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ATF Opinion: HR 218 is not "enforcible"

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  • ATF Opinion: HR 218 is not "enforcible"

    This in no way excuses the actions of a few stupid cops in Sturgis, but since when does the ATF have the authority to decide that HR 218 isn't applicable? Has the U.S. Department of Justice simply dropped the ball and left law enforcement officers in legal limbo or is ATF really "HUA" in discounting what cops across the nation believe?

    http://www.rapidcityjournal.com/arti...d898298826.txt
    "I'm not fluent in the language of violence, but I know enough to get around in places where it's spoken."

  • #2
    What the ****?? They say this guy is not covered under the law in essence because the attorney general dropped the ball? But yet a member of the coastguard who has no authority to carry of duty had his charges dropped because some how the judge was able to apply this law something is amiss here.

    The act was passed, but it’s never been enforced by the Attorney General’s office,” she said. Congress directed the U.S. Attorney General’s office to meet the conditions for its implementation – such as establishing the necessary databases and identifications -- something which DiPirro said apparently has never been done.
    What data base? What Identifications? What is there to implement? Don’t recall seeing that as part of anything anywhere in the legislation. Not sure if it was a bad shoot or good shoot, but I would have to say that lying is never a good thing, that is going to hurt big time IF found to be true
    It could be that the purpose of your life is only to serve as a warning to others.

    Comment


    • #3
      Well before everyone runs around bashing ATF, and crying that the sky is falling why don't you try reading that article for COMPREHENSION, rather than getting all twisted up over what you're missing.

      All the ATF PIO said was that the Grand Jury in Meade County had no way to consider the affects of the FEDERAL law on the STATE charges. In the case of the Coastie he sought relief in FEDERAL court, and the FEDERAL court said he was protected by the law. So the STATE of SD, and Meade COUNTY can do whatever they want, according to state and local law, but if these cops want protection under the LEOSA they will need to seek relief through the FEDERAL courts, just like that Coastie did.

      Geez, it's as if you all had never learned about separate sovereigns. Then again maybe you didn't.

      Comment


      • #4
        Originally posted by SA13 View Post
        So the STATE of SD, and Meade COUNTY can do whatever they want, according to state and local law, but if these cops want protection under the LEOSA they will need to seek relief through the FEDERAL courts, just like that Coastie did.

        Geez, it's as if you all had never learned about separate sovereigns. Then again maybe you didn't.
        I guess then it's okay for local/state agencies to arrest off-duty FBI/ATF/U.S. Secret Service agents and let them go through the expense and stress of getting relief via the Federal courts too? The purpose of the legislation was to establish uniformity and now you have one agency (not even the one with primary authority according to their own spokesperson) saying HR 218 hasn't been legally implemented.

        Yea, there's something to be concerned about here. Especially if you plan on carrying legally in another state. What if you're retired? Now you have to provide your own resources (re: money) to get relief?
        "I'm not fluent in the language of violence, but I know enough to get around in places where it's spoken."

        Comment


        • #5
          National carry for officers would not include in bars and while drinking. SD does not allow CCW in bars.

          From the text below Officer Smith sounds like a heck of a dept. asset.
          Last edited by David Hineline; 08-29-2008, 04:12 PM.

          Comment


          • #6
            Seattle officers charged in Sturgis shooting

            SIOUX FALLS (AP) -- Grand jurors have indicted a Seattle police detective, a Hells Angel biker he shot, two customs officers and another man following a bar fight at this year's Sturgis motorcycle rally.

            Joseph McGuire, 33, of Imperial Beach, Calif., was shot and injured Aug. 9 at the Loud American Roadhouse by Ronald Smith, 43, a vacationing Seattle detective, authorities said.

            Both men are charged with alternative counts of aggravated and simple assault.

