[nohocop]

Attached is a legal analysis of LEOSA, focusing on California reserves but applicable in many States and contexts.

Thoughts?

[longhaulcop]

LEGAL ADVISEMENT: THIS MEMORANDUM EXPRESSES THE VIEWS OF THE AUTHORS ONLY AND DOES NOT CONSTITUTE A LEGAL OPINION OR LEGAL ADVICE.

Not worth the electronic paper it is written on.

[steveksux]

Focused on reserves, written by lawyers who are themselves reserves, and therefore hardly an unbiased uninterested third party.

Doesn't mean their legal analysis is wrong, but they would be highly motivated to conclude that they are covered.

Randy

[nohocop]

Agree 100% with their motivation. But if legal analysis is correct, does it really matter if they have an interest in protecting the rights of fellow cops?

[Hack]

I would say: "Find someone who has a lawyer or liability plan in place that concerns on duty issues, and off duty issues such as LEOSA in California."

If you are a LEO reserve; auxiliary; full time, and part time, a good liability plan is necessary.

[lawman800]

Nice memo. Now the hard part is to get the agencies to get on board and start issuing the ID's.

[nohocop]

Many agencies refuse to even understand the law. Hopefully careful legal analysis will move the ball forward.

[blueiron]

LEOSA is a well intended law that was written by a bunch of fools who assume that the Federal government is a unitary form of government and that everyone else will follow their mandate and direction.

50 States and several Territories beg to differ with them and while they may reluctantly have to admit to the Supremacy Clause of the Constitution and Federal law, they may or may not comply with giving their own personnel the benefits under this law.

We can't even get the POST certified States to agree on hiring personnel revoked in another State by their POST committees.

It will remain a decentralized mess until someone in D.C. withholds funding for a pet project over this and even then it will be a hard sell to get State issued POST [equivalent] certification ID and training cards issued to every troop.

[nohocop]

Blueiron makes a good point - the law could have been drafted better. That being said, for those full-time and reserve officers out there who are having difficulty with their agencies on this issue, the article can be used to explain the law and invite comment, debate, etc.

[lawman800]

Originally Posted by nohocop

Blueiron makes a good point - the law could have been drafted better. That being said, for those full-time and reserve officers out there who are having difficulty with their agencies on this issue, the article can be used to explain the law and invite comment, debate, etc.

Assuming the department will give you the time of day to hear this... and anyone gives half a damn to do any follow up.

[nohocop]

The problem is, when they do turn their attention to it, they get it about as wrong as you can, without any effort to understand the law. It's pretty hypocritical for people whose career is LAW enforcement.

The article is an attempt to do an unbiased, legally thorough analysis of LEOSA. If anyone want to argue the legal points, let's do it.

[lawman800]

I agree with the assessment wholeheartedly. No argument because I believe all reserves are covered as long as they are at least Level 2 with authorization to carry firearms on duty.

It's getting the state to do something about the implementation that is the problem.

[CAcop]

Originally Posted by lawman800

I agree with the assessment wholeheartedly. No argument because I believe all reserves are covered as long as they are at least Level 2 with authorization to carry firearms on duty.

It's getting the state to do something about the implementation that is the problem.

Pretty much what I was thinking.

To be honest my own department is a little rigid when it comes to LEOSA when it comes to retirees. Active officers they don't really care unless you are asking to carry on a plane. Our one reserve I think has been given CCW but he is a Designated Level 1.

[lawman800]

Originally Posted by CAcop

Pretty much what I was thinking.

To be honest my own department is a little rigid when it comes to LEOSA when it comes to retirees. Active officers they don't really care unless you are asking to carry on a plane. Our one reserve I think has been given CCW but he is a Designated Level 1.

Designated Level 1 reserves don't need a CA CCW even without LEOSA because they are 24 hour peace officers like full time officers.

[nohocop]

lawman800, just wanted to get your view on why you think Level IIIs aren't LEOSA eligible (assuming they meet the other requirements). Below is the portion of the LEOSA memo on that topic. I'm just curious what the possible counterarguments could be.

