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Ruling: Second Amendment Does Not Apply to “Machine Guns”

2012-08-16T19:28:00.002-04:00

Sheepdog Academy’s alumni already know that H.R. 218-LEOSA, 18 U.S.C. §§ 926B, 926C does not apply to machine guns, silencers, or destructive devices. For those who have not made it to one of our seminars or webinars and expected to argue that the Second Amendment to the United States Constitution protects and individual right to own or carry automatic firearms, be advised that four U.S. Circuit Courts have now held otherwise.

The Ninth Circuit Court of Appeals recently held in U.S. v. Mathew Henry that “machine guns” are “dangerous and unusual weapons” within the meaning of the Heller decision and therefore not included within the protections of the Second Amendment. Henry, a resident of Alaska, was prosecuted for illegal possession of a “machine gun” within his home. The firearm was a .308 caliber semi-auto rifle which Henry converted into an automatic rifle. Agents from the ATF found conversion instructions, kits, and parts within Henry’s home.

The Ninth Circuit looked to Heller and noted that the High Court stated that the Second Amendment only protects the right to own certain weapons, and that it “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Id. at 625. The Heller Court also concluded that the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ ” limits the right to keep and carry arms. Id. at 627.

The Ninth Circuited acknowledged that Heller did not specify that machine guns were excluded, but relied upon decisions in other circuits for that support, citing United States v. Allen, 630 F.3d 762, 766 (8th Cir. 2011); United States v. Marzzarella, 614 F.3d 85, 94-95 (3d Cir. 2010). cert. denied, 131 S. Ct. 958 (2011); Hamblen v. United States, 591 F.3d 471, 472, 474 (6^th Cir. 2009); United States v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008), cert. denied, 555 U.S. 1174 (2009).

The Henry Court reasoned that a machine gun is “unusual” because private possession of all new machine guns, as well as all existing machine guns that were not lawfully possessed before the enactment of § 922(o), has been unlawful since 1986. You can read the decision at

http://www.ca9.uscourts.gov/datastore/opinions/2012/08/09/11-30181.pdf

Sheepdog Exclusive: LEOSA Tested In Hawaii (This Ain't Kansas)

2012-03-04T23:56:00.007-05:00

For those who have attended a Sheepdog Academy seminar or webinar, you know that Hawaii is not the most LEOSA friendly state in the union. Handgun carry permits are not a realistic option in Hawaii, so for retired LEOs and all off-duty LEOs other than active Federal LEOs who carry off-duty under Federal agency authority, LEOSA is the only statutory carry authority in Hawaii. Hawaii bans ammunition magazines above ten rounds and requires handgun registration which is preempted by LEOSA.

In November 2011, we wrote about off-duty Diplomatic Security Special Agent Chris Deedy who was charged by Hawaiian authorities in an alleged fatal shooting inside a McDonalds in Waikiki, Hawaii. Deedy's nose was reportedly broken by the aggressor prior to the shooting which was captured on video and is expected to argue self-defense. Since Agent Deedy carried both under LEOSA and his agency’s authority in Hawaii, his case is a mixed LEOSA case. However, Mark Hunsaker, a potential witness in the Deedy case has tested LEOSA in Hawaii. No, this was not a defense gimmick. This was valiant conduct which embodies why Congress enacted H.R. 218-LEOSA.

Hunsaker is a licensed accountant in Hawaii and consults for Federal agencies in criminal prosecutions against accountants. He was not, however, consulted by the Deedy defense team for his accounting skills. Hunsaker is also a use of force expert. When he is not preparing 1040 tax forms or assisting the FBI, he moonlights one week per month on the mainland as a deputy sheriff in Chautauqua County, Kansas.

Deputy Sheriff Hunsaker in Kansas

On February 29, 2012, Hunsaker was at a local park when he observed what appeared to be a fight between two men. One man had a hammer and the other a meat cleaver. Hunsaker was armed with a .45, a cell phone, and his wits.

He took cover, dialed 9-11, and informed the communications center that he was an off-duty officer, described the scene, and requested uniformed assistance. Before the local police arrived, Hunsaker was able to stop the fight from a safe distance. Hunsaker then approached the man with the hammer, he had a wound on the back of his head. "Then he started to go back with the hammer, back towards the guy with the meat cleaver." Hunasker ordered the man with the hammer to stop, which he did. That suspect then fled.

Hunsaker did not pursue, instead he kept sight of the man with the cleaver and waited for the local police. A lone officer was first to respond and Hunsaker assisted as the officer approached and ordered the man to drop the cleaver. The suspect was non-compliant and was subdued by additional responding officers.

Hunsaker likely saved one or both men from killing each other. Hunsaker said it best, "I'm not there to enforce laws," "I'm in there to stop great bodily harm or death." This is precisely the sort of conduct Congress hoped for when it enacted LEOSA in 2004 and expanded its coverage in 2010. 800,000 qualified law enforcement officers and perhaps one million qualified retired LEOs with authority to carry concealed firearms nationwide to stop violent crime and terrorists who prey upon our society.

