[Senate Report 108-29]
[From the U.S. Government Publishing Office]
Calendar No. 29
108th Congress Report
SENATE
1st Session 108-29
======================================================================
THE LAW ENFORCEMENT OFFICERS SAFETY ACT OF 2003
_______
March 26, 2003.--Ordered to be printed
_______
Mr. Hatch, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 253]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 253) to amend title 18, United States Code, to exempt
qualified current and former law enforcement officers from
state laws prohibiting the carrying of concealed firearms,
having considered the same, reports favorably thereon, and
recommends that the bill pass.
CONTENTS
Page
I. Purpose..........................................................1
II. Background on the legislation....................................2
III. Need for the legislation.........................................3
IV. Hearings.........................................................5
V. Committee consideration..........................................6
VI. Section-by-section analysis and discussion.......................9
VII. Congressional Budget Office cost estimate........................9
VIII.Regulatory impact statement.....................................10
IX. Minority views of Senator Kohl..................................11
X. Minority views of Senator Kennedy...............................12
XI. Changes in existing law.........................................20
I. Purpose
The purpose of S. 253, the ``Law Enforcement Officers
Safety Act of 2003,'' is to amend title 18, United States Code,
to authorize qualified off-duty law enforcement officers and
qualified retired law enforcement officers carrying
photographic identification issued by a governmental agency for
which the individual is, or was, employed as a law enforcement
officer, notwithstanding State or local laws, to carry a
concealed firearm that has been shipped or transported in
interstate or foreign commerce. This Act, however, does not
seek to supersede Federal law or limit the laws of any State
that permit private persons or entities to prohibit or restrict
the possession of concealed firearms on their property; or
prohibits or restricts the possession of firearms on any State
or local government property, installation, building, base, or
park.\1\
---------------------------------------------------------------------------
\1\ In his Minority View, Senator Kennedy claims that S. 253 takes
the unprecedented tack of permitting certain governmental employees the
right to carry weapons in ``violation'' of state and local laws. He is
mistaken in his recollection of precedent. In 1993, Congress passed the
``Armored Car Industry Reciprocity Act'', Public Law No. 103-55, which
permitted armored car guards who have a license to carry a firearm in
one State to continue to carry a firearm in other States while
protecting shipments--notwithstanding the laws of the States. If
Congress extended these benefits to private security guards, it is
difficult to discern why we should not extend them to qualified law
enforcement officers who have substantially more training and
experience in using firearms.
---------------------------------------------------------------------------
II. Background on the Legislation
THE 107TH CONGRESS
During the 107th Congress, the ``Law Enforcement Officers
Safety Act of 2002,'' S. 2480, was introduced on May 8, 2002 by
Senate Judiciary Committee Chairman Leahy and Senate Judiciary
Committee Ranking Republican Member Hatch. Forty-one Senators--
including Senate Judiciary Committee Members Thurmond,
McConnell, Edwards, Feinstein, Grassley, Sessions, Brownback,
Cantwell, DeWine and Kyl--cosponsored S. 2480 in an effort to
make communities safer and to better protect law enforcement
officers and their families.
Representative Randy ``Duke'' Cunningham first introduced
similar legislation in the 102nd Congress as the ``National
Police and Peace Officer Protection Act,'' H.R. 4897, which was
cosponsored by 15 House members. It was referred to the House
Judiciary Committee Subcommittee on Crime and Criminal Justice
for consideration, but the Subcommittee took no action on the
bill.
Representative Cunningham reintroduced versions of this
legislation in the House in the 103rd, 104th, 105th, 106th and
107th Congresses. In the 105th Congress, as the ``Community
Protection Act,'' this legislation was ordered to be reported,
as amended, by voice vote by the House Judiciary Committee and
placed on the Union Calendar. No further action, however, was
taken on the bill in the 105th Congress. In 1999, the House of
Representatives adopted similar legislation, by a vote of 372-
53, as a floor amendment during its juvenile justice debate
before the overall legislation was defeated.
In the 107th Congress, Representative Cunningham
reintroduced the ``Community Protection Act,'' H.R. 218 on
January 3, 2001 and it garnered 275 cosponsors. On November 11,
2001, a motion was filed to discharge the Rules Committee from
consideration of H. Res. 271, which provided for the
consideration of H.R. 218. The discharge petition (No. 107-4)
obtained 44 of the required 218 signatures for further action.
No further action on H.R. 218 was taken by the House during the
107th Congress.
Chairman Leahy introduced the ``Local Law Enforcement
Officers Safety Act of 2002'' in the Senate at the request of
the late National President of the Fraternal Order of Police
(FOP), Lieutenant Steve Young of Ohio. Lt. Young and the FOP
have long dedicated themselves to this matter, and led the
campaign to focus Congress on this measure that will help make
our communities safer and protect those who are sworn to guard
and serve the American public.
THE 108TH CONGRESS
During the 108th Congress, on January 30, 2003 Senator
Campbell, Senate Judiciary Committee Ranking Member Leahy and
Senate Judiciary Committee Chairman Hatch introduced the ``Law
Enforcement Officers Safety Act of 2003''. Forty Senators--
including Senate Judiciary Committee Members Grassley, Kyl,
DeWine, Sessions, Feinstein, Schumer, Craig, Edwards, Graham
and Cornyn--have cosponsored the bill in an effort to make
communities safer and to better protect law enforcement
officers and their families. The bill, S. 253, was introduced
in the same form as reported out of the Senate Judiciary
Committee during the 107th Congress.
Again, during the 108th Congress, Representative Cunningham
introduced the companion to this bill, H.R. 218, in the House
of Representatives with one-hundred fifty eight cosponsors.
