal for School Marshals in Washington State

The following proposal for School Marshals in Washington state is republished from the March 15, 2018 Spokesman Review. There are once again many heated discussions about how to stop the carnage in our schools. A few years ago, we led a group of trial attorneys through an analysis of what it will take for Washington state schoolContinue reading “Proposal for School Marshals in Washington State”

Implementing the Law Enforcement Officers’ Safety Act

RE: OPINION LETTER RELATING TO IMPLEMENTATION OF
LAW ENFORCEMENT OFFICERS’ SAFETY ACT

I. PURPOSE

The following opinion answers questions related to questions raised by the WASPC as to whether a municipal law enforcement agency exposes itself to additional liability by certifying retired law enforcement officers as having met Criminal Justice Training Commission standards for firearms qualification. 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 outside of each jurisdiction to carry a concealed firearm within each and every jurisdiction of the United States; thus, increasing the likelihood that an armed officer will be present if deadly force is presented on the roads or in any other location where the traveling officer from outside a given jurisdiction may be. 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.”

Emphasis added.

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…

II. ISSUES

A. Does the LAW ENFORCEMENT OFFICERS’ SAFETY ACT OF 2004 (hereinafter the Act) provide an opportunity for citizens and law enforcement agencies across the United States to acquire additional security at little or no additional cost to state, local and federal governments in taxpayer funds and potential liability?

B. Does qualifying and certification of a retired officer incur more potential liability than qualifying active police officers?

C. Is there a reasonable basis not to implement the provisions of state and federal law outlined above based on potential liability or any other issues?

III. ANALYSIS

A well known police organization has actively advocated that police agencies in Washington State not certify retired officers under RCW 36.28A.090 because of alleged liability issues. As a general rule licensing and permitting does not incur liability absent exceptional circumstances or a so-called “special relationship” with a person or group who is adversely impacted by improper certification at a level below that of the policy-making decision to develop such a process. Washington courts apply the “public duty doctrine” in order to determine whether a decision is at a policy-making level and therefore immune from liability claims.

Even at the “mechanical” level where a police firearms instructor determines whether official standards have been met, there needs to be a specific individual or group relying on the testing officials determination (as opposed to the public at-large in order to create a potential for liability. Since no such relationship exists when an officer or retired officer qualifies, the alleged potential for liability does not exist. Those advocating against certification of retired officers need to answer two questions:

1. Is the basis of the alleged potential for liability based on ageism?

2. Where is the evidence of any liability against local law enforcement agencies based on certification that an officer has qualified under state standards for firearms proficiency?

Most jurisdictions, including Washington State, already provide for retired officers to qualify and continue carrying within the state. This would be similar to issuing a concealed carry permit. Thus, the question can be formulated- Where again is the evidence of any agency incurring liability by issuing concealed carry permits or by any qualifying retired officers to carry a weapon within the State of Washington and why should carrying outside the state increase the potential for such alleged liability?

The answer to all of the questions raised above is that the potential for increased liability is virtually non-existent. The true rationale behind the position that some groups are taking is a political agenda that seeks to maintain the myth that armed private individuals cannot deter crime or protect themselves or the public; i.e., an anti-gun agenda.

Where there is no “special relationship” creating a duty to a class of people that have relied on a permit, potential liability does not exist. The courts in Washington look to the manner and extent of contact between the government official and the member of the public in order to decide whether such a special relationship exists. The courts also look to how explicit any assurance is made to the specific class of persons that may rely on a permit, license or certification. J& B DEV. CO. V. KING COUNTY, 100 WN.2D 299, 669 P.2D 468 (1983).

In J & B Development, the court held that a breach of a governmental duty owed only to the public as a whole cannot be the basis for a cause of action. See also RCW 4.96.010. Prior to J & B DEVELOPMENT, the Washington legislature had abolished most governmental immunity. In J & B Development, a building inspector was held to have a duty to the builder based on the special relationship created by issuance of a negligent building permit. The governmental entity breached a duty owed to the plaintiff as an individual rather than to the public at large.

