Did a former correctional officer qualify for South Carolina retired-officer concealed-carry credentials?

Plain-English summary

The Attorney General declined to decide whether a particular former South Carolina correctional officer qualified for retired law enforcement credentials and concealed-carry status. The officer described an injury-related disability and lack of access to recertification. The Department of Corrections told the office he had resigned and that his certification had lapsed. Those conflicting accounts presented a factual dispute the Attorney General said it could not resolve in an opinion.

The opinion quoted the statute's definition of a qualified retired officer and its requirements for identification and firearms qualification. It said the Department of Corrections' interpretation of the statute would receive deference, while only a court could resolve disputed facts about the individual's status.

Currency note

This opinion was issued in 2010. 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 AG rule that the former officer qualified for retired-officer credentials? A: No. The office said it could not determine the disputed facts about his retirement and certification status.

Q: What factual disagreement prevented an answer?
A: The former officer described separation after an injury; the Department of Corrections reported a resignation and lapsed certification.

Q: Did the opinion treat the agency’s view as irrelevant? A: No. It said the office generally deferred to the enforcing agency's statutory interpretation, but the factual dispute still required court resolution.

Background and statutory framework

A senator asked about a named former correctional officer's eligibility for a retired-officer identification card. The office reviewed the state provision tied to federal retired-officer standards, then declined to make the factual findings needed to answer that person's claim.

Citations and references

The original opinion text below quotes S.C. Code Ann. § 23-31-600 and its reference to 18 U.S.C. Section 926C.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-18-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/thomas-d-l-os-9007-2-18-10-qualified-retired-law-enforcement-officer-concealed-weapon.pdf

Original opinion text

HENRY McMASTER
ATIORNEY G ENERAL

February 18, 2010

The Honorable David L. Thomas
Senator, District No. 8
P. 0. Box 142
Columbia, South Carolina 29609
Dear Senator Thomas:
In a letter to this office you questioned whether Mr. Dameion Thames qualifies pursuant to S.C. Code Ann. § 23-31-600 to receive an identification card as a "qualified retired law enforcement officer" in order to carry a concealed weapon. Such provision states that (A) For purposes of this section: (1) "Identification card" is a photographic identification card complying with 18 U.S.C. Section 926C(d). (2) "Qualified retired law enforcement officer" means any retired law enforcement officer as defined in 18 U.S.C. Section 926C(c) who at the time of his retirement was certified as a law enforcement officer in this State and who was trained and qualified to carry firearms in the performance of his duties. (B) An agency or department within this State must comply with Section 3 of the Law Enforcement Officers Safety Act of2004, 18 U.S.C. Section 926C. by issuing an identification card to any person who retired from that agency or department and who is a qualified retired law enforcement officer. If the agency or department currently issues credentials to active law enforcement officers, then the agency or department may comply with the requirements of this section by issuing the same credentials to retired law enforcement officers. If the same credentials are issued, then the agency or department must stamp the credentials with the word "RETIRED". (C)(l) Subject to the limitations of subsection (E), a qualified retired law enforcement officer may carry a concealed weapon in this State if he possesses an identification card issued pursuant to subsection (C) along with a certification that he has, not less recently than one year before the date the individual is carrying the

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c. D ENNIS B UILDING • POST OFFICE Box JJ549 • C OLUMBIA, SC 29211 -1549 • T ELEPHONE 803-734-3970 • FACSIMll.E 803-253-6283

The Honorable David L. Thomas
Page2
February 18, 2010

firearm, met the standards established by the agency for training and qualification for active law enforcement officers to carry a firearm of the same type as the concealed firearm. (emphasis added). In his explanation, Mr. Thames states his rendition of the facts alleging that while out on disability as a result of an injury, he was not allowed to participate in training exercises or activities which included recertification. He states that since his separation " ... was caused by an on-the-job injury that resulted in my permanent disability... ", he is entitled to receive retirement credentials as well as a weapons certification. In reviewing this matter, I contacted the Department of Corrections and was informed that Mr. Thames did not retire but instead resigned his position as a correctional officer and at the time he voluntarily resigned, he was not a certified correctional officer because his certification had lapsed. Obviously, there is a dispute of facts as to Mr. Thames' situation. This office has repeatedly stated that an opinion of this office cannot determine facts noting that the determination of facts is beyond the scope of an opinion of this office. See: Ops. Atty. Gen. dated November 12, 2008; March 19, 2008; October 8, 2007. Therefore, while the statute speaks for itself, this office cannot in an opinion determine the necessary facts to resolve Mr. Thames' situation, particularly regarding his certification status. Only a court can make such determination. See: Op. Atty. Gen. dated May 8, 2009. As a result, the matter of whether an individual meets the necessary standard in order to carry a concealed weapon as a retired law enforcement officer depends upon the investigation of the factual situation presented, a matter beyond the scope of an opinion of this office. Moreover, as noted in an opinion of this office dated October 26, 2006,
[t ]his office, as a matter of policy, typically defers to the administrative interpretation of the agency charged with the enforcement of... (a) ... statute in question. See, e.g., Ops. Atty. Gen. dated March 9, 2000 and November 25, 1998. As noted in a prior opinion of this office dated October 20, 1997, "construction of a statute by the agency charged with executing it is entitled to the most respectful consideration ... and should not be overruled absent cogent reasons." Moreover, where an administrative interpretation is long-standing and has not been expressly changed by the General Assembly, the agency interpretation is entitled to even greater deference. Marchant v. Hamilton, 279 S.C.497, 309 S.E.2d 781(Ct.App.1983). As recognized in another prior opinion of this office dated March 12, 1997, if an administrative interpretation is reasonable, courts will defer to such construction even if that construction is not the only reasonable one or the one a court would have adopted in the first instance. Recognizing such, this office would defer to the interpretation by the Department of Corrections as to the issue in question. See also: Ops. Atty. Gen. dated September 17, 2007 and July 28, 2006.

The Honorable David L. Thomas
Page3
February 18, 2010

I regret that we cannot be of more assistance at this time.
Very truly yours,
Henry McMaster
Attorney General

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By:

REVIEWED AND APPROVED BY:

Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General