Lawyers: Question on LEOSA for Military Officers

[mk2ja]

To the lawyers on INGO (and anybody else who can find the answer online).


Here are some facts.

LEOSA allows "qualified law enforcement officers" to carry a concealed firearm in any jurisdiction in the United States, regardless of any state or local law to the contrary, with certain exceptions.

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:

1. be an employee of a governmental agency,
2. 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,
3. have statutory powers of arrest or to "apprehend" for violations of the Uniform Code of Military Justice (as of 2 January 2013)
4. be authorized by the agency to carry a firearm while on duty
5. not be the subject of any disciplinary action by the agency (which could result in suspension or loss of police powers), and
6. meet standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm.

On 02 January 2013, LEOSA was amended to extend the LEOSA priviledge to active, retired, and former military police officers of the armed forces, and it expanded the powers of arrest requirement definition to include those who have or had the authority to "apprehend" suspects under the Uniform Code of Military Justice (UCMJ).

Any commissioned officer possesses arrest power for UCMJ violations under 10 USC Chapter 47, Subchapter II - APPREHENSION AND RESTRAINT.


Here is where thinking starts.

I had a friend in my platoon at OCS who had gone to law school and gotten a law degree but never taken the bar to actually become a lawyer. He was the one who first told me about LEOSA and suggested that commissioned officers are covered by it. "Interesting," I thought.

When I was at TBS, one of my instructors, a captain, was an MP. While talking to him about guns one evening, we discussed LEOSA briefly. He also stated that there could be a case made that any commissioned officer—not just an MP—is covered, but he didn't recommend that a student at TBS be the guinea pig.


Here's my question.

Obviously, what I'm getting at is this: I want to know if I'm covered by LEOSA. It appears that I meet the letter of the law, notwithstanding the fact that I'm not an MP.

Are you aware of any cases that have addressed this issue? Are there any other laws that may make it more clear?

And as a follow-up, if I am covered, I've heard that there is some documentation/identification that I need to have on my person that affirms for any LEO I may encounter that I am, in fact, covered by LEOSA. I am having some trouble finding details about that, too. Like, "where would I get it?" Does my DOD ID suffice?

Thanks for any leads or answers you can provide.






Law Enforcement Officers Safety Act on Wikipedia

 

[Indy_Guy_77]

how are commissioned officers "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,"?

 

[mk2ja]

how are commissioned officers "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,"?

It seems that the provision allowing the UCMJ to be qualification covers that. By comparison, civilian law enforcement are not able to arrest for UCMJ violations either. Seems like an either/or to me.

 

[Hogwylde]

how are commissioned officers "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,"?

Commissioned officers (me) fall under this>>

1. have statutory powers of arrest or to "apprehend" for violations of the Uniform Code of Military Justice (as of 2 January 2013).

I have PERSONALLY conducted a court martial of a Marine. I had to do the investigation, the prosecution, call witnesses, and pronounce judgement on said Marine. I also signed the paperwork at the brig for his incarceration. I was the highest ranking officer in his squadron that wasn't in his direct chain of command. I was not and have never been an MP or even attached or under the command of any MP's. I was an ATC Officer in Operations that had to ding a Motor T private for going AWOL multiple times. The CO finally had it with him, but he couldn't do it being as he was in the private's direct chain of command.

I would assume that all Commissioned officers, since WE have powers of arrest and can "prefer" charges against ANY other member of the armed services, meet the definition of "qualified law enforcement officer" as defined in #3.

 

[Indy_Guy_77]

I still don't see how an commissioned officer in the US Armed forces can arrest me for shoplifting - provided I'm not in some kind of base/post exchange.

"ANY person for ANY violation of the law."

I think the argument that commissioned officers can carry under LEOSA is tenuous at best. Granted, I'm not a lawyer, a service member, nor a LEO.

Meaning of "qualified law enforcement officer"

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]

1. an employee of a governmental agency, (check)
2. 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, (don't think so)
3. have statutory powers of arrest or to "apprehend" for violations of the Uniform Code of Military Justice (as of 2 January 2013) (check)
4. be authorized by the agency to carry a firearm while on duty (depends)
5. not be the subject of any disciplinary action by the agency (which could result in suspension or loss of police powers),[2] and
6. meet standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm.

