April 23, 2008

Questions raised about concealed carry for officers

The city's plan to allow retired police officers to carry concealed guns may come at a steep price for the city and the retired officers, according to a report from the Wisconsin Attorney General's office.

In a 2004 memo, Attorney General Peg Lautenschlager laid out several questions the state would need to address before passing a concealed-carry law for former cops. The memo was in response to a federal law passed in 2004 that allows current and retired officers to carry concealed guns anywhere in the country.

Liability is among the main concerns raised in the memo. If a retired officer uses a gun in public, is the state or local government liable for their actions? If a retired officer is arrested for carrying a gun (there is no way to check a person's background), could the officer sue for the mistaken arrest? Here's how the memo puts it:
Questions have arisen regarding civil liability flowing from conduct by officials adhering to the provisions of the Act. Since the Act requires a certification of training and presumably assumes some assessment of capability of the individual to have a concealed weapon, the main question concerning liability is whether state or local government officials or entities could be exposed to potential legal liability for actions they might perform in the course of implementing the Act.

Additionally, there is currently no database or other means by which local police in
Wisconsin could validate the concealed-carry credentials presented by an individual claiming to be an active or retired officer from another state. As a result, Wisconsin police might have occasion to arrest such an individual for carrying a concealed weapon in violation of state local law. If such an arrest turned out to be mistaken, the arresting authority could be exposed liability.

Third, there is the concern for liability for either the active duty or retired officer who
chooses to carry a concealed weapon. The Act does not speak to a broadened police authority. The Act simply provides the ability to carry a concealed weapon when the proper credentials obtained. As such, if an active duty officer chooses to use a weapon outside his or her jurisdiction, or if a retired officer who has no police authority whatsoever uses his or her weapon, such conduct could expose the person using the weapon to civil or criminal charges.
Lautenschlager's concerns may be overstated. Illinois, which, like Wisconsin, has a ban on concealed carry, has been quietly licensing retired officers to carry handguns for years.

Racine's ordinance tries to address liability by saying the retired officer is responsible for their actions, but it's hard to know if that would hold up in court. If the city is licensing ex-officers to carry guns, wouldn't they be at least partly responsible for the ex-officers' actions?

But it's unusual for a local government to pass gun legislation. Just like Racine cannot pass a law banning handguns in the city, it seems unusual that a city can legally expand concealed carry rights within its borders. In general, issues like this are handled at the state level. Legislation has been introduced to the Wisconsin Legislature, but has yet to pass.

City Attorney Rob Weber addressed the concern at a recent city meeting. He said the city's police chief has the right to allow ex-officers to carry concealed weapons, according to federal law.

A city committee unanimously passed the proposal. The City Council is scheduled to vote on the ordinance May 6.

The Journal Times supported the proposal.

We asked former alderman and gun control activist Pete Karas for comment on this story. Here's the argument against the ordinance:
Considering the probable and extreme liability risks to the City of Racine, it is irresponsible for the City to allow retired officers to carry concealed weapons until the State of Wisconsin enacts a law clarifying how the process will be handled in Wisconsin.

The City Council approving this puts not only the City, but also the retired officers at risk. Although they may be given local authority to carry a concealed weapon, any authority to use it is vague at best.


There are just too many unanswered questions at this point in time. Is there a liability risk? What if the permit holder travels to Mount Pleasant where this has not been enacted? Will there be recertification? What type of firearm standards and continuing qualification system will be created and used? Does the $100 fee cover the administrative and certification costs? Do any administrative restrictions violate the State's firearm preemption clause?


The list of questions could go on and on. This uncertainty is the reason that most states and municipalities, even those generally considered "pro-gun," have not yet acted on this federal law in the several years since it was enacted.

It is imprudent for Racine to be a pioneer in this instance. The City Council should do the prudent thing and table this resolution until such time when the State acts on this item, presumably in the next legislative session.

29 comments:

  1. I can;t tell you how misunderstood this issue is. This is allowed by a federal law that has been on the books since 2004. This law allows the carrying of concealed weapons by retired officers and it allows active officers to carry their weapons concealed anywhere in the US. Right now, an active duty cop from Cleveland could come to Racine and walk about with a concealed weapon. Additionally, a retired cop from Cleveland (or anywhere else) can come to Racine and carry a concealed weapon.

    Racine is NOT passing an ordinance to allow this. The city of Racine does not have the ability to allow or forbid the carrying of concealed weapons by anyone.

    The Police department could have been doing this since 2004. There is no need for council approval. The federal law says that in order for the retired officer to carry a concealed weapon, they 1) must be retired in good standing from a law enforcement agency, 2) have served at least 15 years, and 3) annually pass the qualification test that an active duty cop has to pass to carry a gun (at his own expense). There are other requirements, but those are the basics. The agency he is retired from will issue a photo id to the retired cop. The law requires the qualification tests to be paid for by the retiree. Chief Wahlen wants to conduct the tests and charge the retiree $100. It is that process that requires city approval - essentially to create the accounting mechanism to accept the money. If Chief Wahlen would ask the retirees to qualify somewhere else and bring proof that they paid for it and passed, there would be no council action needed.

