Force Science News #12
February 11, 2005
I. HAVE GUN, WILL TRAVEL?
As an off-duty or retired LEO, you have a fundamental decision to make whenever you pack for an out-of-state trip these days: Should you bring a gun?
Generally speaking, you can. The federal Law Enforcement Officers Safety Act of 2004, effective since last summer, provides that any “qualified” active or retired peace officer may carry a concealed firearm nationwide, regardless of the concealed-carry restrictions of any state or political subdivision.
But should you?
Many present and former cops would answer yes automatically. Without their most distinguishing professional tool along, they’d feel naked and vulnerable, and they gladly accept their right to carry as a just reward for their years of hazardous public service.
But a thoughtful response requires a bit of risk/benefit analysis–weighing the problems you might encounter against the problems you might solve by being armed.
We’d like to know what you think, so please give us your opinion by following the simple steps for response explained later in this transmission.
Meanwhile, here are some factors to consider when you’re packing (dual meaning intended) for your next trip:
1. Does your former agency provide retired officers with testing that will allow you to achieve qualified status?
While some officers and retirees may feel they have a right to this testing, some risk managers advising agencies take a very different view of the law. “Whether or not to aid” officers in achieving qualified status to carry nationwide “is a discretionary call,” one liability insurer has advised its municipal clients. No agency is required to issue the necessary photo credentials, nor are agencies required to provide training to retired officers. An agency may perform these courtesies, but it doesn’t have to. If issued, the credentials remain the property of “the issuing governmental body, not the individual officer,” the insurer says, making them subject to easier recall.
If you carry without the specified identification, of course, you are not in compliance with the federal statute.
Besides the ID credentials there are other restrictions, especially for retired officers. These pertain, in part, to years of service, the nature of your employment before retirement, the reason for retiring and possible service-connected disabilities.
2. Are you familiar with the laws of the state(s) you’re traveling to?
While the federal law gives you the right to carry a concealed handgun to out-of-state jurisdictions, individual states vary as to when you can legally use it. Minnesota attorney Bill Everett, a former LEO and a member of the National Advisory Board for the Force Science Research Center, points out:
“When you carry a gun into another state, nothing about the training you have had is likely to prepare you to know the extent to which you can use deadly force in that ‘foreign’ jurisdiction. Laws differ from state to state. Some, for example, may say that armed citizens have a duty to retreat or at least to evaluate the possibility of escape from the situation before they can use deadly force, while other jurisdictions don’t have those requirements.
“When you travel to a far away place with a gun, you end up relying only on your own innate notions of what the deadly force law of that state is, unless you have done a fair amount of study beforehand. You run the risk of finding out the hard way that your notions were wrong.
“The rules you have to play by in another state aren’t the rules for police officers in your state (which you’re trained for and accustomed to) but the rules that govern the ordinary citizen’s use of deadly force in the jurisdiction to which you’ve traveled.”
3. Can you resist the temptations of a police-like response?
Retired or off-duty in an out-of-state setting, you have no more authority for firearms use than the run-of-the-mill armed non-police citizen. “The federal law invests you with no police authority in other jurisdictions,” Everett says, “it just peels back the restrictions on gun possession.”
On patrol in your own area, you may be authorized to use deadly force both in defense of life and as a control measure, Everett explains. For example, you might be able to shoot to “stop someone from escaping who may reasonably be expected to pose a serious violent threat in the future if he or she is not captured now.” As a citizen out of state, you may not have that legal right. Your standard police training does not necessarily prepare you to make legally defensible “citizen” shooting decisions.
Just as officers frequently overextend themselves into potentially violent enforcement situations when off-duty in home territory, you risk getting in over your head tactically as a traveler, too, unless you have the discipline to back away and remain uninvolved when you see wrongdoing that’s not life threatening.
“You have to consciously guard against getting sucked into a knee-jerk law enforcement role rather than remaining focused strictly on self-defense. Because of your training and experience, you’re susceptible to being seduced into the use of a weapon that may extend far beyond a citizen’s rights,” says Dr. Bill Lewinski of Minnesota State University-Mankato, FSRC’s executive director.
Tragedies that have exploded in an eye blink from such seduction in off-duty situations abound. Joe Callanan, retired from the Los Angeles County (CA) Sheriff’s Dept. and now a member of FSRC’s Technical Advisory Board, tells of an off-duty reserve deputy in California who spotted 2 offenders knocking over a convenience store when he was running errands in his personal vehicle.
“He swung up outside the place, positioned his vehicle as he would a patrol car, drew his gun and took cover on the passenger side, intending to challenge the suspects as they left the store”-instinctively just as he would have done had he been in uniform and on duty. In the stress, excitement and funnel focus of the event, he ignored the fact that his preschool-aged daughter was inside his vehicle. A gunfight erupted and she took a fatal round to the head.
4. Are your mental and physical skills adequate for reacting properly?
If you’re currently employed as an officer, your agency has an almost-daily opportunity to monitor your competency, through observation and performance reports. But retirees are not subject to such close scrutiny.
“Impairments or disabilities that would warrant disarming a retiree will develop largely outside of the [certifying] agency’s knowledge,” the insurer mentioned earlier has noted. No supervisory personnel are “noticing if a retired cop is depressed, or if he’s developing Parkinson’s disease with involuntary shaking, or if he’s had a domestic restraining order issued against him,” says Bill Everett. “All an agency can really say is that on one particular day during the preceding 12 months, the ex-officer was able to meet firearms qualification standards.”
