[Federal Register Volume 70, Number 42 (Friday, March 4, 2005)]
[Notices]
[Pages 10673-10675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4282]


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DEPARTMENT OF JUSTICE


Office of the Deputy Attorney General; Guidance on the 
Application of the Law Enforcement Officers Safety Act of 2004 to 
Current and Retired Department of Justice Law Enforcement Officers

AGENCY: Department of Justice.

ACTION: Notice of Attorney General guidance.

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SUMMARY: On January 31, 2005, the Attorney General issued a memorandum 
to the Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives; 
the Administrator, Drug Enforcement Administration; the Director, 
Federal Bureau of Investigation; the Director, Federal Bureau of 
Prisons; the Inspector General; and the Director, United States 
Marshals Service providing guidance on the application of the Law 
Enforcement Officers Safety Act of 2004, Pub. L. No. 108-277, to 
current and retired Department of Justice law enforcement officers. 
This notice contains the guidance issued by the Attorney General.

DATES: The guidance was issued on January 31, 2005.

FOR FURTHER INFORMATION CONTACT: Richard Hertling, Office of Legal 
Policy, Department of Justice, Room 4226, 950 Pennsylvania Avenue, NW., 
Washington, DC 20530, telephone (202) 514-4601. You may view an 
electronic version of the guidance at http://www.usdoj.gov/olp/agmemo01312005.pdf.

SUPPLEMENTARY INFORMATION: On July 22, 2004, the President signed the 
Law Enforcement Officers Safety Act of 2004 (hereinafter, the ``Act''), 
Pub. L. 108-277, 118 Stat. 865 (2004), codified at 18 U.S.C. 926B and 
926C. With certain limitations and conditions, the Act exempts 
qualified active and retired law enforcement officers from state laws 
and local ordinances prohibiting the carrying of concealed weapons. On 
January 31, 2005, the Department of Justice issued guidance on the 
application of the Act for its current and retired law enforcement 
officers. Because other federal agencies and state and local law 
enforcement agencies may be interested in reviewing the Department's 
guidance before issuing their own, the guidance issued by the Attorney 
General is contained in this notice.


[[Page 10674]]


    Dated: February 18, 2005.
James B. Comey,
Deputy Attorney General.
Memorandum for the Director, Bureau of Alcohol, Tobacco, Firearms, and 
Explosives
    The Administrator, Drug Enforcement Administration
    The Director, Federal Bureau of Investigation
    The Director, Federal Bureau of Prisons
    The Inspector General
    The Director, United States Marshals Service
From: The Attorney General.
Subject: Guidance on the application of the Law Enforcement Officers 
Safety Act of 2004 to current and retired Department of Justice law 
enforcement officers.
    On July 22, 2004, Congress passed and the President signed the Law 
Enforcement Officers Safety Act of 2004 (the ``Act''), Pub. L. 108-277, 
118 Stat. 865 (2004), codified at 18 U.S.C. 926B and 926C. With certain 
limitations and conditions, the Act exempts active and retired 
``qualified law enforcement officers'' (``qualified LEOs'') from state 
laws and local ordinances prohibiting the carrying of concealed 
weapons. The Act does not purport to affect any state or local laws and 
ordinances that permit restrictions of concealed firearms on private 
property or any such laws that restrict the possession of firearms on 
any State or local government property, installation, building, base, 
or park.
    This memorandum outlines the Act's application to current and 
retired Department of Justice LEOs. The Department recognizes that 
individuals who meet the definition of a qualified LEO under the Act 
may or may not meet the definition of an LEO under the Civil Service 
Retirement System or the Federal Employee Retirement System. The 
guidance set forth below is not intended to and does not create any 
rights, privileges, or benefits, substantive or procedural, enforceable 
by any party against the United States, its departments, agencies, or 
other entities, its officers or employees, or any other person. Nothing 
in the Act or this memorandum impairs or otherwise affects the right of 
an individual to keep and bear arms under the Second Amendment to the 
Constitution of the United States.