    I would like to stress again that we are not passing an ordinance because we do not need to in this instance. In fact HR 218 states, "Notwithstanding any other provision of the law of any State or any political subdivision thereof". In other words, the federal law supersedes our state law and any laws we may have regarding concealed weapons.

    If you are going to do a piece questioning something, you might want to talk to someone who actually understands the situation.

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  2. I just took a closer look at your article:

    "But it's unusual for a local government to pass gun legislation. Just like Racine cannot pass a law banning handguns in the city, it seems unusual that a city can legally expand concealed carry rights within its borders."

    Seriously, did you even read the federal law? Did you ask anyone what was before the City Council? We are NOT passing legislation! The legislation to enable this was passed at the federal level. We ARE NOT expanding conceal carry rights, the feds did that. As I write this, retired Racine County Sheriff's Deputies can carry concealed weapons all over Racine and the country because of HR 218. Retired and active duty cops from all over the US could carry concealed weapons in the city right now if they wanted to.

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  3. Greg,

    Yeah, I understand the federal legislation. But as the former AG wrote, aren't there a number of issues that have to be addressed? Like how is it determined who is and isn't a retired cop? How are they issued licenses? Who is responsible for them? Are there liability concerns? It seems to me the state could have taken care of this a long time ago by simply creating a system for all municipalities to use. Why is this Racine's responsibility?

    As far as questioning, all I did was cite an AG's opinion that recommended the Legislature pass a law answering these questions.

    By your reasoning, why is the City Council taking this up? It seems like a waste of everyone's time if the city has really has no role to play in this.

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  4. "If you are going to do a piece questioning something, you might want to talk to someone who actually understands the situation."

    Gee thanks, Greg. Anytime you want to go one on one in a firearm law bowl, let me know. :)

    To return the favor: I believe you may have missed the point.

    By passing the local resolution, the City is opening itself up to a liability risk. Why put the people of Racine at this financial risk when the Council could wait maybe a year and have a State law? See the AG memo for guidance on this.....

    On another note: The State has to certify and set the certification criteria. From the federal law which you apparently have read:

    `(d) The identification required by this subsection is--

    ....

    `(2)(A) a photographic identification issued by the agency from which the individual retired from service as a law enforcement officer; and

    `(B) a 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.

    Note that the State's LESB has no such system in place to accomplish this requirement.

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  5. Regardless of what the fed law says re: retired police officers, how 'bout having the licensing system apply to ALL Racine residents? Is there a fed, state, county, city, law or ordinance preventing this?
    (I see a lot of $$ going to lawyers.)

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  6. Anon: State law prohibits the carrying of concealed weapons in Wisconsin.....

    Legislation to allow it has repeatedly failed.

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  7. Dustin -

    The reason we are taking this up is to create an account to allow the PD to accept the $100 fees. Absent that, we have no role to play.

    The bill is very clear on who is or is not a retired cop.

    Pete -

    Nice try. The legislation reads:

    `(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) a 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.

    It is either a photo ID and certification from the local agency OR a photo ID from the agency and a cert from the state.

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  8. No Greg, I believe you need to take a grammar class.

    Please refer to the "last antecedent rule".

    The AG memo supports me on this. Do a google search and many other sources also do.

    heehee

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  9. Grammatical Correction:

    "Please refer to the "last antecedent rule."

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  10. Drat!

    Okay, I missed the(2)while attempting to be overly clever.

    But my point still holds true by reading (1) The municipality does not set the standards, the State does. Those problematic issues are discussed in the AG memo....

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  11. ..."Anon: State law prohibits the carrying of concealed weapons in Wisconsin....."

    Except it seems for retired police officers. What other exceptions may there be?

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  12. 48 States allow concealed carry...

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  13. Would citizens be allowed to carry holstered weapons? Technically that would not be a "concealed" weapon, correct?

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  14. The AG was an idiot. This is Federal Law....across the entire US. The State has no role in it...none.

    Where is the liability (that isn't already there)....the Police Department isn't training retired officers. The give them a standardized pass / fail test...NOT Training...the liability is on the retired police officer.

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  15. Concealed Carry for officers should be a no brainer, the only srgument should be how do we get it done now?

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  16. Concealed Carry for most citizens should be a no brainer, the only srgument should be how do we get it done now?

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  17. Officers (and apparently retired officers) already can CCW.

    I was wondering why the city council would take this up considering the Federal Law that is already in place. If the only issue was to figure out a way for the department to test retirees and collect fees that should have been made clear right from the get go.

