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Old 05-07-2012, 03:06   #41
DaBigBR
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Originally Posted by NMPOPS View Post
In my states reserves are not covered by Leosa as they are not "fulltime paid" LEO and as such not employees of the department or state. I would assume that a "retired" reserve from another state would also not be covered. I doubt we would take action but an active reserve from another state would also not be covered. IMHO I don't think Leosa was intended to cover reserves.

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LEOSA actually WAS written to cover reserves. The phrasing was designed to not mention full time, part time, etc. This was pushed by a reserve organization from California.

Your indivudal state, county, or city has absolutely no authority to decide who is "covered" or "not covered". If the person meets the statutory definition of a qualified law enforcement officer under 18USC926B or qualified retired law enforcement officer under 18USC926C and is carrying the appropriate credentials, THEY ARE COVERED. The most recent amendment to LEOSA removed the requirements that a person have pension rights and lowered the "retirement" years of service requirement to ten years. Therefore, a reserve officer who has ten years and otherwise meets the requirements would indeed be "covered" as a retired officer.
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Old 05-07-2012, 03:53   #42
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Noho, sent you a PM.

ETA: I tried to. Can you turn on your messaging? I'll send you a link to our departmental directives. In the meantime I'll try to find something in writing.

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Old 05-07-2012, 08:41   #43
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Originally Posted by DaBigBR View Post
LEOSA actually WAS written to cover reserves. The phrasing was designed to not mention full time, part time, etc. This was pushed by a reserve organization from California.

Your indivudal state, county, or city has absolutely no authority to decide who is "covered" or "not covered". If the person meets the statutory definition of a qualified law enforcement officer under 18USC926B or qualified retired law enforcement officer under 18USC926C and is carrying the appropriate credentials, THEY ARE COVERED. The most recent amendment to LEOSA removed the requirements that a person have pension rights and lowered the "retirement" years of service requirement to ten years. Therefore, a reserve officer who has ten years and otherwise meets the requirements would indeed be "covered" as a retired officer.
Exactly. CRPOA has been pushing this forever and hopefully they are on the path to figure out a way to enforce the 10 year separation issue because a lot of departments do not give reserves retirement ID's... actually I would be surprised if a lot did at all. LASD does, after 15 years.
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Old 05-07-2012, 15:48   #44
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Originally Posted by DaBigBR View Post
LEOSA actually WAS written to cover reserves. The phrasing was designed to not mention full time, part time, etc. This was pushed by a reserve organization from California.

Your indivudal state, county, or city has absolutely no authority to decide who is "covered" or "not covered". If the person meets the statutory definition of a qualified law enforcement officer under 18USC926B or qualified retired law enforcement officer under 18USC926C and is carrying the appropriate credentials, THEY ARE COVERED. The most recent amendment to LEOSA removed the requirements that a person have pension rights and lowered the "retirement" years of service requirement to ten years. Therefore, a reserve officer who has ten years and otherwise meets the requirements would indeed be "covered" as a retired officer.
Gotta respectfully disagree with your interpretation. The feds leave a lot up to te individual states. otherwise we would all have the same ID card and shoot the same course of fire. 10 years of part time reserve service does not equal 10 years of fulltime service.
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Old 05-07-2012, 16:16   #45
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I am interested if there will ever be a definite answer that everyone can agree on. I am a reserve but in my state you have to be 21 to obtain a CCW and I am under 21 so no off duty carry for me right now and I do not want to be a test case, departmental policy is outdated on the subject as far as I know. Many in the area are the same way about it too
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Old 05-07-2012, 17:00   #46
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Gotta respectfully disagree with your interpretation. The feds leave a lot up to te individual states. otherwise we would all have the same ID card and shoot the same course of fire. 10 years of part time reserve service does not equal 10 years of fulltime service.
The problem with your interpretation, is that it is based on a subjective opinion of what the terms mean. Here is the statute:

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18USC926C(c)

As used in this section, the term "qualified retired law enforcement officer" means an individual who -

(1) separated from service in good standing from service with a public agency as a law enforcement officer;

