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Thread: Reference check: Off duty LEO and NO GUNS signs

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    Regular Member paramedic70002's Avatar
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    I am attempting to find something on the VA Code (maybe it's in the VAC?) that says off duty LEOs do not have to comply with a private property owner's "NO GUNS" sign. Of course it won't be worded like that. I know it's out there somewhere...

    Need the cite to refute someone. Or to admit I am wrong either way...
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    Regular Member ProShooter's Avatar
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    Interesting question....

    18.2-308 (B)(2) says that a LEO is exempt from the crime of illegally carrying a concealed weapon "wherever he may travel in the Commonwealth".

    18.2-308 (R) equates an officer's LE identification as that being equal to a CHP, but 18.2-308 (O) says that a CHP does not override the owner's desire to prohibit firearms on the private property.

    My take, and certainly not legal advice by any means, is that a LEO with proper LE id may travel anywhere in the Commonwealth with his concealed firearm, and the phrase "wherever such LEO may travel in the Commonwealth" overrides the personal property rights of a landowner.
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    Founder's Club Member - Moderator ed's Avatar
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    ProShooter wrote:
    My take, and certainly not legal advice by any means, is that a LEO with proper LE id may travel anywhere in the Commonwealth with his concealed firearm, and the phrase "wherever such LEO may travel in the Commonwealth" overrides the personal property rights of a landowner.
    I would agree to a point... but if he is off duty and on MY property I can tell him to leave my property whether he is carrying or not so that does not really override my personal property rights.
    Carry On.

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    Regular Member wylde007's Avatar
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    It probably exempts him from prosecution for violating (trespassing) while off-duty, however most private-property owners are just ignorant enough to assume that they MUST ALLOW even off-duty LEOs to carry wherever they like, which is folly.

    What I hear from ProShooter is that he feels a LEO is free to violate the wishes of a property owner because of his employment status.

    That would be like saying (in my opinion) that an employee of Philip-Morris is exempt from non-smoking signs. Pre-December 1st, of course.

    I don't know, it is an interesting question, but since I think everyone should be allowed to carry everywhere and always without special status or privilege given to any particular class or employ, it borders on moot to me.
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    Accomplished Advocate peter nap's Avatar
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    paramedic70002 wrote:
    I am attempting to find something on the VA Code (maybe it's in the VAC?) that says off duty LEOs do not have to comply with a private property owner's "NO GUNS" sign. Of course it won't be worded like that. I know it's out there somewhere...

    Need the cite to refute someone. Or to admit I am wrong either way...
    If you are saying that it DOES overide the property owners wishes, I'm afraid you're wrong.

    The simple fact is, that an off duty or on duty officer that is NOT responding to a call or otherwise acting in an official capacity that would allow them enter a premises against the owners wishes...can't.

    The reason you can't find a cite is because one doesn't exist...or at least I can find.

    It's like asking for a cite that says open carry is legal (In the code)

    Interesting to see if anyone comes up with something.

    Come to think of it, if you do a search, even the Great Leo229 admitted that he could not legally carry in a no carry establishment while off duty. He also indicated he would do it anyway.

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    Regular Member wylde007's Avatar
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    Unless acting under order of the court (warrant) or in the carrying out of his duties, an officer of the law has no more rights than any other person when upon that person's private property.

    USC Title 18, Sections 241 and 242

    Among others.
    The quiet war has begun, with silent weapons
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    Regular Member ProShooter's Avatar
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    wylde007 wrote:
    What I hear from ProShooter is that he feels a LEO is free to violate the wishes of a property owner because of his employment status.
    That is absolutely not what I feel. I gave an explanation from the statutes I found. Please do not imply that I think its ok to tromp over someone's wishes. My "feelings" have nothing to do with it. I was merely offering info from statutes as was requested.

    I said, "my take" (obviously from the statutes mentioned) is that there is nothing that addresses it or defines it further than what I posted. That is what I was able to come up with from the statutes presented. The phrase about "wherever he may travel in the Commonwealth" does not have an exclusion of "except when on private property or where the owner of private property wishes otherwise". Also, LEO's are required to carry their ID at all times possible and are expected to act when a situation arises. It is one of those things about LE that you are never "truly" off duty. You are always expected to intervene when there is a crime in your presence, you are always subject to recall for a situation that arises. For that reason and others, most LEO's carry wherever they go and I have never seen a situation where a private property owner has asked a LEO todisarm. Sure they probably could, but its just not one of those things that happens a heckuva lot.

    I do think that Peter Nap has an excellent point in that there's probably nothing else in the Code that addresses it, probably due to the idea that the GA never assumed it to be an issue worth codifying.
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    I doubt a LEO can carry on private propery when it is posted and he is not on duty.

