Qualified officers may use LEOSA only as an affirmative defense if prosecuted. An affirmative defense requires that the finder of fact, the judge, must make a determination of whether the person raising the defense is eligible to do so. To be eligible, the judge must have determined that the person raising the defense is, in fact, a qualified officer under LEOSA and was carrying the required identification at the time of the alleged violation. This means that the act will not keep officers from being arrested. However, LEOSA will stand as a defense at a hearing as to the legality of the arrest if the arrestee is, in fact, a qualified officer with the requisite identification.
Limitations of LEOSA
Type of Firearm
LEOSA allows qualifying officers to carry concealed firearms, but, at the same time, limits what qualifies as a firearm. The act’s definition of firearms does not include machine guns, silencers, or explosive or destructive devices.45
State Limitations on Carrying in Certain Locations
Limitations also exist as to where a concealed firearm may be carried. LEOSA exempts qualified officers from state laws limiting or prohibiting the carrying of concealed weapons.46 However, LEOSA does not supersede state laws permitting private property owners from limiting or prohibiting the carrying of concealed weapons on their property.47 This would include public bars, private clubs, and places, such as amusement parks. Nor does the act circumvent any state laws prohibiting carrying concealed weapons on state or local government property.48 Possible examples would be courthouses, schools, or parks.
Federal Limitations on Carrying in Certain Locations
Federal laws or regulations are not superseded by LEOSA. Qualified officers may not carry concealed weapons onto aircraft under the act. They also cannot carry firearms into federal buildings or onto federal property. However, in February 2010, a federal statute took effect authorizing individuals to carry concealed weapons into national parks if they have complied with the carry concealed rules of the state or states in which the park is located. 49 Of course, this federal statute will not change the fact that it is unlawful to carry a firearm into federal buildings, even in a national park.50 This would include facilities, such as visitor’s centers, museums, and restrooms.
It is unclear whether LEOSA overrides an agency’s ability to limit an officer’s authority to carry a personally owned handgun off duty as part of off-duty restriction policies. Some agencies have continued to enforce such policies. Arguably, because LEOSA explicitly overrides state law provisions (except those addressing state facilities and property), and the head of an executive agency is given power by way of state law, it would appear that LEOSA would override off duty restriction policies. However, agencies with such a policy and officers working within these agencies should seek guidance and clarification in regard to the legality of such policies.
In recent opinions, the U.S. Supreme Court has clarified what previously was unclear for hundreds of years, that the Second Amendment does confer a right to bear arms for purposes of self-defense in the home, subject to reasonable restrictions. LEOSA, as noted above, does not confer a right to bear arms. The act merely confers a limited immunity from state and local laws dealing with concealed firearms and does not supersede any federal laws or regulations. Some jurisdictions outlaw the open display and carrying of firearms; however, LEOSA does not allow officers to carry firearms other than concealed. The authorization to carry concealed is not accompanied by any grant of extraterritorial arrest powers. Qualified officers must be aware of the laws of the state in which they are carrying concealed weapons, satisfy qualification standards, and carry proper identification.
The world changed on September 11, 2001. Through LEOSA, Congress reacted to this new age of terrorism, accepting the fact that America never has faced a greater need to have additional watchful eyes on the streets of its cities, towns, and rural areas. These eyes possess the training, skills, and resources necessary to stop rapidly evolving situations before they become disasters. They also provide an instantaneous, no-cost benefit to the country by simply allowing trustworthy officers to carry concealed weapons while off-duty. LEOSA allows qualified officers to protect themselves, their families, and the community by being armed while off duty.
Law enforcement officers know that criminals are never off duty. LEOSA also is premised on the notion that officers are vulnerable off duty. Criminals sometimes target them, as well as their families, for harm; these individuals also know that off-duty officers may be unarmed. LEOSA allows qualified officers to protect themselves, their families, and the community by being armed while off duty.