We thank Federal LEO Bullock for alerting us to this story. If you know of a LEOSA news story or pending case, let us know so we can help inform others.

An active off-duty officer who was recently arrested for unlawful possession outside his jurisdiction called us in February 2012 and reported that he had already spent $25,000 in legal fees and wished he had taken one of our classes before he was arrested. That officer had been on our contact list for two years and never attended any of our seminars or webinars. Was he too cheap to spend a few dollars or did he think he already knew all he had to? Who knows but that profile no doubt sounds like an active or retired LEO that you know.

Compare his story to the retired LEO alumni from one of our seminars who mistakenly drove into Canada with a backup handgun buried in his trunk. He had no problems leaving the country, but was detained when he crossed the border back into the U.S. Well trained U.S. CBP officers found the handgun. The stunned retired LEO had forgotten about it, and when questioned by CBP said, I have my “grand jury kit” and can explain. One of the CBP officers responded, ‘you must have taken the Sheepdog Academy LEOSA seminar.’ The retired LEO was then allowed to continue on with his journey and very happy that $50 spent on our seminar saved him a night in jail and thousands of dollars in legal fees.

We cannot guarantee that outcome in every case, but can guarantee we know more about LEOSA than you do and can help you reduce your risk of arrest or risk of being sued for carrying off-duty or as a retiree. Help us help you by signing up today for our DVD and/or seminar materials booklet.

Meanwhile, we will be presenting live LEOSA seminars in Newport News, Virginia on 28 April 2012 and in Las Vegas, Nevada on 24 May 2012. “Like us” on Facebook and see our website for information on course registration: http://hr218leosa.com/?page=courses

See what agencies and what LEOs have been to our seminars and webinars: http://www.hr218leosa.com/docs/Table%20of%20LEO%20Authorities.pdf
and http://www.hr218leosa.com/docs/LEOSA-Attendee-Agencies.pdf

Off-duty Officer Wins LEOSA Settlement for False Arrest

2011-01-24T22:14:00.007-05:00

Jason Davis, Esq.

Would you rather spend $40 on a Sheepdog Academy LESOA webinar or $44,000 in a settlement?

Coast Guard Reserve Petty Officer Jose Diaz has won a $44,000 settlement from the City of San Fernando, California for false arrest because one of their police officers did not understand HR218-LEOSA. Jason Davis, Esq. represented Diaz who is at least the seventh Coast Guardsmen arrested on charges for unlawfully posessing a firearm since LEOSA was enacted in 2004 and the seventh to beat the charges. Davis and Diaz, however, are the first team to recover a cash settlement.

Davis relied on the Booth case to establish that Diaz was covered by LEOSA. The U.S. Coast Guard has since issued ALCOAST 549/10 which makes clear that certified boarding officers, boarding team members and specified other Coast Guard personnel are covered by LEOSA.

The San Fernando Police Department is also reportedly now required to implement new policies and procedures regarding LEOSA. Diaz argued that the Police Department had a contest to see who could make more gun arrests. In November of 2007, Diaz was driving to a shooting range when he was subject to a motor vehicle stop to check his vehicle registration.

Upon approaching Diaz’s vehicle, the Officer observed a firearms case in the rear seat with a cable lock around the handle of the case. The Officer opened the case which contained two loaded magazines and an unloaded Glock pistol.

Diaz showed his Coast Guard ID and told the Officer that the LEOSA permitted him to carry a firearm, but the Officer did not believe that Diaz was covered by the Law Enforcement Officers Safety Act. Obviously, the arresting officer failed to attend any of Sheepdog Academy's 12 seminars and webinars on the topic. Shame on him.

The Officer arrested Diaz for unlawful possession of a loaded firearm. Diaz was spent one day and night in jail. The weapons charges were later dismissed.

Regretfully, no one from Diaz' Command was willing to testify in his case. Nonetheless, Davis and Diaz obtained a great result on their own and Diaz is now being all he can be in the Army National Guard.

If you did not attend our February 2011 or November 2010 LEOSA Seminars, you MUST attend our next LEOSA seminar being held on Saturday, 21 May 2011 from 10 am to 2 pm at the Essex County Police Academy in Cedar Grove, New Jersey. You can register online by clicking here http://hr218leosa.com/?page=courses

If you cannot attend, you can order our November 2010 seminar materials http://hr218leosa.com/?page=courses&course=001&material=001

Or contact us to host a live webinar or seminar at your police academy.

If you want faster LEOSA updates, click “Like It” on our Facebook Page.

Facebook: http://www.facebook.com/home.php?#!/pages/Sheepdog-Academy-LLC/166363213376404

Warning: N.J. State Police & Hollow Points

2011-01-21T15:07:00.002-05:00

The N.J. State Police Firearms Unit has requested that the N.J. Division of Criminal Justice reconsider its guidance regarding the possession of hollow nose ammunition by retired officers. Bottom line, Retired LEOs cannot legally carry hollow nose bullets in New Jersey unless the RLEO is LEOSA compliant.