The Public Duty Doctrine provides an exception to the general rule in Washington. The general rule is that the state and its subdivisions can be sued on any basis for which a private citizen may be sued. See RCW 4.96.010. Despite the waiver of sovereign immunity contained in RCW 4.96.010, the Public Duty Doctrine requires that a claimant suing a governmental agency or municipality must establish the breach of a duty owed by a governmental entity specifically to an individual or group making a claim. See WASHINGTON STATE’S 45-YEAR EXPERIMENT IN GOVERNMENTAL LIABILITY, by Michael Tardif & Rob McKenna. Seattle University Law Review, Vol. 29, Fall 2005.

The act of testing and issuing a certificate is in the nature of a “ministerial” or “operational” function. Nevertheless, the fact that the Washington State Legislature has provided that “…The qualification required under [subsection] (3)(a) of this section may be performed by the local law enforcement agency or by an individual or entity certified to provide firearms training” creates a discretionary, policy-making characteristic to an agency’s certification under state law. See RCW 36.28A.090. Thus, the discretion involved in creating a local certification process decision brings the decision under the immunity provided by the Public Duty Doctrine.

The fact that 18 USC 926(c) and the above referenced state law are promulgated for broad public safety purposes and not for the purpose of creating a duty to specific class eliminates liability for the decision. Therefore there is no valid argument that potential liability exists by certifying that retired officers have met the standards of the Criminal Justice training Commission. On the other hand, the benefit to the national public may be immense. The benefit to the people of Washington State accrues as armed police officers from other states travel in Washington; i.e., the benefit is derived from reciprocation as sister states implement the Act.

It is a well recognized principle of tort law that a fundamental element of actionable negligence is the existence of a duty owed by the person charged with negligence to the one injured. E. McQuillin, SUPRA. To be actionable, the duty owed must focus on the one injured, not on the public at large. To sustain an action against an individual, it is necessary to determine whether one is under a duty to a claimant as opposed to the general public. Similarly, to sustain an action against a municipality it is necessary to decide whether a municipality is under a general duty to a nebulous public or whether that duty has focused on the claimant.

J & B Development, supra.
The rationale of the “public duty doctrine” has historically been (1) prevention of excessive governmental liability and (2) the need to avoid hindering the governing process. Nevertheless, in J & B Development, the court stated:

“…the “public duty doctrine” has a third logical application in tort litigation. A duty to the public in general is usually considered a duty to no one in particular (I.E., the “public duty doctrine”). When considered in combination with the “special relationship” rule, however, it becomes a mechanism for focusing upon whether a duty is actually owed an individual claimant rather than the public at large. The “special relationship” rule is in fact the focusing tool. Assum(ing) a county voting registrar has a duty to refrain from registering nonresidents… it would be difficult, if not impossible, for an individual citizen to recover in tort against the County for the negligent violation of that duty.”

No liability is presented where the act, omission, or decision to certify involves a basic governmental policy, program, or objective. The act of a county or municipality exercising discretion explicitly provided by state law requires the exercise of a basic policy evaluation, judgment, and expertise on the part of the agency. Said discretion is essential to the realization of federal and Washington state policy; and is within the proper authority and duty of law enforcement agencies.

The act of an agent of a governmental entity shown to have been done in an arbitrary and capricious manner, or decided upon without considering the facts involved, may not be classified as a discretionary function and is not entitled to exemption from liability.
The fact that the state legislature has provided authority via RCW 36.28A.090 for local municipalities to implement federal law for the benefit of the public at-large raises an issue as to whether liability can exist where a certificate is issued in an arbitrary and capricious manner and foreseeable harm results. In the unlikely event that a court identifies a duty predicated on the requisite special relationship, any potential liability would be no greater than that which presently exists by certifying active police officers for duty.

“The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.” See EVANGELICAL UNITED BRETHREN CHURCH V. STATE, 67 Wn.2d 246, 253, 407 P.2d 440 (1965) (it is necessary to determine where, in the governmental process orthodox tort liability stops and the act of governing begins).

