Managing Encounters with Armed Off Duty and Retired Law Enforcement Officers

By: Jonathan D. Greenstein November 4, 2010
Note: The following should not be taken as legal advice or reflective of any agencies policy, procedures or position. Due to the varying application of laws and agency policies, it is incumbent upon the reader to thoroughly research their particular situation prior to engaging in any activity that may conflict with the law or employer policy. The opinions, interpretations, positions and analysis expressed in this article are the Authors alone, and unless cited as official policy, do not reflect any official agency rules.

Background
The focus of this article is not the legal nuances of or a full interpretation of the Law Enforcement Officers Safety Act (LEOSA), but one that focuses on advice to patrol officers who may encounter an armed current or retired LEO exercising their rights under the law. Notwithstanding, a brief review of LEOSA, its background and some references are in order. With the recent amendment to the Law Enforcement Officers Safety Act (LEOSA) 1,2, the number of active and separated law enforcement officers who can now carry nation-wide has increased exponentially. In general, LEOSA allows qualified active and post 10-year service law enforcement officers to carry a concealed firearm without meeting the general requirements applicable to civilians in regards to concealed weapon permits. For the purpose of this article and ease of discussion; officers who have left active service from a qualifying agency following the required time of service A , will be referred to as retired, although such officer may not be technically retired in the convention sense. Implementation of LEOSA has not been a smooth process for all parties involved 4, as with any new law there is a process in which agencies have to review and update their respective policies; states have to amend their laws and numerous entities need to be educated about the laws impact and implications5. The advantage of the recent amendment is that aside from some constructive changes, the main substance of the original version of the law is the same. Nationwide concealed carry rights for qualified active and retired officers. The initial provisions of and recent amendment to LEOSA requires that current and retired officers receive and maintain qualifications, respectively. For active officers such training is provided by the employing agency, where retired officers are required to obtain such training on an annual basis at their own expense. A notable change to the law under the recently enacted amendment allows retired officers to obtain the required annual certification in their state of residence through a qualified instructor versus the previous interpretation that lent to them having to return to the state of retirement to qualify. These retired officers are required to maintain annual certification with the same type of firearm carried in concert with other requirements: have in their possession photo ID from their former agency, not be under the influence of alcohol and not be otherwise disqualified C.

Since enactment of LEOSA into Federal Law and likely following the recent amendment, numerous states 6,7 have implemented certification/registration processes for their retired officers and have recently opened registration to resident retired officers. While this is not observed as a requirement under LEOSA, it does serve to create an additional layer of vetting and verification. While there is currently debate over the applicability of LEOSA to some federal law enforcement officers employed by certain entities of the government 3, the fact remains that the amendment has expanded who is covered and changes some aspects of the law. Since being passed into law in 2004 B, persons carrying a firearm under LEOSA have faced few legal issues, of those, the cases were dismissed following analysis of the respective officers’ exemption from local concealed permit requirements and firearm restrictions. As cited at the beginning of this article, it is not intended to be, nor should it be relied upon as a complete review of LEOSA and its implications; it is an article that addresses contact situations involving armed LEOs who are either off-duty or retired. Given that LEOSA affords nationwide carry for qualified officers, and numerous authorities encourage law enforcement officers to carry for their self defense 8,9,10 , the potential to encounter an unfamiliar officer who is armed exists. Therein lies the potential for a critical and potentially deadly situation to evolve from such contact. As any officer will verify, unless required by law or policy, engaging in off-duty enforcement action should be the last resort and only when it is a matter of life or death 11, 12, 13. As this article is not devoted to legal analysis, it is also not devoted to engaging in off-duty enforcement action; it is devoted to how to manage contact with individuals who are armed and off duty. How you approach a scene, from the moment the call is received can set the course to successful resolution or tragedy. How you approach an armed officer, be they an active cop from another jurisdiction or retired for over a decade can have the same potential impact. In a previous monograph, I expounded on how cops seem to have an air about them and we can seem to spot another cop at a mile out; is it the way they walk, the ever present elbow check of their duty belts contents, the universal white undershirt worn under even another t-shirt? While it may be hard to quantify how we know we are dealing with someone who is in the business, we seem to know; this is sometimes referred to as the totality of the circumstances in cases where we can’t quite articulate our suspicions, but just know. We have survived to this point in our careers by combining what we learned in the academy, under the expert tutelage of our respective FTOs, from the sometimes angry mouths of our Sergeants, through coffee break conversations and locker room quarterbacking. We learn by reading articles about cops, written by cops, through our critiques of the numerous “cop shows”, we learn from our mistakes and from the mistakes of those who served with and before us. I once had a co-worker say to me that if they could capture every lesson they learned in a bottle, it would be a big bottle and every cop he knew would want a sip. The point is that we learn and from that learning we tend to have common traits, regardless of where we happen to work; use these common traits to your advantage in applying the lessons presented here. Take a sip.

