The role of probation officers in FEDS LEOSA Coverage

Did you know that FEDS LEOSA coverage was created in response to concerns initially brought about by probation and pretrial officers? In 2011, FEDS received calls from officers concerned that agency authority would not extend to actions after hours if the need arose to protect themselves or their family. For the next 18 months, the FEDS staff studied LEOSA laws and liability exposure with the help of the leading attorneys in LEOSA-related casework, as well as the authorities and policies of active federal law enforcement officers across the government.

As you know, Congress enacted LEOSA because the unique threat law enforcement officers face, due to their occupation, does not end when they are off-duty or retired. LEOSA explicitly overrides state and local laws and gives retired and off-duty officers who qualify and meet certain conditions the right to carry a concealed weapon to protect themselves, their families, and their communities from criminals and terrorists. LEOSA does not confer law enforcement authority or otherwise give you the authority to enforce the law– it only allows you to carry a concealed weapon and exempts you from state law concealed carry requirements. In other words, while the LEOSA allows you to carry a concealed weapon, without regard to state law, it does do not shield you from civil and criminal liability exposure if you are required to act in an emergency situation.

The relevant legal concepts and doctrines of federal employee liability and LEOSA are complicated and further convoluted by the fact that not all qualified federal law enforcement officers have the same agency off-duty or LEOSA authority. The FEDS staff determined that it had to not only design coverage to fill the LEOSA civil exposure gaps similar to the on-duty civil liability gaps of federal law enforcement officers if the agency found an officer acting outside of agency LEOSA authority, but also for an officer acting within his or her authority but found outside of scope, and/or outside the interest of the U.S. to defend in a LEOSA situation.

At the time of coverage development (2011-2012), the FEDS staff identified 31 nationwide cases against law enforcement officers requiring the need to defend themselves against false arrests, criminal prosecutions and agency disciplinary charges. Most of these 31 cases resulted from state criminal charges based on unlawful possession. In almost all of these cases, the charges were dismissed by the Judge after proof that these officers were 'qualified' law enforcement officers within the meaning of LEOSA. The costs to defend these LEO's in the courtroom, even though they were later released of all charges and ultimately vindicated, were primarily between the $5,000 and $10,000 range and some falling just short of $15,000. So, before FEDS even got deep into the civil liability exposure needs, it was determined that if a policy were created it had to also include coverage for criminal defense costs.

With regards to civil liability, it is important to understand that in most cases, civil suits resulting from fully justified acts under LEOSA should be limited or dismissed under immunity doctrines and Good Samaritan laws. (This does not mean you don’t have to pay for an attorney to defend you to get to the point of dismissal). With only seven years since the first LEOSA law enactment, the FEDS staff could only find one example of a civil lawsuit and this case was dismissed because the individual was acting outside the scope of LEOSA because he was intoxicated - "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." (Special Order SO 1-05, Doc. 72, Exhibit C.)" Bladdick v. Pour, Civ. No. 09-cv-330-WDS (S.D. Ill. Dec. 8, 2010). This case was extremely important in determining the need for protection, however, because the U.S. District Court for the Southern District of Illinois interpreted LEOSA in the context of a lawsuit under 42 U.S.C. § 1983 – that the action against state and local LEOs is similar to a Bivens action for federal employees. The court's decision made the argument that individual officer's personal liability may be avoided only when an officer complies with departmental LEOSA policies.

Arguably more important, and for officers of all agencies, there was a need for protection to cover any “legal and justified” act, error or omission directly related to a LEOSA act since it is critical to any agent or officer, with or without a clear 24-hour or LEOSA authority policy, to have the coverage not be determined by “the course and scope of employment”. In other words, the FEDS LEOSA coverage had to provide protection for justified LEOSA acts, for all law enforcement officers, irrespective of DOJ scope determination.

Since the law is still in its infancy, with agencies still struggling with liability, eligibility and the definition of terms used in the act, the possibility of civil exposure is actually greater and less certain for LEOSA acts than with a Bivens action. Liability parameters will be determined as major events occur, whether it be a terror related incident or one that results in safety concerns, public alarm, injury, or death, with actual exposure and liability being determined, similar to Bivens actions, on a case by case basis.

If you are interested in learning more about FEDS LEOSA coverage, you may read the full terms and policy conditions at www.fedsprotection.com. FEDS LEOSA coverage is available as an optional endorsement to the FEDS PLI policy. The $500,000 option is available for $150 annually, the $250,000 option is available for $100 annually. It covers both defense and indemnification (attorney costs and punitive damages) resulting from a lawful act under LEOSA, irrespective of agency authority or determination of scope. The policy also provides coverage to cover the attorney fees for criminal defense of state charges of unlawful carriage when lawfully carrying under LEOSA or CCW. Federal law enforcement officers are eligible for agency reimbursement up to half the cost of professional liability insurance. Agencies will not reimburse the cost for the optional LEOSA coverage. Don’t forget to use your FPPOA discount code.