III. Need for the Legislation \2\
---------------------------------------------------------------------------
\2\ Senator Kennedy offered an amendment to S. 253 to prohibit
certain sales of armor piercing ammunition. This Trojan horse amendment
did not command the support of the Judiciary Committee. To the
contrary, a decided majority of members concluded that such a ban would
do little to protect law enforcement officials, and would unnecessarily
bog down the overwhelming bipartisan support for S. 253. Indeed, the
data cited by Sen. Kennedy--Federal Bureau of Investigation statistics
which show that nineteen law enforcement officers have been killed when
their body armor was pierced--did not remotely support his proposed
amendment. Each of these 19 reprehensible murders was committed with a
rifle--a high-powered weapon against which standard body armor offers
little protection. Indeed, many of these murders did not even involve
armor piercing ammunition. See http://www.fbi.gov/ucr/killed/
2001leoka.pdf, Table 11. Notably, Senator Kennedy offers not a single
example where law enforcement officers were killed with armor piercing
ammunition that was fired from a handgun.
---------------------------------------------------------------------------
Law enforcement officers are never ``off-duty.'' They are
dedicated public servants trained to uphold the law and keep
the peace. When there is a threat to the peace or to our public
safety, law enforcement officers are sworn to answer that call.
The Law Enforcement Officers Safety Act of 2003 enables law
enforcement officers nationwide to be armed and prepared when
they answer that call, no matter where, when, or in what form
it comes.
There are approximately 740,000 sworn law enforcement
officers currently serving in the United States. Since the
first recorded police death in 1792, there have been more than
16,300 law enforcement officers killed in the line of duty. A
total of 1,800 law enforcement officers died in the line of
duty over the last decade, an average of 180 deaths per year.
In 2001 alone, there were 232 police deaths, representing a 49
percent increase from the 156 officers who died in 2000.
Roughly 5 percent of officers who die are killed while taking
law enforcement action in an off-duty capacity. On average,
more than 62,000 law enforcement officers are assaulted each
year, resulting in some 21,000 injuries.\3\
---------------------------------------------------------------------------
\3\ ``The Officer Down Memorial Page, Inc.'' See http://
www.odmp.org/. See also ``Law Enforcement Officers Killed and
Assaulted--2001 (Preliminary).'' United States Department of Justice,
Federal Bureau of Investigations, Uniform Crime Reports.
---------------------------------------------------------------------------
While a police officer may not remember the name and face
of every criminal he or she has locked behind bars, criminals
often have long and exacting memories. A law enforcement
officer is a target in uniform and out; active or retired; on
duty or off.
The Law Enforcement Officers Safety Act of 2003, S. 253, is
designed to protect officers and their families from vindictive
criminals, and to allow thousands of equipped, trained and
certified law enforcement officers, whether on-duty, off-duty
or retired, to carry concealed firearms in situations where
they can respond immediately to a crime across state and other
jurisdictional lines.
As Lt. Steve Young stated in his testimony before the
Senate Judiciary Committee:
Among the many tools of a professional law
enforcement officer are the badge and the gun. The
badge symbolizes the officer's authority and, in worst-
case scenarios, the gun enforces that authority. These
tools are given to the officer in trust by the public
to enforce the peace and fight crime. In asking
Congress to pass this bill, we seek a measured
extension of that trust. In certain emergency
circumstances, an officer's knowledge and training
would be rendered virtually useless without a firearm,
as would his ability to provide for his own self-
defense or that of his family. This bill will provide
the means for law enforcement officers to enforce the
law, keep the peace and respond to crisis situations by
enabling them to put to use that training and answer
the call to duty when need arises.
Today, a complex patchwork of Federal, state and local laws
govern the carrying of concealed firearms for current and
retired law enforcement officers. Many members of the law
enforcement community, including the FOP, the National
Association of Police Officers (NAPO), Federal Law Enforcement
Officers Association (FLEOA), and International Brotherhood of
Police Officers (IBPO), believe that national legislation is
necessary because of this patchwork of concealed-carry laws.
This bill addresses this need by establishing national measures
of uniformity and consistency to permit law enforcement
officers to respond immediately to a crime when off duty, as
well as to protect officers and their families from vindictive
criminals.
The Law Enforcement Officers Safety Act of 2003 creates a
mechanism by which law enforcement officers may travel
interstate with a firearm. Qualified active-duty law
enforcement officers will be permitted to travel interstate
with a firearm, subject to certain limitations, provided that
officers are carrying their official badges and photographic
identification.\4\
---------------------------------------------------------------------------
\4\ Senator Kennedy imagines that this legislation will undermine
discipline and control within police departments. This is so, he
contends, because S. 253 will strip the ability of police departments
to enforce the rules and policies regarding what weapons officers may
carry while on-duty. Nothing of the sort is true. S. 253 imposes no
restriction on what weapons local police departments can require its
officers to carry--or not carry--while on-duty. It is settled law,
moreover, that local police departments have the authority to regulate
certain legally protected activities while officers are on duty. Not
surprisingly, police departments can require its officers to wear
certain uniforms and bar its officers from carrying certain equipment--
even though the officers are free to wear and carry whatever they want
on their own time. See Kelley v. Johnson, 425 U.S. 238 (1976)
(upholding police uniform and grooming standards); Daniels v. City of
Arlington, 246 F.3d 500 (5th Cir. 2001). The right supplied by S. 253
simply does not bar the authority of local police departments to govern
the duty standards of its officers.
---------------------------------------------------------------------------
Generally, an active-duty officer is qualified to carry a
concealed firearm under S. 253 if he or she is authorized to
engage in or supervise any violation of law, is authorized to
carry a firearm, is not subject to any disciplinary action by
the agency, and meets any agency standards with respect to
qualification with a firearm. In his or her official capacity,
though, a law enforcement officer is permitted to carry weapons
whenever Federal, state, or local law allows. This bill is not
intended to interfere with any law enforcement officer's right
to carry a concealed firearm, on private or government
property, while on duty or in the course of official business.
Off-duty and retired officers should also be permitted to
carry their firearms across State and other jurisdictional
lines, at no cost to taxpayers, in order to better serve and
protect our communities. The Law Enforcement Officers Safety
Act of 2003 would permit qualified law enforcement officers and
qualified retired law enforcement officers across the nation to
carry concealed firearms in most situations. It also preserves,
however, any State law that permits citizens from restricting a
concealed firearm on private property and any State law that
restricts the possession of a firearm on State or local
government property.