            The four other men charged are, like Smith, members of the Iron Pigs Motorcycle Club, a biker group culled from the ranks of law enforcement and firefighters. Dennis McCoy, 59, a Seattle police sergeant; Customs and Border Protection officers Scott Lazalde, 38, of Bellingham, Wash., and James Rector, 44, of Ferndale, Wash.; and Erik Pingel, 35, of Aurora, Colo., were charged with the misdemeanor of carrying a concealed pistol without a permit, and an alternative count of failure to abide by a permit of a reciprocal state.

            McGuire and Smith also face those charges, and Smith is further charged with perjury.

            "The grand jury must've decided that Mr. Smith, having taken an oath to testify truly, in a state proceeding, stated intentionally and contrary to the oath, a material matter which he knew to be false," Meade County State's Attorney Jesse Sondreal wrote in an e-mail to reporters.

            The prosecutor said he did not want to comment beyond a news release in which he wrote that warrants will be served and no court dates have been set.

            Ten people testified Thursday before the grand jury. On Aug. 10, 25 people appeared before the same panel, Sondreal wrote.

            In a brief statement Thursday, the Seattle Police Department said only that its officers who were involved remain on paid administrative leave.

            The Seattle Police Officers' Guild, meanwhile, put out a statement saying: "We are certain that once all the facts are known, the involved SPOG members will be vindicated and absolved of any wrongdoing. Until that occurs, we are heartened by the news that Detective Ron Smith is recovering from his serious injuries and that no other parties were injured except for Detective Smith and his alleged assailant."

            The statement did not say what Smith's injuries were.

            Smith, who said after the shooting he had been attacked, had clashed with the Hells Angels before. In 2005, he pressed misdemeanor charges against the owner of a Seattle motorcycle shop, Anthony James Magnesi, for threatening him over the telephone.

            But the charges were dropped after Magnesi and his attorney, Paul Bernstein, played a recording of the call for city prosecutors. On the tape, Smith called Magnesi a "dirtbag," told him that being a member of the Hells Angels is a crime -- which it's not -- and said, "You better watch your back," Bernstein said Thursday.

            The biker had called Smith after learning through friends that Smith had been asking about him. Magnesi was under no criminal investigation at the time, and had simply called the detective to offer to speak with him, Bernstein said.

            "The detective just went bezerk, making all sorts of threats and being very angry," said Bernstein, a former city and county prosecutor in Seattle. "The detective, he's doing this intimidating, 'You're a dirtbag Anthony, don't be calling me.' It's the stuff you see and hear in the movies, but when it's real, it's chilling."

            The Seattle Times has reported that in a column for the newspaper of the Seattle Police Officers' Guild, Smith frequently wrote about outlaw motorcycle clubs.

            Smith was twice disciplined in 2005, first for taunting fans at a Seattle Seahawks playoff game and later after he was accused of threatening to shoot a Tacoma restaurant manager. The first incident resulted in a two-day suspension, the second with a letter in Smith's file.

            He testified last year at a federal racketeering and murder trial involving members of the Washington Nomads chapter of the Hells Angels.

            The two customs officers charged are both stationed at Blaine, Wash., on the Canadian border. Rector, assistant area port director for passenger vehicles, has been with customs for more than 20 years, said agency spokesman Mike Milne. Lazalde, a customs officer, has been with the agency for 13 years.

            A fire chief at Buckley Air Force Base in Aurora, Colo., confirmed that a Department of Defense firefighter named Erik Pingel was stationed there, but did not confirm whether it is the same person who was charged.

            Comment


            • #7
              Originally posted by David Hineline View Post
              National carry for officers would not include in bars and while drinking. SD does not allow CCW in bars.

              From the text below Officer Smith sounds like a heck of a dept. asset.
              Agreed on both counts, but that's not my concern. Read the ATF "opinion" regarding the validity of HR 218. There's a lot for professional law enforcement officers (current and retired) to be concerned about there and it goes well beyond possession in bars and while drinking!
              "I'm not fluent in the language of violence, but I know enough to get around in places where it's spoken."