    We had a big stink about this in Houston Texas. One popular theme park banned off-duty cops from possessing weapons when several cops lost thier guns on several rides that flipped them upsiade down and whatever. The park's position was that is was a safety issue. Houston PD issued the directive that no officers could carry unless they were on duty and carrying out their duties.This was in the late 90's. The PD retaliated and issued a a statement that they would no longer go to the theme park to pick up offenders that the security guards had detained/arrested. They required the security guards to deliver the suspects to the magistrates office in accordance with state law. I believe the no guns ban for cops was rescinded a few weeks later.

    Then there was a restaurant right off I-10 and kirkwood that prohibited cops from posessing guns off duty. They had a big sign on the door that read something like "unless you are an on-duty police officer, no weapons allowed." I think the owner was anti or something. There was a big buzz about that and a lot of cops were pissed. Not sure how it is today, tho.

    Both of these cases were upheld as legal because it was private property and the officer was not on-duty or performing his duties. I would assume if he was, say driving by and saw a fight in the parking lot, and pulled in (off-duty) and made an arrest that the prohibition wouldn't apply since the officer would be acting within the scope of his office.





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    Regular Member wylde007's Avatar
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    ProShooter wrote:
    That is absolutely not what I feel. I gave an explanation from the statutes I found. Please do not imply that I think its ok to tromp over someone's wishes. My "feelings" have nothing to do with it. I was merely offering info from statutes as was requested.
    To that end I apologize.

    I guess I read you wrong. I meant to side that it seemed you felt since there was no statutory reference restricting such behaviour then it was perfectly acceptable.

    The Constitution, on the other hand, says that any laws not addressed by the feral government fall to the states and, barring that, the individual.

    Such lends to me that if there is no law preventing it, yet a property owner says they do not want it on their property then it is that person's prerogative. Sort of.

    Didn't mean to misconstrue or apply something to your course that was not accurate.
    The quiet war has begun, with silent weapons
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    Regular Member ProShooter's Avatar
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    wylde007 wrote:
    To that end I apologize. I accept your apology. No harm, no foul.

    I guess I read you wrong. I meant to side that it seemed you felt since there was no statutory reference restricting such behaviour then it was perfectly acceptable. Isn't that true of Open Carry? If there is no statutory provision that says "Off duty LEO's cannot carry a firearm where prohibited on private property", then we have to assume that they can unless case law dictates otherwise, right?. We all know that 18.2-308 is full of stuff that may or may not always make sense and its probably lacking quite a few things that need to be better defined. It is what it is, and until something else comes along, its what we have.
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    Regular Member wylde007's Avatar
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    Except that private ownership trumps law. In a proper world anyway.

    I'm sure there is no law restricting smoking in a private residence (yet :X) but wouldn't a private property owner have the right to restrict such behavior on his own property?

    To your point about the comparison to open carry, absolutely, but those laws (or lack thereof) correspond to public areas. My law picks up where statutory law leaves off in my home.

    Any religion may be practiced [just about] anywhere... but I'll be danged if islam would be practiced on my private property!
    The quiet war has begun, with silent weapons
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    Novos ordo seclorum ~ Mustaine

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    Trick Question

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    Regular Member paramedic70002's Avatar
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    Curious that there is no specific distinction.

    Some PDs require their officers to carry 24/7, so for them I suppose you could say they are never off duty.

    Most departments discourage off duty LEOs from becoming involved in matters unless necessary so that they won't be mistaken for armed perps.

    18.2-308 (B)(2) does seem to override private property rights but I wonder if it's ever been tested.

    I wonder if any individual departments have policies that cover this, and what legal standing they cite for it.
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    Regular Member wylde007's Avatar
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    I'd ask some family members, but they didn't have the foggiest about preemption.

    I'm sure they're not any better read up on something even more obscure.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

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    Moderator / Administrator Grapeshot's Avatar
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    We have had similar discussion about Snagajob Pavilion at Innsbrook, which does not allow off-duty LEOs to carry.

    IMHO - private property rights have been extended too far when they apply to venues where the public is otherwise invited. If by specific invitation, membership, or personal homel, then private property rights should prevail. Let the flames begin.

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    Accomplished Advocate peter nap's Avatar
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    Grapeshot wrote:
    We have had similar discussion about Snagajob Pavilion at Innsbrook, which does not allow off-duty LEOs to carry.

    IMHO - private property rights have been extended too far when they apply to venues where the public is otherwise invited. If by specific invitation, membership, or personal homel, then private property rights should prevail. Let the flames begin.