In order to qualify for the bill's exemptions to permit a
qualified off-duty law enforcement officer to carry a concealed
firearm, notwithstanding the law of the state or political
subdivision of the state, he or she must have authority to use
a firearm by the law enforcement agency where he or she works;
not be subject to any disciplinary action; satisfy every
standard of the agency to regularly use a firearm; not be
prohibited by Federal law from receiving a firearm; and carry a
photo identification issued by the agency. The bill preserves
any State law that restricts concealed firearms on private
property, and preserves any State law that restricts the
possession of a firearm on State or local government property
or park.
For a retired law enforcement officer to qualify for
exemption from state laws prohibiting the carrying of concealed
firearms, he or she must have retired in good standing; have
been qualified by the agency to carry or use a firearm; have
been employed at least fifteen years as a law enforcement
officer unless forced to retire due to a service-connected
disability; have a non-forfeitable right to retirement plan
benefits of the law enforcement agency; meet the same state
firearms training and qualifications as an active officer; not
be prohibited by Federal law from receiving a firearm; and be
carrying a photo identification issued by the agency. This
section preserves any State law that permits restrictions of
concealed firearms on private property and preserves any State
law that restricts the possession of a firearm on State or
local government property or park.
IV. Hearings
On July 23, 2002 during the 107th Congress, the Senate
Judiciary Committee held one hearing on ``The Law Enforcement
Officers Safety Act of 2002, S. 2480.'' Testimony was received
from six witnesses, including Senator Max Baucus of Montana and
Representative Cunningham. The other witnesses were: Lieutenant
Steve Young, National President of the Fraternal Order of
Police; Mr. Arthur Gordon, a National Executive Board Member of
the Federal Law Enforcement Officers Association; Deputy Chief
of Police David Johnson of the Cedar Rapids Police Department
in Cedar Rapids, Iowa; and Colonel Lonnie J. Westphal, Chief of
the Colorado State Patrol.
V. Committee Consideration
THE SENATE JUDICIARY COMMITTEE CONSIDERATION DURING THE 107TH CONGRESS
The Committee on the Judiciary, with a quorum present, met
in open session for an executive business meeting on September
19, 2002, to consider S. 2480, the ``Law Enforcement Officers
Safety Act of 2002.''
The Committee approved by voice vote an amendment
introduced by Senator Durbin. The Durbin amendment increased
the service requirement for a retired officer to qualify to
carry a concealed firearm under the bill from 5 years to 15
years of regular employment for a law enforcement agency. The
Durbin amendment also required retired officers to meet the
same firearms training qualifications as active law enforcement
officers. Finally, the Durbin amendment explicitly provided
that an active officer does not qualify under the bill if he or
she is prohibited by federal law from receiving a firearm.
Senator Kennedy offered an amendment to bar officers from
carrying a concealed firearm into another state unless they
were permitted to carry that particular firearm while on active
duty. The Committee, on a 9-9 roll call vote, defeated this
amendment. The Committee did not complete consideration of S.
2480 on September 19.
On October 8, 2002, the Committee resumed consideration of
S. 2480, but no amendments were offered, and the Committee did
not complete consideration of the bill.
On November 14, 2002, the Committee adopted, without
objection, an amendment by Chairman Leahy and Senator Hatch to
clarify that the legislation does not cover any machinegun (as
defined in section 5845 of title 26), any firearm silencer (as
defined in section 921 of title 18) and any destructive device
(as defined in section 921 of title 18). The Committee then
ordered the Law Enforcement Officers Safety Act of 2002 to be
reported favorably to the full Senate, with Senator Kennedy
dissenting, with a recommendation that the bill do pass.
VOTES OF THE COMMITTEE DURING THE 107TH CONGRESS
The Committee approved by voice vote the amendment by
Senator Durbin.
The rollcall vote on the amendment by Senator Kennedy
barring officers from carrying any concealed firearm unless the
officer was authorized and qualified to carry that same firearm
was as follows:
Tally: 9 Yes, 9 No, 1 Not Voting
Democrats (10) Republicans (9)
N Leahy (Vt.) N Hatch (Utah)
Y Kennedy (Mass.) N Thurmond (S.C.)
Y Biden (Del.) N Grassley (Iowa)
Y Kohl (Wis.) Y Specter (Pa.)
Y Feinstein (Calif.) N Kyl (Ariz.)
Y Feingold (Wis.) N DeWine (Ohio)
Y Schumer (N.Y.) N Sessions (Ala.)
Y Durbin (Ill.) N Brownback (Kan.)
Y Cantwell (Wash.) N McConnell (Ky.)
NV Edwards (N.C.)
The Committee approved without objection the amendment by
Chairman Leahy and Senator Hatch regarding the types of
firearms covered by the legislation.
The Committee then ordered the Law Enforcement Officers
Safety Act of 2002, as amended, to be reported favorably to the
full Senate, with Senator Kennedy dissenting, with a
recommendation that the bill do pass. The full Senate took no
action on S. 2480 during the 107th Congress.
THE SENATE JUDICIARY COMMITTEE CONSIDERATION DURING THE 108TH CONGRESS
The Committee on the Judiciary, with a quorum present, met
in open for an executive business meeting on March 6, 2003, to
consider S. 253, the ``Law Enforcement Officers Safety Act of
2003.''
Senator Kennedy offered an amendment to clarify that the
bill does not interfere with the ability of State or local law
enforcement agencies from regulating the conditions under which
their officers may carry firearms.
The Committee, on a 16-3 rollcall vote, tabled this
amendment. The vote to table this amendment was as follows:
Tally: 16 Yes, 3 No
Republicans (10) Democrats (9)
Y Hatch (Utah) Y Leahy (Vt.)
Y Grassley (Iowa) N Kennedy (Mass.)
