City not compelled to issue LEOSA card

Lambert v. Fiorentini, 2020 (1st Cir. 2020)

Craig Lambert retired as a police officer in March 2014. Prior to his retirement, he had received a five-day suspension, coupled with a recommendation for an additional 55-day suspension for insubordination and misconduct. Lambert took injury leave and remained on leave until the date of his retirement. The 55-day suspension was never imposed and there was no hearing to determine whether it was warranted.

Three years after his retirement, Lambert asked a captain from his former department to assist him in obtaining a retired officer identification to afford him the privileges of the Law Enforcement Officers Safety Act (LEOSA), 18 U.S.C. §§ 926B, 926C. The chief would not allow the identification card to be issued, reasoning Lambert was not an officer “in good standing” at the time of his retirement.

LEOSA provides active and retired law enforcement officers who meet certain criteria with the right to carry a concealed firearm throughout the United States, with some exceptions. For example, the LEOSA privilege generally does not trump gun-free zone laws and regulations. Active officers meet the core requirements to enjoy nationwide carry privileges if they fit the following:

1. The officer 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 the law, and has statutory powers of arrest or apprehension under 10 U.S.C. § 807(b) (or article 7(b) of the U.C.M.J.);
2. The officer is authorized by the agency to carry a firearm;
3. The officer is not the subject of any disciplinary action by the agency which could result in suspension or loss of police powers;
4. The officer meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;
5. The officer is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and
6. The officer is not prohibited by Federal law from receiving a firearm.

Retired officers meet the core requirements to enjoy nationwide carry privileges if:

1. The officer retired in good standing from service with a public agency as a law enforcement officer;
2. Before retirement, the officer was 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 the law, and had statutory powers of arrest or apprehension under 10 U.S.C. § 807(b) (or article 7(b) of the U.C.M.J.);
3. Prior to retirement, the officer served as a law enforcement officer for an aggregate of 10 years or more; or separated from service with such agency, after completing any applicable probationary period of such service, due to a service-connected disability, as determined by such agency;
4. The officer during the most recent 12-month period has met, at the expense of the individual, certain firearms training qualification standards for active law enforcement officers;
5. The officer has not been officially found by a qualified medical professional employed by the agency to be unqualified for reasons relating to mental health or has not entered into an agreement with the agency from which the individual is separating from service in which that individual acknowledges he or she is not qualified under this section for reasons relating to mental health;
6. The officer is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and
7. The officer is not prohibited by Federal law from receiving a firearm.

Some states, including Massachusetts (the state where Lambert served), require an agency to issue a LEOSA identification card to retired officers who meet the above criteria. When Lambert’s former chief denied Lambert’s request for a LEOSA identification card, Lambert sued in state court, seeking an order to force the chief to issue the card. The defendants removed (petitioned for transfer to another court) the case to federal court. The court dismissed Lambert’s claims, finding there was an adequate legal remedy under state law.

Because of the procedural posture of the case, the court did not address uncertainties about LEOSA. For example, did LEOSA create a property right that can be the basis of a federal lawsuit? And, what does retired “in good standing” mean?

LEOSA does not define “good standing,” leaving that question to the various states. In Frawley v. Police Commissioner (46 N.E.3d 504 (Mass. 2016)), the state supreme court held neither the federal statute nor state regulations establish good standing criteria. Nor did LEOSA expressly state whether the right to carry a weapon upon meeting the statutory qualifications is a cognizable property right. Courts have reached opposite conclusions on this point. In Henrichs v. Illinois Law Enforcement Training and Standards Board (306 F. Supp. 3d 1049 (N.D. Ill. 2018)), retired deputy sheriffs formerly assigned to court security or corrections duties sued because state law, as applied by the state’s police standards entity, defined a law enforcement officer more narrowly than the federal statute. The district court ruled LEOSA does not create a property right that can be vindicated by a lawsuit under federal civil rights litigation.

[Read: 5 ways LE leaders can streamline LEOSA policies]

In DuBerry v. District of Columbia (924 F.3d 570 (D.C. Cir. 2019)), a federal appeals court reached the opposite conclusion. The court held LEOSA does create a cognizable property interest and local entities do not have the discretion to more narrowly define “qualified officer” than defined by the federal statute. The court found an expansive definition of “powers of arrest” in LEOSA, thereby including otherwise qualified corrections officers as eligible for LEOSA privileges: “In the LEOSA, Congress defined ‘qualified law enforcement officers’ broadly, to include individuals who engage in or supervise incarceration. Given the breadth of Congress’s definition, the reference to ‘statutory powers of arrest’ necessarily means some statutory power of arrest, such as a power to arrest parole violators, and not, as the District of Columbia suggests, only the police power to arrest upon probable cause.”

Although LEOSA was written, and later amended, with the intent to allow active and retired officers broad powers to carry firearms nationwide, many legal issues remain unresolved, as shown by Lambert’s case. Some states facilitate the annual qualification for retired officers; others make no provisions. Not all agencies agree to issue identification cards and not all states require the card to be issued to qualified persons. Active-duty officers clarify expectations with their command and consult with competent legal counsel on carrying weapons outside the officers’ home state. Retired officers should likewise be certain they know the firearms restrictions that still apply to LEOSA-qualified officers.