Pait, 112818 SCAGO, AGO 3106

• Case Date: November 28, 2018
• Court: South Carolina

Mr. Clayton A. Pait AGO 3106 No. 3106 South Carolina Attorney General Opinions State of South Carolina Office of the Attorney General November 28, 2018          Mr. Clayton A. Pait          1734 Damon Drive          Florence, SC 29505          Alan Wilson, Attorney General          Dear Mr. Pait:          We received your request seeking an opinion on whether South Carolina State Constables are eligible to carry concealed handguns outside of South Carolina pursuant to the Law Enforcement Officer Safety Act. This opinion sets out our Office's understanding of your question and our response.          Issue:          Your extensive letter provides our Office with a great deal of background information and frames your legal question thus:

I am seeking definitive clarification on whether, or not, South Carolina State Constables (specifically, Group III non-paid/volunteer State Constables) are granted the privilege of carrying their personal concealed firearms (handguns) while off-duty and traveling outside of the State of South Carolina, as per the Law Enforcement Officers' Safety Act (LEOSA), as currently amended. Furthermore, the question extends to such Constables after they achieve "Retired Constable" status (for which they are eligible after ten years of aggregated service), provided they continue to meet the annual firearm requalification training as set forth by S.C. State Law, and do not otherwise become prohibited from possessing or carrying firearms.

         Response:          Our Office must decline to answer this question because we cannot opine on questions of federal law in the manner requested here. However, in order to be as responsive as possible to your question we will undertake to discuss powers and duties of a State Constable which appear to be consistent with the definition of a "qualified law enforcement officer" set out in the Federal LEOSA. We hope that this discussion of South Carolina law is helpful to you in shedding light on questions relating to the eligibility of a South Carolina State Constable to carry concealed handguns outside of South Carolina under the federal Law Enforcement Officer Safety Act, but we cannot offer any formal conclusion in response to this particular question.          Discussion of the LEOSA          The Law Enforcement Officer Safety Act is a federal statute which gives qualifying law enforcement officers and qualifying law enforcement retirees the legal right to carry a concealed firearm in any state, notwithstanding that state's law to the contrary but subject to certain exceptions. The LEOSA, which is commonly but imprecisely referred to as "HR218," is codified at 18 U.S.C. § 926B and § 926C and reads, in relevant part:

(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 or apprehension under section 807(b) of title 10, United States Code (article 7(b) of the Uniform Code of Military Justice);

(2) is authorized by the agency to carry a firearm;

(3) is not the subject of any disciplinary action by the agency which could result in suspension or loss of police powers;

(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.

(d) The identification required by this subsection is the photographic identification issued by the governmental agency for which the individual is employed that identifies the employee as a police officer or law enforcement officer of the agency.

18 U.S.C. § 926B(a)-(c) (2013). Our Office is not aware of any reported cases originating in South Carolina relating to the LEOSA, but several other state and federal jurisdictions have addressed the definition of a "qualified law enforcement officer" under Section 926 B(c). See discussion, infra. Of course, Section 926(B) is a federal statute which is intended by its express terms to supersede contrary state law in certain cases. 18 U.S.C. § 926B(a) (2013); see also DuBerry v. District of Columbia, 824 F.3d 1046, 1052 (D.C. Cir. 2016) ("Congress used categorical language ... to preempt state and local law to grant qualified law enforcement officers the right to carry a concealed weapon."). While state courts sometimes must interpret and apply the LEOSA, our discussion here will focus on certain Federal Courts of Appeals decisions which explain how the LEOSA is intended to apply. We discuss a few of the relevant authorities in this opinion, with the caveat that this discussion is not exhaustive.          It appears that the federal court system...