              Comment


              • #8
                Originally posted by pulicords View Post
                I guess then it's okay for local/state agencies to arrest off-duty FBI/ATF/U.S. Secret Service agents and let them go through the expense and stress of getting relief via the Federal courts too? The purpose of the legislation was to establish uniformity and now you have one agency (not even the one with primary authority according to their own spokesperson) saying HR 218 hasn't been legally implemented.

                Yea, there's something to be concerned about here. Especially if you plan on carrying legally in another state. What if you're retired? Now you have to provide your own resources (re: money) to get relief?
                Did you sleep through civics class in HS, and all the legal training at the academy?

                Here's a refresher. The STATES are separate SOVEREIGN governments from the FEDERAL government. STATES often have laws that conflict with FEDERAL laws, seeing as how they are separate SOVEREIGN governments. The US Constitution, specifically Article VI says that the FEDERAL laws have supremacy over STATE laws, and STATE Constitutions.

                HOWEVER, whenever a law is passed it is commonly challenged in the courts, to test the limits of just how that law applies. When federal laws are passed, often the department tasked with implementing that law makes attempts to interpret the law, and take the statute and apply to the real world in a practical way, often by adding new regulations to the Code of Federal Regulations. All of which will be considered in any court cases involving the law.

                When a FEDERAL statute affects STATE government actions, you can expect it to face challenges in the courts, or at the very least you can expect that some STATES in absence of any guidance from the FEDERAL government on how that law should be implemented will go about their business as a separate SOVEREIGN, and wait for the FEDERAL courts to rule on how the FEDERAL law should be applied to the various cases arising under that law.

                The Department of Justice has not done much in the way of implementing this law. There have been very few cases involving officers seeking relief from the state charges related to this law, and I am unaware of ANY case in SD related to this law.

                Therefore, it is ridiculous for anyone to assume that the STATE and COUNTY governments would merely not charge or dismiss charges based on a claim from a defendant that he or she is protected by the LEOSA, since there has been little or no guidance to the STATE of South Dakota on when this law applies, and how the Justice Department and the FEDERAL courts will apply this law to various cases where a person CLAIMS protection under the LEOSA when charged with violating a STATE firearm law.

                JUST LIKE EVERY OTHER LAW, this one has to be tested in the system. STATES should not ignore their own statutes in light of a FEDERAL law that the Justice Department has not given any real guidance on how to implement, and more importantly has not been thoroughly tested in the FEDERAL courts.

                If anyone expected that the first decade that this law was in affect would not result in cases going to FEDERAL court because cops who violated various STATE firearms laws and claimed protection under the LEOSA, those people are naive to the extreme. Anyone who has been trotting around the country carrying a gun and ASSUMING that they were OK because of this law, is also very naive. The early court cases relating to new legislation are called TEST cases for a reason.

                As for the non-sense about arresting the feds for carrying, that issue has been tested in the courts before. If some local agency wants to arrest and charge a federal agent who is authorized by the federal government to carry firearms throughout the US, they will all get a lesson in Article VI of the Constitution, Sovereign Immunity, Qualified Immunity, and a handful of federal criminal statutes, and all the relevant caselaw implementing those (funny how the issue of testing things in courts is a running theme) that would apply to the idiots who unlawfully detained the agent and unlawfully seized his property.

                Again, people need to take a step back. Remember how our various systems of government work, including the fact that the STATES are a SEPARATE SOVEREIGN government from the FEDERAL government. Anyone who has been around law enforcement for a while should understand that various laws WILL get tested in the courts. They should also understand that various STATE governments are not in job of interpreting and implementing FEDERAL laws without some sort of guidance from the executive branch of the FEDERAL government, and the judicial branch of the FEDERAL government.

                Please note the words FEDERAL and STATE have been capitalized throughout, to emphasize that they are seperate sovereign governments, and it should be expected that will often conflict on legal matters, which will need to be resolved through the courts.