According to EVANGELICAL CHURCH, at page 254:

“Liability cannot be imposed when condemnation of the acts or omissions relied upon necessarily brings into question the propriety of governmental objectives or programs or the decision of one who, with the authority to do so, determined that the acts or omissions involved should occur or that the risk which eventuated should be encountered for the advancement of governmental objectives.”

EVANGELICAL CHURCH at page 255 states four preliminary questions that are relevant to determining whether an act was a discretionary governmental process:

(1)“Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?

(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?

(3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?”

IV. CONCLUSION

Therefore, in view of the federal and state mandates that confer discretionary governmental authority to implement certification, municipal law enforcement agencies are immune from liability. The arguments that are advanced related to potential liability are either disguised prejudice against retired officers (based on age) or are based on biases against private citizens being armed. After all, the rationale of the LAW ENFORCEMENT OFFICERS’ SAFETY ACT OF 2004 is that armed citizens can make a difference, a rationale that runs directly contrary to the “consensus” that citizens with weapons are more of a danger to themselves or others than to the bad guys.

To be entitled to immunity, the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place. The author’s opinion herein can be particularly relied on by Washington State municipalities and law enforcement agencies due to the fact that the Legislature clearly made the decision to implement the certification process a local determination within the discretion of municipal governments.

It goes without saying that refusal to clearly look at the benefits set forth herein may frustrate an inexpensive public safety initiative with the potential for resulting loss of life. Such irresponsible public administration would raise the specter of real political liability in light of the potential for mass shootings and future terrorist acts that predictably may involve small arms.

See also a MESSAGE from Durango, Colorado’s Police Chaplain.

Brief in Support of Retired LEO Denied Federal LEOSA Card

Petitioner has standing and states a claim upon which relief may be granted because LEOSA and the Administrative Procedure Act is appropriate for the relief sought. Johnson v. New York State Dep’t of Corr. Servs presents facts that are very different from the facts presented herein.  In Johnson, the Plaintiffs asserted a right to carryContinue reading “Brief in Support of Retired LEO Denied Federal LEOSA Card”

Carnage & the Culture of Slaughter: Mumbai November, 2008

If you falter in times of trouble, how small is your strength! Rescue those being led away to death; hold back those staggering toward slaughter. If you say, “But we knew nothing about this,” does not he who weighs the heart perceive it.

Proverbs 24:10-12

The terrorist attack on Mumbai, India in November, 2008 lasted 60 hours. The fact that news media focused on the attack for such an extended period of time amplified the emotional impact.

A 2006 train bombing in Mumbai killed more people but the 172 people that were gunned down marked a new level of terror because of the way that ten shooters were able to move through the city without any effective response from India’s law enforcement or military for several hours. Experts studying the operation have concluded that many aspects of the attack demonstrate new tactics that should be expected in future operations.

Detailed surveillance and planning began at least as early as 2007. The attackers sailed from Karachi but, according to some accounts, at least some of the shooters had already been in the city posing as students. The ten attackers hijacked a trawler, killed the whole crew and then beheaded the captain when they got near enough Mumbai to come ashore in two inflatable boats.

Each terrorist carried a Chinese version of the AK-47 (AK-56 automatic assault rifle) with seven 30 round magazines and 9-mm pistols with two clips. Additionally they carried 8-10 grenades each and IEDs containing RDX, ball bearings for shrapnel, and a timer. There were Heckler & Koch MP5 machine guns that may have been taken from downed Indian security personnel and accounts of prepositioned ammunition caches.

The four teams were able to keep moving and created enough confusion that the police could not seal off an area quickly enough to contain the shooters. The Indian police were totally outgunned as a result of the fact that their government does not trust the police to arm officers properly or even to provide enough ammunition for officers to practice properly. Nevertheless, whenever the shooters were confronted with armed force they moved on to other targets.

