Request for discussion: HR 218 and the military

[Devonai]

This weekend I saw an old friend of mine who is a police officer in a major Massachusetts city (and has been for 15 years). I mentioned I would soon apply for my Mass non-resident permit. He told me that HR 218 applies to active military personnel as well as law enforcement. He's also a bar-qualified lawyer, so I was inclined to believe him. Being the CYA type, I looked up the text of the law as it was signed by Bush.

I was dismayed to discover that the law doesn't say a thing about military personnel. I plan on calling my friend and asking him how he arrives at this interpretation, but until then I'd like to discuss it with my fellow High Roaders. I do not plan on carrying into Massachusetts or anywhere else I'm not permitted, but I did notice a potential argument that would make my friend right.

HR 218 defines a law enforcement officer thusly:

(1) is 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 has statutory powers of arrest;

(2) is authorized by the agency to carry a firearm;

(3) is not the subject of any disciplinary action by the agency;

(4) meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;

(5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and

(6) is not prohibited by Federal law from receiving a firearm.

As a soldier in the National Guard I have performed duties that would make me fall under the definitions in (1), I am authorized to carry a firearm while under orders (2), and I regularly qualify with my weapon and so satisfy (4). One could not argue that I did not meet the definition of a law enforcement officer according to HR 218 while I was under those orders. This alone is a moot point as I'm already authorized to carry a weapon while on duty anywhere the Army may send me, but it's important as it declinates who I am and who I am not according to this law.

The real question becomes whether or HR 218 considers me a LEO when not acting under orders. I am tempted to say "no" and let that be the end of it, except that HR 218 has no language that defines when a LEO is on duty or not (after all it's meant to apply to off duty cops).

So if someone meets all of the definitions of the law as it is written, what's the difference between an off duty part-time, reserve, or auxiliary cop, and a reservist or active duty soldier not under orders? They're both authorized to carry a firearm and perform law enforcment duties while on duty, right? The only difference is that the soldier's orders must specifically define law enforcement functions while the cop's responsibilities are implied and assumed.

I am not trying to argue that a soldier is a cop. Masschusetts law, for example, is too specific in it's definition of a LEO for this discussion to even apply. However, HR 218 allows room for interpretation and since that's the law that overrides local statues, that's the one we need to worry about.

Thoughts?

 

[Jeff White]

I don't think that HR218 covers the military and I'd bet that commanders at all levels would argue that it doesn't.

First off, the military has very limited powers of arrest. Most military jobs don't require you to arrest or detain anyone. I would think that that argument would only apply to MPs, CID etc. Your status as a member of the National Guard might give you more of an argument then a person in the active service. Here in Illinois, members of the National Guard are not peace officers when called up for state active duty. The states vary in this respect.

I think your friend is really stretching things when he says it applies to the military.

Jeff

 

[Steve in PA]

HR218 does NOT cover the military.

Even if by the slimest of margins, you could somehow include military, they would fall within being considered "federal" as in US Marshalls, etc.....and not need HR 218.

 

[Old Dog]

Steve in PA is totally correct; HR 218 in no way, shape or form applies to the military - there's further verbiage in the language of the legislation that notes the privileges extended apply ONLY to sworn federal, state or local law enforcement officers (which does not include military police, reserve police officers/deputy sheriffs, et al).

However, HR 218 allows room for interpretation

Don't think so, not as far as military. The only problems many agencies have had with HR 218 is deciding what types of credentials and certifications retired LEOs need to comply with this ... there don't seem to be clear-cut standards from agency to agency.

 

[RavenVT100]

Does it apply to the coast guard?

I have an accquaintance who is CG and who claims that since he is CG, he is basically an LEO and HR218 probably applies to him. Is this true? I know that the CG is part of homeland security, but that's all I'm aware of.

 

[WT]

The 'coastie' is spinning a sea story.

If the Commandant of the US Coast Guard were to authorize all his people to carry off duty in accordance with HR218, he would so notify them. Ain't been done.

 

[Steve in PA]

Your coastie friend is wrong.

 

[jrfoxx]

I actually sent an email to our former Attorney General of th U.S. shortly after H.R. 218 took effect asking just this same question, needles to say, I never recieved a response to it or to the 3 other emails I sent on the subject.