                Comment


                • #9
                  Originally posted by SA13 View Post
                  Did you sleep through civics class in HS, and all the legal training at the academy?

                  Here's a refresher. The STATES are separate SOVEREIGN governments from the FEDERAL government. STATES often have laws that conflict with FEDERAL laws, seeing as how they are separate SOVEREIGN governments. The US Constitution, specifically Article VI says that the FEDERAL laws have supremacy over STATE laws, and STATE Constitutions.
                  I'm sorry, but I'm lacking experience in dealing with such pretentious jerks. I am aware of the conflicts between federal and state (sorry for not capitalizing, if this offends you too) law. In California (and I believe other states too), federal law enforcement officers' authority and ability to carry while off-duty or upon retirement hasn't been so clearly defined. As a point of fact (if not law), ignorant, local law enforcement officers such as myself have routinely treated federal officers to the benefit of any doubt regarding issues like this and have not considered arrests when the only issue in question was their lack of (24 hour) peace officer status.

                  The purpose of this legislation (HR 218) was (allegedly) an attempt to rectify any conflicts between state, local and federal law regarding the legality of concealed carry by on-duty, off-duty and qualified retired LEOs. Cooperation, between all levels of government would seem like a good place to start. Requiring "test cases" to set precedent defeats the legislative intent of congress and the president who signed this bill into law.

                  Perhaps it's too much to expect that those of us who are or were (until retirement) charged with enforcing laws, can exercise a little common sense, discretion and respect regarding legislation that was enacted for our mutual benefit. Although I haven't been "trotting around the country carrying a gun", I have identification issued by my department's chief of police indicating that (per LEOSA) I have the right to carry a concealed firearm. I have every reason to believe that so long as I otherwise act responsibly (unlike the officers in question) I'm not in violation of local or state law and I'll take that authority at face value.

                  It's apparent that your belief (and that of at least some members of ATF) differ considerably from mine and a very significant number of active or retired officers. If that's the case, I suppose we'll see happens. It's just a shame that if we are correct in our assessment of HR 218, it will need to be "proved" in court because some people prefer fighting legal battles with fellow officers rather than working with them.
                  "I'm not fluent in the language of violence, but I know enough to get around in places where it's spoken."

                  Comment


                  • #10
                    Originally posted by SA13 View Post
                    As for the non-sense about arresting the feds for carrying, that issue has been tested in the courts before. If some local agency wants to arrest and charge a federal agent who is authorized by the federal government to carry firearms throughout the US, they will all get a lesson in Article VI of the Constitution, Sovereign Immunity, Qualified Immunity, and a handful of federal criminal statutes, and all the relevant caselaw implementing those (funny how the issue of testing things in courts is a running theme) that would apply to the idiots who unlawfully detained the agent and unlawfully seized his property.
                    I haven't read anywhere whether it was their duty weapon or a personal weapon on a CCW. That would definitely change whether the Fed backs them up on this or not.
                    "You don't want the truth because, deep down in places you don't talk about at parties, you want me on that wall, you need me on that wall... I have neither the time, nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, and then questions the manner in which I provide it."