I. The Act's Application to Current Department Law Enforcement Officers

    With respect to current law enforcement officers, the Act provides 
as follows:
    ``(a) Notwithstanding any other provision of the law of any State 
or any political subdivision thereof, an individual who is a qualified 
law enforcement officer and who is carrying the identification required 
by subsection (d) may carry a concealed firearm that has been shipped 
or transported in interstate or foreign commerce, subject to subsection 
(b)
    (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.
    (c) As used in this section, the term ``qualified law enforcement 
officer'' means an employee of a governmental agency who--
    (1) Is authorized by law to engage in or supervise the prevention, 
detection, investigation, or prosecution of, or the incarceration of 
any person for, any violation of law, and has statutory powers of 
arrest;
    (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 intoxicating 
or hallucinatory drug or substance; and
    (6) Is not prohibited by Federal law from receiving a firearm.
    (d) The identification required by this subsection is the 
photographic identification issued by the governmental agency for which 
the individual is employed as a law enforcement officer.''

118 Stat. at 865-66.
    As these provisions make clear, an active qualified LEO under the 
Act is a current government agency employee who (1) is authorized to 
perform the specified law enforcement functions and holds a position 
for which powers of arrest are granted by statute; (2) is authorized to 
carry a firearm by the agency for which he or she works; (3) is not the 
subject of disciplinary action; (4) meets any standards set by the 
employing agency that require the employee to regularly qualify in the 
use of a firearm; (5) is not under the influence of alcohol or another 
intoxicating or hallucinatory drug or substance; (6) is not prohibited 
by Federal law from receiving a firearm; and (7) carries a photo 
identification issued by the agency. For purposes of the last factor, 
the Department considers a current, valid ``U.S. Government Employee'' 
photographic identification card or a Department-issued credential to 
constitute ``the photographic identification issued by the governmental 
agency for which the individual is employed as a law enforcement 
officer.'' Should any questions arise concerning the application of 
these qualification provisions, the determination made by the head of 
the relevant Department component or his designee shall be subject to 
review by the Deputy Attorney General.
    The Act has no effect on the requirement of any Department law 
enforcement components that agents or officers carry a firearm at all 
times. Similarly, any component's regulations or procedures with 
respect to on-duty agents or officers will continue to be in effect. 
Those requirements, regulations, and procedures separately remain in 
effect, notwithstanding any provision of the Act.
    It is important to note that the Act does not supersede existing 
agency regulations or policies limiting, restricting, conditioning, or 
otherwise affecting the carrying of concealed firearms. The Act does 
preempt and supersede inconsistent state laws and local ordinances, 
whether criminal or civil. It does not prohibit any component from 
taking any appropriate disciplinary action for any violation of its 
existing regulations or policies.
    The Department considers the following components to be agencies 
whose current employees may qualify as LEOs for purposes of the Act: 
the Bureau of Alcohol, Tobacco, Firearms, and Explosives; the Drug 
Enforcement Administration; the Federal Bureau of Investigation; the 
Federal Bureau of Prisons; the Office of the Inspector General; and the 
United States Marshals Service. Of course, any particular employee of 
one of these components independently must meet each of the specified 
statutory qualifications to qualify as an LEO under the Act.

II. The Act's Application to Retired Department Law Enforcement 
Officers

    With respect to retired law enforcement officers, the Act provides 
as follows:
    ``(a) Notwithstanding any other provision of the law of any State 
or any political subdivision thereof, an individual who is a qualified 
retired law enforcement officer and who is carrying the identification 
required by subsection (d) may carry a concealed firearm that has been 
shipped or transported in

[[Page 10675]]