The law was specifically extended in 2010 to include:

• law enforcement officers of the Amtrak Police,
• law enforcement officers of the Federal Reserve Police, and
• law enforcement or police officers of the executive branch of the Federal Government,

as being "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", and to have "have statutory powers of arrest".[2]

All in all, I don't have skin in this game. Just don't want any of our INGO servicemembers to get ramrodded over bad information.

-J-

 

[upalot]

Seems this wold be a question for a JAG to answer not someone on an internet board, JMO.

 

[HoughMade]

Indy- I think you may be reading "any" too narrowly. I think it may not mean that he can arrest any person, as in anyone and everyone, but that he has arrest powers (etc.) as to someone, meaning if he can legally arrest a person.

Do I have arrest powers as to any person? No. Not a single one.

How about an Indiana law enforcement officer? He can arrest a person in Indiana, but not Illinois (yes, I know there are exceptions)? Can he arrest any person? Yes, people in Indiana. Can he arrest every person? No, not those in Illinois. "Any" does not mean "any and every". It just means having arrest powers as to someone as opposed to no one.

If "any" had the meaning you say, than no one qualifies under the law because there are limitations on all arrest powers that exist.

Now as to this specific issue, a commissioned officer may have arrest powers that apply to other person in the military (I do not know, I am assuming it to explain the statutiory meaning). If that is the case, is there any person he can arrest? Yes.

 

[Indy_Guy_77]

All in all, I don't have skin in this game. Just don't want any of our INGO servicemembers to get ramrodded over bad information.

-J-

Seems this wold be a question for a JAG to answer not someone on an internet board, JMO.

See above!

Indy- I think you may be reading "any" too narrowly.

Entirely possible. It's been a few months since I've stayed at a Holiday Inn Express...

But I still believe that a 2nd Lt. in the US Army (no specific person in mind) has authority to carry under LEOSA if that person's job isn't in a "law enforcement" capacity in the US Army.

2 Lt that's an MP / JAG / etc - I'd be more apt to believe they'd be covered (based on a few cases involving USCG officers) vs. a 2 Lt in a Qartermastr Battalion.

Again - I don't have a skin in the game...trying to flesh this out as a quasi-interested observer.

 

[Fargo]

There is a decent argument that a commissioned officer does fall within LEOSA but I don't know of it ever being considered by the courts. The closest I know of dealt with a Coast Guard Boarding Officer and that is listed below:

http://handgunlaw.us/documents/LEOSACoastGuardCarryCourtCase.pdf

Best,

Joe

 

[j706]

I would not arrest any military officer that was carrying a handgun without a ltch. The selection process for officers is pretty darn selective.

 

[BehindBlueI's]

I would simply point out that if the definition is expanded that broadly, every government employee who can carry a firearm on duy would be covered in Indiana. If any arrest power at all qualifies you, remember citizens can arrest for a felony committed in their presence, etc.

I think its a tenuous argument, but a court room is a strange and magical land were anything can happen.

 

[HoughMade]

....But I still believe that a 2nd Lt. in the US Army (no specific person in mind) has authority to carry under LEOSA if that person's job isn't in a "law enforcement" capacity in the US Army.

2 Lt that's an MP / JAG / etc - I'd be more apt to believe they'd be covered (based on a few cases involving USCG officers) vs. a 2 Lt in a Qartermastr Battalion....

I know where you're coming from. I don't have enough knowledge of the UCMJ to make that call. Believe it or not, being enlisted 11B in the MI NG years before I became a lawyer didn't prepare me for this question.

 

[mk2ja]

Seems this wold be a question for a JAG to answer not someone on an internet board, JMO.

Yeah, I will likely end up doing that before I actually carry someplace my LTCH isn't honored.

There is a decent argument that a commissioned officer does fall within LEOSA but I don't know of it ever being considered by the courts. The closest I know of dealt with a Coast Guard Boarding Officer and that is listed below:

http://handgunlaw.us/documents/LEOSACoastGuardCarryCourtCase.pdf

Best,

Joe

Sweet. Thanks for the link to that decision.

