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LEOSA in Tennessee, and why does the state think it can implement their own requirements over that of Federal Law. I thought I would begin a discussion on a topic that seems to have more questions than answers. Lets start with LEOSA, in particular, 18 USC 926C (for retired or separated officers).
(1) separated from service in good standing from service with a public agency as a law enforcement officer;
(2) before such separation, 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 law, and had statutory powers of arrest or apprehension under section 807(b) of title 10, United States Code (article 7(b) of the Uniform Code of Military Justice);
(3)(A) before such separation, served as a law enforcement officer for an aggregate of 10 years or more; or
(B) 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) during the most recent 12-month period, has met, at the expense of the individual, the standards for qualification in firearms training for active law enforcement officers, as determined by the former agency of the individual, the State in which the individual resides or, if the State has not established such standards, either a law enforcement agency within the State in which the individual resides or the standards used by a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that State;
(5)(A) has not been officially found by a qualified medical professional employed by the agency to be unqualified for reasons relating to mental health and as a result of this finding will not be issued the photographic identification as described in subsection (d)(1); or
(B) 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 and for those reasons will not receive or accept the photographic identification as described in subsection (d)(1);
(6) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and
(7) is not prohibited by Federal law from receiving a firearm.
(1) a photographic identification issued by the agency from which the individual separated from service as a law enforcement officer that identifies the person as having been employed as a police officer or law enforcement officer and 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 active duty standards for qualification in firearms training as established by the agency 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 separated from service as a law enforcement officer that indicates the person as having been employed as a police officer or law enforcement officer; and
(B) during the most recent 12-month period, has met at the expense of the individual, the standards for qualification in firearms training for active law enforcement officers, as determined by the former agency of the individual, the State in which the individual resides or, if the State has not established such standards, either a law enforcement agency within the State in which the individual resides or the standards used by a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that State;’’
Simple enough to understand. Ok so now for the part that has every retired officer scratching their heads, and wonder WTH does the State think it's doing? Where in the law does it say, "The States" can administer their own requirements? Where in the law does it say the states can determine who qualifies under LEOSA? On 20 May 2011, the TN legislature passed Senate Bill No. 775, signed into law 6 June 2011 AN ACT to amend Tennessee Code Annotated, Title 38, Chapter 8, Part 1, relative to retired law enforcement officers.
Taken from the Bill is; Tennessee Code Annotated, Title 38, Chapter 8, Part 1, is amended by adding the following language as a new section:
38-8-123.
(a) The Tennessee POST Commission shall determine a retired officer's eligibility to carry a firearm under federal law as provided in this section.
A quick click on the above link, one can read the rest of the language in the Bill. Marksman has highlighted what Federal Law makes clear is the states over-reach, which then makes the rest of the language illegal. It's backed up by the courts as we reveal.
Marksman LLC Training Staff are Active and Retired Federal Law Enforcement Officers, and members of the Federal Law Enforcement Officers Association, (FLEOA). The organization has communicated to a number of states who seek to impose their own interpretation of the law, with language from the courts that point out their over-reach. Those states who choose not to correct this action are brought to Federal Courts where the actions are resolved.
The Law Enforcement Officers Safety Act (LEOSA) mandates that all active and retired law enforcement officers ("LEO's") be able to carry a concealed firearm anywhere in the United States subject to certain conditions, overriding most contrary state and local laws. See S. Rep. No. 108-29 (2003), 2003 WL 160954 at *4. The Act's purpose was two-fold to protect active and retired officers and their families from "vindictive criminals," and to enable such officers to "respond immediately" to crimes spanning multiple jurisdictions. Id.; see also H.R. Rep. No. 108-560 (2004), 2004 WL 5702383 at *3-4. The LEOSA provides that, "notwithstanding any other provision of the law of any State or any political subdivision thereof," a "qualified law enforcement officer" or "qualified retired law enforcement officer" "may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, so long as the individual also carries the requisite identification." 18 U.S.C. §§ 926B(a), 926C(a).
In connection with the annual firearms certification, the guidance issued in Tennessee is completely contrary to the LEOSA mandate. Congress recognized that states and local governments were frustrating exercise of the rights, by declining to issue certification of firearms qualification (that coupled with photographic identification of former employment as a law enforcement officer, being the credentials required to benefit). The LEOSA was amended in 2010 to prevent denial of the credetialing by denying governmental (state) certification of firearms training. The statute was amended to allow the component to be satisfied by testing by "a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within the state." See Law Enforcement Officers Safetey Act Improvements Act of 2010, Pub. L. No. 111-272 (amending 18 U.S.C. Section 926C(d)(2)(B).