Detective Robert Gallagher of the NYPDs elite Anti-Robbery Tactical Unit was the source of information behind the widely disseminated “Spotting a Hidden Handgun” poster slash flyer that likely graces the driver’s side visor of many a cop car and hopefully was the topic of discussion at a recent roll-call. In the very informative training piece, Det. Gallagher applies the skills developed in what may be one of the most restrictive environments in which a person can legally carry a firearm outside of Washington, DC. As many of you know, New York City is one of those cities where guns are highly regulated and the carry of such is very restrictive. Now, combine the legal environment with the fact that the NYPD is one of the largest police departments in the business and translate that to the conceivable number of off-duty, retired and visiting cops who could be in the city at any given moment with their firearms and we come up with the next question: how often do off-duty cops get stopped by NYPD in regards to their firearms. Being that I don’t have access to their stop records, it is pure speculation but I would argue that the occasion is limited. Now, you may be asking “but if NYPD is so good at spotting concealed firearms and there are so many cops in the city, why not more stops”. Good question. It goes back to how we seem to know who is a cop versus who is pretending to be a cop; we just seem to know. Now I would never say dismiss a person who may be packing because they look like a cop, I am saying apply that gut feeling with common sense, sound tactics and the degree of professionalism you would hope for if the situation was reversed. It is likely a combination of factors, one of them being, in my opinion the most important: proper concealment. If properly concealed, a firearm is usually undetectable. If its undetectable, the potential for a contact is significantly lowered. While your department policies may dictate a full-on felony traffic stop, complete with hovering news choppers and soon to be released dash-cam video of the whole sorted affair should you encounter an armed individual; and I defer to your respective agencies policies, I proffer a degree of reasonableness in approaching an armed individual. While the chance is there that the person you encounter is not a LEO, there is the chance that they are; there is also the chance that they are a civilian with a permit; a security agent working a protective detail; a member of a foreign governments embassy staff who enjoys immunity, or a host of other situations where the person is armed lawfully and without nefarious intent. Again, I defer to your agencies policies, procedures and your professional application under the circumstances; you are there, not me. The most important consideration when encountering someone who is armed and whose intentions are unknown is your safety. Watch their hands, watch for telegraphing movements of the eyes and leverage the best position for approach and contact. Given the sheer number of encounters between the police and lawfully armed civilians and the notable lack of violently endings, there must be something to the position that all contacts be conducted with the same foundation: safety. In my opinion, it is the injection of an unknown when it comes to firearm encounters that lends to potentially bad escalation. When I say unknown, I mean the not knowing why they have the gun and what they intend to do to us with it.

By no means am I minimizing the potential for deadly encounters with armed civilians, be they carrying on a permit or exercising an open carry right D, nor am I saying that there is no potential for a deadly force encounter with an off-duty or retired cop; what I am saying is that despite the shockingly high number of law enforcement officers killed by firearms in the line of duty each year, of those who were killed, most never saw it coming. Be it an ambush, sneak attack or while distracted; they fell victim to a firearm. What I am saying is that while approaching every situation with caution, you should also understand that it’s possible that the armed individual is an active or retired cop (or licensed civilian) versus a bad guy. While statistics can be interpreted widely, the majority of armed person contacts end in the determination that the party is in-fact not engaged in criminal conduct. Bad guys tend to avoid police conduct, while lawfully armed individuals tend to be cooperative. Remember tactical approaches, contact and cover. Even if your cop-o-logic says this person is a cop, approach with the appropriate level of caution and coordination; just because you recognize the person as another LEO does not mean your partner knows, sees their gun and reacts accordingly. Appreciate that some cops just don’t think. They assume everyone knows they are a cop and react with confusion if you inquire as to their status, yet if they see an armed individual, they would likely engage them in a professional yet tactical manner to ensure they are not some nefarious character out to rob the local Diner. Unfortunately there is the potential to execute a major brain malfunction; off-duty cop sees a stick-up and rolls into action saving the day. Bad guy drops gun and clerk calls 9-1-1. The problem is that responding officers may not know the fellow now holding the gun is the hero in this story and rightfully command him to “drop it”. Off-duty officer without thinking turns, weapon in hand to say “I’m a good guy”…tragedy. Just as we try to predict the actions of a perpetrator, approach encounters with persons we believe may be off-duty or retired officers in the same manner. As the old adage goes:“In God we trust, all others get run through NCIC”; exhaust reasonable means to verify a person’s status. While we may not resort to a full wants and warrant check for someone we establish to be a cop, we should approach such contacts with a degree of suspicion until any lingering concern is satisfied.