(2) before such separation, 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 separation, served as a law enforcement officer for an aggregate of 10 years or more; or
(B) separated 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) during the most recent 12-month period, has met, at the expense of the individual, the standards for qualification in firearms training for active law enforcement officers, as determined by the former agency of the individual, the State in which the individual resides or, if the State has not established such standards, either a law enforcement agency within the State in which the individual resides or the standards used by a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that State;

(5)(A) has not been officially found by a qualified medical professional employed by the agency to be unqualified for reasons relating to mental health and as a result of this finding will not be issued the photographic identification as described in subsection (d)(1); or
(B) has not entered into an agreement with the agency from which the individual is separating from service in which that individual acknowledges he or she is not qualified under this section for reasons relating to mental health and for those reasons will not receive or accept the photographic identification as described in subsection (d)(1);

(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.
While I agree that an individual state may define whether their officers are peace officers as it relates to this statute (primarily by governing their powers of arrest), officers in that state CANNOT apply their home state's definitions to officers from other states. It just does NOT work that way. To suggest that it does would be like when folks claim that LEOSA gives them the same rights as a "CCW holder in XYZ state. It's simply not the case.

I'll give you an example: Officer A is a "retired" California reserve peace officer who served for more than ten years. When he was serving, he had full powers of arrest, statutory authoity to carry, completed the entire CA POST academy, etc. He was issued retirement ID by his agency and is currently qualified as required in 18USC926C(c)(4). He travels to Illinois, where there are only "auxillary" officers, who do not have powers of arrest, can't carry guns, etc. By your interpretation, as I understand it, he would NOT be legally allowed to carry there and would be subject to arrest because Illinois does not have an eqivalent type of peace officer.

Neither 18USC926B nor 18USC926C make ANY mention of "regular" versus "reserve" or "auxillary" officers. They make no mention of pension rights, no mention of on or off duty authority, no mention of a requirement to attend an academy, etc. NOTHING. It's worth pointing out that the US BOP allows their personnel to carry under LEOSA, even though their off-duty powers of arrest are extremely, extremely limited. Every court decision of which I am aware where LEOSA was asserted as a defense resulted in a "win" for the defendant. This included the following:

New York v. Rodriguez: As discussed previously in this thread, defendant was a Pennsylvania State Constable who was arrested and charged in NYC. Despite several potential issues with whether or not Constable Rodriguez' "employment" meant the definitions in the statute, that court found that LEOSA applied. (http://www.handgunlaw.us/documents/a...sRodriguez.PDF)

New York v. Booth: Defendant was a member of the USCG authorized to carry and make arrests while serving as a boarding officer. That court found defendant not guilty and pointed out that although he was violating USCG rules, he was still covered as it related to 18USC926B pre-empting NY weapons laws.

California v. Diaz: Defendant was arrested for having an unloaded handgun in his vehicle. Case dismissed and defendant received a $44k settlement.

South Dakota v. Smith: Defendant, an off-duty Seattle police officer, was charged in reference to the shooting of a Hell's Angels MC member at a bar in Sturgis. Presiding judge ruled that local prohibitions against carrying in a bar were pre-empted by LEOSA. (http://www.fop222.org/docs/SD-vs-Smith.pdf)


How do you tell if somebody is covered? Just look at the elements.
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Last edited by DaBigBR; 05-07-2012 at 17:00.. Reason: Fixed a missing tag.
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Old 05-07-2012, 18:54   #47
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merlynusn, go ahead now. PM should work.

NMPOPS, I respect your opinion. Truly I do. But LEOSA is abundantly clear that full time paid has nothing to do with whether someone is a "qualified law enforcement officer" or "qualified retired law enforcement officer." Just work your way through each element of the definitions.

On the issue of "employee" vs. "volunteer", the courts have looked to state law definitions (since LEOSA is silent on the definition). Whether someone is an employee is part fact-based and part legal [statutory and case law]. The Rodriguez case is pretty good evidence of what the courts are doing. There hasn't been one case yet where the court has looked to the federal law definition.
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Old 05-07-2012, 19:52   #48
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Per the statute, in NM Reserve officers do not qualify under Section 2, unless the law has changed very recently. And knowing NM , I doubt it. As I said I would assume out of state reserve would be treated the same. But it would depend upon the situation. Long before Leosa, if you had a badge and ID you were good to go in NM. All I was attempting to point out is that each state interprets Leosa they way they see it. I've read all the case law and I'm glad they all won their cases. But they paid big bucks to be test cases.