******
Some agencies believe that a Level III reserve officer does not qualify under LEOSA because his or her duty assignments are “limited.” However, those limited duties include some of the same requirements as those which LEOSA identifies as law enforcement functions within its purview (“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” [18 U.S. Code 926B(c)(2]), and thus the Level III officer meets that prong of the statutory definition. Because reserve officers in California are considered “peace officers” as defined in the Penal Code, they meet this requirement of LEOSA. Penal Code Section 832.6 describes the scope of authority of Levels I, II and III reserve officers. Even though Level III reserve officers are not authorized to engage in “general law enforcement” duties, the duties which they are authorized to undertake would satisfy this requirement of LEOSA. For example, the taking of a crime report (permitted to be submitted only by a peace officer and the potential basis for an arrest and prosecution of a suspect) would satisfy the definition of the “investigation” of any violation of law. Level III officers are authorized by law to issue citations for violations of law. Because Level III officers are considered “peace officers” with statutory powers of arrest, they have the power to engage in the “incarceration” of a person for a violation of law. Additionally, prisoner transport, a typical Level III activity, is clearly engaging in activities relative to the incarceration of a person for a violation of law. In sum, the status of reserve officers as “peace officers” under California law satisfies this prong of LEOSA.

[lawman800]

Reason why I say Level 3 reserves generally wouldn't qualify is because if you meet only the bare minimum quals of Level 3 technical reserves in the LAPD sense that you don't even qualify with firearms and don't carry firearms in the line of duty, then you don't meet the LEOSA requirement that you are authorized to carry a firearm in the line of duty.

If there are Level 3 officers who meet all of the below criteria, then they are LEOSA covered, but none that I know of in my experience carry a firearm in their duties nor do they even qualify with firearms.

In order to be covered as a "qualified law enforcement officer", a person must meet every one of the following criteria, that is to say they must:[3]
an employee of a governmental agency,
be 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,
have statutory powers of arrest,
be authorized by the agency to carry a firearm,
not be the subject of any disciplinary action by the agency (which could result in suspension or loss of police powers),[2] and
meet standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm

[CAcop]

Originally Posted by lawman800

Designated Level 1 reserves don't need a CA CCW even without LEOSA because they are 24 hour peace officers like full time officers.

I never can keep the levels straight. It doesn't help that our 1 reserve was going to go for designated level 1 but there was some hitch with POST. That and we treat him like a level 2.

Ultimately it will be up to individual departments. If LEOSA were to cover reserves who carried guns then you just might see cities closing up their reserve programs if they don't want that happening.

[nohocop]

So let me see if I understand the logic of CAcop's comment: "If LEOSA were to cover reserves who carried guns then you just might see cities closing up their reserve programs if they don't want that happening." (And CaCop I'm not saying that's what you want, just that this would be a possible reaction.)

Here we presently have agencies with reserve programs, hire and train them, give them a badge, gun and black and white, tell them to go out on the street and do general enforcement, where they can subject the cities to all kinds of liabilities for their actions as LEOs, but would rather completely shut down the reserve unit rather than allow them to carry off-duty under LEOSA (where most of them are on their own anyway in an off-duty incident).

Am I missing something here?

[lawman800]

Originally Posted by nohocop

So let me see if I understand the logic of CAcop's comment: "If LEOSA were to cover reserves who carried guns then you just might see cities closing up their reserve programs if they don't want that happening." (And CaCop I'm not saying that's what you want, just that this would be a possible reaction.)

Here we presently have agencies with reserve programs, hire and train them, give them a badge, gun and black and white, tell them to go out on the street and do general enforcement, where they can subject the cities to all kinds of liabilities for their actions as LEOs, but would rather completely shut down the reserve unit rather than allow them to carry off-duty under LEOSA (where most of them are on their own anyway in an off-duty incident).

Am I missing something here?

Don't say never. There were tons of agencies back in the mid to late 90's that flat out refused to issue CCW's to reserves. More than one Chief has made a public statement that reserves don't NEED to carry off duty because they don't work all the time so they don't have the exposure off-duty to danger like the full-timers.

CACop, as for Level 1D, any hiring agency can designate by charter or resolution to hire someone as a Level 1D reserve which would make them 24 hour peace officers, but you have to have your full POST, not a reserve POST, to be appointed as such.