Mumbai is a financial center and contains a hub of hotels and other facilities that cater to elite businessmen and foreigners. The terrorists targeted middle class Indians and American, British and jewish travelers that normally utilize the restaurants and hotel facilities.

A two man team went to the train station and opened fire. Then they went to a hospital and began killing again. The team hijacked a police car and headed to a hotel when they were intercepted by the police. One terrorist was killed and the other captured but they caused a third of the total fatalities.

Meanwhile, a second team went to the Nariman House, a Jewish complex. This second two-man team killed eight. A third two-man team went to the Trident-Oberoi Hotel and began cutting people down with automatic weapons fire. During the 17 hours that the hotel was under siege two terrorists killed 30 people and then were themselves killed. The fourth team was a four-man team and deployed to the Taj Mahal Palace Hotel.

Chronology of the Attack

November 26, 2008 (all times are local)

21:20 Gunfire outside the Hotel Oberoi at Nariman Point in south Mumbai.

21:20 Terrorists run into Nariman House, where they take control of the Chabad Lubavich center.

21:30 Gunfire outside the Leopold Café at Colaba in south Mumbai, about 100 meters behind the Taj Mahal Palace Hotel.

21:40 Gunfire near the Bade Miyan Café (behind the Taj Hotel in south Mumbai).

21:45 Terrorists enter Taj Hotel lobby and fire indiscriminately.

21:45 Gunfire inside the Chhatrapati Shivaji Terminus (CST), Mumbai’s central train station. There are ten fatalities there.

22:30 Gunfire at the Municipal Corporation of Greater Mumbai headquarters gate 2, opposite the CST.

22:35 Gunfire at Gokuldas Hospital, near the CST.

22:40 Gunfire at the Cama & Albless Hospital, near the CST.

22:50 Gunfire at the Metro Theatre (Metro Cinema Junction).

23:00 Explosion in a taxi in Vile Parle in north Mumbai. (This is one of the IEDs left behind in the taxi.)

23:00 Explosion in a taxi in Mazgaon—probably the second IED left behind.

23:10 Two explosions at Napean Sea Road in south Mumbai.

23:30 Explosion at Dhobi Talao.

November 27, 2008

00:30 Gunfire after a police van was hijacked at Dhobi Talao.

01:00 Immense blast in the Taj Hotel, possibly caused by two grenades.

02:00 Army arrives at the Taj Hotel.

03:00 Large fire breaks out at the Taj Hotel.

09:15 Army arrives at Oberoi Hotel, storm hotel.

09:15 Security forces engage in first attempt to retake the Taj Hotel.

10:30 Security forces engage in room-to-room searches at the Taj Hotel.

17:30 NSG forces arrive at Nariman House. Helicopters begin surveillance.

November 28, 2008

07:30 NSG forces storm Nariman House.

11:00 Hostage siege ends at the Hotel Oberoi, hostages released.

11:00 NSG forces report that they have cleared the new section of the Taj Hotel.

13:00 Indian security forces report 30 people dead in one Taj Hotel hall.

18:00 Operations reported to have ceased at Nariman House. However, NDTV reports that one floor still has not been cleared.

19:45 All NSG forces emerge from Nariman House, stating that no one was found alive.

November 29, 2008

04:30 Gunfire and explosions heard at the Taj Hotel.

07:30 Fire breaks out on the lower floors of the Taj Hotel.

08:50 Taj Hotel hostage siege declared over, according to Indian police.

By moving constantly, the shooters eluded commandos for 60 hours. Explosions, demands to release imprisoned Muslim fighters in exchange for hostages and detailed knowledge of buildings and streets all contributed to the tactical team’s ability to sow confusion and continue moving. The attackers only attacked in areas where the security was nonexistent or very light. They used cell phones, Satellite phones and Blackberries; handlers in Pakistan provided tactical advice and urged the young men not to be taken alive and to continue killing because the prestige of Islam was at stake.