Tactics
Each department has its own policies and procedures, and individual officers will apply their hard learned tactics when approaching and engaging an armed individual; I defer to those protocols. As a general overview though, the following is provided: During approach and observation look for telegraphing eye and body movements. Use a contact and cover officer whenever possible. It may be best to observe and wait for backup. Given the circumstances, securing the persons weapon until their identity and lawful authority can be verified may be in order.

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Avoid manipulating the person’s firearm. It is possible it may function differently from similar models. Appreciate that some cops may be incensed at being detained; the same applies for licensed and open carry civilians. As with any encounter, tact and de-escalation win battles.

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Who’s Who
Given that there are numerous federal agencies, the fifty states, the District of Columbia, territories and US possessions that employ firearm authorized personnel, it is virtually impossible to quantify the exact number of potential encounters that could occur. Understanding that in addition to federal, state and municipal agencies; there are colleges, railroads, and quasi-government agencies that also employ staff who carry firearms, the ability to quickly establish who is who can be a daunting task. Some agencies issue the most basic of credential while others provide high security, counterfeit resistant identity documents. Some entities only issue a generic employee ID that does not identify them as a LEO. Notwithstanding, any form of identification can be faked and it is incumbent upon contacting officers to apply common sense when evaluating an individual and the encounter. Ask for secondary forms of identification, their POST issued card (if applicable), annual qualification if they are a retired officer or other means to help you establish their legitimacy. Several training programs devoted to the discussion of LEOSA identify a measure referred to as: At the Time of Encounter (ATE) that is used to determine if the person in question is reasonably authorized to possess a firearm under the auspices of the law. By using the ATE process, officers are taking reasonable steps to determine if a violation is evident. What is important is to apply is a degree of reasonableness and fairness, while ensuring violations are appropriately acted upon. Given that it is impossible to recognize every form of identification issued to current and former LEOs, you must take steps to rule out any lingering doubts. The following list may help in evaluating contacts: 1: Evaluate the status of the person who claims to be carrying under LEOSA at the time you encounter him or her carrying the firearm. Just as you develop probable cause to arrest, use the same processes in this application. Think totality of the circumstances and the big picture. 2: Know the law: Under LEOSA, an active LEO must have their agency issued photo ID. There is no requirement that the ID cite their position, title, authority or otherwise. For retired LEOs, they must have an agency issued photo ID AND certification that they qualified on the type of weapon carried. Badges alone do not meet the requirement. In some cases, the LEO may only have a generic ID card that does not list their title. Remember that not every agency has fancy credentials. 3: If doubt exists, verify. For a person claiming to be an active LEO, normally a call to their employing agency will suffice; however there is a chance that the agency in question is limited service and there is no 24/7 contact. For retired officers, there may be issue in locating someone to verify they are in-fact retired from several years ago; this may be compounded by weekends and holidays when human

resources are not available to check records. Even more complicated is a retired cop from an agency that has since been dissolved; with the way the business is going, there is a real possibility that yet another municipality will be assimilated into a county department and long since retired officers will be harder to verify. 4: Look for evidence: Not evidence of wrong but right. As cited, a retired LEO must have a certification; while an id card can be faked, the potential imposter may not know about the annual qualification evidence requirement. For active LEOs; ask for a supervisor’s or their dispatch offices phone number, consider sending a Teletype, evaluate them using the earlier noted “just knowing”, and ask questions. 5: As noted in the footnotes and references, several states have implemented registration schemes for retired officers who reside in their jurisdiction and issue a form of documentation; while not a requirement under LEOSA, if does serve as an additional measure to verify their status. In the end, it may be a matter of having the person secure the weapon, documenting the contact and if it develops that they were not in-fact a current or retired LEO, you may be able to file charges. Again, this is a totality of the circumstances issue that you and potentially your supervisor will have to weigh.