Y Specter (Pa.) Y Biden (Del.)
Y Kyl (Ariz.) Y Kohl (Wis.)
Y DeWine (Ohio) Y Feinstein (Calif.)
Y Sessions (Ala.) N Feingold (Wis.)
Y Graham (S.C.) Y Schumer (N.Y.)
Y Craig (ID) N Durbin (Ill.)
Y Chambliss (Ga.) Y Edwards (N.C.)
Y Cornyn (Tex.)
Senator Kennedy offered an amendment to expand the
definition of armor piercing ammunition and to require the
Attorney General to promulgate standards for the uniform
testing of projectiles against body armor.
The Committee, on a 10-6-3 rollcall vote, tabled this
amendment. The vote to table this amendment was as follows:
Tally: 10 Yes, 6 No, 3 not voting
Republicans (10) Democrats (9)
Y Hatch (Utah) Y Leahy (Vt.)
Y Grassley (Iowa) N Kennedy (Mass.)
Y Specter (Pa.) NV Biden (Del.)
Y Kyl (Ariz.) N Kohl (Wis.)
NV DeWine (Ohio) NV Feinstein (Calif.)
Y Sessions (Ala.) N Feingold (Wis.)
Y Graham (S.C.) N Schumer (N.Y.)
Y Craig (ID) N Durbin (Ill.)
Y Chambliss (Ga.) N Edwards (N.C.)
Y Cornyn (Tex.)
Senator Kennedy offered an amendment to permit individual
States to opt out from the provisions of the Act.
The Committee, on a 15-4 rollcall vote, tabled this
amendment. The vote to table this amendment was as follows:
Tally: 15 Yes, 4 No
Republicans (10) Democrats (9)
Y Hatch (Utah) Y Leahy (Vt.)
Y Grassley (Iowa) N Kennedy (Mass.)
Y Specter (Pa.) Y Biden (Del.)
Y Kyl (Ariz.) N Kohl (Wis.)
Y DeWine (Ohio) Y Feinstein (Calif.)
Y Sessions (Ala.) N Feingold (Wis.)
Y Graham (S.C.) Y Schumer (N.Y.)
Y Craig (ID) N Durbin (Ill.)
Y Chambliss (Ga.) Y Edwards (N.C.)
Y Cornyn (Tex.)
Senator Kennedy offered an amendment to clarify that the
bill does not supersede State or local laws that prohibit or
restrict the possession of concealed firearms in various public
places.
The Committee, on a 14-4 rollcall vote, tabled this
amendment. The vote to table this amendment was as follows:
Tally: 14 Yes, 4 No, 1 not voting
Republicans (10) Democrats (9)
Y Hatch (Utah) Y Leahy (Vt.)
Y Grassley (Iowa) N Kennedy (Mass.)
Y Specter (Pa.) Y Biden (Del.)
Y Kyl (Ariz.) N Kohl (Wis.)
NV DeWine (Ohio) Y Feinstein (Calif.)
Y Sessions (Ala.) N Feingold (Wis.)
Y Graham (S.C.) Y Schumer (N.Y.)
Y Craig (ID) N Durbin (Ill.)
Y Chambliss (Ga.) Y Edwards (N.C.)
Y Cornyn (Tex.)
The Committee then ordered S. 253, the Law Enforcement
Officers Safety Act of 2003, to be reported favorably to the
full Senate with a recommendation that the bill do pass on a
vote of 18-1, Senator Kennedy dissenting. The Committee vote on
S. 253 was as follows:
Republicans (10) Democrats (9)
Y Hatch (Utah) Y Leahy (Vt.)
Y Grassley (Iowa) N Kennedy (Mass.)
Y Specter (Pa.) Y Biden (Del.)
Y Kyl (Ariz.) Y Kohl (Wis.)
Y DeWine (Ohio) Y Feinstein (Calif.)
Y Sessions (Ala.) Y Feingold (Wis.)
Y Graham (S.C.) Y Schumer (N.Y.)
Y Craig (ID) Y Durbin (Ill.)
Y Chambliss (Ga.) Y Edwards (N.C.)
Y Cornyn (Tex.)
VI. Section-by-Section Analysis and Discussion
Section 1. Short title
Section 1 provides that the short title of the bill shall
be the Law Enforcement Officers Safety Act of 2003.
Section 2. Exemption of qualified law enforcement officers from state
laws prohibiting the carrying of concealed firearms
Section 2 would permit qualified law enforcement officers
to carry a concealed firearm notwithstanding the law of the
state or political subdivision of the state. A qualified law
enforcement officer under this section must be authorized to
use a firearm by the law enforcement agency where he or she
works, not be subject to any disciplinary action, meet the
standards of the agency to regularly use a firearm, not be
prohibited by Federal law from receiving a firearm, and be
carrying a photo identification issued by the agency. This
section preserves any State law that restricts concealed
firearms on private property and preserves any State law that
restricts the possession of a firearm on State or local
government property or park. This section does not supercede
any other Federal law.
Section 3. Exemption of qualified retired law enforcement officers from
state laws prohibiting the carrying of concealed firearms
Section 3 would permit a qualified retired law enforcement
officer to carry a concealed firearm notwithstanding the law of
the State or political subdivision of the State. A qualified
retired law enforcement officer under this section must have
retired in good standing, have been qualified by the agency to
carry or use a firearm, have been employed at least fifteen
years as a law enforcement officer unless forced to retire due
to a service-connected disability, have a non-forfeitable right
to retirement plan benefits of the law enforcement agency,
annually meet State firearms training and qualifications that
are the same as active law enforcement officers, not be
prohibited by Federal law from receiving a firearm, and be
carrying a photo identification issued by the agency. This
section preserves any state law that permits restrictions of
concealed firearms on private property and preserves any state
law that restricts the possession of a firearm on State or
local government property or park. This section does not
supercede any other Federal law.
