By Dan Phillips
Some former officers have given many years to their agency only to be denied the right under federal law to carry a firearm for self-protection after they separate or retire. It may be that their agency intentionally (or unintentionally) denied them that privilege.
In order to carry a firearm under LEOSA, an officer must satisfy three parts:
- They must be a “qualified” officer under the description of the law;
- They must have a photographic law enforcement qualification or retired card;
- They must have an annual firearms certification.
Without LEOSA coverage, an officer may only carry with a concealed carry permit and then only in states with reciprocity with the issuing state or in states with constitutional carry where no permit is required (for its citizens).
There have been a few high-profile cases where officers resigned, retired, or were unjustly terminated with 10 or more years of cumulative service and did not receive credentials.
A recent lawsuit raised by a former officer on this very matter – Burban v. City of Neptune Beach – was dismissed by the U.S. Eleventh Circuit Court of Appeals in Florida. In this case an officer sued the city when it refused to issue her a qualified law enforcement officer ID, hence preventing her from obtaining a LEOSA certification to carry. Without photographic credentials as described in subpart (d) of 18 USC 926(c), then issuance of a LEOSA firearms certification is not legal.
Most agencies do issue an officer some manner of credentials as part of retirement, such as a photo ID card, or a retired badge, but it’s not always the case. In lieu of credentials some agencies have issued certificates or a congratulatory letter simply stating the officer’s years of service without specifically stating qualifications. This will not be sufficient for LEOSA standards.
An agency or jurisdiction may have policies against, or regarding issuance of credentials to former or retired officers. Some states have used more stringent guidelines than what the federal law defines and, in fact, have ignored LEOSA.
There is NO requirement under LEOSA for an agency to issue an officer photographic or other credentials upon separation. However, without a specific policy, SOP or law, issuance of retired credentials is then left to the discretion of the agency head or the jurisdiction. This is almost always the case except in specific instances where LEOSA does stipulate when an officer is not qualified and therefore should not be issued credentials.
Exclusions under LEOSA
Assuming an individual meets all the other definitions and requirements under LEOSA, there are two conditions that would legally exclude or make the officer unqualified under LEOSA:
- The officer did not separate in good standing, that is the officer was terminated, or resigned in lieu of termination, or their state certification/accreditation agency revoked or suspended their certification or eligibility as a law enforcement officer for cause; or the officer was charged, or pending prosecution, or found guilty of a serious crime, illegal drug use, etc.
- The officer was found to be unqualified by a medical professional for reasons relating to mental health.
Unfortunately for some officers, some agency heads may simply refuse to issue a credential for any reason no matter the individual’s status, standing, or qualification. The state may also make it more restrictive as to who qualifies under LEOSA. This is an ongoing battle in some states like New Jersey.
Remember, without a law, directive, or policy requiring it, issuance of credentials is almost always left solely to the discretion of the agency head. If that is the case, it may be that the only recourse to the officer is a lawsuit or seek assistance from advocates.
Some high-profile law enforcement organizations have strenuously fought against states and jurisdictions that ignore LEOSA. Keep in mind, a legal battle is not without significant cost, and even then, the results may not be in the officer’s favor.
For more information on legal challenges to refusal to issue credentials, refer to cases like Duberry v. District of Columbia and Foley V. Godinez. While these cases addresses qualifications by corrections officers, they can still be applied to other officers denied coverage under LEOSA.
About the author
Dan Phillips retired as a military criminal investigator after 23 years of service, joined the federal service right after 9/11 and served 16 years working in the security and counterintelligence fields. Today he works for a major defense contractor. Dan serves as the LEOSA program chair for the Washington State Fraternal Order of Police.