    Yata hey
    :P

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    Activist Member nuc65's Avatar
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    I think that a club that serves alcohol can post a sign and cannot prevent LEO from carrying concealed, I don't know how it would apply to other sections (private property) but I see similar disclaimers about LEO throughout the code. I don't think a sign applies to LEO unless the code specifically states it only applies to on duty LEO. It would take someone more qualified than me to decipher the law. I also doubt if you would find a judge that would do anything if a LEO ignored a sign, off-duty, retired or otherwise. The key is that it doesn't specify on duty the law specifies "sworn."

    18.2-308
    J3
    ...however, nothing herein shall prohibit any sworn law-enforcement officer or any retired law-enforcement officer who meets the definition of a "qualified retired law-enforcement officer" pursuant to 18 U.S.C. § 926C and is carrying the identification required by such statute from carrying a concealed handgun on the premises of such restaurant or club...


    When I carry a gun, I don't do so because I am looking for a fight, but because I'm looking to be left alone. The gun at my side means that I cannot be forced, only persuaded. I don't carry it because I'm afraid, but because it enables me to be unafraid. It doesn't limit the actions of those who would interact with me through reason, only the actions of those who would do so by force.

    excerpt By Marko Kloos (http://munchkinwrangler.wordpress.com/?s=major+caudill)

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    Activist Member nuc65's Avatar
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    § 18.2-308. Personal protection; carrying concealed weapons; when lawful to carry.
    ...

    Except as provided in subsection J1, this section shall not apply to:
    ...

    2. Any law-enforcement officer, wherever such law-enforcement officer may travel in the Commonwealth;
    (J1 is about being under the influence of alcohol so I would guess that this pretty means that a LEO can carry whenever, however, wherever in VA)








    When I carry a gun, I don't do so because I am looking for a fight, but because I'm looking to be left alone. The gun at my side means that I cannot be forced, only persuaded. I don't carry it because I'm afraid, but because it enables me to be unafraid. It doesn't limit the actions of those who would interact with me through reason, only the actions of those who would do so by force.

    excerpt By Marko Kloos (http://munchkinwrangler.wordpress.com/?s=major+caudill)

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    nuc65 wrote:
    I think that a club that serves alcohol can post a sign and cannot prevent LEO from carrying concealed, I don't know how it would apply to other sections (private property) but I see similar disclaimers about LEO throughout the code. I don't think a sign applies to LEO unless the code specifically states it only applies to on duty LEO. It would take someone more qualified than me to decipher the law. I also doubt if you would find a judge that would do anything if a LEO ignored a sign, off-duty, retired or otherwise. The key is that it doesn't specify on duty the law specifies "sworn."

    18.2-308
    J3
    ...however, nothing herein shall prohibit any sworn law-enforcement officer or any retired law-enforcement officer who meets the definition of a "qualified retired law-enforcement officer" pursuant to 18 U.S.C. § 926C and is carrying the identification required by such statute from carrying a concealed handgun on the premises of such restaurant or club...


    Note it says 'Nothing herein shall prohibit any sworn law-enforcement officer or retired law-enforcement officer... from carrying a concealed handgun on the premises of such restaurant or club'.

    Thus as long as the restriction comes from outside that section of code and isn't similarly exempted, you can restrict them.

    Ex: I have a club that is ABC-ON. Police officer A stops by to ask questions regarding an investigation. I cannot prohibit his carry of a firearm on premises due to him acting in accordance with his assigned duties.

    Ex: I have a club that is ABC-ON. Police officer A stops by to shoot the breeze like Joe at the bar always does at 2pm every day. I can prohibit his carry of a firearm on premises due to him not performing actions in accordance with his assigned duties. IOW, he's acting and behaving like Joe Citizen rather than John Police Officer.

    Bear in mind that all actions have consequences, for good or for ill, there are always consequences. Be mindful of the consequences youmay receive based on banning or allowing firearms.

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    Grapeshot wrote:
    We have had similar discussion about Snagajob Pavilion at Innsbrook, which does not allow off-duty LEOs to carry.

    IMHO - private property rights have been extended too far when they apply to venues where the public is otherwise invited.* If by specific invitation, membership, or personal homel, then private property rights should prevail.* Let the flames begin.

    ******* Yata hey
    I tend to agree. I have seen some court cases where 1A rights have been extended to certain privately owned venues that are considered "public"

    Does anyone know of VA or federal code or case law that specifies the definition of a "public" place?

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    Regular Member simmonsjoe's Avatar
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    The officer exception is for RESTRICTIONS on where it is OK TO CARRY CONCEALED.
    So he can carry at the post office, courthouse, school, etc.

