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NYPD can not use LEO nationwide CCW?

Discussion in 'Legal' started by gunsmith, Aug 3, 2004.

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  1. gunsmith

    gunsmith member

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    I don't have any links-but-.

    My brother is a cop in a small dep't north of the city and he told me that
    he heard the NYPD brass has a policy that forbids their officers from using their sheild as a nation wide CCW that they can only carry in other states if they can get a CCW for that state.

    Again other then my brothers info,I can't provide any links.
    Any LEO's out there have more info?
     
  2. cookhj

    cookhj Member

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    NYPD can't keep their officers from carrying in other states. they might have policy against it, but federal law supercedes their policy.
     
  3. Hawkmoon

    Hawkmoon Member

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    NYPD might not like it, but it is a Federal law and they don't have much to say about it. It'll be just like the pizza guy -- the NYPD officers can carry all over the country, legally, but if one of them is ever involved in a shooting out of state, he or she may be up on internal charges, or discharged.
     
  4. 4v50 Gary

    4v50 Gary Moderator Staff Member

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    Yep. Marbury v. Madison. Fed law supercedes local law.
     
  5. DMF

    DMF Member

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    Hey folks, I suggest a careful read of the new law. The law states that you must be authorized by your agency. If your agency sets restrictions on when and where you can carry this law does not change that. Also, agencies can set conditions of employment, so even if someone doesn't get prosecuted, if they violate agency policy they can easily be terminated. The

    Here is an example. My former federal agency prohibited carry when I was on vacation, unless my SAIC provided authorization in writing. Now, when I wasn't on vacation I had 24/7 carry nationwide. The minute I took a vacation day, I had to turn in my weapon. Now if one of our agents had been caught arming up on vacation, 1- they weren't legally carrying because they carried under the authority from the agency, and the agency hadn't authorized that action, 2- they WOULD be immediately terminated regardless of whether they were prosecuted for any offense related to carrying the weapon.

    Again, a careful read of the law shows that agencies can set restrictions on where and when their LEOs are authorized to carry. This is not a carte blanche for anyone in LE.
     
  6. DMF

    DMF Member

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    Ah Marbury v. Madison, one of the most maligned, misunderstood, and misrepresented cases in the history of the Supreme Court. However, without getting into details Marbury v. Madison was exclusively an issue of federal jurisdiction, and had absolutely nothing to do with fed law having supremacy over state or local law.

    Here is the text of the decision if you care to read it: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=5&page=137

    You are correct that in areas of conflict fed law trumps state or local, but that is based on the "supremacy clause" of Article VI of the Constitution: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."
     
  7. Dbl0Kevin

    Dbl0Kevin Member

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    DMF is exactly right. Here in NJ even though state law specifically says that all law enforcement officers can carry a concealed weapon there are several depts that do not allow their officer's to carry off duty, some for the first year, some at all. I had asked a friend of mine in the prosecutor's office about this when I was looking into getting a job at one of them. The way I figured if I carried then it wouldn't be against the law and just dept. policy......wrong. If your agency puts restrictions on you carrying then you are not legally able to carry a weapon period. So stupid.
     
  8. WYO

    WYO Member

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    The law (as published on the LEAA Website) says:

    (c) As used in this section, the term `qualified law enforcement officer' means an employee of a governmental agency who--
    * * *
    `(2) is authorized by the agency to carry a firearm;

    The issue is whether the language of subsection (c)(2) refers to authorization to carry at that very instant per policy, or whether it refers to general authorization to carry a firearm. If it refers to the former, then policy is important. If it refers to the latter, policy is irrelevant except for disciplinary purposes.

    We'll just have to wait and see what shakes out.
     
  9. DMF

    DMF Member

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    WYO,

    Are you volunteering to be the test case? :p Do you have the money necessary to fight that legal battle?

    Even if the (wishful) thinking that the law would allow you to carry in violation of agency policy, is correct, are you going to risk your job over it?
     
  10. sendec

    sendec member

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    Just to reinforce, federal law cannot supercede departmental policy unless the policy violates the law. If NYPD says that there guys and girls cannot carry, the fact that a fed law says they can does'nt make a difference. As pointed out though, the law does require that that the agency tacitly approve the carry.

    I have no idea of how this may impact retired NYPD officers, as i would guess thhat they would no longer be bound by policy, unless their benefits package required some bizarre ex post facto adherence to specific rules. THAT's one for the bargaining table.
     
  11. WYO

    WYO Member

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    DMF, no, no and no. My CCW permit is good in the places I want to go.
     
  12. Coronach

    Coronach Moderator Emeritus

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    Also, El Tejon's Problem #2 rears its ugly head, too.

    "Officer Coronach, were you aware that even carrying your sidearm at that time and in that location was a violation of your department's policies? What is the jury to think of a bloodthirsty, reckless cowboy like you?"

    Yeah yeah, judged by 12, carried by six. I know. Still, worth considering.

    Mike
     
  13. Hawkmoon

    Hawkmoon Member

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    sendec:
    Yes and no.

    I think the interpretation of the "authorized to carry" clause in the law is a valid question. The way I read it, an NYPD officer carries a gun on duty so he/she is a "qualified LEO," whereas the meter maids aren't authorized to carry weapons on duty, and thus are not "qualified LEOs" under the law.

    But on the issue of department regs trumping Federal law I disagree with you. If NYPD tells its officers "Thou shalt not carry" and Officer O'Roarke gets jumped while on vacation in Bisbee, Idaho, and just happens to be carrying a handgun, I imagine the NYPD might be upset but I don't think that he could be charged in Bisbee because I believe he IS covered by the new law.
     