                    Comment


                    • #11
                      Originally posted by pulicords View Post
                      I'm sorry, but I'm lacking experience in dealing with such pretentious jerks.
                      I'm not the one being a jerk. You're chastising a Public Affairs person for merely answering a question from the media, and frankly answering it correctly.
                      I am aware of the conflicts between federal and state (sorry for not capitalizing, if this offends you too) law.
                      Obviously you're not or you wouldn't be getting so bent out of shape over this.
                      In California (and I believe other states too), federal law enforcement officers' authority and ability to carry while off-duty or upon retirement hasn't been so clearly defined.
                      Off duty carry is clearly defined by the various federal statutory law enforcement authority in the US Code, and individual agency policies implementing it. I'll clue you in, whether it's CA, or any other state in the Union, agents in my agency, and the previous agencies I've worked for have STATUTORY authority from Congress to carry their firearms concealed all the time, and agency policy has implemented that. As to retired federal agents they are in the same predicament as every other cop, they will have to hope the LEOSA protects them, but until this law gets tested more thoroughly in the federal courts as to who is covered, and when, they are merely living on hope.
                      As a point of fact (if not law), ignorant, local law enforcement officers such as myself have routinely treated federal officers to the benefit of any doubt regarding issues like this and have not considered arrests when the only issue in question was their lack of (24 hour) peace officer status.
                      I don't need CA peace officer status, nor does any other federal agent who has statutory authority to carry firearms under federal law. We are in fact protected by the FEDERAL system. See my previous post about Article VI of the Constitution, Sovereign Immunity, Qualified Immunity, various fed statutes, and the applicable caselaw. Retired feds are in the same boat as everyone else, and depend solely on the LEOSA. It's a gamble until this law gets more thoroughly tested in the courts. AFAIK, it's only been tested at the District court level. So it could be a while before we see some appeals to the Circuit Courts and/or the US Supreme Court. However, let me reiterate, if you've got a working fed, with statutory authority to be armed, and his agency allows off duty carry by policy, barring that person violating agency policy in some manner related to his carriage/use of firearms. He won't be prosecuted for a state firearms charge related to concealed carry, and the cops and prosecutors that try would probably ending up regretting the attempt.
                      The purpose of this legislation (HR 218) was (allegedly) an attempt to rectify any conflicts between state, local and federal law regarding the legality of concealed carry by on-duty, off-duty and qualified retired LEOs. Cooperation, between all levels of government would seem like a good place to start.
                      Yeah, but no one has even attempted to figure out who is actually covered by this, and who isn't, given particular circumstances. It is nothing new to expect legal fighting over what the true intent of a law really is.
                      Requiring "test cases" to set precedent defeats the legislative intent of congress and the president who signed this bill into law.
                      Well I guess, we can just throw out Article III of the Constitution of the United States, and while we're at it Article VI, because according to you the various governments (Local, State, and Fed) should just play nice, and the legislature and executive branches should just play nice, and the courts are useless. Hey who needs checks and balances, and State's rights anway?
                      Perhaps it's too much to expect that those of us who are or were (until retirement) charged with enforcing laws, can exercise a little common sense, discretion and respect regarding legislation that was enacted for our mutual benefit.
                      What did you do in LE that you never saw a case argued over in court to see where the limits of the law really lie? What Utopian jurisdiction did you work in where everything the legislature enacted into law, was so clearly defined that no one disagreed on what the law actually said, and how it applied to various cases? If you expect me to believe that you think laws get passed, and implimented with no legal challenges, you're crazy. You know better, I know better, you're just PO'd because with regard to this legislation you WANT it to mean what you think it means, and not have to worry that some court case might rule differently than you believe.
                      Although I haven't been "trotting around the country carrying a gun", I have identification issued by my department's chief of police indicating that (per LEOSA) I have the right to carry a concealed firearm.
                      In certain circumstances you do, but it's not a blanket right. Without the courts getting involved, or the DOJ trying to implement CFRs, anyone who reads the statute can see there are limits. How and when those limits apply have not been clearly defined.
                      I have every reason to believe that so long as I otherwise act responsibly (unlike the officers in question) I'm not in violation of local or state law and I'll take that authority at face value.
                      Wrong, you might be in violation of state or local law, and you are ASSUMING that the LEOSA exempts you from prosecution. What I've been trying to tell you, and what that article (poorly IMO) tried to articulate, is that the details of when people are protected and when they aren't haven't even been begun to be applied to real world cases.
                      It's apparent that your belief (and that of at least some members of ATF) differ considerably from mine and a very significant number of active or retired officers.
                      Don't assume what I do or don't believe. I was explaining how the legal system works when there are challenges to a law, or when someone seeks relief based on a particular law. That has nothing to do with what I believe about concealed carry for retired officers, or active officers outside their jurisdiction.
                      It's just a shame that if we are correct in our assessment of HR 218, it will need to be "proved" in court because some people prefer fighting legal battles with fellow officers rather than working with them.
                      It's not about fellow officers wanting legal battles, it's about local prosecutors, and local politicians (including some in LE management), wanting to enforce their state statutes. If they want to test the limits of the LEOSA they will. Again, it's not different than any other statute that's been battled over in court. You're just hacked off because you have a personal stake in this particular battle. Sorry, but the legal system doesn't suddenly change because a bunch of cops are involved in the legal dispute, and if you looked at it objectively instead of emotionally you'd know that's true.

