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LEOSA and Reserves

Discussion in 'Cop Talk' started by nohocop, May 5, 2012.

  1. DaBigBR

    DaBigBR No Infidels!

    8,798
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    Oct 28, 2005
    Circling the wagons.
    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.
     
  2. merlynusn

    merlynusn

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    Nov 16, 2007
    NC
    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.
     

    Last edited: May 7, 2012

  3. lawman800

    lawman800 Juris Glocktor

    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.
     
  4. NMPOPS

    NMPOPS

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    Jun 11, 2002
    New Mexico & Michigan
    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.
     
  5. 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CCW and I am under 21 so no off duty carry for me right now and I do not want to be a test case, departmental policy is outdated on the subject as far as I know.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
     
  6. DaBigBR

    DaBigBR No Infidels!

    8,798
    8
    Oct 28, 2005
    Circling the wagons.
    The problem with your interpretation, is that it is based on a subjective opinion of what the terms mean. Here is the statute:

    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/agopinions/NYCtLEOSARulingPeoplevsRodriguez.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.
     
    Last edited: May 7, 2012
  7. nohocop

    nohocop

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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.
     
  8. NMPOPS

    NMPOPS

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    Jun 11, 2002
    New Mexico & Michigan
    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.

    Sent from my Ally
     
    Last edited: May 7, 2012
  9. lndshark

    lndshark

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    Nov 15, 2009
    NOT the PNW (yet)
    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."
     
  10. lndshark

    lndshark

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    Nov 15, 2009
    NOT the PNW (yet)
    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).
     
  11. CJStudent

    CJStudent Fenced In

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    Nov 3, 2005
    KY
    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).
     
  12. DaBigBR

    DaBigBR No Infidels!

    8,798
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    Oct 28, 2005
    Circling the wagons.
    My state is like that:

    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.
     
  13. NMPOPS

    NMPOPS

    791
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    Jun 11, 2002
    New Mexico & Michigan
    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.

    Sent from my Ally
     
  14. DaBigBR

    DaBigBR No Infidels!

    8,798
    8
    Oct 28, 2005
    Circling the wagons.
    Why do you assume this when there is absolutely no language in the statute to suggest it?
     
  15. ya I've heard more than a few of those horror stories myself...
     
  16. CJStudent

    CJStudent Fenced In

    11,060
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    Nov 3, 2005
    KY
    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.
     
  17. lndshark

    lndshark

    813
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    Nov 15, 2009
    NOT the PNW (yet)
    Welcome to the wacky world of reserves in Michigan...


    Outdoor Hub mobile, the outdoor information engine
     
  18. Ducowti

    Ducowti

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    Jan 11, 2009
    NY
    +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.

    Outdoor Hub mobile, the outdoor
     
  19. lawman800

    lawman800 Juris Glocktor

    Which was the whole purpose of it anyway.