Until the next testing day, it’s up to you to ask yourself, Do I feel qualified to carry and use a gun? Am I capable of making valid, split-second deadly force decisions? “There are significant issues here, involving psycho-motor skills, cognitive acuity, memory, judgment,” Lewinski says.
“Self assessment is inherently untrustworthy and flawed,” Lewinski declares. As one retired cop observed, “I can readily identify deterioration in guys I was on the job with. Seeing it in myself isn’t so easy to admit.” Witness the people who continue to drive automobiles, despite physical infirmities, slow reaction times and the cognitive inability to tell the difference between the brake and the accelerator!
5. Can you overcome a treacherous tactical disadvantage?
We all know the hazards of intervening in situations off-duty, when you’re out of uniform and with no patrol car, no radio communications, no ballistic vest, no backup and probably no intermediate force options. And we know that your greatest tactical risk is that responding officers may not immediately recognize you as a friendly or understand your true role in the scenario.
Confusion about who you are and what you’re doing is likely to be dangerously and exponentially magnified when you’re out-of-state where street cops likely haven’t a prayer of knowing you personally. Misjudgments can so quickly turn tragic.
Lewinski is currently consulting in a case in which an undercover officer in California had taken an offender to the ground and was holding him with a gun to his head. A responding officer, not knowing the circumstances, thought the civilian-dressed officer was a homicidal bad guy and killed him. In another case, an off-duty officer saw cops struggling with an arrestee in an alley. He impulsively drew his personal weapon and ran toward them, intending to help. The uniformed officers thought he was backup racing to the suspect’s aid and shot him dead.
“There are enormous training issues surrounding the concealed carry law that have yet to be addressed, identified and dealt with,” Callanan says. Among these are survival tactics related to out-of-jurisdiction carry–an important subject that, like off-duty tactics generally, has so far been largely ignored.
6. Can you defend your shooting decisions without the benefits of immunity under the law and without your agency’s support?
“Federal law and the laws of many states provide police officers with immunity against civil and criminal liability for using deadly force in the line of duty,” says Everett. “This basically provides you with a layer of protection against naked second-guessing of your actions by a judge or jury. If you made a legitimate judgment call and a reasonable person could have come to the same conclusion, you get the benefit of the doubt.
“Off-duty or retired, you probably won’t get immunities for civil and criminal liability for your actions in another state. Like any other citizen, you’ll stand there with no special protections while your behavior is compared against the strictest legal standard in that state.”
Your agency may do whatever it can to successfully distance itself from you, you may not have the counsel of a union attorney, and the enormous costs that can rocket up with startling speed as you construct a defense may be yours alone to bear. Opinion is divided as to whether personal insurance will cover your deliberate, nonemployment use of deadly force; that’s a subject you should discuss candidly with your insurance agent. There does not appear to be insurance available from any major carrier to cover shooting liability specifically.
Regrettably, Callanan observes, the concealed carry law does not “describe any minimum course of instruction across the U.S. ” that would establish uniform standards and testing and help provide some liability defense for current and former officers.
Callanan, who appears frequently as an expert witness in law enforcement-related cases, foresees “all kinds of problems with the application of this law. It is fertile ground for the plaintiff’s bar in suing” officers and former officers–and for “successfully confusing jurors” to a plaintiff’s advantage. To date, it is too soon for a body of relevant legal precedents to have been established to guide you.
“As you add guns to the mix out there,” Callanan says, “you add confrontations and controversial outcomes. If I was a plaintiff’s attorney, I’d think this was the greatest thing in the world.”
As you assess these risks in making your personal decision about interstate concealed carry, don’t forget to factor in the benefits. There’s really only one, but it is compelling.
“If I were traveling with a gun, I would be no more inclined to put myself in situations where I might be at risk than I would be without the authority or ability to carry legally.” says Everett. “I would still rely on common sense and my ability to read situations to avoid any circumstances that might develop into a violent outcome. I would shy as far away from trouble as I always have.
“But I have driven through Texas in the middle of the night in a motor home with my family and been glad I had a gun with me. Yes, I would take advantage of this law. It lets me give myself and my loved ones a layer of last-resort protection that I couldn’t legally have before, just in case trouble visits me and there’s no way around it.”
WE’D LIKE TO HEAR FROM YOU!
Let us know your opinions, experiences and recommendations regarding out-of-state concealed carry for off-duty and retired officers. You can e-mail us at: email@example.com. We will report representative communications in a future issue of Force Science News.
If you’d like to explore additional resources on this subject, here are 2 websites you might find helpful:
–Go to www.LMNC.org/lmcit/home.cfm for a briefing paper prepared by the League of Minnesota Cities Insurance Trust. This 3-page document was sent to municipalities who receive insurance protection against liability from the Trust. The paper candidly outlines what this insurer believes are the obligations, liability risks, insurance coverage concerns, and policy recommendations for governmental entities regarding the Law Enforcement Officers Safety Act of 2004.
–For a draft of a “specimen policy” on this law prepared by Americans for Effective Law Enforcement (AELE), the nonprofit law enforcement educational association, check in at www.aele.org/New.html. Of particular interest to retirees will be the recommended provision for a liability waiver that makes an ex-officer personally responsible “for all acts taken when carrying a concealed firearm.” The waiver includes a retiree’s signed agreement to indemnify the agency for any related damages it suffers.
The sample policy should be considered a “working document” subject to revision, says AELE’s executive director, Wayne Schmidt. At the AELE site you can also link to related articles, bulletins and documents, as well as the statute itself. This site also includes a recent memo from the U.S. Attorney General explaining how the law applies to current and retired federal officers. You can reach this document directly in pdf format at: http://www.aele.org/agmemo01312005%5b1%5d.pdf.
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