We as law enforcement officers can do one thing very well: take something simple and complicate it. It isn't our fault, as we spent a career being careful in our investigations and arrests to make sure we crossed every "t" and dotted every "i."
LEOSA is a really simple law. But we have managed to take that simple law and complicate it because we believe that it is the right thing to do. It is important to keep some records and keep them accurately, but why should we keep records we do not need, or make things harder than they should be?
LEOSA has two segments. One is for active duty officers while traveling outside of their jurisdiction. The second section is for "Qualified Retired Law Enforcement Officers." I am going to concentrate on how an agency should handle the retired officer qualification, records keeping, and other issues involved in maintaining LEOSA rights for retired officers, as the active duty requirements are not confusing.
One requirement of the law is that an officer must have credentials indicating he or she is a "Qualified Retired Law Enforcement Officer." The unfortunate aspect of this is that the law does not require an agency to issue the needed credentials. If your agency has chosen not to issue credentials, there isn't much you can do.
With that being said, there isn't liability to an agency who issues retired credentials, as the agency is not stating the retired officer is a good guy. It is merely a declaration of fact that the officer worked at the agency.
Agencies can create problems for themselves when they go beyond what the law requires. If an agency issues credentials and it wants to conduct background checks periodically on its retirees, the agency creates tremendous liability for itself by conducting follow-ups that are not required.
It is recommended that the language on the credentials be simple and straight-forward. Obviously the Qualified Retired Law Enforcement Officer's photo must appear and the agency's name and state. Language to the effect of:
"THIS IS TO CERTIFY __(Name)______ whose signature and photograph appear hereon, as a Qualified Retired Officer (Or Deputy Sheriff, Trooper, etc.) from the (Name of the department), who meets the definition of Qualified Retired Law Enforcement Officer, as provided in the Law Enforcement Officers Safety Act of 2004, as amended, and passed by the United States Congress."
The credential should also include the officer's and the sheriff's or chief's signature.
Again, this is a direct statement of fact and only what the law requires.
The law allows an agency to either issue a credential and qualification card as a combined card, or the cards can be separate. I highly recommend you only issue separate cards, one being the credential, the other card the proof of qualification. The retired officer must qualify once a year and so that card has a date. The credential does not have a date. Not to mention that the officer may move out of state and be qualifying under another state's protocol. When that happens having the cards combined is problematic.
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 the LEOSA law; however, if you look up the definition in the same code section, it is defined as handgun, rifle, or 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. Many agencies have several courses of fire such as the uniformed duty course of fire, one for secondary/back-up guns, off-duty, and other situations.
Why not use the off-duty or back-up gun course of fire? As a retired officer you are no longer a law enforcement officer, you are a well-trained citizen being afforded a privilege by federal law. Why treat the retired officer's qualification as if they are still active duty? I would suggest you use an appropriate course of fire such as the active duty standard for off-duty firearms. Off-duty courses of fire are typically geared toward closer engagements and smaller sized firearms, which fits with a retired officer's situation.
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 set up a 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 a firearms qualification test for active duty officers within that 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 a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that State to have met—"
In simple terms, any certified firearms instructor who can administer an active law enforcement qualification by state standards can qualify you in your state if a protocol has not been established.
If you qualify a retired officer you are merely administering a test, you are not training an active officer. You are the proctor (instructor) of the test (qualification); your job is to administer it and score the results. You are not incurring liability as long as that is all you are doing, as that is what the law requires. Agencies and instructors get into trouble when they want to do more such as providing instruction on shooting techniques or require the officers to qualify on multiple courses like decision making, "shoot-don't-shoot," or low light. The law requires a qualification "test," not tests.
If you are concerned about liability with the qualification consider this: When your state DMV gives you a driver's test and you pass, it issues you a driver's license. If you have an accident that is your fault, your state DMV cannot be sued because it administered a test that you passed and then gave you a license.
What should the qualification card look like? The law requires the qualification be within the last 12 months, so the date of the qualification is necessary. You may consider having the name of the agency, organization or state that it is issued under.
Although it should have the "type" of firearm that was used in the qualification, I would not have any more information, as it is not required by the law. This is where law enforcement gets wrapped around the axle by recording information that is not required by the law.
Many firearm instructors or ranking officers will say, "Well how do we know you are carrying the gun you qualified with?" My response is, "Who cares?" They don't work for you anymore and you are not responsible for them.
The law does not require that you carry the same firearm you qualified with, so do not make record of what the officer qualified with. The officer could qualify with a revolver and carry a semi-automatic, as it is the same "type" (a handgun) of firearm. If an officer is not carrying the gun he or she qualified with there is nothing you can do. The officer doesn't work for you anymore.
Think of the qualification card as a driver's license. The license doesn't restrict you to driving only the vehicle you drove during the test. It permits you to operate any vehicle of that class (type).
Law enforcement officers are trained to record every bit of information when they investigate a crime. They understand a chain of custody and they know they may be grilled on the witness stand over how they recorded the evidence. I suggest that we not record useless information for LEOSA, as it isn't required. This is a concept that many in law enforcement have a difficult time understanding.
In several states, any NRA Certified Law Enforcement Firearm Instructor can administer the LEOSA qualification to any retired officer who lives in the state. Virginia, for example, made it very easy by setting up a simple protocol. The instructor who qualifies the retired officer issues the card with Virginia stipulating what must be on the card. Is this something your state could do?
It is the retired officer's responsibility to have proper credentials. If an officer is not legally able to carry a firearm under LEOSA, then it's his or her problem to deal with.
Here are some record-keeping considerations.
First, do not record the score the retired officers fired. All that is important is that the retired officers passed the qualification. You, the firearms instructor, administered a test, the retired officers passed, and you reflect that by issuing that retired officer a qualification card. Now, many will be thinking, "How will you prove the retired officer passed the qualification?" Simple: you gave him or her a qualification card. After all, do you have your DMV driver's test score, or is your driver's license proof you passed the drivers' test? Have a Pass/Fail scoring system on the appropriate "active duty course of fire" for off-duty or back-up guns.
Second, do not record the firearm the retired officer qualified with. It is not required by the law to carry the firearm you qualified with. The law requires that it be the same "type" of firearm (remember, rifle, handgun or shotgun), not the same one. So, why record anything but the fact it was a handgun, rifle, or a shotgun. Additionally, if the retired officers are not carrying the gun they qualified with, what can you do about it? They do not work for you anymore, so you can't punish them.
I would have a simple application where the retired officers affirm by signature that they meet the requirements to carry a firearm under LEOSA and reside in the state or are qualifying with the agency they retired from.
When it comes to LEOSA, keep it simple. Don't create liability by doing more than is required.
Glen A. Hoyer is the director of the National Rifle Association's Law Enforcement Division. A 25-year law enforcement veteran, who was assigned to the SWAT Team, Firearms Training Unit, and K-9 unit, he retired from the Lexington County (SC) Sheriff's Department as a captain. Hoyer has been a firearm instructor for 32 years and is certified by the NRA in handgun, shotgun, select-fire weapons, and patrol rifle.