The confusion with concealed carry

      On any given day of the week, you can find Glen Hoyer wearing his reliable wrist watch, an item he says he couldn't live without. He's never worn rings; they bother him. As is the case with most American adults, he's also got his cell phone and keys in his pocket. There are several everyday articles that the retired South Carolina captain carries with him that wouldn't raise eyebrows, but there's another item that might-- his gun.

   "The fact that for 35 years now I have been carrying a gun-- 25 professionally as a police officer, [and] now 10 years as retirement," he says. "It's just become a part of my lifestyle. [Not carrying it] is kind of like walking around with one shoe off; you just feel awkward."

   A retired law enforcement officer, Hoyer invokes his right to carry a concealed firearm, not just in the State of Virginia where he now resides, but nationwide as part of the 2004 Law Enforcement Officers Safety Act.

   However, since the Act was established in 2004, many states, agencies and officers have struggled with comprehension and implementation of the law. Thanks to confusion regarding liability, eligibility and the definition of terms used in the Act, many agencies are still working to create a certification process to comply with the 2004 law, while many officers' concealed carry permits remain in legal limbo. Some agencies have opted to bide time since the Improvements Act was proposed last year, not wishing to put forth any effort to implement a process before some of what groups with law enforcement officers' interests say could be considered kinks in the original law. A retired law officer, NRA rep and legal counsel help us wade through the confusion with concealed carry and discuss how the proposed amendments may help.

The law's guiding principles

   Hoyer, director of the National Rifle Association's Law Enforcement Division with nearly three decades experience in police work, says the Law Enforcement Officers Safety Act is one of the greatest benefits for police, giving retired officers the right to carry after their service is up.

   "You've got a tremendous amount of law enforcement experience in a retired officer," Hoyer says. "The intent of the law is not to make an additional hundreds of thousands of cops out there [come] out of retirement and back on the street; the intent is to allow them to protect themselves."

   Enacted in 2004 by President Bush, the Law Enforcement Officers Safety Act (LEOSA, also commonly called H.R. 218) allows two classes of individuals-- the "qualified law enforcement officer" and the "qualified retired law enforcement officer"-- to carry a concealed firearm in any jurisdiction in the United States, regardless of state or local laws to the contrary, with certain exceptions.

   The federal law established guidelines allowing experienced retired or off-duty officers who maintain proper training, to obtain certification allowing him or her to carry concealed firearms. Essentially the Act's purpose was to create a shared national policy between states allowing officers to carry their firearms wherever they are, granted they are qualified and have received credentials per the Act to do so. With some limitations, LEOSA trumps state law, local ordinances and local policy that restrict concealed weapon carry outside of the badge.

   Hoyer retired as a captain from the Lexington County Sheriff's Office in South Carolina after 25 years experience in multiple police disciplines including patrol, K-9 unit, SWAT and firearms instruction. As the NRA-LE Division director he oversees the entire law enforcement division, which includes the firearms instructor development training department, the competitions department and the Eddie Eagle GunSafe Program. With his policing background and present-day work, Hoyer gets a lot of face time with cops across the country. Though he personally has been able to get his concealed carry certification without trouble, he's heard plenty of stories from officers who have hit snags securing LEOSA carry rights.

The confusion with H.R. 218

   One of the problems LEOSA-hopefuls encounter is cloudy language in the law.

   Christopher Conte, legislative counsel at the Institute of Legislative Action with the NRA for 10 years, spends a good deal of his time working with NRA members and law enforcement officers' legal difficulties related to LEOSA. He says the problems the amendments aim to remedy include unclear language in the original act. For example, the term "qualified law enforcement officer" is not well-defined and needs to be better established. Another small portion of the bill cites "non-forfeitable pension" as a description for a "qualified" officer, however according to the research that has been done since LEOSA passed, Conte has found that "non-forfeitable pension" doesn't really mean anything. Confusing language creates problems for officers from state to state wishing to invoke LEOSA rights, and those are some of the things the modifications seek to redress in H.R. 218, Conte explains.

   Another portion of LEOSA that needs attention, says Hoyer, is the number of years experience required to qualify under the Act. Under the current law, an officer can qualify after 15 years in active law enforcement. However it does not address the frequent situation where officers' experience is split between agencies.

   Conte says officers who are vets from multiple agencies with enough experience qualifying them can get caught in a frustrating situation.

   "What happens then is you get caught in this Catch-22 of trying to get documented from your prior department-- essentially patching together the years," Hoyer says. "This is exceedingly difficult for federal agents and is [an area] where [applicants] have really had issues."

   Finally, Hoyer says he has fielded some questions at the NRA-LE Division regarding agency liability after certifying an officer. He says some departments wrongly view certification under LEOSA as a liability, should that officer later become involved in an incident where he or she used the concealed gun. Conte says he does not know of a case where civil suit has even been brought against an issuing authority of a concealed-carry permit to date.

   Hoyer clarifies that once an officer is retired, he is an individual independent of the agency. The agency that qualified the officer is not liable for his actions outside of the uniform. "It's like suing the DMV for a drunk driver; it just doesn't happen," Conte adds.

   Conte says there could be trouble if an agency continues to train the retired officer after he's been severed from the relationship with the department. But if all the agency is doing is certifying that he or she still knows how to handle a firearm with some level of discretion, it should side step that potential problem.