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Old 05-07-2012, 19:53   #49
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Originally Posted by blueberry1177 View Post
I am interested if there will ever be a definite answer that everyone can agree on. I am a reserve but in my state you have to be 21 to obtain a CCW and I am under 21 so no off duty carry for me right now and I do not want to be a test case, departmental policy is outdated on the subject as far as I know. Many in the area are the same way about it too
You will not likely get a straight answer on this, especially in Michigan. As you know, we fall into a definite gray area (said sarcastically) as far as our status is concerned. Being as reserves in Michigan aren't recognized by MCOLES, our status is purely at the discretion/pleasure of our respective chief or Sheriff. Since there is no commission that dictates who/what we are, I doubt that LEOSA will apply to us.

Once you're 21 and legal to obtain a CPL, department policy will be moot. Until then, I'm afraid you're out of luck. Also, "off duty" for reserves in Michigan essentially means "private citizen."
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Old 05-07-2012, 20:18   #50
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that is what I assumed but thank you
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Old 05-07-2012, 20:27   #51
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About the only difference between reserves and citizens is that reserves, when not "on duty" (for lack of a better term) is that we are exempt from Pistol Free Zones while carrying concealed. This should not be construed as an "off duty" police officer. More than one reserve in Michigan has been caught flashing tin while boozing it up, being stopped for a traffic violation or otherwise wound-up in some weenie-pinching situation where they thought that their credentials would get them out of a jam (and most recently, one of them was carrying a department weapon which according to their department's policy, is a big no-no).
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Old 05-07-2012, 20:31   #52
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About the only difference between reserves and citizens is that reserves, when not "on duty" (for lack of a better term) is that we are exempt from Pistol Free Zones while carrying concealed. This should not be construed as an "off duty" police officer. More than one reserve in Michigan has been caught flashing tin while boozing it up, being stopped for a traffic violation or otherwise wound-up in some weenie-pinching situation where they thought that their credentials would get them out of a jam (and most recently, one of them was carrying a department weapon which according to their department's policy, is a big no-no).
I'm sorry, I just have a hard time wrapping my mind around that. Here, only Sheriff's Offices have reserves as far as I know, but they are considered 24/7 peace officers, with full authority and arrest powers. The only "only peace officers on duty" that I'm aware of are state corrections officers, and Special Law Enforcement Officers/Special Local Peace Officers, where it's also limited to property (sworn security, basically; SLEOs on public property, SLPOs on private property, some minor differences in powers but nothing major).
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Old 05-07-2012, 22:25   #53
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I'm sorry, I just have a hard time wrapping my mind around that. Here, only Sheriff's Offices have reserves as far as I know, but they are considered 24/7 peace officers, with full authority and arrest powers. The only "only peace officers on duty" that I'm aware of are state corrections officers, and Special Law Enforcement Officers/Special Local Peace Officers, where it's also limited to property (sworn security, basically; SLEOs on public property, SLPOs on private property, some minor differences in powers but nothing major).
My state is like that:

Quote:
80D.6 STATUS OF RESERVE PEACE OFFICERS.
Reserve peace officers shall serve as peace officers on the orders and at the discretion of the chief of police, sheriff, commissioner of public safety or the commissioner's designee, or director of the judicial district department of correctional services or the director's designee, as the case may be.

While in the actual performance of official duties, reserve peace officers shall be vested with the same rights, privileges, obligations, and duties as any other peace officers.
I have heard it suggested that once a reserve decides to take action, they are "in the actual performance of official duties", but I think the legislative intent is clear when the statute dealing with "regular" officers explicitly confers peace officer authority at any time throughout the state.
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Old 05-07-2012, 23:41   #54
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merlynusn, go ahead now. PM should work.

NMPOPS, I respect your opinion. Truly I do. But LEOSA is abundantly clear that full time paid has nothing to do with whether someone is a "qualified law enforcement officer" or "qualified retired law enforcement officer." Just work your way through each element of the definitions.