LEOSA's legislative history indicates that, in making the 2010 amendments, Congress had determined retired law enforcement officers were entitled to "benefits and privileges" conveyed by the statute. The legislative history further indicates the amendment was intended to adress the fact that "many retired officers have experienced substantial difficulty in gaining the benefits the law was intended to confer." The amendments were designed to "ensure that law enforcement officers who are now retired will have the flexibility in achieving the law's benefits and privileges which Congress determined they deserve." (See 156 Cong. Rec. 8248C Statement of sen. Leahy)
It is noteworthy that while other courts that have examined LEOSA have found that the requirement of agency-issued identification was an important legislative comprimise intended to ameliorate the intrusion of the law on intrastate gun carry laws, see, e.g., Moore v. Trent, No. 09-cv-1712, 2010 WL 5232727 (N.D. III. Dec. 16, 2010) (the identification card required in Section 926C(d) constitutes a reservior of powers set aside for the states"), no court has ever found the same to be true of the firearms qualification component, which may be issued by a different authority (i.e., a "certified firearms instructor"), and seems aimed more pragmatically at fulfilling the statutory requirement that LEOSA carriers keep current on their firearms qualification status.
The critical fact is that retired members already have their agency issued photo identification. What remains for the LEO's is to obtain a firearms qualification certificate from an appropriate authority in Tennessee, the state of their residence, which the 2010 LEOSA amendment was calculated to achieve, without interference by the state. Once the firearm qualification is obtained, the LEO may carry and possess firearms in Tennessee, notwithsatandingthe Tenessee state licensing provision. The LEOSA preempts state firearms regulations.
Contrary to the LEOSA, the Tennessee Attorney General in a recently issued "Guidance," reiterated its policy that requires a LEOSA qualified retired LEO, who permanently resides in Tennessee, to annually apply to the Tennessee P.O.S.T for a permit to carry a firearm, under onerous criteria, the issuance of which is wholly discretionary, not mandatory. See 38-8-123, and Guidance recently issued by the Tennessee Attorney General. Tennessee has historically attempted to find ways to limit LEOSA's application to Tennessee residents. This "Guidance" is directly contrary to LEOSA. Under LEOSA, states have a mandatory duty to recognize the right to carry that LEOSA establishes. Congress did not afford states the discretion to redefine either who are qualified law enforcement officers or who is eligible for the LEOSA right.
Marksman, LLC Training Staff TN P.O.S.T certified firearms instructors, and as such, are authorized to conduct and administer the firearms qualifications to those Retired Officers who meet the criteria outlined in LEOSA. There IS NOT a requirement of the Retired Officer to take an 8 hour class as is seen in countless ranges, and firearm academies throughout the state. Only the requirement that the Retired Officer pass a firearms qualification within the last year. There is no requirement under LEOSA for the Retired Officer to "Qualify with their duty weapon" as is routinely stated throughout these same ranges and firearms academies, as well as Tennessee P.O.S.T..
LEOSA requires that Retired Officers have proof they have qualified within the last year with the same "Type" of firearm. "Type" is not defined in LEOSA law; however, if you look up the definition in the same code section, it is defined as handgun, rifle, shotgun. Nowhere in the law does it say handgun, pistol, or revolver. It only says "firearm." This indicates that under LEOSA you can carry a firearm - not restricted to a handgun - of the same type you qualified with.
What type of course of fire should be utilized? The law states, "been tested or otherwise found by the agency to meet the active duty standards for qualification in firearms training as established by the agency to carry a firearm of the same type as the concealed firearm." The phrase "the active duty standards for qualification" leaves it open for the agency to determine the appropriate course of fire.
If you are not able to qualify with the agency you retired from, then you can qualify under the protocol established by the state in which you live. If your state has not established such protocol, and your agency does not qualify its Retired Officers or you live in a different state now, the law says, " or by a certified firearms instructor that is qualified to conduct firearms qualification test for active duty officers within the State that indicates that the individual has, not less than 1 year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the State or certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within the State to have met -" In simple terms, any TN P.O.S.T. Certified Firearms Instructor who can administer an active duty law enforcement qualification by state standards can qualify you in your state if protocol has not been established. Tennessee has not established such protocol.
For those Retired Officers who are dead set on shelling out money each year, and filing out mountains of unnecessary paperwork, money for fingerprints and a TBI/FBI background check, for the privilege to carry a concealed firearm under LEOSA. By all means have at it. Marksman, LLC has included the links to the paperwork the State of Tennessee illegally requires, and we will include our Certified Instructor fee of $35 to administer the qualification. All told the qualified Retired Officer should be prepared to pay in the neighborhood of $75 - $100 annually for your privilege. Those of you who choose to just take the firearms qualification administered by Marksman certified Instructors and receive a card stating that you meet the requirements under LEOSA for the next year, we only charge $35 for this service, and that's all the money you have to pay. The choice is entirely up to you.
Please feel free to add any comments or experience you may have had regarding LEOSA in Tennessee.