 

[Devonai]

Let's say you're a reserve deputy. Your primary job is an electrical contractor. You work for the county two or three days a month or do on-call details. According to HR 218, you're a LEO and thus can carry in all 50 states, since HR 218 doesn't say anything about law enforcement being your primary source of income nor does it mention having to work a certain number of hours per week/month in order to qualify.

So since, as I previously submitted, I have been and could be authorized to perform LEO functions under orders for the National Guard, doesn't that qualify me?

If the Commandant of the US Coast Guard were to authorize all his people to carry off duty in accordance with HR218, he would so notify them.

HR 218 doesn't discriminate between being authorized to carry a firearm on or off duty. It may be implied that you'd have to have your CO or Chief's permission to carry off duty, but it's not explicitly defined. Anything that's not explicitly defined in law is open for debate, to say the least.

 

[hwp]

Which police academy did you graduate from?

Could you tell us about your conviction rate?

What was your depts. off duty carry policy?


No offense but I would consider the loss prevention people at walmart to be closer kin to a leo than a guardsman.

 

[hwp]

I have been and could be authorized to perform LEO functions under orders for the National Guard

When, where, what, and why?

 

[carebear]

Well,

It isn't that far fetched.

From memory, as a Marine NCO (or Staff NCO) I was empowered solely by my rank to conduct searches in relation to the UCMJ, to place personnel under arrest, was authorized to carry a weapon etc.

There was quite a bit of time spent on the responsibilities therein at the Sergeant's course I attended.

But I don't believe that actually counts as being a "LEO" simply because the terms and actions are similar. It is way too limited. Even when the Guard is called up and deputized by the Gov. the powers are limited by the terms of the activation. I have to believe there's far more detail in the text of the law. The "bolded portion" alone seems to exclude any temporary deputization or limitation to the UCMJ.

HR 218 defines a law enforcement officer thusly:

(1) is 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 has statutory powers of arrest;

(2) is authorized by the agency to carry a firearm;

(3) is not the subject of any disciplinary action by the agency;

(4) meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;

(5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and

(6) is not prohibited by Federal law from receiving a firearm.

 

[Devonai]

Which police academy did you graduate from?

Could you tell us about your conviction rate?

What was your depts. off duty carry policy?

HR 218 doesn't care.

No offense but I would consider the loss prevention people at walmart to be closer kin to a leo than a guardsman.

If you think that I invite you to try and crash a gate at a military installation or loot homes or businesses in our presence.

When, where, what, and why?

Guard duty at an access control point. The Rules Of Engagement issued with the Operation Order dictate use of force and circumstances under which a vehicle and persons can be searched and/or detained. That leads to Carebear's good point:

...any violation of law...

Does this mean "any and all" or simply "any?" If the former, then the limited circumstances defined in an OPORD for law enforcement functions would disqualify us. "Any and all" would mean everything from jaywalking to murder. Simply "any" would mean that even if we're only allowed to enforce one law, we qualify under that definition. So like Bill Clinton once said, that depends on what your definition of "any" is.

 

[Steve in PA]

So since, as I previously submitted, I have been and could be authorized to perform LEO functions under orders for the National Guard, doesn't that qualify me?

Oh really, says who?

I'm a former active duty Marine, and have spent 6 years in the PA Army National Guard....and I am currently a PA LEO and neither the Marines nor the PAANG are authorized to do LEO functions. Two very seperate and different functions.

You may be called out in a time of emergency to help LEO's......but that does not mean you are a LEO. Also, if you are called out and given "permission" to carry a weapon, then you don't need HR 218. Its the same as if the regular military is told to carry their weapon.

Guard duty is NOT performing LEO duties.

 

[ThatIsAFact]

Any "employee of a government agency" is covered if he meets the criteria

I am not a lawyer, and what follows is not legal advice. However, I have carefully studied the language of the LEOSA (Public Law 108-277) for some time. I have also read the official report on the legislation by the U.S. House of Representatives Committee on the Judiciary, which produced the legislation. That report contains the entire debate that occurred the committee on the bill and on all proposed amendments, both those that were adopted and those that were defeated.

This much is clear: Under the federal law, it is simply irrelevant if a given individual is generally defined as a "law enforcement officer" or "peace officer" under state law. It does not matter whether a given state, or any of us, considers an investigator for a state agriculture department, or a game warden, or a prison guard, to be a "law enforcement officer." For the purposes of the privilege conferred by the LEOSA, the only thing that matters is whether an individual meets the criteria for "qualified law enforcement officer" that are written into the LEOSA itself.