By identifying goals that exceeded anything that had occurred prior to the attack, the planners boosted LeT’s ability to recruit jihadists within India and worldwide; the organization also gained prestige within the culture of terrorism, thus grasping parity with al Qaeda. The planners, almost certainly affiliated with elements of the Pakistani government also were attempting to destabilize the Pakistani civilian government’s relationship with the United States and other countries, including India itself. The Indian government demonstrated a complete lack of ability to protect its citizens.

Even though it had recently created an elite anti-terror force and intelligence personnel intercepted “chatter” pertaining to an imminent attack, the information was not disseminated from the central security agencies to the local police and coast guard at least in a manner that local security forces took any effective action.

The local Anti-Terrorism Squad was inadequately trained to seal off multiple attacks designed to create exactly the kind of confusion experienced by the first responders. Local army personnel took five hours to arrive. The elite National Security Guard, India’s most elite strike force, did not arrive for almost 10 hours. Counterterrorism experts allow 30-60 minutes from the time an incident commences but the NSG (or Black Cat Commandos) headquartered in Delhi had no aircraft and so the 200 commandos had to patch together air transportation in a helter-skelter manner.

Police officers were often seen hiding behind buildings with their heads down. Helmets and vests were substandard and many officers carried British .303 bolt-action rifles from the 50s. Most Indian officers are only provided with 50 rounds of ammunition per year with which to practice because of corruption and a colonial mentality that deems weapons to be dangerous even in the hands of law enforcement officers.

According to a TimesOnline article, Outgunned Mumbai police hampered by First World War weapons, Dec. 3, 2008:

Most of the police involved were carrying .303s or self-loading rifles like those adopted by the British Army in the 1950s.

Some officers said that they were not given enough weapons training because of a shortage of ammunition and shooting ranges. In theory, all officers shoot 50 rounds a year in training. In practice, senior officers get their full quota with small arms.

“The rest is all bunkum,” Mr Pereira said. “It’s target practice with a .303 rifle. I wouldn’t call it suitable knowledge of weapons and their uses in urban policing.”

All those interviewed said that the issue was not money: the Government allocated £154 million for modernising the police in 2007-08 alone. The problem, they said, lay with the Home Ministry’s procurement system, which is dominated by corrupt bureaucrats and politicians rather than technical experts.

“It’s a cartel,” Mr Singh said. “The Government is spending millions, but the police isn’t getting the equipment it needs.”

http://www.timesonline.co.uk/tol/news/world/asia/article5276283.ece

Thus, India’s strict gun laws severely hampered the ability of citizens and law enforcement to protect themselves from the armed attacks.

The low-tech nature of the equipment, the drawn out horror of a paralyzed city and the prestige garnered by mass carnage ensures that such an attack is being planned in the U.S. Are we ready?

Seattle Area Cop Competes on Top Shot

http://www.federalwaymirr…/138532209.html

Range time on TV: Root for local ‘Top Shot’ contestant | Firearms Lawyer

By MARK KNAPP

Republished with permission from the Federal Way Mirror
The Firearms Lawyer
February 3, 2012

Television programs that feature weapons and shooting technology are becoming very popular.

One of my favorites is “Wednesday Night at the Range” on the Outdoor Channel — actually several different programs about self defense, competition shooting and the history of firearms.

Then on Tuesday evenings at 10:00 PM Pacific Time on the History Channel there is Top Shot. The program has matches in which top military, law enforcement and competitive shooters compete with everything from antique pistols to .50-caliber sniper rifles and machine guns.

Sometimes they even throw rocks or tomahawks and shoot crossbows and other primitive weapons.

Just getting selected as a “Top Shot” participant requires candidates to compete against men and women that are highly ranked in various shooting disciplines. Most are experts with a certain kind of pistol or rifle. It takes the ability to master whatever weapon is at hand in order to be successful on the show.

