POLICE Magazine

JAN 2014

Magazine for police and law enforcement

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Page 36 of 86

Does the LEOSA Carry Law Apply to You? and that a defendant producing evidence supporting the performance of law enforcement activities such as those outlined in LEOSA satisfes "LEOSA's broad defnition of a 'qualifed law enforcement ofcer.'" Another argument frequently raised by agencies hostile to LEOSA is that an individual must possess both law enforcement authority and agency authorization to carry a frearm while of duty in order to qualify for LEOSA. In one of the few criminal cases to examine this issue, People v. Booth, 862 N.Y.S.2d 767, (NY. Co. Ct. 2008), the defendant, a Coast Guard reservist, was QUALIFICATION REQUIREMENTS Initially intended to apply only to people who are QLEO and charged with the crime of Criminal Possession of a Weapon in QRLEO, LEOSA was amended in both 2010 and 2013, opening the Second Degree after a loaded handgun was found in a comthe door to individuals separated after an aggregate of 10 years partment underneath the seat of the vehicle in which he was or more service as an active, reserve, auxiliary, or volunteer law traveling. Even though Booth was of duty at the time of his arenforcement ofcer, as well as military and DOD police and law rest and did not possess agency authority to carry while of duty, the Court found that Booth's duties enforcement ofcers. In addition, in the Coast Guard, which were deLEOSA now applies for active law fned "as the prevention, detection, enforcement ofcers of the Amtrak [and] investigation of violations of Police Department, Federal Rethe law" as well as his "authority serve, and executive branch of the and duty to arrest violators" and Federal Government, even if they qualifcation to carry a frearm, delack statutory powers of arrest. spite its time and place restrictions, However, because of a failure to requalifed him for LEOSA and exmain consistent with the language empted him from prosecution unused in both parts of the statute, der New York State Law. Id. at 770. those without arrest authority are Reliance on scuttlebutt surunable to qualify upon separation. rounding qualifcation requireWhile many agencies argue that ments and failing to recognize only full-time ofcers qualify for LEOSA's preemptive authority over the privileges aforded by LEOSA, state law can be costly. In People of the plain language of the statute the State of California v. Jose Diaz, and case law interpreting it prove LEOSA now requires LEOs to carry Case No. 7GF00494 (Cal. Sup. Ct. otherwise. a photographic ID that "identifes 2007), a Coast Guard boarding ofIn Te People of the State of New the employee as a police or law enforcement offcer of the agency." fcer was arrested under Cal. Pen. York v. Arthur Rodriguez (IndictCode ยง 12031(A)(1) for carrying a ment # 2917/06 (NY. Sup. Ct. 2006), loaded frearm in his vehicle while the New York Supreme Court found in a public place. At the time of his that Rodriguez, a Pennsylvania arrest, Diaz was traveling with a Constable (despite constables not being paid a salary by any municipal subdivision and working cased frearm and loaded magazine in the back seat of his automore like independent contractors paid on a per job basis), was mobile. Te charge was dismissed on oral motion by the prosin fact employed by the court and qualifed for protection under ecutor after it became evident to the City that LEOSA preempted Diaz's prosecution. Diaz sued for a violation of his civil rights, LEOSA. Te U.S. Attorney for the District of Columbia took a similar Diaz v. City of San Fernando, et al., Case No. PC044139 (Cal. Sup. position in an amicus brief f led in the Superior Court of D.C. Ct. 2011). Te civil suit settled outside of court, and the Settlecase of District of Columbia v. Barbusin (Criminal No. 2012-CDC- ment and Release Agreement entered into between Diaz and the 00913). Barbusin, a special police ofcer of the District of Co- City resulted in a $43,500 payment to Diaz and a redraft of the lumbia Protective Services Police Department, asserted LEOSA City's police training standards on LEOSA. protection following charges stemming from the alleged illegal possession of an assault weapon in the District. While the case ID ISSUES was ultimately dismissed with prejudice due to Brady violations, As members of the Coast Guard, both Booth and Diaz qualithe language of the government's amicus brief is instructive on fed for LEOSA prior to a recent amendment to the statute. With the issue. In the brief, the government notes that LEOSA's def ni- the new language, however, they likely do not. tion of a "qualifed law enforcement ofcer" is to be read broadly On Jan. 2, 2013, LEOSA was amended to specifcally allow for PHOTO: MARK W. CLARK LEOSA sounds pretty cut and dried. But unfortunately, it isn't. Vague language, confusing amendments, and a relative shortage of interpretive case law have allowed scuttlebutt and confusion to take over common sense application of its principles. And clarifying this law and what it means for law enforcement ofcers and retired law enforcement ofcers is a large part of my job as attorney for the National Rife Association. 32 POLICE JANUARY 2014

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