    And I kicked a uniformed richmond city police officer out of the pizza shop I worked at years ago. He was on his lunch break and came in to eat and I told him he wasn't welcome, and if he came in again I would charge him with trespass. Another officer with him grabbed his arm and said "Don't argue, we gotta go" (in a helping to keep his buddy out of legal trouble way, cause he was about to smart off) I informed him he was welcome to stay, and officers get a free slice. He came back in for a free slice, and asked why I banned his fellow officer from the store. I said "If I tell you, since your on duty you will be obligated to arrest him, do you still want to know?"
    he thought for a few bites, then said thanks for the pizza and walked out.
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    Not entirely true. The exception for a local or state police officer to carry in a post office or on any federal property is limited to "official business". See 18USC930.

    Code:
    (d) Subsection (a) shall not apply to--
    (1) the lawful performance of official duties by an officer, 
    agent, or employee of the United States, a State, or a political 
    subdivision thereof, who is authorized by law to engage in or 
    supervise the prevention, detection, investigation, or prosecution 
    of any violation of law;
    If he's only going in on a break or off duty to check a PO Box, buy stamps, mail something, or other personal business, he's breaking the law.

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    Grapeshot wrote:
    IMHO - private property rights have been extended too far when they apply to venues where the public is otherwise invited. If by specific invitation, membership, or personal homel, then private property rights should prevail. Let the flames begin.
    I think it's exactly the opposite: private property rights were destroyed the moment courts and legislative bodies declared it illegal to reject visitors or customers who fell into certain categories.

    Any private property owner, whether the property is a private home or a mega-mall, should be free to issue a broad invitation to the public to come inside, but then stand at the door and say "...except for you, and you, and that one over there..."

    And my response would be to take my business elsewhere. I'd rather eat a dive with Danbus than give my custom to someone who didn't like my friends because they're Black, or Jewish, or Hispanic, or gay, or of the distaff persuasion. Or armed, of course.



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    18.2-308 states that it does not apply to sworn law enforcement (besides a subsection addressing alcohol use). The section does not say that the officer has to be on duty, just sworn. "No firearm" signs do not apply to sworn LEO's in VA. The same question was addressed during our yearly law updates at my police department. LEO's are legally allowed to carry concealed in restaurants/bars with alcohol licenses as well.

    Reading some of the previous posts, I believe some of the individuals posting up about VA laws are unaware of the federal firearms law- HR218 which gives sworn LEO the ability to carry throughout the United States and overrides a lot of previous state laws.

    I know some people will disagree with the exemptions that give LEO's more freedom when carrying a concealed firearm. However, LEO's are subject to civil liability if they do not act in some situations, unlike that of regular citizens. Sworn LEO's undergo a lot of firearm training and must qualify twice a year with their duty weapon among.

    Although "no firearm" signs do not apply directly to LEO's, that does not mean the property owner can't forbid an off duty LEO (not preforming duties of course) from remaining on his property after telling him to leave (trespassing). However, all most all private businesses and citizens encourage off duty police onto their property because it adds more security.

    Just to comment.


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    Accomplished Advocate peter nap's Avatar
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    NovaCop10 wrote:
    18.2-308 states that it does not apply to sworn law enforcement (besides a subsection addressing alcohol use). The section does not say that the officer has to be on duty, just sworn. "No firearm" signs do not apply to sworn LEO's in VA. The same question was addressed during our yearly law updates at my police department. LEO's are legally allowed to carry concealed in restaurants/bars with alcohol licenses as well.

    Reading some of the previous posts, I believe some of the individuals posting up about VA laws are unaware of the federal firearms law- HR218 which gives sworn LEO the ability to carry throughout the United States and overrides a lot of previous state laws.

    I know some people will disagree with the exemptions that give LEO's more freedom when carrying a concealed firearm. However, LEO's are subject to civil liability if they do not act in some situations, unlike that of regular citizens. Sworn LEO's undergo a lot of firearm training and must qualify twice a year with their duty weapon among.

    Although "no firearm" signs do not apply directly to LEO's, that does not mean the property owner can't forbid an off duty LEO (not preforming duties of course) from remaining on his property after telling him to leave (trespassing). However, all most all private businesses and citizens encourage off duty police onto their property because it adds more security.

    Just to comment.
    Novacop, you're not seeing the forest because of the trees in the way. Sure a cop can carry and go in bars, etc.

    But he CAN'T do so against the owners wishes. Classic example,

    Off duty cop goes into Saslaws bar and grill and sees a "No Guns" sign. He says to himself, "I'm a LEO, this doesn't apply to me"

    He goes in, sits down and orders a doughnut sub (That's sick humor:P)...

    The sub comes and Leo takes his jacket off. Saslaw sees the gun, snatches the plate with the sub and says "The sign says NO Guns" You're Outta here!"

    Like it or not, he's outta there. If he doesn't go, Saslaw calls the cops. Worst case, he's in another venue and they write a summons. Best case, he leaves and gets an ass chewing the next shift.

    BTW, welcome to the site unless you're really Nitrovic.

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