Conclusion
Well before the passage of LEOSA, the potential to encounter an unfamiliar LEO in your jurisdiction has existed, the potential for that encounter to turn deadly has also always existed. By applying common sense and a tactical approach to any encounter with an armed individual can only serve to provide for the most desirable outcome; survival. While the potential for criminals to try and exploit the provisions of LEOSA are there, so are the tools available to law enforcement officers who conduct field contacts with persons claiming to be covered by the law. These tools are their hard earned experience, that of backup officers and knowledge of the law.

About the Author: Jonathan Greenstein has been involved in law enforcement and public safety for over fifteen years, having served as a patrol officer, field training officer, watch commander and criminal investigator. A graduate of numerous advanced training programs to include Hostage and Crisis Negotiations, Active Shooter Response and Tactical Operations; he applies his professional experience and training to the development best practices, policy and in the law enforcement oversight and advisory role. His most recent publications include articles related to officer safety, risk assessment and monographs that identify cues of terrorist activity and radicalization indicators. He currently serves as the District of Columbia representative for the International Association of Hostage Negotiators. He may be contacted by email through: jonathan.greenstein@leo.gov

References and Further Reading: Disclaimer: The presence of citations, links and their respective content are provided for the reader’s further research. The presence of such and any content therein may not reflect the Authors opinion, does not imply endorsement by the Author or any particular agency. Due to the dynamic nature of policies, procedures, tactics and the law, it is incumbent upon the reader to ensure they apply common sense and seek clarification where a question exists.

A: The amendment to 18 USC 926C, changed the language of the law from “retired” to “separated” and the term of service to “an aggregate of 10 years”. This change was due to variances in retirement eligibility and conflicting language. B: H.R. 218 was the original version of the Law Enforcement Officers Safety Act (18 USC 926B and 926C). It was passed and signed into law by then President George W. Bush on July 22, 2004 as Public Law 108-277 C: Common disqualifications include: conviction of a domestic violence offense, subject to a restraining order that stipulates or covers possession of firearms/ammunition. D: Several states either have provisions in their respective laws that permit, to some degree, the open carry of firearms in most public locations, while some require a permit, others have no prohibition against open carry of loaded firearms in public; which is interpreted to mean such is permitted.

1: Title 18 USC, Section 926B: http://uscode.house.gov/uscodecgi/fastweb.exe?getdoc+uscview+t17t20+547+0++%28%29%20%20AN 2: Title 18 USC, Section 926C: http://uscode.house.gov/uscodecgi/fastweb.exe?getdoc+uscview+t17t20+548+0++%28%29%20%20AN 3: Fraternal Order of Police LEOSA Information (10/21/2010): http://www.fop.net/servlet/display/news_article?id=2805&XSL=xsl_pages/public_news_individual.xsl& nocache=26727631 4: Article by: Craig E. Ferrell Jr., The Police Chief, vol. 71, no. 10, October 2004 http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=425&iss ue_id=102004 5: Illinois FOP; “Understanding LEOSA”: IL FOP: “Understanding LEOSA”: http://www.ilfop.org/PDF/UnderstandingLEOSA.pdf

6: Maryland State Police, LEOSA Application: (Link current as of 11/04/10) http://www.mdsp.org/downloads/LEOSA_APPLICATION.pdf 7: Virginia DCJS LEOSA Application: (Link current as of 11/04/2010) http://www.dcjs.virginia.gov/pss/special/leosa.cfm 8: Law Officer Article: “Off-Duty Survival”: http://www.lawofficer.com/article/magazine-feature/tacticsduty-survival 9: Street Survival Seminar-Course Outline: http://www.calibrepress.com/data2/pdfs/2010%20STREET%20SURVIVAL%20Seminar%20OUTLINE%2012-15-09.pdf 10: Off-Duty and Plain-Clothes Survival Tactics: http://criminaljustice.state.ny.us/ops/training/bcpo/offdutyandplainclothespoliceencounters.ppt 11: Police Link Article: “Off-Duty NYPD Cop Foils Robbery”: http://policelink.monster.com/news/articles/147305-off-duty-cop-foils-robbery-while-getting-hair-done 12: Off-Duty Preparedness: http://www.browardcrime.com/justifying.htm

13: PoliceOne Off-Duty: http://www.policeone.com/off-duty/ 14: Monograph: By: Jonathan D. Greenstein “Off-Duty Survival – A Refresher” Oct. 2010

© 2010 Jonathan D. Greenstein. All Rights Reserved. Distribution to law enforcement is hereby authorized. Commercial reproduction is not included in this limited release.

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