VII. Congressional Budget Office Cost Estimate
The cost estimate from the Congressional Budget Office
estimates that implementing the bill would result in no costs
to the federal government, would not affect direct spending or
receipts, and would result in no direct costs to state and
local governments.
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 12, 2003.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 253, the Law
Enforcement Officers Safety Act of 2003.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
S. 253--Law Enforcement Officers Safety Act of 2003
S. 253 would exempt certain current and retired law
enforcement officers from most state and local laws prohibiting
the carrying of concealed handguns. CBO estimates that
implementing the bill would result in no costs to the federal
government. Enacting S. 253 would not affect direct spending or
receipts.
S. 253 would impose an intergovernmental mandate as defined
in the Unfunded Mandates Reform Act (UMRA) because it would
preempt certain state and local laws that prohibit carrying
concealed weapons. CBO estimates that complying with the
mandate would result in no direct costs to state and local
governments, and thus would not exceed the threshold
established by UMRA ($59 million in 2003, adjusted annually for
inflation). S. 253 contains no new private-sector mandates as
defined in UMRA.
The CBO staff contacts for this estimate are Mark Grabowicz
(for federal costs), and Greg Waring (for the impact on state
and local governments). This estimate was approved by Peter H.
Fontaine, Deputy Assistant Director for Budget Analysis.
VIII. Regulatory Impact Statement
In compliance with paragraph 11(b)(1), rule XXVI of the
Standing Rules of the Senate, the Committee, after due
consideration, concludes that S. 253 will not have significant
regulatory impact.
IX. ADDITIONAL VIEWS OF SENATOR KOHL
While I supported S. 253 in the Judiciary Committee, I did
so with one major reservation.
Wisconsin has a 130 year old prohibition against carrying
concealed weapons. Efforts to overturn the ban in the state
legislature and the state courts have been denied time and time
again. Indeed, the Wisconsin legislature addressed the issue as
recently as March 2002.
Wisconsin is one of only a handful of states that do not
permit concealed weapons to be carried. An overwhelming
majority of Wisconsinites--68 percent--oppose a concealed carry
law for private citizens. Among law enforcement officers, 48
percent oppose permitting citizens to carry concealed weapons
and only 45 percent support it. Additionally, the Wisconsin
Chiefs of Police Association has consistently opposed
legislation that would lift the ban.
I expect that Wisconsin will have the opportunity to
continue this prohibition on concealed carry laws if the state
legislature chooses. We certainly trust our law enforcement
professionals, but I would prefer that Wisconsin decide for
itself the policy on this important issue. For this reason, I
support S. 253, the Law Enforcement Officers Safety Act of 2003
with the expectation that either before it passes the full
Senate or in conference with the House version of the bill, a
state opt-in or state opt-out provision will be included. I
prefer a requirement for states to decide whether or not they
will opt-in, however under no circumstances should a bill be
signed into law that does not take into consideration a state's
choice to prohibit the carrying of concealed weapons within
that state.
Herb Kohl.
X. MINORITY VIEWS OF SENATOR KENNEDY
I oppose S. 253, the ``Law Enforcement Officers Safety
Act.'' If we had voted on the title of this bill alone, I would
have supported it. Day in and day out, law enforcement officers
put their lives on the line so that we can all live more
securely. We should do everything we can to protect their
safety.
This legislation, however, is a serious step in the wrong
direction. It will undermine the safety of our communities and
the safety of police officers by broadly overriding state and
local gun-safety laws. It will also nullify the ability of
police departments to enforce rules and policies on when and
how their own officers can carry firearms. Because of the
substantial danger that S. 253 poses to police officers and
communities, it is vigorously opposed by the International
Association of Chiefs of Police, the Police Executive Research
Forum, and the U.S. Conference of Mayors.
A. S. 253's Sweeping Override of State and Local Gun Safety Laws is
Unprecedented and Unwarranted
There is no precedent for what the supporters of S. 253
intend to accomplish. Congress has never passed a law giving
current and former state and local employees the right to carry
weapons in violation of controlling state and local laws.
Congress has never passed a law interfering with the ability of
state and local police chiefs to regulate their own officers'
carrying of firearms.
Every year, thousands of our fellow citizens are killed by
guns. The rate of firearm deaths among children is nearly
twelve times higher in the United States than in other
industrial countries. These deaths are senseless, and we all
know that the vast majority of them could be prevented by
sensible gun laws. It is shameful that we are not doing more in
Congress to achieve gun safety and reduce gun violence. The
``gun show loophole,'' which allows firearms to be purchased
illegally at gun shows, should have been closed long ago, and
there are many other steps that Congress should take to protect
our citizens from the scourge of gun violence.
At the very least, Congress should refrain from interfering
with gun-safety laws enacted by states and local governments.
Today, each state has the authority to decide what kind of
concealed-carry law, if any, best fits the needs of its
communities. Each state can make its own judgment about whether
private citizens should be allowed to carry concealed weapons,
and whether on-duty, off-duty, or retired police officers
should be included or exempted in any prohibition.
There is no evidence that states or local governments have
failed to consider the interests and needs of law enforcement
officers. Consider, for example, New Jersey law. In 1995,
retired police chief John Deventer was shot and killed while
heroically trying to stop a robbery. This incident prompted New
Jersey to enact a law allowing retired officers to carry
handguns under a number of conditions. In drafting this law,
the New Jersey legislature made a deliberate effort to balance
the safety of police officers with the safety of the public at
large, by including a number of important safeguards that are
not contained in S. 253. For example:
New Jersey's law is limited to handguns. S. 253 is
not.
New Jersey's law has a maximum age--70. S. 253
does not.
Under New Jersey's law, retired police officers
must file renewal applications yearly. There is no application
process under S. 253.
New Jersey's law requires retirees to list all
their guns. No such record is required under S. 253.
New Jersey gives police departments discretion to
deny permits to retirees. No such discretion is provided under
S. 253.
By enacting S. 253, Congress will be gutting all of the
safeguards contained in the New Jersey statute--as well as the
judgment of other states that have considered this issue.
