Vol. 20 No. 1- Law Enforcement Officers Safety Act Of 2004 – Where Are We?

January 3, 2005

Since July 2004, when President George W. Bush signed HR 218 [Law Enforcement Officers Safety Act of 2004 (“Act”)], making it lawful for active and retired law enforcement officers to carry concealed weapons in any of the fifty (50) states, questions continue to arise. On September 14, 2004, we published a Client Alert Memo (Vol. 19, No. 14) providing information current as of that time. We set forth some recommendations – strongly urging, as we still do, that officers secure legal advice and guidance before relying upon this law – which we still believe are appropriate. The following consists of more information and specific actions being taken by various jurisdictions to implement the provisions of the Act.


We recently became aware of legal opinions providing advice and/or guidance to officers,

as well as management, on the implementation of this law. Reasonable minds can differ as to the interpretation of legislation and specifically, this legislation. Because of the manner in which it was drafted, it is fraught with problems caused, in part, by a failure to recognize that each state has its own definitions of various terms, which may or may not comport with the terminology used in the legislation. Additionally, the definition of what constitutes active or retired law enforcement officers is so broad that it leaves open to debate the question of who is covered under the Act.

To complicate the matter further, there has been a refusal on the part of the office of the legislator who drafted this law, as well as the United States Department of Justice, to assist in defining these terms. Rather, we have been told that individual legal advisors should provide advice and guidance. That, obviously, means each jurisdiction could have a different interpretation of the law. Some examples of the diversity of application of the law are discussed in this memo.

A few months ago, a law firm based in Chicago, issued a memo to law enforcement management which suggests, among other things, that a general order or administrative rule could be adopted prohibiting officers from carrying concealed weapons while off duty or outside their jurisdiction and that such action might be enough to make the officer ineligible under the Act. That recommendation would appear to be in complete conflict with the legislative history of HR 218.

Under the law of statutory construction, one doesn’t look to legislative history if language is clear on its face. In this case, however, legislative history is essential in order to interpret various provisions of the law. During the Congressional Committee oversight hearings, an amendment was proposed by Representative Scott which stated that HR 218 was not to be construed to supersede or limit the rules, regulations, policies or practices of any state or local law enforcement agency. That proposed amendment was defeated 21 to 11. As such, the legislative history shows that a “general order or other administrative rule” cannot supersede HR 218.

Along those same lines, in the October 2004 edition of the IACP Police Chief magazine, there is an extensive article, under “Chief’s Counsel,” addressing many issues arising out of HR 218. Once again, recognizing that reasonable minds can differ, we take exception with the first question and answer which, in essence, also opines that a local law enforcement agency may restrict an officer’s right to carry a firearm out of state.

It appears that such action would violate both the intent and letter of the law. The Act specifically states “notwithstanding any other provision of the law of any state or any political subdivision thereof.,” an active or retired law enforcement officer may carry a concealed firearm in any of the fifty (50) United States.

Additionally, it is imperative to determine, in each state, whether or not individual Chiefs and/or Sheriffs have the legal authority to restrict their officers from carrying weapons off-duty in their own states. For example, in California, peace officers are exempt from the law which prohibits anyone in California from carrying a concealed weapon and case law has addressed the limitations on a chief to restrict a peace officer from carrying a weapon off-duty, even though he or she may be restricted while on duty.

Another example of differing legal opinions is that of a law firm in Los Angeles which issued one of their alerts and stated “even when officers may be off-duty or vacationing, they are expectedto assist in local crime prevention, apprehension, rescue and homeland security efforts.” (Emphasis added). HR 218 in no way, shape or form extends a law enforcement officer’s authority beyond that of his or her own jurisdiction. During congressional hearings it was emphasized that this law does not extend an officers law enforcement authority and to make the statement that officers “are expected” to take such action is not only misleading but extremely dangerous to officers who may rely on that advice.


The following is based upon information shared via e-mail and conference calls with persons throughout the country. It is intended to provide a glimpse of what may be occurring in other states but, in some cases, has not been officially confirmed.

Illinois – It appears that the Illinois State Police has developed a course of fire which retirees would be required to complete in order to meet established standards. However, we have been informed that, although there are eight ranges throughout the state, utilized by the Illinois State Police, they are utilizing only two, at opposite ends of the state, for retired officers to qualify.

Philadelphia – It appears Philadelphia P.D. has developed a policy prohibiting their department issued weapons to be taken out of state. Without having seen the actual language, it is difficult to comment upon, however, that would not appear to violate the provisions of HR 218, since an officer can carry a different weapon than his or her department issued weapon.

Pennsylvania – Pennsylvania has apparently drafted a bill to bring Pennsylvania into compliance with the Federal legislation. We’ve not yet seen that language.

Oregon – Oregon’s equivalent of our P.O.S.T. Commission, the Department of Public Safety Standards and Training (D.P.S.S.T.), is apparently nearing completion on firearm standards which will enable qualified retired officers to meet the HR 218 standards. Once that course of fire has been designed, the D.P.S.S.T. will allow either a public or private agency to qualify the applicant. D.P.S.S.T. will conduct a criminal history and appropriate background check before issuing a “retiree firearms qualification card.”

Georgia – Apparently the Georgia Office of the Attorney General has determined that, since Georgia lacks statewide standards for weapons qualification for current law enforcement officers, no Georgia law enforcement retiree is qualified under HR 218 and, therefore, is not eligible for a “nationwide carry permit.” It is our understanding that some peace officer associations are discussing the possibility of filing suit in the near future to compel the state to comply with what they believe is a federal mandate.


As indicated in our earlier Client Alert memo, there have been numerous meetings by phone with representatives of the law enforcement profession throughout the State of California. Discussions have focused on numerous issues raised in the legislation and currently there are efforts being undertaken to draft legislation which would enable California to allow its active and retired peace officers to meet the requirements of HR 218. That is an ongoing process and, as of this date, it has not reached completion.

The Alameda County Sheriffs Office has already developed a new ID card for current deputies, to be carried in addition to the primary ID card issued by the Sheriff’s Office. The supplemental card states that the individual, identified by photograph and name, “complies with Chapter 44 of Title 18 of the Unites States Code (Sec. 926B), (“LAW ENFORCEMENT OFFICERS SAFETY ACT 2004″).”


Because the U.S. Department of Justice has taken the position that each individual jurisdiction should interpret HR 218 itself, there will be multiple interpretations throughout the United States. There are two primary concerns to those of us who represent the interests of law enforcement. First, how does one meet the requirements of HR 218 enabling that person to lawfully carry a concealed weapon in another jurisdiction; and second, what should our law enforcement officers be looking for when they come in contact with someone from out of state who claims he or she is authorized to carry pursuant to HR 218?

As a result of the heightened concern regarding terrorism, many law enforcement officials throughout the country have expressed concern as to how a peace officer can properly identify whether or not an individual is authorized to be armed under HR 218. There is no statewide, let alone nationwide, identification card for active or retired law enforcement officers.

There is an excellent legal bulletin recently published by Michael Ramage, General Counsel to the Florida Department Law of Enforcement, addressing issues related to implementing the Law Enforcement Officers Safety Act of 2004. That bulletin is posted on the F.D.L.E website and can be accessed at www.fdle.state.fl.us by entering a search for “HR 218.”

Once again, since the U.S. Department of Justice has tossed the ball back into the lap of local law enforcement, we reiterate what we have said before – officers should secure advice and guidance from their own attorney or their department’s legal advisor before relying upon HR 218 and traveling out of state with a concealed weapon.