                      Comment


                      • #12
                        Originally posted by yellowreef View Post
                        I haven't read anywhere whether it was their duty weapon or a personal weapon on a CCW. That would definitely change whether the Fed backs them up on this or not.
                        Not necessarily. Some agencies allow their officers/agents to carry personal weapons. Policies vary on what's allowed and what isn't.

                        Comment


                        • #13
                          Legal issues not analyzed correctly

                          HR 218 is self-implementing and a valid defense in state court

                          HR 218 is Public Law 108-277, 117 Stat. 865.
                          The official version as published by the GPO is found at http://frwebgate.access.gpo.gov/cgi-...ubl277.108.pdf
                          That document does not direct the Attorney General to enact regulations to implement the legislation. Federal statutes can be self-effectuating. That one provides a defense to various state laws. Federal defenses can be asserted in state court. State courts can interpret federal statutes.
                          Furthermore, the US Attorney General has issued an interpretation of HR 218 that states: "The Act does preempt and supersede inconsistent state laws and local ordinances, whether criminal or civil." http://www.usdoj.gov/olp/agmemo01312005.pdf

                          HR 218 can be a defense in a bar or while drinking if the officer is not under the influence
                          One of the limitations in 18 USC § 926B(c) is "‘‘(5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance." One may be in a bar without being under the influence, as we all know.
                          Another limitation in 19 USC 926B is "‘‘(b) This section shall not be construed to supersede or limit the laws of any State that—‘‘(1) permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property." But I saw nothing to indicated that possessing a concealed weapon in the bar was prohibited by the bar owner.
                          Facts do not cease to exist because they are ignored. -- Aldous Huxley
                          Two things are infinite: the universe and human stupidity. -- Albert Einstein

                          Comment


                          • #14
                            Originally posted by yellowreef View Post
                            I haven't read anywhere whether it was their duty weapon or a personal weapon on a CCW. That would definitely change whether the Fed backs them up on this or not.
                            HR 218 is not limited to specific weapons that your department authorizes you to carry.
                            Facts do not cease to exist because they are ignored. -- Aldous Huxley
                            Two things are infinite: the universe and human stupidity. -- Albert Einstein

                            Comment


                            • #15
                              Originally posted by DAL View Post
                              Federal defenses can be asserted in state court. State courts can interpret federal statutes.
                              Sure can, but that does not mean a prosecutor has to present a potential defense claim to the Grand Jury in their state. Further, guess what happens if someone asserts a federal defense in state court and the state court rejects that defense, interpreting the state statute in such a way that it does not protect the defendant from prosecution? Either the prosecution proceeds or the defendant seeks relief from the FEDERAL courts. Hmm, where was that said before?
                              Furthermore, the US Attorney General has issued an interpretation of HR 218 that states: "The Act does preempt and supersede inconsistent state laws and local ordinances, whether criminal or civil." http://www.usdoj.gov/olp/agmemo01312005.pdf
                              Whether or not a state law is inconsistent is subject to interpretation. Guess where that interpretation will be done? That's right, the courts, and if the defense or prosecution doesn't like how the state interprets it, you can bet it will end up going to a FEDERAL court. Wow, that seems familiar too.

                              Comment

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