The sponsors of S. 253 have presented no evidence that
states and local governments are unable or unwilling to decide
these important issues for themselves. They have offered no
explanation why Congress is better suited than states, cities,
and towns to decide how to best protect police officers,
schoolchildren, church-goers, and other members of their
communities. Congress should bolster, not undermine, the
efforts of states and local governments to protect their
citizens from gun violence.
In the House of Representatives, Chairman James
Sensenbrenner has described this bill as ``an affront to state
sovereignty and the Constitution.'' In the Senate Judiciary
Committee, on March 6, I offered an amendment to give states
the opportunity to opt out of the bill's broad federal mandate.
It would have allowed state legislatures to decide for
themselves whether they would provide special privileges for
current and former law enforcement officers, or whether they
will address this issue on their own terms and keep their
existing gun-safety laws intact. The Committee voted to table
this amendment, 15-4.
I also offered an amendment to preserve state and local
laws that prohibit concealed weapons in churches, schools, bars
and other places where alcohol is served, sports arenas,
government offices, and hospitals. In many states, cities, and
towns, these places are singled out as deserving special
protection from the threat of gun violence. Michigan has a law
that prohibits concealed firearms in schools, sports arenas,
bars, churches, and hospitals. Georgia law allows active and
retired police officers to carry firearms in publicly owned
buildings, but not in churches, sports arenas, or places where
alcohol is sold. Kentucky prohibits carrying concealed firearms
in bars and schools. South Carolina prohibits concealed
firearms in churches and hospitals.
S. 253 will override most such ``safe harbor'' laws at the
state level. It will override laws that categorically prohibit
guns in churches and other houses of worship, since only laws
that permit private entities to post signs prohibiting
concealed firearms on their property will remain in force. In
most states, churches are not currently required to post signs
in order to have a gun-free zone. S. 253 will also override
laws that prohibit concealed weapons in places where alcohol is
served. Surely, it is reasonable for a state to prohibit people
from bringing guns into bars, to prevent the extreme danger
that results when liquor and firearms are together!
At the local level, S. 253 inexplicably overrides all gun-
safety laws, without exception. In the 1990's, Boston, New
York, and other cities made great strides in the fight against
crime precisely because they were able to pass laws that
addressed the factors that lead to violence--including the
prevalence of firearms in inner cities. As Congressman Henry
Hyde has said, ``the best decisions on fighting crime are made
at the local level.'' By overriding all local gun-safety laws,
S. 253 will undermine the ability of cities to fight crime. The
bill will indiscriminately abrogate ``safe harbor'' laws in
Boston, New York City, Cincinnati, Columbus, Chicago, Kansas
City, and many other cities and towns.
Congress has no business overriding the judgment of states
and local governments in deciding where concealed weapons
should be prohibited. My amendment sought to preserve at least
a few basic ``safe harbors'' from the threat of gun violence.
The Committee voted to table this amendment, 14-4.
B. S. 253 Will Undermine the Safety of Our Communities and the Safety
of Police Officers
The Committee majority argues that S. 253 is needed because
the ``complex patchwork of Federal, state and local''
concealed-carry laws prevents officers from protecting
themselves and their families from ``vindictive'' criminals.
Supporters of this bill have distributed two lists of officers
and prison guards who were killed while off-duty or in
retirement. The stories of these slain men and women are
tragic, and their killers deserve to be severely punished. But
none of these incidents involved officers who were killed
outside their home state. They do not demonstrate a need for a
federal override of state and local gun-safety laws. To the
contrary, as New Jersey's response to the tragic shooting of
Chief Deventer shows, states and local governments are best
equipped to implement policies, regulations, and laws that
protect the safety of their own law enforcement officers, and
also protect the public at large.
The supporters of S. 253 also argue that by authorizing
officers to carry guns across state lines, in violation of
whatever state and local gun-safety laws would otherwise apply,
they will be able to effectively respond to crimes and
terrorist attacks. As the majority argues, the bill will enable
``law enforcement officers nationwide to be armed and prepared
when they answer that call, no matter where, when, or in what
form it comes.'' The Committee apparently envisages a nation-
wide unregulated police force, consisting of retired officers
and off-duty officers who are armed while on vacation or
traveling outside their home jurisdictions.
This bill is no way for the federal government to support
state and local law enforcement. Congress should be providing
full funding for first responders employed by state and local
governments; communications gear and other law enforcement
technology; and specific assistance programs such as the COPS
Universal Hiring Program, the Byrne Grant program, and the
Local Law Enforcement Block Grant program. Congress should also
enact needed gun-safety measures to protect the safety and
security of all Americans. We should strengthen Brady Law
criminal background checks for gun purchases, close the ``gun
show loophole,'' reauthorize the assault weapons ban, and amend
federal law to ensure that all ``cop killer'' bullets are
banned.
On this last issue, at the Judiciary Committee's meeting on
March 6, I offered an amendment to close the loopholes in the
federal ban on armor-piercing ammunition. Current law lacks a
``performance based'' standard for handgun ammunition that can
penetrate body armor. Even more important, there are no
restrictions on armor-piercing ammunition used in centerfire
rifles. According to the Federal Bureau of Investigation,
nineteen law enforcement officers were murdered in the last
decade after bullets penetrated their armored vests. Fourteen
of these officers were killed by bullets fired from .223
caliber rifles or 7.62 caliber assault weapons--and armor-
piercing bullets for these weapons continue to be marketed on
web sites today. Because it has no place in our society, I
offered an amendment banning all such armor-piercing
ammunition. The Committee defeated my amendment by a vote of
10-6, with three members not voting.
