Can a retired Florida auxiliary law enforcement officer carry a concealed weapon under the federal LEOSA if they don't get a pension?

Plain-English summary

A retiring Florida Highway Patrol auxiliary officer asked whether he would qualify to carry a concealed weapon under the federal Law Enforcement Officers Safety Act (LEOSA), given that he met every requirement except collecting a pension from his agency. The Attorney General's office explained that it could not issue him a binding opinion. Its opinion authority is limited to public officials asking about their own official duties under state law, requires a request from the agency head, and generally does not extend to interpreting federal law. The office offered general information to be helpful.

The key point was a change in federal law. Under 18 U.S.C. 926C, a "qualified retired law enforcement officer" used to be defined to require, among other things, "a nonforfeitable right to benefits under the retirement plan of the agency." The Law Enforcement Officers Safety Act Improvements Act of 2010 (Public Law 111-272) rewrote that definition, replacing retirement-based language with separation-from-service language and dropping the vested-pension requirement. So, as the office noted, the federal definition no longer turned on whether the individual had a nonforfeitable right to agency retirement benefits. The office suggested the requester discuss the issue with his agency's attorney and the Criminal Justice Standards and Training Commission, which adopts implementing rules.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

This is an informal letter, and the office stressed the limits on its role: the Attorney General issues opinions to public officials on their own official duties under state law, on request from the agency head, and generally not on questions of federal law alone (though AGO 05-45 had previously discussed the federal act).

On the substance, 18 U.S.C. 926C governs concealed carry by qualified retired law enforcement officers and defines that term in subsection (c). The office quoted the post-2010 definition, which requires separation from service in good standing, prior authority and statutory arrest powers, an aggregate of 10 or more years of service (or separation due to a service-connected disability), recent firearms qualification, no disqualifying mental-health finding, no intoxication, and no federal firearms prohibition. Before the 2010 amendment, the definition required 15 years of service and "a nonforfeitable right to benefits under the retirement plan of the agency." Public Law 111-272 rewrote paragraph (4) and substituted separation language for retirement language, so the vested-pension condition no longer appears.

The office also pointed to state implementation: section 943.132, Florida Statutes, makes the Criminal Justice Standards and Training Commission within the Department of Law Enforcement responsible for implementing rules (Rule 11B-27.014, Fla. Admin. C.).

Common questions

Q: Does the federal LEOSA still require a retired officer to have a vested pension?
A: The office noted that the 2010 amendments removed the "nonforfeitable right to benefits under the retirement plan of the agency" language from the definition of qualified retired law enforcement officer in 18 U.S.C. 926C.

Q: Why couldn't the Attorney General just answer the question?
A: The office's opinion authority is limited to state officials' questions about their own duties under state law, requires a request from the agency head, and generally does not cover the interpretation of federal law. It offered general information instead.

Q: Who can answer whether a particular retiree qualifies?
A: The office suggested consulting the agency's attorney and the Criminal Justice Standards and Training Commission, which adopts the implementing rules under section 943.132.

Citations and references

Federal and state law:

• 18 U.S.C. s. 926C (concealed carry by qualified retired law enforcement officers)
• Pub. L. 111-272 (Law Enforcement Officers Safety Act Improvements Act of 2010)
• s. 943.132, Fla. Stat. (CJSTC implementing authority)
• Rule 11B-27.014, Fla. Admin. C.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/federal-law-enforcement-officers-safety-act
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8173

Original opinion text

Mr. Gustavo Menendez

8900 Southwest 50th Terrace

Miami, Florida 33165

Dear Mr. Menendez:

You request this office’s opinion as to whether you will qualify, when you retire as an auxiliary law enforcement officer from the Florida Highway Patrol, to carry a concealed weapon under the federal Law Enforcement Officers Safety Act of 2004. You state that as an auxiliary officer, you qualify "on all aspects of the law, except the collection of [a] pension from the agency."

Initially, I must advise you that the authority of the Attorney General to issue opinions is prescribed by law and is limited to public officials on questions relating to their own official duties under state law. This office requires that the head of the agency request an opinion of this office. Such a request should be submitted on the agency letterhead and accompanied by a memorandum of law prepared by the agency attorney. Moreover, this office generally does not issue opinions involving the interpretation solely of federal law, although in Attorney General Opinion 05-45, this office generally considered the provisions of the federal act. A copy of the opinion is enclosed.[1]

In an effort to be of some assistance, however, I would note that 18 U.S.C. s. 926C, relating to the carrying of concealed firearms by qualified retired law enforcement officers, defines the term "qualified retired law enforcement officer" in subsection (c). The law, which was amended in 2010 by the "Law Enforcement Officers Safety Act Improvements Act of 2010," defines the term to mean an individual who:

"(1) separated from service in good standing from service with a public agency as a law enforcement officer;

(2) before such separation, 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 separation, served as a law enforcement officer for an aggregate of

10 years or more; or

(B) separated 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) during the most recent 12-month period, has met, at the expense of the individual, the standards for qualification in firearms training for active law enforcement officers, as determined by the former agency of the individual, the State in which the individual resides or, if the State has not established such standards, either a law enforcement agency within the State in which the individual resides or the standards used by a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that State;

(5)(A) has not been officially found by a qualified medical professional employed by the agency to be unqualified for reasons relating to mental health and as a result of this finding will not be issued the photographic identification as described in subsection (d)(1); or

(B) has not entered into an agreement with the agency from which the individual is separating from service in which that individual acknowledges he or she is not qualified under this section for reasons relating to mental health and for those reasons will not receive or accept the photographic identification as described in subsection (d)(1);

(6) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and

(7) is not prohibited by Federal law from receiving a firearm."

Prior to its amendment in 2010, subsection (c)(4) required that the individual have "a nonforfeitable right to benefits under the retirement plan of the agency[.]"[2] Other changes to the act included amending language in the definition referring to retirement and substituting language relating to separation.[3]

Thus, the definition of qualified retired law enforcement officer in 18 U.S.C. s. 926C no longer includes language that such an individual have a nonforfeitable right to benefits under the agency’s retirement plan. You may wish to discuss this issue with the attorney who advises your agency.

Thank you for contacting the Attorney General’s Office.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/tsh

Enclosure: AGO 2005-45

[1] You may access the opinion online at: http://myfloridalegal.com/opinions. During the 2007 session, the Florida Legislature adopted section 943.132, Florida Statutes. Under the statute the Criminal Justice Standards and Training Commission within the Department of Law Enforcement is responsible for adopting rules to implement the act. You may wish, therefore, to contact the commission on this matter. See Rule 11B-27.014, Fla. Admin. C. You may access the rule, which was amended in 2010, on the Department of State’s website at: https://www.flrules.org/.

[2] See s. 2(c)(1)(D), Pub. L. 111-272, which rewrote paragraph (4).

[3] Prior to the 2010 amendment, 18 U.S.C. s. 926C(c) defined "qualified retired law enforcement officer" to mean an individual who:

"(1) retired in good standing from service with a public agency as a law enforcement officer, other than for reasons of mental instability;

(2) before such retirement, was authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and had statutory powers of arrest;

(3)(A) before such retirement, was regularly employed as a law enforcement officer for an aggregate of 15 years or more; or

(B) retired from service with such agency, after completing any applicable probationary period of such service, due to a service-connected disability, as determined by such agency;

(4) has a nonforfeitable right to benefits under the retirement plan of the agency;

(5) during the most recent 12-month period, has met, at the expense of the individual, the State's standards for training and qualification for active law enforcement officers to carry firearms;

(6) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and

(7) is not prohibited by Federal law from receiving a firearm." (e.s.)