Police Officers' Association of Nebraska
A contributing member of the Law Enforcement Community since 1953.
GUIDELINES FOR THE IMPLEMENTATION OF HR-218, THE LAW ENFORCEMENT SAFETY ACT OF 2004. November 21, 2004
The Law Enforcement Officers Safety Act of 2004 (HR 218) became law on July 22, 2004 . This law provides for the carrying of concealed firearms by law enforcement officers (both active and retired) nationwide upon meeting certain criteria spelled out in the federal law.
The Crime Commission was asked to research and publish a set of guidelines to help the States law enforcement agencies implement the Act. Please understand this is a document constructed by a non lawyer about an Act that is not always clear as to its meaning. These are only suggested guidelines. The Commission cannot provide binding legal advice and you should not rely solely upon these guidelines. Individual administrators and officers are urged to seek the advice of their own legal advisors, County Attorney or City Attorney if they have questions not answered by either this document or which they feel needs additional interpretation. Remember there are many issues of interpretation that may not be resolved conclusively until there are lawsuits and court decisions, but, of course that will take considerable time. You should be aware the National Fraternal Order of Police, in early August, sent a letter to U.S. Attorney General John Ashcroft requesting the Department of Justice formulate regulations and guidelines for the States to implement the new law. The National Legislative Office is working with officials at the Department on developing these regulations.
Recommended Guidelines/Requirements and Other Information:
The law does not provide automatic authority for officers to carry firearms throughout the country. Active and retired officers must possess proof of meeting the laws requirements. There is considerable misinformation circulating through the Internet about what the law allows. Everyone making decisions regarding concealed carry should read the law themselves.
When a local law enforcement agency implements the provisions of HR 218, then for the purpose of this Act, they are required to issue photo identification to all of their Department's current officers. Some States have interpreted the Act as allowing individual agencies to decline to credential their retired officers in the manner required by the Act. They interpret the Act as being permissive in this area, but not requiring individual agencies to credential retired officers. We believe that is incorrect. When an agency implements the retired officer section, they exclusively provide identification to requesting retired officers. The identification does not have to be done each year, but the qualification information does if they carry concealed. This is particularly relevant for retired officers who take advantage of State certification in the State they currently reside rather than from the Department they retired.
The Act is divided into two parts. The first sets of standards are for the carrying of concealed firearms by qualified law enforcement officers. The second section sets the standards for the carrying of concealed firearms by qualified retired law enforcement officers. (Most of the ambiguity in the Act resides in the retired officers section)
A qualified law enforcement officer means an employee of a governmental (note this is a governmental officer not a railroad officer or any law enforcement officer employed by a non governmental agency) agency who:
(1) 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;
(2) is authorized by the agency to carry a firearm;
(3) is not the subject of any disciplinary action by the agency;
(4) meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;
(5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and
(6) is not prohibited by Federal law from receiving a firearm.
It is recommended all Departments, who implement the Act, have or develop a policy addressing how they will administer and enforce this act. It is each department ' s decision on how they should regulate their officers. While this Act allows active and retired officers to carry concealed, it is most likely up to the individual agency as to whether they want their current officers to carry concealed when off duty, out of state or use their duty weapon. Remember any officer in a state other than their own, absent law to the contrary, does not have law enforcement authority other than to carry concealed.
There is nothing that requires a department to indemnify actions take by officers for actions they take as a private citizen in another state. While an officer may be authorized to carry a concealed firearm, use of the firearm, especially outside or their jurisdiction, will most likely be treated as the use of a firearm by an ordinary citizen.
Individual law enforcement agencies, implementing the Act, must provide the photo identification and firearms qualification for current officers. Agencies implementing the retired officer provisions must provide identifications to retired officers upon their request. The firearms qualification should be the State ' s qualification course. Retired officers can qualify either with their agency, if the agency implements this portion of the act, or the State. Officers carrying concealed must carry their photo identification and either the notation of firearms qualification on the ID or the State certification on their person.
Retired officers are given the option by the Act of meeting the State firearms qualification standards through either their former employing agency (if the agency chooses to provide qualification) or a State certification done through the Nebraska Law Enforcement Training Center . The Training Center will only certify retired officers who are not able to get certified by their former agencies. (The Law Enforcement Training Center will issue procedure and policy for qualification)
There is no requirement of any local law enforcement agency to assist any officer from outside their jurisdiction.
Retirees must receive an identification from the agency where they retired. The identification needs to certify the bearer is retired from that law enforcement agency. As used in this section, the term `qualified retired law enforcement officer' means an individual who--
(1) retired in good standing from service with a public agency as a law enforcement officer, other than for reasons of mental instability;
(2) before such retirement, was 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;
(3)(A) before such retirement, was regularly employed as a law enforcement officer for an aggregate of 15 years or more; or
(B) 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;
(4) has a nonforfeitable right to benefits under the retirement plan of the agency;
(5) during the most recent 12-month period, has met, at the expense of the individual, the State's standards for training and qualification for active law enforcement officers to carry firearms;
(6) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and
(7) is not prohibited by Federal law from receiving a firearm.
The issue of who is and who is not retired under Nebraska statutes is probably the most ambiguous part of the Act for Nebraska agencies. To qualify as retired a person must meet the test of the seven above qualifications. We recommend agencies follow the definition of retirement used by their governing body. We sought an informal opinion from the Attorney Generals Office on this and other issues, their opinion is attached.
Agencies that implement the retired officer provisions of the Act, although not required, may want to do additional research on retirees to ensure they are still eligible under both State and federal law to carry or possess a firearm. A triple I search might be appropriate.
The certification of the firearms qualification should indicate the type of firearm the officer is qualified to carry. Type would be revolver or semiautomatic. The firearm being carried does not have to be the same as the one used to qualify but must be of the same type. An officer or retired officer can qualify and carry both types. Current officers are subject to department policy. The act describes weapons that are not eligible to carry concealed.
As a suggestion, law enforcement agencies implementing the retired officer section of the Act should consider whether they want to develop a liability waiver and release from injury while qualifying or carrying concealed.
Firearm does not include any machine gun, firearm silencer or destructive device as defined by 921 of this title.
The Act does not permit an officer or retired officer to carry concealed anywhere any time. While they are exempt from State and local laws with respect to carrying concealed, they are not exempt from Federal law or regulations governing the carriage of firearms on aircraft and Federal property. Additionally, State (not local) laws which prohibit carriage of firearms onto State or local government property and State (not local) laws which allow private entities to prohibit firearms on their private property would still apply to concealed carry by officers and retired officers.
We hope this document and the attached Attorney Generals opinion are of help in the implementation of this act.