E-Newsletter Edition: July 29, 2009
Response Provided By: Jack Ryan, J.D.
Always note that state law may be more restrictive on police power than the U.S. Constitution.
We have a staff of reserve police officers. We are currently going through State Accreditation and that program does not answer the following question that has been raised by the reserve officers. They have asked if they are allowed to carry their pistols while “off-duty” as a regular police officer would. I can not find a model policy that addresses reserve officers.
Response presented with reference to South Carolina and Federal law – see the bottom of this article for more reference documentation.
We have always advised that an agency should not specifically authorize Reserve officers to carry their firearms off-duty and that a reserve who wants to carry off-duty should follow the state law for any citizen wishing to carry a concealed firearm. The minute an agency authorizes the off-duty carry they throw themselves into the mix for any off-duty incident with the firearm.
From the legal standpoint both federally and in South Carolina for purposes of concealed carry, the issue is addressed but requires an analysis of the particular reserves status. I have attached the South Carolina statutes on reserves as well as some federal law that I will make reference to.
Under South Carolina law reserves, like full-time officer can carry a firearm while they are carrying out the functions of the agency. SC 16-23-20 (Note-the power may be even more broad depending on how the statute is read as there is a bit of ambiguity as to whether out of state officer must be on official duty or whether this provision applies to all.)
Under federal law 18 U.S.C. § 926 B qualified law enforcement officers are allowed to carry firearms at all times and throughout the country. A qualified law enforcement officer must meet the following criteria:
(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;
(5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and
(6) is not prohibited by Federal law from receiving a firearm.
Under South Carolina law, only those reserves who have met the requirements for full-time law enforcement can carry out all the functions of a full time officer. SC §23-28-70. Thus, it seems that only those who meet this requirement would come close to hitting the “qualified law enforcement officer” exemption under federal law.
Additionally, a reserve must work under the direction of a full-time officer and must be in “proximate contact by radio or another device with the full-time officer to whom he is assigned.” Thus, the statute contemplates supervision by a full-time officer who would not be with the reserve when off-duty.
Based on the South Carolina law, it is my opinion that the reserves do not meet the “qualified law enforcement officer” definition and thus would not be eligible to carry off-duty under the federal exemption.
Although they may be exempted under the liberal reading of the South Carolina law, it seems to me that if they have to be supervised to have reserve powers while working under South Carolina law, the agency, which cannot supervise 24/7 while off-duty, should not authorize the reserves to carry. To do so, in my opinion would be in conflict with the law. That said, the agency should take no position pro or con on a decision by a reserve to obtain a permit under the law pertaining to all citizens.
SC Law: Carrying Firearms Exemption (MS Word Document)
SC Law: Reserves (MS Word Document)
US § 926B: Carrying of concealed firearms by qualified law enforcement officers (MS Word Document)