LEOSA Welcomes the Military by Requiring New Identification Card Language for All

By James M. Baranowski, Esq. NRA-ILA | January 2013

Introduced as H.R. 218 and signed into law on July 22, 2004, the Law Enforcement Officers Safety Act (LEOSA) has been the source of great excitement and incredible frustration since its inception.  In the post 9/11 climate in which it was enacted one of the law's stated intents was to create a means for thousands of equipped, trained, and verified law enforcement officers to respond immediately to a crime by affording them the privilege of carrying a concealed firearm across state and other jurisdictional lines.  LEOSA accomplishes this goal by providing qualified active and retired law enforcement officers with the privilege of carrying a concealed firearm in all 50 states, D.C, the Commonwealth of Puerto Rico and all other U.S. possessions (except the Canal Zone) regardless of most[1] state laws.  However, the poorly drafted statute and many state's refusal to recognize its terms continues to plague LEOSA's ability to be effectively implemented throughout the nation.

Since becoming law LEOSA has undergone two major amendments, both of which have done little to help clarify its terms.  The most significant amendments came in 2010, opening the door to thousands of law enforcement officers previously unable to qualify for LEOSA by amending the definition of a Qualified Retired Law Enforcement Officer (QRLEO).  This change allowed those that separated after 10 years of service as well as individuals lacking a "nonforfeitable right to benefits" to qualify, a change hailed by many otherwise qualified part-time, reserve, auxiliary and volunteer officers throughout the country previously unable to qualify.

The 2010 amendments also specifically included by name three agencies that previously refused to acknowledge their employee's ability to qualify for the statute's privilege.  In addition, the amendments expanded the definition of "firearm" and modified the firearms qualification requirement for QRLEOs by requiring them to meet the "active duty" firearms qualification standards for the same "type" of firearm they intended on carrying under LEOSA.

The final change is one that has stirred much debate in both the law enforcement and legal communities, and with a relative shortage of case law and authoritative sources the problem has only been compounded.  While some agencies and scholars have argued that "type" of firearm should be read narrowly to require qualification with each and every firearm an individual intends to carry under LEOSA, a review of the wording with a legal eye makes it clear that "type" should be read to conform with Federal law which breaks "type" down into the more broadly defined categories of handgun, rifle, shotgun, etc.

Additionally, the qualification requirement has caused mass confusion over who is capable of conducting the yearly firearms qualification for QRLEOs.  The statute requires QRLEOs to qualify yearly with the firearm they intend on carrying under LEOSA according to the "standards for qualification in firearms training for active law enforcement officers, as determined by the former agency of the individual, the State in which the individual resides or, if the State has not established such standards, either a law enforcement agency within the State in which the individual resides or the standards used by a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within the State."

While some states, like Washington, have enacted statutes certifying civilian instructors as being qualified to conduct firearms qualification tests for LEOSA purposes, the vast majority of states have not, creating a shortage of persons allowed to provide a certificate of qualification for QRLEOs in the state.  Many savvy firearms instructors have seized on the opportunity by creating their own LEOSA qualification courses.  These course, which often cost upwards of one hundred dollars, purport to offer the requisite LEOSA firearms certificate but instead issue one that is invalid due to the instructor's lack of requisite credentials.  As this practice is becoming increasingly common, QRLEOs are cautioned to ensure any civilian firearms instructor offering such a course is properly qualified by the state to do so.

The language of LEOSA has also caused incredible frustration for military and DoD personnel by mandating that those able to qualify possess "statutory powers of arrest".  While certain military and DoD organizations do afford their personnel with this power, the vast majority derive their authority from the UCMJ, which, although mirroring the definition of arrest, labels it "apprehension authority".

A certain amount of that frustration was mitigated on January 2nd of this year.  Hidden within the 2013 National Defense Authorization Act an amendment to LEOSA was enacted allowing military and DoD police and law enforcement officers with UCMJ apprehension authority to qualify for the statute.  Although the change has been welcomed with open arms by the military and DoD community, the DoD has yet to amend its own policy on LEOSA, DODI 5525.12, resulting in an inability for those that qualify to obtain the requisite photographic identification cards.

Also hidden within the recent amendments to the statute was an amendment to the required LEOSA identification card language.  The amendment mandates that QLEO's now carry a photographic ID that "identifies the employee as a police or law enforcement officer of the agency," and QRLEOs carry a photographic ID "that identifies the person has having been employed as a police or law enforcement officer".

While enacted in an effort to limit the ability to qualify for LEOSA to only those military and DoD personnel that served in a police or law enforcement billet, this change will likely cause substantial difficulties for many non-DoD law enforcement officers that already have significant problems obtaining the required identification card from their agencies, and especially for those who qualify but do not hold, or never held, the title of police or law enforcement officer.  This problem is only compounded by the fact that LEOSA does not bestow either an explicit right to obtain the required photographic ID or a federal remedy for an agency's failure to issue one.

As LEOSA continues to develop and courts continue to address its application and mechanics more information is becoming available.  The NRA's Law Enforcement Division has monitored LEOSA since its inception and created a link on their website containing several useful articles providing answers to the most common questions surround the statute and advice on those areas still off-limits to those carrying under its authority alone.  The information can be accessed on our Law Enforcement Division's webpage.

James M. Baranowski is Associate Legislative Counsel at the NRA's Institute for Legislative Action and member of the International Law Enforcement Educators and Trainers Association.  He is also a decorated combat veteran, having served over 8 years in the United States Marine Corps both as an Officer with 1st Reconnaissance Battalion and as a judge advocate.  His numerous awards and decorations most proudly include the Navy and Marine Corps Commendation Medal with Valor which he received for his actions during a sniper attack on his unit in Fallujah, Iraq.

[1] LEOSA does not exempt individuals carrying under the privilege it affords from laws prohibiting the possession of firearms on private property, Federal buildings (or parts thereof), installations and parklands, Gun Free School Zones and any State or local government property installation, building, base or park.  The law also does not supersede state or local laws regulating magazine capacities.

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