Allowing off-duty law enforcement personnel to lock and load should be national standard

Of the approaches to countering unstable individuals committing mass shootings, among the more innocuous would appear to be allowing off-duty law enforcement officers and retired officers to remain armed. It is curious, then, that executive branch officials have unnecessarily restrained these efforts.

In 2004, Congress enacted the Law Enforcement Officers Safety Act, to allow current and retired law enforcement officers to carry firearms generally throughout their travels. LEOSA’s objectives included, a court noted, “to provide additional safety for the communities where the officers live and visit.”

{mosads}State firearms restrictions create a complex, vague mosaic. LEOSA allows credentialed current and retired law enforcement personnel to carry firearms throughout the country, notwithstanding most State restrictions. Without federal preemption, the labyrinth of state restrictions could inhibit realization of these benefits.

Exercise of LEOSA rights is not without potential cost, as Pennsylvania Constable Eric Ramirez learned. Although entitled by federal law to possess a firearm out-of-state, he was nevertheless arrested, treated to a jail stay and indicted for exercising this federally-secured right. In civil rights litigation following dismissal of the indictment, a federal judge held “LEOSA does not create an individual right.”

And what Congress allowed, executive branch officials have unnecessarily restricted. A separate federal statute, the Gun-Free School Zones Act, prohibits firearms possession within 1000 feet of a school, subject to certain exceptions. One exception is for persons licensed to do so by the State where the school is located.

The Gun-Free School Zones Act has a much broader impact than might be apparent. Vast tracts of non-rural areas cannot be entered without transiting covered locations.

That act was adopted before LEOSA was enacted. So, it is unsurprising the Gun-Free School Zones Act does not explicitly exclude these law enforcement officers and retirees from its prohibitions.

Numerous statements in LEOSA’s legislative history indicate its adoption would allow qualified personnel to carry firearms throughout the country. Yet the Secretary of the Army asserts LEOSA does not authorize possession within these school zones. Others make similar statements.

This interpretation puts much of the country off-limits. It is not required. Statutes are interpreted by courts in light of their evident purposes. They are not understood in a tedious, literal fashion designed to frustrate their evident objectives. The Supreme Court, in King v. Burwell, held an Affordable Care Act exchange a state elected not to establish was established by the state. A 2015 Supreme Court opinion announces that the phrase “tangible object” does not include fish, for purposes of a criminal statute governing destruction of evidence. The executive branch does not have to persist in a position that Congress made a fatal misstep in implementing an approach to opposing mass shooters.

Apparently, in some quarters it is in vogue for punditry to comment derisively on the efficacy of trained personnel using pistols in opposing rifle-wielding mass shooters. Headlines like those concerning the 2015 Garland, Texas, shooting, such as “Outgunned Traffic Officer Stopped 2 Attackers,” would suggest a reply.

The Bureau of Alcohol, Tobacco, Firearms & Explosives has reportedly taken an odd position on LEOSA. Popular sources report the ATF asserts LEOSA does not preempt state restrictions on common firearm features. This author has been waiting since last July for a substantive reply from the ATF to his inquiry concerning whether the ATF has adopted a position on the matter and, if so, what it is.

The firearm feature most prominently at-issue would be magazine capacity. Surely one would wish to afford a standard-capacity magazine to a law enforcement officer using a pistol to take-on an unhinged criminal having a rifle.

In this case, even tedious literalism is insufficient to support administrative efforts to curtail LEOSA’s efficacy. The statute allows qualifying persons to possess concealed firearms notwithstanding any provision of state law. Indeed, one with a handgun containing a standard-capacity magazine is possessing a firearm.

Congressional consensus on techniques to mitigate these crimes is difficult to develop. Administrative personnel should facilitate elimination of inadvertent obstacles to congressionally-approved approaches. Unnecessary, restrictive pronouncements on the scope of LEOSA, like those discussed here, should be renounced.

Royce Barondes is the James S. Rollins Professor of Law at the University of Missouri where he teaches, among other subjects, firearms law.