Can a retired Florida auxiliary officer carry a concealed gun under LEOSA?

Plain-English summary

Gustavo Menendez asked the Attorney General's office whether, upon retiring as an auxiliary law enforcement officer from the Florida Highway Patrol, he would be eligible to carry a concealed weapon under the federal Law Enforcement Officers Safety Act of 2004. Assistant Attorney General Joslyn Wilson declined to give him a personal legal opinion.

The office explained that its authority to issue opinions is limited to public officials asking about their own official duties under state law, and that an opinion request must come from the head of an agency on agency letterhead with a supporting memorandum of law. As a courtesy, the comments pointed to the relevant federal statute. Title 18, United States Code, section 926C governs concealed carry by "qualified retired law enforcement officers" and defines that term through a list of conditions, including that the officer retired in good standing, had statutory arrest powers, served an aggregate of 15 years or more (or left due to a service-connected disability), has a nonforfeitable right to retirement benefits, has met the state's firearms-qualification standards in the past year, and is not disqualified from possessing a firearm. The office suggested Menendez discuss the question with the attorney who advises his agency.

Currency note

This opinion was issued in 2009. 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.

Common questions

Q: Did the Attorney General say whether this person could carry a concealed weapon?
A: No. The office declined to opine on his personal eligibility because the Attorney General issues opinions only to public officials about their official duties under state law, not to private individuals on their own situations.

Q: Who can request a formal opinion from the Florida Attorney General?
A: The opinion explained that requests must come from the head of an agency, on agency letterhead, accompanied by a memorandum of law prepared by the agency's attorney, and must concern the official's own official duties under state law.

Q: What does the federal statute require of a "qualified retired law enforcement officer"?
A: Under 18 U.S.C. section 926C(c), the officer must have retired in good standing (not for mental instability), had statutory arrest powers, served 15 years or more (or left due to a service-connected disability), hold a nonforfeitable right to retirement benefits, have met the state's firearms-training standards within the past year, not be under the influence, and not be prohibited by federal law from receiving a firearm.

Q: Where was the requester directed for an answer?
A: To the attorney who advises his agency. The office flagged the nonforfeitable-retirement-benefit requirement as one point worth discussing, since eligibility turns on the federal definition.

Background and statutory framework

The Florida Attorney General's opinion authority is limited by law to public officials asking about their own official duties under state law, and the office's practice requires the request to come from an agency head with a memorandum of law. A private individual asking about his personal firearm rights falls outside that authority, which is why the office declined to issue a formal opinion.

The substantive question was governed entirely by federal law. The Law Enforcement Officers Safety Act, codified at 18 U.S.C. section 926C, allows qualified retired law enforcement officers to carry concealed firearms across state lines and defines the qualifying conditions in subsection (c). Because eligibility depends on that federal definition and on facts specific to the requester's service and retirement plan, the office referred him to his agency's counsel rather than applying the statute to his circumstances.

Citations and references

Statutes:

• 18 U.S.C. s. 926C (concealed carry by qualified retired law enforcement officers)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/federal-law-enforcement-officers-safety-act-2
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8203

Original opinion text

Mr. Gustavo Menendez
8900 Southwest 50th Terrace
Miami, Florida 33165

Dear Mr. Menendez:

You ask this office's opinion as to your eligibility, 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.

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. 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) 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.)

Thus, the federal act defines who constitutes a qualified retired law enforcement officer for purposes of the federal act and provides that one such qualification is that such officer has a nonforfeitable right to benefits under the retirement plan of the agency. 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