HR 218 TRUMPS LOCAL LAWS
December 1, 2008
Recently, an article appeared in the Rapid City (South Dakota) Journal, stating that law enforcement officers could not rely upon the passage of the Law Enforcement Officers Safety Act of 2004, otherwise known as HR 218. That law basically exempted currently employed “qualified law enforcement officers” (and certain retired officers) from state and local laws which prohibit the carrying of concealed weapons in their jurisdictions. According to the newspaper article, since the U.S. Attorney General’s office had not “implemented” HR 218 after it was signed into law, it hadn’t taken effect. That information is incorrect.
Incident in Sturgis, South Dakota
A number of off duty Washington police officers, law enforcement officers with U.S. Customs, and one federal firefighter, were all part of a motorcycle club called the “Iron Pigs” and were attending a motorcycle rally in Sturgis. The off duty officers were carrying concealed weapons pursuant to HR 218 and the firefighter had a concealed weapons permit from Colorado, which has a reciprocity agreement with South Dakota.
They were at the Loud American Roadhouse bar when members of the Hells Angels started a fight with one of the officers, resulting in the officer shooting and wounding one of the attackers, Joseph McGuire of Imperial Beach, CA. McGuire was subsequently charged with assault and is free on bond. The officer was also charged with assault, as well, but that charge was dismissed following an investigation by the county grand jury.
However, the newspaper article reported that the officer was indicted by the grand jury for bringing a gun into the bar. The grand jury held that HR 218 did not authorize him to have a concealed weapon in South Dakota. The article stated that the officer could not rely on the federal law since, according to the public information officer in the Denver office of the Bureau of Alcohol, Tobacco, Firearms and Explosives, “the legislation was never implemented by
its rule making agency – the U.S. Attorney General’s office….” The other officers, and the firefighter, were also indicted on concealed weapon permit violations.
alidity of HR 218
Following this incident, and the reporting of it, e-mails apparently “flew” across the country with officers expressing concern about the validity of HR 218 permits which they had secured. To be eligible for such a permit, and therefore be able to carry a concealed weapon in any city or state, despite their local prohibitions, one must be a qualified law enforcement officer, as defined in the Act. To be “qualified,” among other things, one must be authorized by his or her employing agency to carry a firearm, not be subject to pending disciplinary actions, and not be under the influence of alcohol. The officer must also have identification with him or her stating that the officer is qualified under HR 218 to possess a weapon.
A “qualified retired officer” is one who, among other things, was honorably retired, not based on a psychological or mental condition, and who, within the past year, had been certified by his or her agency that he/she met the standards required by that agency for their current officers to be armed, or has met the standards of the state in which he/she resides for active law enforcement officers to carry firearms in that state.
The Act creates an affirmative defense to criminal prosecution brought by state or local authorities for an alleged violation of their concealed weapons statutes. Therefore, the burden falls on the law enforcement officer to prove that he or she is a “qualified” officer, entitled to the protections of HR 218.
Clarification by U.S. Department of Justice
As a result of the charges against these officers, the news article which gained national attention, and the concerns expressed by numerous law enforcement associations, including the Fraternal Order of Police, a letter was circulated by an Assistant Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives clarifying the status of the law and apologizing for the misinformation.
The letter stated that “to implement the Act, the U.S. Department of Justice (DOJ) established a working group to develop uniform guidelines for DOJ agencies.” Those guidelines were published on March 5, 2005 in the Federal Register, 70 Fed. Reg. 10673, “so that other Federal agencies and State and local law enforcement agencies could review DOJ’s guidance before establishing their own.” (Emphasis added.) Finally, the Assistant Director states that, “DOJ did not issue regulations concerning the Act because the Act did not establish any Federal program.”
Recently, and one might assume based on this clarification from DOJ, charges were dismissed against the officers by a circuit judge in South Dakota. The judge wrote, in his opinion, that “while states retain the right (pursuant to HR 218) to prohibit the possession of firearms on government property and to permit private persons and entities to prohibit the possession of firearms on their property, they cannot restrict qualified law enforcement officers in any other manner.”
The charge against the firefighter will apparently proceed since, even with a legitimate CCW permit from Colorado (which does have reciprocity with South Dakota), he was not permitted to bring the weapon into a bar under South Dakota law.
HOW THIS AFFECTS YOUR AGENCY
As stated in the letter from the U.S. Department of Justice, HR 218 is the law of the land. If one is a qualified law enforcement officer, he or she is exempt from the state and local laws which otherwise prohibit carrying a concealed weapon in their jurisdictions, except for the restrictions stated in the law. Basically, the federal law “trumps” the local law, however, each law enforcement agency must establish its own guidelines and can use the federal guidelines as a reference.
It is imperative to remember, that the rules for retired law enforcement officers are different, under HR 218, than they are for currently active officers. The retired officer has additional obligations which must be met in order to be “qualified.” As such, it is most important that all law enforcement officers, and their agencies, receive advice and guidance from their own agency’s legal counsel before relying on the protections of HR 218. If nothing else, this situation in Sturgis shows that not all are clear about the provisions of HR 218.
As always, if you wish to discuss this matter in greater detail, feel free to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com. Remember, though, you can only rely upon legal advice from your designated legal counsel.