Law Officer Volume 5 Issue 1 On Nov. 14, 2008, a circuit court judge in Meade County, South Dakota granted a motion from four law enforcement officers to dismiss criminal charges against them for carrying concealed weapons in violation of South Dakota law. When the officers were initially charged, it caused quite a stir within the law enforcement community, particularly among those who knew of the federal law exempting police officers, in certain circumstances, from prosecution when carrying concealed weapons. However, after hiring a defense attorney and some consternation on behalf of the officers, the court got it right.
The Facts
During the evening hours of Aug. 7, 2008 and the early morning hours of Aug. 8, four off-duty police officers visited the Roadhouse, a local drinking establishment in Sturgis, South Dakota. Two of the officers were employed by the Seattle, Wash. Police Department; the others were officers with the U.S. Customs and Border Protection Agency located in Blaine, Wash. They were all members of the Iron Pigs Motorcycle Club, and that night, they were all carrying concealed firearms.
The officers became involved in an altercation with members of the Hell’s Angels Motorcycle Club. One of the officers ended up shooting a member of the Hell’s Angels who was accused of starting the fight. The officer claimed to have shot in self-defense.1 Each of the officers was charged2 with violating South Dakota laws prohibiting the carrying of concealed weapons.3
The officers filed a motion to dismiss the charges against them on several grounds. However, for purposes of this article, I address only one of several arguments made on behalf of the officers—that the officers’ arrests were pre-empted by a federal law. The court agreed and the charges against the four officers were dismissed.
On July 22, 2004, President George W. Bush signed the Law Enforcement Officers Safety Act (LEOSA) into law, which exempts police officers from state laws prohibiting carrying concealed firearms. The law is also known as the National Concealed Carry Law, and is commonly referred to as HR 218.4 The officers argued that they were carrying concealed weapons legally due to the federal pre-emption of state law prescribed in HR 218.
In finding in favor of the officers, the court stated that “state laws that interfere with, or are contrary to the laws of Congress, made in pursuance of the Constitution are invalid.”5 It cited Section Two of the federal law which states in pertinent part:
(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; or
2. prohibit or restrict the possession of firearms on any State or local government property, installation, building, base or park.6
2. is authorized by the agency to carry a firearm;
3. is not the subject of any disciplinary action by the agency;
4. meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;
5. is not under the influence of alcohol or another intoxicant or hallucinatory drug or substance; and
6. is not prohibited by Federal law from receiving a firearm.7
The court found that the “federal law is clear in its intent to pre-empt state laws unless either of the exceptions in (b)(1) or (2) apply.”9 Since neither exception applied in this case, and the officers were “qualified law enforcement officers” as defined by the Act since they were qualified to carry firearms, were not found to be under the influence of alcohol or drugs and possessed the necessary photographic identification, the court held that the officers were exempt from prosecution under South Dakota law.
This decision sparked a debate within the law enforcement community. One of the questions that was raised was why the officers were charged in the first place At least one federal authority has answered the question by stating that the Act is an “affirmative defense” wherein “the finder of fact makes the determination as to whether a person can be eligible for this defense by determining whether the person is a qualified law enforcement officer and was carrying the required identification at the time of the alleged violation.”10 In other words, the Act does not prevent an officer from being arrested, but it can be used as an affirmative
defense at a hearing on the legality of the arrest. That is, a court must determine whether the officer is a “qualified law enforcement officer” carrying the requisite photo identification.
Officers also need to be aware that the Act does not exclude states from enacting laws prohibiting private persons or entities from possessing firearms on their property, or from laws restricting or prohibiting the carrying of firearms on any state or local government property. In other words, officers need to be aware of the state laws wherever they are carrying concealed weapons. The Act will not protect officers carrying a concealed weapons if they are found to be in any one such location if the state has enacted laws under either of these two exceptions.
1. See www.rapidcityjournal.com/articles/2008/11/17/news/top/doc492204ea686aa194895.
2. A fifth officer was also involved and charged, but for purposes of this article, having been from Colorado, he was not similarly situated with the other officers.
3. SDCL 22-14-9 and SDCL 22-14-9.2.
4. Codified at 18 U.S.C. Sections 926B and 926C. The Act also applies to “qualified retired law enforcement officers.”
5. Memo. Dec., p. 4, State of South Dakota v. Ronald Smith et al., Crim. # 08-829 through 833 (4th Cir., November 17, 2008) (citation omitted).
6. 18 U.S.C. 926B Section 2(a) & (b) (emphasis added).
7. 18 U.S.C. 926B Section 2(c).
8. Memo. Dec. p. 5.
9. Id.
10. See www.fop.net/publications/archives/letters/2008_0911.pdf.