  14. Zundfolge

    Zundfolge Member

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    Law Schmaw ... if the NYPD says its officers can't use their badge to carry outside New York then if they do so they won't go to jail ... just the unemployment line (and what police department will hire them then?).
     
  15. westex

    westex Member

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    Let's just suppose.....There was a very pro 2A sheriff in some politically secure county in some state that proceeded to hire (no $ involved for the county) just about anyone who met with his approval for a length of time required under this law and then that person retired after the minimum required time. Residence requirements? Do counties set there own employment requirements or set by state? See any legal problem here? Any possibilities? Devious minds want to know.
     
  16. DMF

    DMF Member

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    Well just so you know the law sets a minimum time of service, 15 years, to qualify as a retired officer. From the law, " . . . before such retirement, was regularly employed as a law enforcement officer for an aggregate of 15 years or more . . ." There is an exception for service connected disability resulting in an early retirement.
     
  17. Matt G

    Matt G Moderator Emeritus

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    Okay. Now, just how many folks here think that's pretty dumb? [Matt G looks around and nods at all the raised hands.]

    Okay. Now, just how would NYPD find out that the NYPD cop in question had been carrying out of state? Is it possible that a cop might call NYPD to verify the officer's credentials? Sure.

    But how many cops are going to rat out the NYPD cop to the stupid department that made the dumb internal regulation (not law) in the first place?!? [Matt G notes the lack of hands up.]

    NYPD wants to enforce that reg, they're going to have to send out a WHOLE lot of IA guys. I don't work for their outfit. ;) We're busy enough enforcing our own laws to not have the time to worry about silly internal rules from another officer's department.
     
    Last edited: Aug 4, 2004
  18. Johnny Guest

    Johnny Guest Moderator Emeritus

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    Additional consideration - -

    - - In favor of the NYPD guys who want to carry in Texas. Our Penal Code specifically states:

    Sec. 46.15 Nonapplicability.
    (a) Sections 46.02 [Unlawful Carrying Weapons] and 46.03 [Places Weapons Prohibited] do not apply to:
    (1) peace officers and neither section prohibits a peace officer from carrying a weapon in this state, regardless of whether the officer is engaged in the actual discharge of the officer's duties while carrying the weapon; . . . .


    And this law does NOT specify only Texas peace officers. this section is essentially unchanged since the PC revision of 1974, and it has been tested several times. Prior to that, it was largely a matter of common courtesy.

    SO - - H. R. 218 (now Public Law 108-277) notwithstanding, out-of-state cops are legal to go armed while in Texas.
    LATE EDIT: ERROR - - The above was correct, but no longer. I'll enter a correction post below - -

    As to the fact that Gunsmith's brother, "heard the NYPD brass has a policy that forbids their officers . . . " - - - I'd wager a small amount that this is not a written policy, but a preference that's been made known. I could certainly be wrong - - Stranger stuff happens.:rolleyes:

    All best,
    Johnny
     
    Last edited: Aug 9, 2004
  19. Coronach

    Coronach Moderator Emeritus

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    Yeah, but the problem comes if you have to actually, you know, use the gun.

    Or, if you are out on vacation and acting a fool, thus causing someone to call and check on you. "Why yes, he does work for us. May I ask why? Oh, my. Hold on, let me transfer you...*click*beep* Internal Affairs, how my I help you?"

    Of course, if you're acting a fool I'm personally not particularly worried about your future employment status. ;)

    Mike
     
  20. dinosaur

    dinosaur Member

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    Mike, H.R. 218 is not a mind meld that removes your training. If an OOS LEO acts the fool you're doing everyone a favor by further invesigation.

    I forgot to look but I think the NYPD says their members can carry OOS but they wouldn't be indemnified. So what else is new? I carried everywhere and unless I shot the Pope's would be assassin inside a Cathedral during High Mass I'd have a problem.

    This is not to mention that the NYPD Duty Captain who had to respond to an officer involved shooting in Waywayoutinthesagebrush Texas wouldn't be too happy either.:cuss:
     
  21. Matt G

    Matt G Moderator Emeritus

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    Precisely.
     
  22. rrb

    rrb member

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    "But how many cops are going to rat out the NYPD cop to the stupid department that made the dumb internal regulation (not law) in the first place?!? "



    Plenty. Believe me. Ask any of the CA or other out of state cops who've gotten trumped up traffic tickets in AZ. And I hope you guys keep that in mind if you have the chance to return the favor to an AZ cop who is in your state.
     
  23. gunsmith

    gunsmith member

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    rrb

    I hear ya...have you seen that video tape of the Captain from Miami getting peppersprayed during a stop in Florida?

    imho The Cap't deserved it...not for grabbing his license back but for driving 69mph in the 70 mph right hand lane,those people need a facefull of spray.
     
  24. Blackhawk 6

    Blackhawk 6 Member

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    An NYPD officer may legally be able to carry, but if it is discovered he violated departmental policy (he uses his weapon) he will probably face some sort of disciplinary action from his department.
     
  25. rrb

    rrb member

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    In short, this Law Enforcement Safety Act of 2004 appears to be, at this point - especially in the case of retired officers - a fraud. The accidentally, or deliberately, sloppy way that it is written seems to preclude all but the politically connected, and those from unusually congenial departments, or possibly departments with very strong unions, from actually benefiting from it.
     
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