Federal Way Police Department’s Cmdr. Kyle Sumpter recently cleared all the initial hurdles and went on to compete in a series of “Top Shot” episodes in Santa Clarita, Calif. Sumpter supervises firearms training for Federal Way police officers and previously headed up Valley SWAT, the largest SWAT agency in the state. Although Sumpter has already completed the “Top Shot” competition, not even Chief Brian Wilson knows the results. Sumpter knows how he did, but the results will be a secret until the episodes air this spring (season starts Feb. 14).

My occasional talks with Cmdr. Kyle Sumpter, mostly by phone, have me looking forward to seeing him on and off the range. You don’t have to talk to him for long to realize that Sumpter is dedicated to the craft of shooting and that he is the kind of honest, straight talking professional that makes him worth paying attention to. That is why the Federal Way Police Department has him in charge of training officers.

Some of my best memories growing up are of watching Westerns on television with my dad. There was more to some of the programs than just bullets being thrown back and forth by men on horseback. Greatness of character and decency could often be discerned in some of the really good shows.

Of course, a gun itself is not somehow a mark of excellent character — or even being good with a gun. It takes courage to face the people in society that are organized against decency. Sometimes it takes a whole lot of character just to figure out who the good guys and the bad guys are.

I don’t know whether kids think about stuff like that today or not. But get your son or daughter to watch “Top Shot” with you this spring. If you want your kids to see one of the good guys who keep Federal Way safe, and learn something about why America is great, you will not be disappointed.

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.’ ”

Should Officers Shoot to Wound?

Republished from the Federal Way Mirror/The Firearms Lawyer

Jun 03 2010, 4:35 PM · UPDATED

Over the past several years, I have attended several firearms training programs and have begun teaching firearms law classes in Federal Way.

One thing I have learned is that anyone who thinks he or she will get a medal for killing a perpetrator is sorely deluded. If the public often suspects that officers have killed suspects because of racial prejudice or malice, how will the public view armed citizens? The question often arises as to whether shooting to wound would be preferable than shots that are apt to kill. Is it realistic to require anyone to attempt nonlethal shots?

When Vice President Joe Biden was asked about a “minimum force” bill that would require officers to shoot an assailant in the arm or the leg, the VP called the legislation a “John Wayne Bill” because officers cannot reasonably be expected to shoot like they do in Hollywood. See “No-Kill Bill Surfaces in New York.”

In 2009, a Federal Way police officer shot and wounded an assailant armed with a knife. Because of the fact that the belligerent and naked man was charging the officers, the Federal Way officers’ training required them to aim for center of body mass.

There are no circumstances where officer training would require shooting at the arms or legs. Even if officers could achieve such unrealistic training standards, the unreasonable risk to the officer – and the risk of wounding an innocent bystander – makes “shooting-to-wound” an impractical standard for law enforcement or armed civilians.

Training in use of lethal force almost always involves discussions of cases like the Amadou Diallo case in New York City. Mr. Diallo, struck by at least 19 bullets, was apparently reaching for something in his pocket. Officers thought he was reaching for a weapon. New York lawmakers reacted to the Diallo case and others like it by proposing the legislation requiring that officers deploy the minimum amount of force needed to control a suspect. See Sean Bell.

Graham v. Connor, the benchmark U.S. Supreme Court decision on police use of force, recognizes that gunfights are “tense, uncertain and rapidly evolving.” When an officer’s life or that of a third party is in jeopardy, the decision as to whether or not to shoot is based on the reasonable man standard. The three targets for a reasonably prudent man or woman confronted with armed force are center of body mass, the pelvis and the head. The center of the chest is preferable under most circumstances because such a target minimizes many risks, including the risk of missing the target. The target is often shooting back!

Even two or three shots to the heart or the brain do not ensure that an opponent will stop returning fire. Many departments, including Federal Way, are beginning to focus on shooting under low-light situations and use various simulated shooting scenarios to develop officers’ ability to react while assessing situations.

There are no shoot-to-wound laws proposed in Washington state. Nevertheless, Hollywood myths can influence juries and review boards. Lawyers and journalists are also susceptible to the John Wayne syndrome. The solution lies in educating the public so that all the issues are clearly understood.