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  • Yet Another HR 218 Thread

    The law firm representing the Califonia Peace Officers Association published a Client Alert Bulletin today providing new information on HR 218. For those of you still interested, I have pasted it below.

    Client Alert
    Brought to you by California Peace Officers' Association
    December 2, 2008

    To All Members:
    From: Martin J. Mayer, The Law Firm of Jones & Mayer

    HR 218 TRUMPS LOCAL LAWS
    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.

    Validity 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.

    Remember, though, you can only rely upon legal advice from your designated legal counsel.
    Going too far is half the pleasure of not getting anywhere

  • #2
    Thanks for the update,L-1. Fortunately, for active and retired Alabama Troopers, our Department has been fully behind HR 218 since it's inception. This includes the appropriate guidelines for carry both in, and out of state.Thanks again.

    Comment


    • #3
      I heard about this.
      I have to say, the first mistake was going to a bar in Sturgis during that whole biker thing.
      That whole Harley bad boy mystique never impressed me and never will.
      Personally, I don't want to look like a scum bag.
      Anyway, I never heard if the officer that shot the Hell's Angel was drinking or not.
      If he WAS drinking, then HR218 SHOULD NOT protect him.
      I should be no protection for ANYBODY who is drinking alcohol and carrying a firearm, I don't care who you are or what you do.
      It's wrong in so many ways.
      If you choose to carry a firearm to protect yourself and society, then you must also make the decision to remain free of drugs or alcohol while you are carrying that weapon.
      It's the same as drinking and driving.
      Only I think it's worse because the crazy liberals would LOVE to take our guns away.
      And I really like my guns.

      Rev

      Comment


      • #4
        Originally posted by Rev1 View Post
        I heard about this.
        I have to say, the first mistake was going to a bar in Sturgis during that whole biker thing.
        That whole Harley bad boy mystique never impressed me and never will.
        Personally, I don't want to look like a scum bag.
        Anyway, I never heard if the officer that shot the Hell's Angel was drinking or not.
        If he WAS drinking, then HR218 SHOULD NOT protect him.
        I should be no protection for ANYBODY who is drinking alcohol and carrying a firearm, I don't care who you are or what you do.
        It's wrong in so many ways.
        If you choose to carry a firearm to protect yourself and society, then you must also make the decision to remain free of drugs or alcohol while you are carrying that weapon.
        It's the same as drinking and driving.
        Only I think it's worse because the crazy liberals would LOVE to take our guns away.
        And I really like my guns.

        Rev
        I have to apologize to the forum. It was not my intention to rekindle the Sturgis debate, or any HR 218 debate for that matter. I was merely trying to pass on a legal update bulletin.

        L-1
        Going too far is half the pleasure of not getting anywhere

        Comment


        • #5
          Good news. I've personally been concerned as to whether HR218 would stand up to legal scrutiny, especially if it was questioned as a "states rights vs. federal rights" debate. That a court has made a legal ruling upholding it is a good step.
          "He who fights with monsters might take care lest he thereby become a monster. And if you gaze for long into an abyss, the abyss gazes also into you."
          -Friedrich Nietzsche

          Comment


          • #6
            Legal clarification, not Rev's opinion..

            Originally posted by Rev1 View Post
            Anyway, I never heard if the officer that shot the Hell's Angel was drinking or not.
            If he WAS drinking, then HR218 SHOULD NOT protect him.
            Rev

            He can have a beer...he's protected unless he was "under the influence".
            "We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm" -George Orwell

            "It's 106 miles to Chicago, we've got a full tank of gas, half a pack of cigarettes, it's dark, and we're wearing diapers." - Blues Brothers

            Comment


            • #7
              grumpyirishman,

              Alcohol + Firearms = Controversy if not catastrophe.

              If you are carrying a firearm, I think it's stupid for you to have "a beer" number one because its just another factor that will be considered in a situation that is going to be scrutinized under the skewed micrscope of attorneys, judges, the public and the administration.
              Second, because I don't know many people who can have "a beer."
              One beer is typically followed by a second then a third......you get the picture.
              And while having had one beer might not make him "impaired" it definitely puts him "under the influence" of alcohol.
              If he would have had Valium or Vicodin or even Nyquil, he would have been "under the influence" of those drugs.
              Bottom line....if you are going to drink, then you need to leave your gun at home.
              Don't try and fudge this rule.
              Just obey it.

              Rev

              Comment


              • #8
                Thanks for the update L-1...it's good to have this reaffirmed...
                Walking the line...all give some...some give all!

                Comment


                • #9
                  Legality v. Rev's Opinion

                  Originally posted by Rev1 View Post
                  grumpyirishman,

                  Alcohol + Firearms = Controversy if not catastrophe.

                  Rev
                  I agree with your opinion, but I was clarifying the US Code. It does not prohibit consumption!!!!!!!!!!!!!!!!!!!!
                  "We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm" -George Orwell

                  "It's 106 miles to Chicago, we've got a full tank of gas, half a pack of cigarettes, it's dark, and we're wearing diapers." - Blues Brothers

                  Comment


                  • #10
                    I guess I don't need some lawyer to write some complex, convoluted and impossible to read passage in the jumbled pages of some hefty tome in order for me to decide that it's WRONG.

                    Rev

                    Comment


                    • #11
                      Wrong doesn't always equate to illegal, which is what this thread is about. We don't need to rehash Sturgis, LE bikers, or drinking while carrying here. There's plenty of threads for that.

                      L-1, thanks for the update. From the wording of the law, I thought it meant you could carry in non-government areas that were otherwise restricted by the state. Indiana doesn't exclude bars from CCW carry, but Kentucky does and I wander down there sometimes.
                      I miss you, Dave.
                      http://www.odmp.org/officer/20669-of...david-s.-moore

                      Comment


                      • #12
                        Fantastic information sir thank you.

                        One question though, I didn't realize there was a HB218 "permit". Is there a seperate ID card I'm supposed to have besides my department ID?
                        Seriously, the only reason I wanted to be a cop was so I could post anywhere on this forum.

                        Comment


                        • #13
                          Originally posted by FiremanMike View Post
                          Fantastic information sir thank you.

                          One question though, I didn't realize there was a HB218 "permit". Is there a seperate ID card I'm supposed to have besides my department ID?
                          If you are an active duty officer, the identification required by HR 218 is merely the photographic ID issued by the governmental agency with which you are employed as a law enforcement officer.

                          However, if you are a retired LEO, you need either:

                          `(1) a photographic identification issued by the agency from which the individual retired from service as a law enforcement officer that indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the agency to meet the standards established by the agency for training and qualification for active law enforcement officers to carry a firearm of the same type as the concealed firearm; or

                          `(2)(A) a photographic identification issued by the agency from which the individual retired from service as a law enforcement officer; and

                          `(B) a certification issued by the State in which the individual resides that indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the State to meet the standards established by the State for training and qualification for active law enforcement officers to carry a firearm of the same type as the concealed firearm.

                          Because issuing a new ID card every year is costly and time consuming, most agencies give retirees a second certificate/card, confirming that they have qualified for the year.
                          Going too far is half the pleasure of not getting anywhere

                          Comment


                          • #14
                            Thanks, great news!
                            Seriously, the only reason I wanted to be a cop was so I could post anywhere on this forum.

                            Comment


                            • #15
                              thanks L-1!!
                              Perseverate In Pugna

                              Comment

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