The law states, "As used in this section [the LEOSA], "the term 'qualified law enforcement officer" means an employee of a government agency who --," followed by the list of criteria quoted by Devonai at the top of the thread.

Just to give one example, in some states, prison guards meet the list of federal qualifications, in other states they apparently do not -- usually depending, it seems, on whether they have "statutory powers of arrest." If they do, then they qualify under LEOSA, even if the state does not consider them to be sworn peace officers and even if the local authorities do not like it.

Respectfully, Old Dog, there is no language in the law regarding "sworn." Also, there is no language about full-time or part-time. There is no language about paid or unpaid (and from what I read, there are indeed unpaid reserves in some jurisdictions who are legally classified as "employees"). There is no language about being inside or outside of his own jurisdiction (i.e., the privilege applies in one's home jurisdiction as much as anywhere else).

The reference to "any violation of law" clearly was intended by the lawmakers who crafted the bill to mean "even one type of violation of law," not to limit the privilege to only LEOs who are concerned with "all" violations of law (if such a person even exists).

I am no expert on the next point, but it would seem odd to me if military personnel were not considered to be employees of a government agency. And if they are, then any member of the military who meets the other criteria would enjoy the privilege conferred by the LEOSA. I don't know how an average rank-and-file soldier or sailor would argue he had "statutory powers of arrest," but some military police/security personnel say that they do have such powers. Apparently there is a lot of disagreement about what exactly "statutory powers of arrest" means with respect in the military context. There has been a thread on that subject going on the Police Magazine website for a long time (http://www.policemag.com/forum/forum.asp?FORUM_ID=48), and it currently runs to 123 web pages in length!

 

[Old Dog]

ThatIsAfact said

Respectfully, Old Dog, there is no language in the law regarding "sworn." Also, there is no language about full-time or part-time. There is no language about paid or unpaid (and from what I read, there are indeed unpaid reserves in some jurisdictions who are legally classified as "employees"). There is no language about being inside oar outside of his own jurisdiction (i.e., the privilege applies in one's home jurisdiction as much as anywhere else).

You are correct about the language in the actual law; however, you'd have to check the guidelines put out in each state -- we were told here (and I believe the direction came from the state AG's office) that HR 218 applied only to sworn, certified LEOs. Even those of us on active duty who were also reserves in the civilian PDs/SOs carry off-duty on state CPLs.

don't know how an average rank-and-file soldier or sailor would argue he had "statutory powers of arrest," but some military police/security personnel say that they do have such powers. Apparently there is a lot of disagreement about what exactly "statutory powers of arrest" means with respect in the military context

No, they do not have such powers. Service personnel are placed under "military apprehension." Civilian persons on military installations are "detained" (either processed to be barred from the installation and released, or turned over to local civilian authorities if criminal charges may be preferred, or issued federal magistrate citations and released). The powers to apprehend a person off-station apply only to apprehension of military personnel.

Boy, hard to argue with someone whose screen-name is "ThatIsAFact."

 

[ThatIsAFact]

No state authority can narrow the federal definition

You are correct about the language in the actual law; however, you'd have to check the guidelines put out in each state -- we were told here (and I believe the direction came from the state AG's office) that HR 218 applied only to sworn, certified LEOs. Even those of us on active duty who were also reserves in the civilian PDs/SOs carry off-duty on state CPLs.

I would very much like to see anything that the Washington State attorney general put out on this. I have been collecting opinions of state attorneys general pertaining to the LEOSA, but I could find nothing on the Washington AG's website about this. But regardless, the entire premise of the LEOSA is that it overrides every state and local legal authority that is inconsistent with the language of the federal law.

The very first words in the LEOSA are, "Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified law enforcement officer . . . may carry a concealed firearm . . ." A state legislature or state official has no legal authority to narrow the definition of "qualified law enforcement officer" that is contained in the federal law; Congress could not have been any more clear about that.

Now, if it happened that the only people in a given state who met the "statutory powers of arrest" and other federal criteria were indeed "sworn, certified" LEOs, then it would be okay for a state attorney to point that out. But any state laws, guidelines, and agency policies that are more restrictive than the federal law are overridden by the federal law. For example, a Florida law requires retired LEOs to obtain concealed-weapon permits if they want to carry, but the attorney general of Florida recently acknowledged that anyone who meets the LEOSA criteria for "qualified retired law enforcement officer" is no longer required to do so, since the Federal law is supreme.