On the issue of "employee" vs. "volunteer", the courts have looked to state law definitions (since LEOSA is silent on the definition). Whether someone is an employee is part fact-based and part legal [statutory and case law]. The Rodriguez case is pretty good evidence of what the courts are doing. There hasn't been one case yet where the court has looked to the federal law definition.
Leosa is very clear on what the requirments of a "qualified LEO" are and the power and authority of reserves varies from state to state. They must have the power of arrest and they must be authorized by their agency to carry a firearm. Since no one is arguing about a reserves ability to carry while on-duty, I must assume that Leosa means they must be authorized to carry while off-duty and to enforce laws while off duty. In NM they are not. So Leosa does not cover them. I assume a lot of states are similar.

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Old 05-07-2012, 23:44   #55
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Leosa is very clear on what the requirments of a "qualified LEO" are and the power and authority of reserves varies from state to state. They must have the power of arrest and they must be authorized by their agency to carry a firearm. Since no one is arguing about a reserves ability to carry while on-duty, I must assume that Leosa means they must be authorized to carry while off-duty and to enforce laws while off duty. In NM they are not. So Leosa does not cover them. I assume a lot of states are similar.

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Why do you assume this when there is absolutely no language in the statute to suggest it?
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Old 05-08-2012, 00:19   #56
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About the only difference between reserves and citizens is that reserves, when not "on duty" (for lack of a better term) is that we are exempt from Pistol Free Zones while carrying concealed. This should not be construed as an "off duty" police officer. More than one reserve in Michigan has been caught flashing tin while boozing it up, being stopped for a traffic violation or otherwise wound-up in some weenie-pinching situation where they thought that their credentials would get them out of a jam (and most recently, one of them was carrying a department weapon which according to their department's policy, is a big no-no).
ya I've heard more than a few of those horror stories myself...
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Old 05-08-2012, 06:51   #57
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Leosa is very clear on what the requirments of a "qualified LEO" are and the power and authority of reserves varies from state to state. They must have the power of arrest and they must be authorized by their agency to carry a firearm. Since no one is arguing about a reserves ability to carry while on-duty, I must assume that Leosa means they must be authorized to carry while off-duty and to enforce laws while off duty. In NM they are not. So Leosa does not cover them. I assume a lot of states are similar.

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I disagree, and have paperwork to back it up. My agency, BOP, until LEOSA, did not allow off-duty carry on our credentials, and we had extremely limited (only if someone assaulted us BECAUSE of work) arrest authority off-duty. According to the US Attorney General, we meet the definitions of "qualified law enforcement officer" under LEOSA, and thus are authorized to carry off-duty on our credentials now. I have a 22 page memo on that; a mix of the memo to all of DOJ from the AG, and our agency's guidance.
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Old 05-08-2012, 08:00   #58
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I'm sorry, I just have a hard time wrapping my mind around that. Here, only Sheriff's Offices have reserves as far as I know, but they are considered 24/7 peace officers, with full authority and arrest powers. The only "only peace officers on duty" that I'm aware of are state corrections officers, and Special Law Enforcement Officers/Special Local Peace Officers, where it's also limited to property (sworn security, basically; SLEOs on public property, SLPOs on private property, some minor differences in powers but nothing major).
Welcome to the wacky world of reserves in Michigan...


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Old 05-08-2012, 08:06   #59
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Leosa is very clear on what the requirments of a "qualified LEO" are and the power and authority of reserves varies from state to state. They must have the power of arrest and they must be authorized by their agency to carry a firearm. Since no one is arguing about a reserves ability to carry while on-duty, I must assume that Leosa means they must be authorized to carry while off-duty and to enforce laws while off duty. In NM they are not. So Leosa does not cover them. I assume a lot of states are similar.

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+1 on DaBiggr. LEOSA makes no distinction between on/off duty carry. Its quite clear and simple: if a reserve meets the qualifications set forth in the LEOSA, he can carry under its protection.

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Old 05-08-2012, 08:17   #60
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+1 on DaBiggr. LEOSA makes no distinction between on/off duty carry. Its quite clear and simple: if a reserve meets the qualifications set forth in the LEOSA, he can carry under its protection.

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Which was the whole purpose of it anyway.
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