I would not arrest any military officer that was carrying a handgun without a ltch. The selection process for officers is pretty darn selective.

Well, I appreciate that. Hopefully the next LEO I have to deal with is as understanding as you.

 

[rcpolynikes]

Interesting development indeed let me say that I've already been perusing other forums about this same subject. First of all I'm a commissioned military officer as well that is by no means involved in any "daily" law enforcement capacity. However, as some of you may know Article 7b rule 302 of the UCMJ grants "apprehension powers" to commissioned officers, warrant officers, NCO's and petty officers. Many officers take on investigative legal roles as well in commands. Now I fully understand that the intent of the latest development to the LEOSA signed into law by the CinC Jan 2 probably wasn't intended for those groups of people. However, that's how it was written and signed. I actually had a visit with a JAG LT today to verify the legality of coverage for all commissioned officers, warrant officers, and NCO's. As expected he hadn't even heard of this yet but is doing everything he can to get the most up to date guidance on this issue. I understand how some in the law enforcement community would not be impressed with Butter Bar Smith or Sgt Timmy carrying under LEOSA but we have to remember that all it grants LE's is exemption from state CCW's... This is especially a pain in the behind for military members who have to get various CCW's for the different duty stations we are sent every couple years.

The new law states:
A “qualified active law enforcement officer” is defined as an employee of a government agency
who: 2
 is authorized by law to engage in or supervise the prevention, detection, investigation CHECK
prosecution or the incarceration of any person for any violation of law;
 has statutory powers of arrest or apprehension under the Uniform Code of Military Justice; CHECK
 is authorized by the agency to carry a firearm; CHECK
 is not the subject of any disciplinary action by the agency which could result in suspension CHECK
or loss of police powers;
 meets the standards, if any, established by the agency which require the employee to
regularly qualify in the use of a firearm; CHECK
 is not under the influence of alcohol or another intoxicating or hallucinatory drug or
substance, and CHECK
 is not prohibited by Federal law from possessing a firearm. CHECK

As far as I can see, even just as a commissioned officer I meet all those criteria. My only concern is the showing the proper credentials. I don't think a CAC card would cut it because the other new part they added in the Jan 2nd extension was changing the wording of the I.D. requirement... now the I.D. has to saw LEO or Police Officer. Check out this DOD instruction(Which now must be updated regarding implementing the law)
http://www.dtic.mil/whs/directives/corres/pdf/552512p.pdf
Notice that it lists the LE agencies of DOD and I imagine DOD plans to now put "DOD Police...0083's" on that list. The question is whether they'll put CO's, Warrants, NCO's, etc. Fat chance IMHO.
Ultimately the way ahead that I'll take is writing my Congressional Representatives and recommending a similar "Service Member Safety Act" for qualified service members... since we all know that "constitutional carry" is long gone. Also... I recommend you write Senator Patrick Leahy of Vermont regarding my SMSA proposal. He was the one to head this legislation though it is funny that he is also trying as we speak to inact Senator Feinstein's AWB. Thoughts?

 

[rcpolynikes]

Friends,
I created a very important petition on the White House website that will help reduce gun violence at NO ADDITIONAL TAX PAYER EXPENSE!!! "MILITARY SERVICE MEMBER'S SAFETY ACT"Please review,sign and forward on to all others if you agree with it. I need 100,000 signatures by March 3rd for the White House to respond. Thank you for your support.

http://wh.gov/pi8f

Sincerely,
RC

 

[Indy_Guy_77]

Something else to keep in mind - the two Coasties that were caught up in these things weren't carrying their guns on their persons when their troubles began. That would surely figure into the precedent, wouldn't it?

 

[mk2ja]

Something else to keep in mind - the two Coasties that were caught up in these things weren't carrying their guns on their persons when their troubles began. That would surely figure into the precedent, wouldn't it?

Good observation. It potentially could affect it, but I, in my non-professional-lawyer role, get the impression that the intent of the law is to allow carrying on the person.