S. 253 stands in stark contrast to such needed gun-safety
legislation. Allowing off-duty or retired officers with
concealed weapons to go into other jurisdictions will only make
conditions more dangerous for police officers and civilians. As
the Executive Director of the IACP explained in a letter dated
February 12, 2003:
One of the reasons that this legislation is
especially troubling to our nation's law enforcement
executives is that it could in fact threaten the safety
of police officers by creating tragic situations where
officers from other jurisdictions are wounded or killed
by the local officers. Police departments throughout
the nation train their officers to respond as a team to
dangerous situations. This teamwork requires months of
training to develop and provides the officers with an
understanding of how their coworkers will respond when
faced with different situations. Injecting an armed,
unknown officer, who has received different training
and is operating under different assumptions, can turn
an already dangerous situation deadly.
S. 253 neither promotes consistent training policies among
different police jurisdictions nor limits the conditions under
which officers may use their firearms. The idea that more
crimes will be prevented when more concealed weapons are
carried by untrained and unregulated out-of-state, off-duty,
and retired officers is pure fiction.
It is important to note that in giving off-duty and retired
police officers broad authority to nullify state and local gun-
safety laws, S. 253 is not limited to the carrying of officers'
authorized weapons. In most police departments, officers may
seek authorization to carry a range of weapons. If an officer
wants to carry a weapon other than his service weapon
(typically, a nine-millimeter semi-automatic pistol), he must
prove that he is qualified before the department will authorize
him to carry it. To become qualified, the officer must
demonstrate that he can handle that weapon safely.
Rather than limiting its provisions to authorized weapons,
the initial version of this bill provided that as long as an
officer received authorization to carry a particular kind of
firearm (such as his service weapon), he could carry concealed
any other kind of firearm while off-duty or retired--even if he
never received authorization from his own police department to
carry that other weapon. Because the term ``firearm'' is
defined very broadly under federal law, see 18 U.S.C.
Sec. 921(a)(3), as long as an officer was authorized to use his
service weapon on the job, the initial version of this bill
would have allowed him to carry a concealed bomb or grenade
while off-duty or in retirement.
In the 107th Congress, I introduced an amendment providing
that an off-duty or retired officer could carry a concealed
firearm only if he had been authorized to carry that firearm by
the agency he works for, or if he had been so authorized at the
time of his retirement. The Committee rejected this amendment
by a 9-9 vote. The Committee later adopted an amendment
providing that the bill does not authorize the carrying of
machine guns, silencers, and destructive devices such as bombs
and grenades. This subsequent amendment took a step in the
direction of common sense. Clearly, no civilian--not even an
off-duty or retired police officer--needs to carry a machine
gun, bomb, or grenade. It is equally clear, however, that off-
duty and retired officers do not need to carry concealed
shotguns, sniper rifles, or other weapons that their own police
departments have not authorized them to carry. The Committee's
failure to limit the bill to authorized police weapons--or even
to handguns, as New Jersey law provides--will further undermine
the safety of American communities.
Serious safety problems are also raised by the bill's
override of gun-safety laws for retired officers, a category
that is defined to include anyone who has served in a law
enforcement capacity for fifteen years ``in the aggregate''
before retiring or resigning and taking a different job. There
is no requirement under S. 253 that a retiree demonstrate a
special need for a firearm. While S. 253 provides that an
officer must have technically left law enforcement in ``good
standing,'' it is well known that sub-par government employees
are routinely released from their positions without a formal
finding of misconduct. The bill does not draw a distinction
between officers who served ably and those who did not.
Officers who retire in ``good standing'' while under
investigation for domestic violence, racial profiling,
excessive force, or substance abuse could still qualify for
broad concealed-carry authority for the remainder of their
lives. As the International Association of Chiefs of Police has
observed:
This legislation fails to take into account those
officers who have retired under threat of disciplinary
action or dismissal for emotional problems that did not
rise to the level of ``mental instability.'' Officers
who retire or quit just prior to a disciplinary or
competency hearing may still be eligible for benefits
and appear to have left the agency in good standing.
Even a police officer who retires with exceptional
skills today may be stricken with an illness or other
problem that makes him or her unfit to carry a
concealed weapon, but they will not be overseen by a
police management structure that identifies such
problems in current officers.
Although Senator Durbin's amendment, approved by the
Committee in the 107th Congress and incorporated into the
current bill, clarified the firearms training standards that
retired officers must meet, these officers will not be subject
to any continuing police department policies or guidelines.
Section C, below, discusses the fact that S. 253 is likely to
nullify the ability of police departments to enforce rules and
policies on when and how their own officers can carry firearms.
Even if courts interpret this legislation as not overriding
police rules for active-duty officers, however, such rules will
still not apply to retired officers. In that event, Congress
will be perversely extending to former police officers greater
authority to carry concealed weapons than it extends to active
police officers. Community safety will be the casualty.
C. S. 253 Will Undermine Discipline and Control within Police
Departments
Perhaps the most troubling aspect of S. 253 is its
potential to undermine the effective and safe functioning of
police departments throughout the nation. The bill removes the
ability of police departments to enforce rules and policies on
when and how their own officers can carry firearms. Police
chiefs will lose the authority to prohibit their own officers
from carrying certain weapons on-duty or off-duty.
Section 2 of the bill provides that regardless of ``any
other provision of the law of any State or any political
subdivision thereof,'' any individual who qualifies as a law
enforcement officer and who carries photo identification will
be authorized to carry any firearm. In a variety of contexts,
including the federal preemption of state law, courts have
interpreted the term ``law'' to include agency rules and
regulations. The Supreme Court has ruled that this term
specifically includes contractual obligations between employers
and employees, such as work rules, policies, and practices
promulgated by state and local police departments. See Norfolk
& Western Ry. Co. v. Am. Train Dispatchers' Assoc., 499 U.S.
117 (1991).
As discussed in Section B, above, there is no requirement
in S. 253 that active-duty officers be authorized to carry each
firearm that they wish to carry concealed. All that subsection
(c)(2) requires is that an officer be authorized to carry ``a
firearm.'' Pursuant to subsection (c)(4), the officer need only
satisfy the agency's standards with respect to ``a firearm.''
In other words, once an officer qualifies to carry a service
weapon, he will have the right under this bill to carry any
gun, on-duty or off-duty--even if doing so violates his own
police department's rules.