We will discuss this issue in detail at our upcoming LEOSA seminar.

If you cannot attend, you can order our November 2010 seminar materials http://hr218leosa.com/?page=courses&course=001&material=001

Or contact us to host a live webinar or seminar at your police academy.

If you want faster LEOSA updates, click “Like It” on our Facebook Page.

Facebook: http://www.facebook.com/home.php?#!/pages/Sheepdog-Academy-LLC/166363213376404

LEOSA: Shootout Leaves Two Injured And Everybody Gets Sued

2011-01-17T13:40:00.004-05:00

Probationary Officer Bryan Pour

Does your agency have a LEOSA policy? If not, it should.

During the early morning hours of November 9, 2008, four off-duty St. Louis, Missouri police officers were socializing at Mack -N- Mick’s Sports Bar outside of Ponton Beach, Illinois. Police Officers Bryan Pour, Christopher Hantak, Philip Meyer, and another were in plain clothes, but were openly advertising that they were police officers by showing their badges and through other conduct. All but the unidentified officer were carrying their service handguns. Since Illinois does not issue carry permits or offer reciprocity, the three were carrying concealed firearms under LEOSA.

Pour, age 26, however, was ejected from the bar because of his level of intoxication, but he remained in the parking lot. That is where he became involved in a scuffle with three civilians outside—Kevin Elliott, Ted Wallace, and John Hadley. Pour ended up on the ground. Accounts of what happened next differ.

According to Jeffrey Bladdick, age 25, a friend of the three civilians, he observed Pour on the ground and helped lift him to his feet. Once on his feet, Pour allegedly spun around and fired one round into Bladdick’s torso. Bladdick testified that he had not interacted or conversed with Pour at anytime prior to picking him up off the ground. He also testified that he had no idea Pour was a police officer prior to the shooting.

Either way, Pontoon Beach Police then arrived. Responding Police Officer Aaron Morgan then shot off-duty St. Louis Police Officer Christopher Hantak in the head and once in the shoulder after Hantack reportedly refused to drop his handgun. Hantak was intoxicated at the time. Police Officer Morgan was subsequently cleared by a Grand Jury investigation, but was sued by Hantak for alleged excessive force.

According to Pour’s attorney, Bladdick struck him over the head with a pipe and that Pour acted in self-defense. Nonetheless, the St. Louis Police Department terminated the employment of Officers Pour, Hantak, and Meyer. Pour later pled guilty in August 2009 to a reduced charge of aggravated discharge of a firearm and received four years probation because of a request for leniency by Bladdick.

Bladdick sued Pour, the members of the St. Louis Police Department Board of Police Commissioners, and the bar. Pour and his agency were sued under the Civil Rights Act, 42 U.S.C. § 1983. Pour was also sued for negligence.

To establish a claim under § 1983, Bladdick must show that Pour “acted under color of state law.” However, Pour was not in St. Louis and therefore was not acting under state law. He had no police power. Instead, he carried into Illinois under LEOSA, which is Federal law. At the time of the shooting, Pour was intoxicated and was thus outside the scope of LEOSA coverage as wells as outside the scope of his agency’s policy.

The Federal Court dismissed the § 1983 claims against Pour, holding that he “was acting as a private citizen at the time” and not under color of law. It reasoned that his agency’s policy stripped him of authority once he became intoxicated. The policy specifically stated, “LEOSA does not provide authority for a person to carry a concealed firearm while under the influence of alcohol or any other intoxicating or hallucinating substance.” Everything Pour did after he became intoxicated was done for personal reasons, not to further any official policy. Carrying an agency firearm alone, was not enough to establish § 1983 liability.

The Federal Court also dismissed the § 1983 claims against the St. Louis Police Department and reasoned that although the Police Department failed to prohibit the carriage of its firearms across state lines, its LEOSA policy did prohibit carriage of agency firearms while intoxicated and provided for sanctions and other discipline.

Bladdick’s state law negligence claims against Pour and the bar were dismissed without prejudice on December 8, 2010, but can be refiled in state court. Importantly, however, while § 1983 claims allow prevailing plaintiffs to recover their attorney fees, negligence claims typically do not.

The lessons here, include the following: 1) Agencies need to have well written LEOSA policies; 2) agencies need to train their officers about LEOSA; 3) booze and firearms do not mix; and 4) anyone who carries a firearm must have LEOSA training and appropriate insurance coverage.

If you cannot attend, you can order our November 2010 seminar materials http://hr218leosa.com/?page=courses&course=001&material=001

Or contact us to host a live webinar or seminar at your police academy.

If you want faster LEOSA updates, click “Like It” on our Facebook Page.

Facebook: http://www.facebook.com/home.php?#!/pages/Sheepdog-Academy-LLC/166363213376404