 

[Old Dog]

Now, if it happened that the only people in a given state who met the "statutory powers of arrest" and other federal criteria were indeed "sworn, certified" LEOs, then it would be okay for a state attorney to point that out.

That would probably be the case here; the fact is, absent more specific guidance in that actual law, it seems definitions are up to individual agencies to determine ...

 

[Jeff White]

There's one way to find out:

Devonai,
You can always print out a copy of HR218, carry it in your pocket along with your CAC and see if you get arrested. After you're arrested, use this as your defense and see if you're convicted. If convicted, appeal your conviction on the grounds that HR218 authorized you to carry a firearm. Carry your appeals as high as they go. Then we'll all know what the law means.

You'll probably stand out carrying your M16 or M4 down the street. HR218 requires you to meet the agencies qualification standards to carry a weapon. What are the chances you've qualified with the M9 this year?

Then you have to look at the fact that if the guard authorized you to routinely carry a weapon they would have issued you the proper ID. A Common Access Card is not the proper ID that a member of a DA organization is issued that authorizes him to carry a concealed weapon. I don't remember the DA form number but if I have time, I'll get on the pubs website and look it up.

I would say that the only military people covered by HR218 would be CID, NCIS, etc. Members of these organizations are already issued credentials.

Jeff

 

[Devonai]

Thank you everyone for your feedback!

You can always print out a copy of HR218, carry it in your pocket along with your CAC and see if you get arrested.

Indeed! I know there's at least one Boston cop who would let me go. I won't take those odds, however.

Guard duty is NOT performing LEO duties.

To split hairs even further, I would argue that guard duty is indeed enforcing laws, even if I'm not considered an "officer."

I don't wish to insult Jeff and Steve's intelligence, but here's an example just so we're on the same frequency here. It is against the law to carry a firearm without authorization onto a military installation. While working the gate, my fellow soldiers and I decide to search a vehicle (we don't need any PC, btw). The search reveals a firearm and the driver isn't authorized to have it. We detain the driver and await the local PD. Didn't I just enforce a law?

ThatIsAFact has a good point to that end. All we're doing is detaining the individual until whatever law enforcement agency with jurisdiction arrives to take him into custody. I can't think of a situation under which I would have "statutory powers of arrest" if you so delineate arrest and detention.

 

[Jeff White]

Devonai said;

While working the gate, my fellow soldiers and I decide to search a vehicle (we don't need any PC, btw). The search reveals a firearm and the driver isn't authorized to have it. We detain the driver and await the local PD. Didn't I just enforce a law?

Using your argument, anyone in a state with citizens arrest laws could qualify. While some may argue that you arrested the driver of the vehicle when you detained him for the local police, the same argument could be made the other way. You'll be the star witness at his trial, but the officer who responded to your call made the arrest.

I just don't see any way you can stretch HR218 to cover members of the armed forces.

Jeff

 

[Steve in PA]

Try and spin it any way you want, but being in the military does not make you law enforcement.

In your scenario, you searched a vehicle, then what? Called the police who will then make the arrest. Not you. When I was in the military and walking guard duty around various places, I'm enforcing the "laws", but in no way, shape or form was I law enforcement.

Of all the searches that I have seen and been through (one or two) at the main gate of Camp LeJeune, the only police that was called were the MP's. The military property started before the gate, not at the gate.

 

[Devonai]

Well, let's just hope HR 1243 passes. I'd call my congressman but he was already one of the original co-signers.

 

[Powderman]

reserve police officers/deputy sheriffs, et al).

Sorry, but in the case of Washington State, I must also disagree.

First, excerpted from RCW 10.93:

"(5) "Specially commissioned Washington peace officer", for the purposes of this chapter, means any officer, whether part-time or full-time, compensated or not, commissioned by a general authority Washington law enforcement agency to enforce some or all of the criminal laws of the state of Washington, who does not qualify under this chapter as a general authority Washington peace officer for that commissioning agency, specifically including reserve peace officers, and specially commissioned full-time, fully compensated peace officers duly commissioned by the states of Oregon or Idaho or any such peace officer commissioned by a unit of local government of Oregon or Idaho. A reserve peace officer is an individual who is an officer of a Washington law enforcement agency who does not serve such agency on a full-time basis but who, when called by the agency into active service, is fully commissioned on the same basis as full-time peace officers to enforce the criminal laws of the state.