interstate or foreign commerce, subject to subsection (b).
    (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.
    (c) As used in this section, the term ``qualified retired law 
enforcement officer'' means an individual who--
    (1) Retired in good standing from service with a public agency as a 
law enforcement officer, other than for reasons of mental instability;
    (2) Before such retirement, was authorized by law to engage in or 
supervise the prevention, detection, investigation, or prosecution of, 
or the incarceration of any person for, any violation of law, and had 
statutory powers of arrest;
    (3)(A) Before such retirement, was regularly employed as a law 
enforcement officer for an aggregate of 15 years or more; or
    (B) Retired from service with such agency, after completing any 
applicable probationary period of such service, due to a service-
connected disability, as determined by such agency;
    (4) Has a nonforfeitable right to benefits under the retirement 
plan of the agency;
    (5) During the most recent 12-month period, has met, at the expense 
of the individual, the State's standards for training and qualification 
for active law enforcement officers to carry firearms;
    (6) Is not under the influence of alcohol or another intoxicating 
or hallucinatory drug or substance; and
    (7) Is not prohibited by Federal law from receiving a firearm.
    (d) The identification required by this subsection is--
    (1) A photographic identification issued by the agency from which 
the individual retired from service as a law enforcement officer that 
indicates that the individual has, not less recently than one year 
before the date the individual is carrying the concealed firearm, been 
tested or otherwise found by the agency to meet the standards 
established by the agency for training and qualification for active law 
enforcement officers to carry a firearm of the same type as the 
concealed firearm; or
    (2)(A) A photographic identification issued by the agency from 
which the individual retired from service as a law enforcement officer; 
and
    (B) Certification issued by the State in which the individual 
resides that indicates that the individual has, not less recently than 
one year before the date the individual is carrying the concealed 
firearm, been tested or otherwise found by the State to meet the 
standards established by the State for training and qualification for 
active law enforcement officers to carry a firearm of the same type as 
the concealed firearm.
    (e) As used in this section, the term `firearm' does not include--
    (1) Any machinegun (as defined in section 5845 of the National 
Firearms Act);
    (2) Any firearm silencer (as defined in section 921 of this title); 
and
    (3) A destructive device (as defined in section 921 of this 
title).''

118 Stat. at 866-67.
    Under these provisions, a person is a retired qualified LEO under 
the Act if he or she (1) retired in good standing from his or her 
employing agency (other than for reasons of mental instability); (2) 
was authorized to perform the specified law enforcement functions and 
held a position for which powers of arrest were granted by statute; (3) 
was regularly employed as a law enforcement officer for an aggregate of 
15 years or more before his or her retirement, or retired from service 
with his or her agency (after completing any applicable probationary 
period of such service) due to a service-connected disability as 
determined by the agency; (4) has a non-forfeitable right to retirement 
plan benefits of the law enforcement agency; (5) during the most recent 
year, has met state firearms training and qualifications that are the 
same as the training and qualifications for active duty officers; (6) 
is not under the influence of alcohol or another intoxicating or 
hallucinatory drug or substance; (7) is not prohibited by Federal law 
from receiving a firearm; (8) carries a photo identification issued by 
the agency; and (9) meets an annual qualification requirement.
    The Department considers the following components to be agencies 
whose retired employees may qualify as LEOs for purposes of the Act: 
the Bureau of Alcohol, Tobacco, Firearms, and Explosives; the Drug 
Enforcement Administration; the Federal Bureau of Investigation; the 
Federal Bureau of Prisons; the Office of Inspector General, insofar as 
the retiree exercised statutory law enforcement authority at the time 
of his retirement; and the United States Marshals Service. As with 
current employees, any particular retired employee of one of these 
components independently must meet each of the specified statutory 
qualifications to qualify as a retired LEO under the Act.
    Each affected component separately shall prepare and issue a 
photographic identification card for qualified retired LEOs. Each such 
identification card shall, at a minimum, include the name of the 
individual, the individual's photograph, an identification number 
traceable to the bearer, the date the employee retired in good standing 
from service with the issuing agency, and the phrase ``Retired Law 
Enforcement Officer.''
    Individual components shall not themselves train or qualify retired 
employees to carry a firearm, as authorized under the law. In order to 
be authorized under the Act to carry a firearm, a retired qualified LEO 
from a DOJ component must qualify pursuant to 18 U.S.C. 926C(d)(2)(B), 
and in accordance with state standards for active LEOs.
    It shall be within the discretion of the employing agency to issue 
the retired LEO credential called for under the Act. Should the agency 
(1) make a finding that the subject is not qualified, or (2) enter into 
an agreement in which the subject agrees that he or she is not 
qualified, the subject shall not be issued the retired LEO credential 
described above.
    With respect to the Act's limitation that a qualified retired LEO 
``is not under the influence of alcohol or another intoxicating or 
hallucinatory drug or substance,'' each former Department employee 
seeking such qualification annually must meet state standards, if any, 
regarding alcohol or drug use by law enforcement officers authorized to 
carry a firearm.

[FR Doc. 05-4282 Filed 3-3-05; 8:45 am]
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