    On CCW...law abiding citizens should be able to arm themselves for protection. It is too bad police unions have been fighting against CCW laws. I do think it is only a matter of time CCW legislation will pass here in WI.

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  18. Fair Play -

    The City Council took this up because we need to create the account to accept the $100 testing and certification fee. That's it!

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  19. Thanks...I understand that now.

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  20. Ald. Helding, thank you for yet another over-simplification.

    It is hard to believe that the Chief would allow this without some sort of council approval. That said, I would suggest that the council not approve this and let the RPD find the money in their overblown budget if the Chief wants to go ahead with this insane idea. And when the lawsuits fly, let that come out of the same budget.

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  21. I really do not see how you can say I oversimplified this. I am trying to explain the situation as thoroughly as possible. It seems people who just do not like guns, or the police, are against this no matter what the facts are.

    Fact 1) The Chief does not need council approval because the federal law allows this "Notwithstanding any other provision of the law of any State or any political subdivision thereof".

    Fact 2) The federal law says that the retirees must be certified "at their own expense", so no money for this comes out of the Police budget. The council would not be approving the spending of money - it would be approving the accepting of money. If we said no, the retirees could pay the Sheriff, or any other agency that can qualify them using state standards, to certify them. They could then take that certification to the Chief and be issued their credentials to carry under the law.

    Fact 3) Lawsuits will not fly. The retirees sign wavers in order to get the credentials and they would be acting as any other private citizen. The CCW privielege does not create another city police force and the retirees have no more authority than any other citizen. The city would be no more liable for their actions with a firearm than they would be for your actions with a firearm. The only way we would be exposed to liability is if a retiree was acting in concert with a sworn officer in a situation that got us sued. If such a situation occured, we would be getting sued regardless - so there really is not more liability exposure than currently exists.

    On another note - would you care to enlighten me as to what portion of the RPD budget is "overblown"?

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  22. Scenario: Retired police officer is issued a permit when that individual was undergoing treatment for mental illness, going through a messy divorce,is subject to seizures, etc. Retired cop shoots someone wrongfully. Family sues individual and City claiming that permit should not have been issued. Waiver signed by retired cop ruled not valid. Retired cop has no money. City (people of Racine) pays because of joint and several liability.

    Why on earth take this risk?

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  23. Seriously? You have to come up with a scenarion that would make Rube Goldberg proud in order to oppose this?

    It is our City Attorney's opinion is that we are exposed to no more liability than we currently have with our sworn officers.
    His opinion is not gospel, but is legal advice. After reading his memo on the subject, I am convinced that we are not taking any undue risks with this.

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  24. These kind of lawsuits happen all the time, my friend. In addition, even if it is the same liability as sworn cops (I disagree, less control so more risk) why take on any extra risk of a lawsuit?

    I understand that this item will fly through, but when the lawsuit hits, please remember the warnings.....

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  25. I am not saying the liability is the same as with sworn officers. I am saying the city's overall exposure to liability will be no greater than it is now. The retirees will not be acting as agents of the city, nor is there any joint liability. The only way we could be exposed to liability is in the case of a retiree acting in concert with a sworn officer in a situation that results in a lawsuit. In that case, we would have been defending the sworn officer anyway - that possible liability already exists.

    You say that less control is equal to higher risk. In the case of liability, that is not true. If an agency has no control or authority over an individual, it is difficult, if not impossible, to hold the agency accountable for the individual's actions.

    This is not meant to slight the police, but the authority and control the city has over its sworn officers exposes us to a lot more liability than the retirees ever could.

    By the way, I tried googling HR218 and lawsuit, sue, suit, etc. The only hits I could find were folks like you worrying about it and articles about individuals suing for their rights under HR218. The more likely scenario of the city getting sued is if we tried to go against this federal law.

    I'm not saying that people will not sue if someone is injured or killed by a retiree - justifiably or not. I'm saying the likely scenario in the event that happens is the suit will be allowed to proceed against the individual and not the city.

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  26. They do have authority....they issue (or do not issue) a permit and the permit is discretionary. There is even consideration given under the proposal, not that that is a big factor. Therefore, the city is at risk.

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  27. Since Greg Helding took office three years ago he has had nothing but one bad idea after another. The only reason he was elected to a second term is because the person running against him was just as bad. He will not win again though for any elected office in the city or county.

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  28. Block shows his liberal bias, Karas rants and then gets the facts wrong in his quest to be cute, Helding explains the law in a straightforward manner and is accused of oversimplification. He comes on repeatedly, under his own name, and is bashed for trying to explain this. And then he is accused of having one bad idea after another by annymous. Why dont you have the guts to show yourself "annoymous"? If this is so bad go to the council meeting and speak out against it-I'm sure Karas and all his peaceniks will be there singing kumbaya and handing out carnations.

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  29. Why would the city's liability be any more or less than the state's and a driver's license?
    Or a hairstylist license, or law license?

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