Thus, if Congress enacts this legislation, police chiefs
will be stripped of their authority to tell their own officers,
for example, that they cannot bring guns into bars while off-
duty; that they cannot carry their service weapons on vacation;
or that they cannot carry certain shotguns, rifles, or handguns
on the job.
As the International Association of Chiefs of Police stated
in a letter to the Committee, ``under the provisions of S. 253,
police chiefs and local governments would lose the authority to
regulate what type of firearms the officers they employ can
carry even while they are on duty.''
As a result, the legislation would effectively
eliminate the ability of a police department to
establish rules restricting the ability of officers to
carry only department-authorized firearms while on
duty. The prospect of officers carrying unauthorized
firearms while on duty is very troubling to the IACP
for several reasons.
First, an unauthorized weapon is unlikely to meet
departmental standards. This in turn means that the
officer will not have received approved departmental
training in its use, and will not have qualified with
the weapon under departmental regulations. Carrying an
unauthorized weapon thus presents a risk of injury to
the officer, fellow officers, and citizens, for the
weapon itself may be unsafe or otherwise unsuitable for
police use, and the officer may not be sufficiently
proficient with its use to avoid adverse consequences.
In addition to the risk of injury involved, the
carrying of unauthorized weapons is a major source of
police civil liability in the U.S. today. An officer
who fires an unauthorized weapon in the line of duty
risks civil liability for the officer and for the
department, even though the shooting may have been
otherwise legally justified. A number of civil-suit
plaintiffs have contended that the mere fact that the
weapon that caused the plaintiff's injury was
unauthorized is, in itself, sufficient legal grounds
for a finding of liability.
For these and other reasons, the IACP concluded that S. 253
``has the potential to significantly and negatively impact the
safety of our communities and our officers.''
Law enforcement executives face extremely difficult
challenges today. As crime rates have started to rise again and
new concerns about domestic security have emerged, police
chiefs are forced to do more with less. The weak economy has
forced cities and states to cut back on funding for law
enforcement. The Administration's budget proposes to eliminate
all federal funding for such critical programs as the COPS
Universal Hiring Program, the Byrne Grant program, and the
Local Law Enforcement Block Grant program.
The last thing Congress should do now is pass a bill that
expands the civil liability of police departments and nullifies
the ability of police chiefs to regulate their own officers'
use of firearms and to maintain discipline. At the Committee's
meeting on March 6, I offered an amendment providing that S.
253 would not supersede or limit the rules, regulations,
policies, and practices of any state or local law enforcement
agency. The Committee defeated this amendment by a vote of 16-
3. By denying police chiefs the right to run their own
departments, the Committee dealt a blow to common sense and
public safety.
D. Conclusion
Each state and local government should be allowed to make
its own judgment as to when citizens and out-of-state visitors
may carry concealed weapons--and whether active or retired law
enforcement officers should be included in or exempted from any
prohibition. In the words of the International Association of
Chiefs of Police, it is ``essential that state and local
governments maintain the ability to legislate concealed carry
laws that best fit the needs of their communities.''
S. 253 will unnecessarily damage the efforts of states and
local governments to protect their citizens from gun violence.
It will also expose state and local governments to unnecessary
liability and nullify the ability of police chiefs to maintain
discipline and control within their own departments. I regret
that the Committee did not adopt the amendments that I offered
to correct the bill's most serious flaws. The nation will be
better served if Congress puts this misguided legislation
aside, and turns its attention to measures that we know will
reduce crime and enhance the safety of police officers and all
Americans.
Edward M. Kennedy.
XI. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 253, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman);
UNITED STATES CODE
* * * * * * *
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
Part Section
I. CRIMES................................................. 1
* * * * * * *
PART I--CRIMES
Chapter Section
1. General provisions..................................... 1
* * * * * * *
44. Firearms.............................................. 921
* * * * * * *
CHAPTER 44--FIREARMS
Sec.
921. Definitions.
* * * * * * *
926. Rules and regulations.
926A. Interstate transportation of firearms.
926B. Carrying of concealed firearms by qualified law enforcement
officers.
926C. Carrying of concealed firearms by qualified retired law
enforcement officers.
* * * * * * *
Sec. 926A. Interstate transportation of firearms
Notwithstanding any other provision of any law or any rule
or regulation of a State or any political subdivision thereof,
any person who is not otherwise prohibited by this chapter from
transporting, shipping, or receiving a firearm shall be
entitled to transport a firearm for any lawful purpose from any
place where he may lawfully possess and carry such firearm to
any other place where he may lawfully possess and carry such
firearm if, during such transportation the firearm is unloaded,
and neither the firearm nor any ammunition being transported is
readily accessible or is directly accessible from the passenger
compartment of such transporting vehicle: Provided, That in the
case of a vehicle without a compartment separate from the
driver's compartment the firearm or ammunition shall be
contained in a locked container other than the glove
compartment or console.
Sec. 926B. Carrying of concealed firearms by qualified law enforcement
officers
(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; and
(5) is not prohibited by Federal law from receiving a
firearm.
(d) The identification required by this subsection is the
photographic identification issued by the government agency for
which the individual is, or was, employed as a law enforcement
officer.
(e) Defined Term.--As used in this section, the term
``firearm'' does not include--
(1) any machinegun (as defined in section 5845 of
title 26);
(2) any firearm silencer (as defined in section 921);
and
(3) any destructive device (as defined in section
921).
Sec. 926C. Carrying of concealed firearms by qualified retired law
enforcement officers
(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 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; and
(6) is not prohibited by Federal law from receiving a
firearm.
(d) The identification required by this subsection is
photographic identification issued by the agency for which the
individual was employed as a law enforcement officer.
(e) Defined Term.--As used in this section, the term
``firearm'' does not include--
(1) any machinegun (as defined in section 5845 of
title 26);
(2) any firearm silencer (as defined in section 921);
and
(3) a destructive device (as defined in section 921).
* * * * * * *