[CAcop]

Originally Posted by nohocop

So let me see if I understand the logic of CAcop's comment: "If LEOSA were to cover reserves who carried guns then you just might see cities closing up their reserve programs if they don't want that happening." (And CaCop I'm not saying that's what you want, just that this would be a possible reaction.)

Here we presently have agencies with reserve programs, hire and train them, give them a badge, gun and black and white, tell them to go out on the street and do general enforcement, where they can subject the cities to all kinds of liabilities for their actions as LEOs, but would rather completely shut down the reserve unit rather than allow them to carry off-duty under LEOSA (where most of them are on their own anyway in an off-duty incident).

Am I missing something here?

No you are not missing anything.

How long have you been in LE? I ask because if it isanything more than a few years you shuld now dpartments, especially chiefs, get bugs up their asses and do things totally against all logic.

My first chief wanted us to carry only double action autos with safety levers and the saties had to be on in the holster. This is from guy who spent more than half of his career with a revolver in his holster. We could not get him to budge. We couldn't even get him to go for DAO guns with 10 pound triggers.

We do not have an explorer program because some officers in other departments have had sex with underage explorers. We do not hire anyone under 18 at the department for that same reason.

Yes I can see a chief closing up a reserve program or taking their guns away to avoid having reserves carry under LEOSA.

This is police work. When the hell has anything we have done ever made sense?

[fastbolt]

Depends on the agency, as it does everywhere.

Last Reserve ID card I saw was for a DL1, and it clearly stated it was Peace Officer Concealed Firearms Approved per 830.1 PC & 12027.1 LEOSA. Since appointed DL1's are 24/7 peace officers in CA (with full POST), that makes sense.

I can't remember seeing one for a regular L1 or 2, so I have no idea what such an ID card might state (again, depending on the agency issuing it).

[nohocop]

24/7 peace officer status has absolutely nothing to do with LEOSA. The two concepts are completely unrelated. Where in LEOSA is 24/7 peace officer status referred to? Nowhere.

[nohocop]

Let me put it this way. Does a 24/7 California cop in Iowa have peace officer powers? No. But LEOSA covers him. 24/7 peace officer status in State A has no legal effect in State B under LEOSA.

[fastbolt]

Originally Posted by nohocop

24/7 peace officer status has absolutely nothing to do with LEOSA. The two concepts are completely unrelated. Where in LEOSA is 24/7 peace officer status referred to? Nowhere.

Let me put it this way. Does a 24/7 California cop in Iowa have peace officer powers? No. But LEOSA covers him. 24/7 peace officer status in State A has no legal effect in State B under LEOSA.

You misunderstand the entirety of my post. I was not trying to connect 24/7 powers in one state to how it may, or may not, be done in any other state. Nor was I trying to link it to LEOSA. I was merely stating the language I've seen on a DL1 ID card here in CA from a single agency.

I meant it makes sense for a CA Designated L1 ID card to contain the same language as that of a regular/full-time peace officer in regard to the state laws approving concealed firearms for peace officers. Hence, a CCW is not needed for an appointed DL1.

I've not closely examined an ID card for any level of reserve officers below that of a DL1, so I don't know what it states on them.

Retirement ID cards in CA can contain language stating peace officer concealed firearms approval per 12027a PC (and can have an expiration date), and it can vary when it comes to the manner in which an agency may provide LEOSA complaint documentation showing firearms qualification within a 12 month period.

LEOSA is what it is, after having been implemented and revised. It's hardly surprising that different states, let alone the 800K+ LE agencies in the US, may have developed different policies, legal analyses and opinions about it.

[lawman800]

Originally Posted by nohocop

24/7 peace officer status has absolutely nothing to do with LEOSA. The two concepts are completely unrelated. Where in LEOSA is 24/7 peace officer status referred to? Nowhere.

24/7 status has nothing to do with LEOSA. I'm talking about how it relates to carry inside the state of CA with agencies taking the view that you have to have CCW to carry off duty which, even without LEOSA, has no effect on Level 1D reserves.

So Level 1D reserves can carry off duty in CA without LEOSA.

All levels of reserves, except for those who do not carry firearms, also qualify for LEOSA if they meet the definitions of a "qualified law enforcement officer".