Next, with reference to RCW 10.93.090:

A specially commissioned Washington peace officer who has successfully completed a course of basic training prescribed or approved for such officers by the Washington state criminal justice training commission may exercise any authority which the special commission vests in the officer, throughout the territorial bounds of the state, outside of the officer's primary territorial jurisdiction under the following circumstances:

(1) The officer is in fresh pursuit, as defined in RCW 10.93.120; or

(2) The officer is acting pursuant to mutual law enforcement assistance agreement between the primary commissioning agency and the agency with primary territorial jurisdiction.

Now, RCW 10.93.120:

1) Any peace officer who has authority under Washington law to make an arrest may proceed in fresh pursuit of a person (a) who is reasonably believed to have committed a violation of traffic or criminal laws, or (b) for whom such officer holds a warrant of arrest, and such peace officer shall have the authority to arrest and to hold such person in custody anywhere in the state.

(2) The term "fresh pursuit," as used in this chapter, includes, without limitation, fresh pursuit as defined by the common law. Fresh pursuit does not necessarily imply immediate pursuit, but pursuit without unreasonable delay.

When taken into consideration with the text of HR 218, I believe that Reserve Officers also qualify under this statute.

 

[ThatIsAFact]

Reserve Officers / status of members of Coast Guard

Based on the language quoted by Powderman, a Washington state reserve officer clearly could exercise the privilege conferred by the LEOSA, assuming (1) that he is authorized to carry a firearm at least part of the time while exercising his law-enforcement functions; (2) that he has met whatever general standards exist regarding periodically qualifying in the use of the firearm (but the LEOSA does not require a state or agency to adopt any standards if they don't already exist); and (3) that he retains possession of the "photographic identification issued by the governmental agency for which the individual is employed as a law enforcement officer," which is the only ID he needs to carry under the LEOSA.

No state legislature, governor, attorney general, sheriff, or police chief has authority to tell that reserve officer that he cannot exercise the privilege that Congress has conferred on him. ("Notwithstanding any other provision of the law of any State or any political subdivision thereof . . .") I believe that this language applies to agencies policies as well as statutes and ordinances, and the legislative history supports that position. But be warned, I am not a lawyer and this is not legal advice.

Prior to reading the question posted above by RavenTT100, I had never considered the application of the LEOSA to the Coast Guard. I did a very little research on this question this morning. The Coast Guard is now part of the Department of Homeland Security. A large part of its function is law enforcement. According to an article in Police Chief magazine, "The specific statutory authority for the U.S. Coast Guard's law enforcement mission is given in 14 U.S.C. 2: 'The Coast Guard shall enforce or assist in the enforcement of all applicable laws on, under, and over the high seas and waters subject to the jurisdiction of the United States.' In addition, 14 U.S.C. 89 provides the authority for U.S. Coast Guard's active duty commissioned, warrant, and petty officers to enforce applicable U.S. law. It authorizes Coast Guard personnel to enforce federal law on vessels subject to U.S. jurisdiction including U.S., foreign, and stateless vessels.

A page on the Coast Guard's own website, dealing with boarding teams, says, "All Coast Guard boarding teams are armed, uniformed, federal law enforcement officers."

Since Coast Guard personnel are clearly "employees" of a federal agency, based on the above and some other things I came across, it seems to me that a good many Coast Guard personnel might very well meet the criteria set forth in the LEOSA. However, I do not know whether how many of them possess a photo identification card of the type necessary to exercise the privilege conferred by the LEOSA.

If the Commandant has not issued any directive applying the LEOSA to his subordinates, that would not necessarily matter. The LEOSA is a "self effectuating" statute. It does not require any action by an agency head in order to allow his subordinates to exercise the right conferred by Congress.

But there is one important caveat: There might be some federal law or regulation that I don't know about, outside the four corners of the LEOSA, that would prevent a member of the Coast Guard from exercising the privilege conferred by the LEOSA. Remember, although the LEOSA applies to any "qualified law enforcement officer" whether state or federal, the LEOSA only overrides state and local laws and policies, not other federal laws or regulations.

On this point, it might be pertinent to quote one article I came across that asserts, ". . . the US Coast Guard . . . even though it is considered a part of the US military. . . is not constrained by the Posse Comitatus Act of 1878. This Act prevents other arms of the US military (except the National Guard) from being used in a 'policing' role within the boundaries of the nation." However, I do not know what other federal laws may bear on the ability of a member of the Coast Guard to carry under the LEOSA.