   Conte also pointed out that the law is a living, breathing work that is continually reinterpreted and revised. So just because there is a move to amend the original LEOSA doesn't mean it was bad legislation, but instead that as the law has been in practice, idiosyncrasies such as language definitions and the split-experience exception come up. It's a natural part of the legal process to remedy hitches as they arise.

   He also doesn't believe the pending changes to LEOSA are slowing adoption by agencies nationwide. He says agencies continue to understand the law and create a process to certify its officers via LEOSA rights. Even though it is in its sixth year since passage, the bill is still relatively young as a national directive, and implementation takes time and patience.

Proposed improvements

   To address some of these issues, another bill known as The Law Enforcement Officers Safety Act Improvements Act of 2009 ( S.1132 and H.R. 3752) offers revisions that address cloudy and confusing elements that have come to light since LEOSA's original passage. For example, breaking down the provisions, the NRA's Institute for Legislative Action says the Improvements Act addresses the following:

  • It reduces the period an officer must serve before gaining eligibility to carry as a retiree. Current law requires 15 years of service and the proposed amendments reduces this by five years.
  • It eliminates the requirement that retirees have "non-forfeitable" retirement benefits to qualify. This term has been found to have no definition and has distracted some states during the adoption process.
  • It clarifies training requirements that will ensure 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.
  • It creates more flexibility in training. Currently, many retired police officers have trouble finding a state agency willing to train them because of liability concerns. The amendments would allow certification of the retiree's training by any person authorized to test law enforcement officers' qualifications.

   Not only as an agent in charge of a law enforcement-focused branch of a firearms-centric organization, Hoyer supports the Improvements Act as a police retiree as well. He says retired officers aren't going out looking for situations that would require them to draw the concealed gun.

   "We've had our fill of that," he says. "[I carry because] after 25 years: No. 1, I've put a lot of bad people in jail and some of them can hold a grudge. And No. 2, again, self defense, but there's a lot of a crime. It's nice to know I am able to protect myself."

Slow to adopt

   As mentioned, some states have yet to implement a process to qualify their agents.

   In his personal testimony supporting Wisconsin state legislation to enact bills to further codify and provide state direction to credential LEOSA-related rights, Attorney General of the State of Wisconsin J.B. Van Hollen notes the state has been slow to credential its officers due to agency concerns over liability.

   In his written support from March, Van Hollen says: "Some agencies, likely under the advice of risk averse corporation counsels or risk management officials, have declined to implement H.R. 218 because they fear liability could flow from the issuance of a certificate pursuant to federal law. By limiting liability, this excuse is removed. Those who properly apply the law will not have to worry about lawsuits.

   "The bill provides a mechanism to ensure that federal officers who served in the state have the ability to have credentials issued."

   Agencies in other states have held similar concerns.

   Hoyer explains to concerned agencies that the department an officer retired from or the one that qualified him or her has no liability; the retired law enforcement member is held accountable. "Which means that if you are [LEOSA-credentialed and] involved in an encounter and you do have to shoot someone, even though it's in self defense, you're the one who gets sued, not the agency," he says.

Opposition

   Though some see LEOSA as a positive piece of law securing and supporting rights for law enforcement, there is opposition from law enforcement as well. LEOSA gives special carry privileges to what are otherwise considered civilian folks, something that is generally a point of contention for groups like Mayors Against Illegal Guns and the Brady Campaign, which work to reduce violence caused by firearms.

   The Police Executive Research Forum (PERF) is one of the organizations that has voiced its concern via an official document or letter to the court and law makers. An example of the letter PERF provided its members as a template to challenge local efforts to pass the original bill in 2003, PERF suggests:

   "This measure ... would endanger the lives of active police officers, retired officers and citizens. More guns, even in the hands of off-duty officers, retired officers and law-abiding citizens, does not translate into less crime and violence."

   A prominent organization partially opposed to the proposed changes is The International Association of Chiefs of Police. In its July 2009 issue of its association publication, IACP stated it is opposed to the Improvements Act because the IACP believes the amendments would weaken the standards and training requirements and lower the length of experience necessary to qualify by five years.

   The IACP states it "opposes the LEOSA Improvements Act because of the association's belief that states and localities should have the right to determine who is eligible to carry firearms in their communities … [and LEOSA] would undercut the ability … to determine what standards best meet the needs of the departments and the communities they serve." Instead the IACP prefers that localities reserve the right to set standards and practices for their community.

   The Brady Campaign has noted figures concerning public opinion on concealed carry in its comment on other concealed carry legislative pushes. The organization has also characterized laws that strip states of "the authority to prohibit out-of-state residents from carrying concealed handguns within its borders" as "extreme," adding that "for most Americans this means stopping ... efforts to have more people carrying loaded guns in more public places."

Moving forward

   However a hotly debated issue firearms carry is, police must both carry the weapons and confront them as a part of the job. LEOSA as a law provides for law enforcement officers to carry a concealed gun, granted they meet the provisions outlined in the current H.R. 218 version. What that version lacks in clarification on liability, eligibility and definitions, it is hoped the proposed amendments will remedy. "All legislation ends up having some remedial work done on it; that's relatively common, including the Constitution," Conte adds. "That's why we have the Bill of Rights."

   The last action on the Senate version of the Improvements Act 2009, S. 1132, was that it was reported out of the judiciary committee in March, which is a big step forward for the bill, Conte says. While LEOSA 2004 is the current law, the Improvement Act has yet to be approved nationally. When you're dealing with federal legislation, patience is the name of the game.

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