Judge to rule in concealed weapon case

[Lucky45]

Times Herald-Record
February 02, 2008
GOSHEN — A 4-year-old federal gun law is facing a test in Orange County Court, and a 33-year-old Coast Guard officer from Newburgh is staking his future on the outcome. Benjamin L. Booth, a petty officer assigned to a Coast Guard unit in New York City, was arrested last May after Newburgh city police stopped him for speeding on Broadway. Police ran a check on Booth's license and found that he was wanted for aggravated unlicensed operation of a motor vehicle. His license was still suspended. An officer found an unlicensed, loaded semiautomatic handgun in Booth's car during a routine search before impounding the car, according to a city police report.
An Orange County grand jury indicted Booth on a felony charge of second-degree criminal possession of a weapon. Booth's lawyers have filed court papers asking County Court Judge Robert Freehill to dismiss the indictment. Booth's lawyers argue that he falls under the Law Enforcement Officers Safety Act of 2004. The law allows off-duty and retired cops to carry concealed weapons in any state without obtaining a state concealed-carry permit.
Booth's lawyers contend that he was carrying his Coast Guard identification and he has arrest powers as a federal law enforcement officer. They also contend that he qualifies as an off-duty police officer under the law because his duties in the Coast Guard are similar to the duties of federal officers who work for the U.S. Bureau of Immigration and Customs Enforcement and U.S. Customs and Border Protection. Like the Coast Guard, ICE and Customs and Border Protection were folded into the U.S. Department of Homeland Security after the 2001 terrorist attacks on the World Trade Center and the Pentagon.
The Orange County District Attorney's Office hasn't yet filed its written response to Booth's lawyers. A spokesman for the office said he wouldn't discuss a pending case. After both sides submit their papers, Freehill will have to decide whether to toss the indictment or allow the case to proceed to trial. Booth faces dismissal from the Coast Guard if he's convicted of a felony.

omackson@th-record.com

Pretty interesting to see the outcome.

[Kalrog]

Hmmm. Not exactly the ideal test case (the suspended license), but not all that bad either. It will be interesting to see what happens and how high it goes.

[Hyunchback]

The ruling MIGHT form the basis for case law in a nationwide concealed carry law.

[CHL/LEO]

I spent 10 years in the Coast Guard with most all of my time specifically focused on Law Enforcement activities. I'm sure that his attorneys are defending him based upon the following:

14 U.S.C. § 2 authorizes the Coast Guard to enforce federal law. Further, the Coast Guard is exempt from and not subject to the restrictions of the Posse Comitatus Act which restrict the law enforcement activities of the other four military services.

14 USC 89 is the principal source of Coast Guard enforcement authority.

14 USC 143 and 19 USC 1401 empower Coast Guard petty officers, warrant officers, and commissioned officers as customs officers. This places them under 19 USC 1589a, which grants customs officers general law enforcement authority, General law enforcement authority includes authority to:

(1) carry a firearm;
(2) execute and serve any order, warrant, subpoena, summons, or other process issued under the authority of the United States;
(3) make an arrest without a warrant for any offense against the United States committed in the officer's presence or for a felony, cognizable under the laws of the United States committed outside the officer's presence if the officer has reasonable grounds to believe that the person to be arrested has committed or is committing a felony; and
(4) perform any other law enforcement duty that the Secretary of the Treasury may designate.

I think that one of the key points to his defense will be what position that the Coast Guard itself takes in his case. What is their position regarding their off-duty LEOs and how this act applies to them. I'm sure that there must be some internal written documentation that addresses this as most departments and agencies did so after this act was signed into law.

It would not surprise me to find out that Homeland Security has specific directions for each of the member agencies that it oversees. The fact that his driver's license was suspended should have no bearing on this case at all. It would be no different than if a FBI agent's license was suspended. He would still be a Federal Agent and thus covered by the law, along with his agency's policy regarding off-duty carry.

[srothstein]

I think it will be interesting to see the outcome based on just who is really covered. There has been quite a bit of debate in the law enforcement community on who exactly is covered under the LEOSA and this might help clear some of it up. Well, it will help clear it up, one way or the other.

[WildBill]

I think it will be interesting to see the outcome based on just who is really covered. There has been quite a bit of debate in the law enforcement community on who exactly is covered under the LEOSA and this might help clear some of it up. Well, it will help clear it up, one way or the other.

If the DA drops the charges and doesn't pursue the case that would leave the police to arrest the next guy that comes along. If the DA thinks the judge will rule for the defendant he could dismiss charges before the ruling so no precedent would be set. The next time they might get a judge who would go along with the DA. I wonder if the Coast Guard is providing his lawyers.

[tbranch]

I wonder if the Coast Guard is providing his lawyers.

I doubt it. I'm sure they're waiting to see how it turns out so they can decide to discharge him or not...

Tom

[KBCraig]

Well, it's indisputable that he's:
A. Employed by a government agency;
B. Has statutory powers of arrest; and,
C. Is authorized by the agency to carry a firearm.

How can he not be covered by LEOSA?

[jimlongley]

NY Penal Code used to exempt military officers from the law, allowing them to carry and possess handguns. The law made no distinction between commisioned, warrant, or non-commisioned officer, being an NCO at the time, I didn't worry about it much and carried in B'k'lyn, Manhatten, and other places.

[tbranch]

At one point in my career I had a Beretta issued as a personal weapon that I had in a safe near my desk. I could carry anytime in uniform but had to have specific written approval to carry in civilian clothes (I worked for an intelligence agency for a while). I was not authorized to carry off-duty.

The Coast Guard is quite different (I went to the Chief Petty Officer Academy on an exchange program) and I would be surprised if they didn't have rules in place.

Tom

[CHL/LEO]

I need to read in detail the Law Enforcement Officers Safety Act of 2004 to see if there is any reference to carrying off-duty. If there is not, then it will be interesting to see how this case unfolds.

Let's say for example that either the Coast Guard or The Department of Homeland Security has a specific policy that states that Coast Guard LEOs will not carry while off-duty unless they have specific written orders to do so. While this Petty Officer would be guilty of not following the rules and regs that were provided to him, and thus could be disciplined by the CG for such conduct, it does not necessarily mean that he would not be covered the the LEOSA which would recognize him under its definition of a LEO.

This could be very interesting indeed to watch how it plays out, if in fact it does proceed to trial. Hopefully, he has some legal coverage provided to him by an association he belongs to, or there is some national LEO organization going to bat for him because this could get very, very expense for him personally.

[KBCraig]

http://www.recordonline.com/apps/pbcs.d ... S/80529039

Judge tosses gun-possession charge against Coast Guard officer
By Oliver Mackson
May 29, 2008

GOSHEN — A judge on Thursday threw out a felony gun-possession charge against a Coast Guard member from Newburgh, ruling that he’s covered by a federal law that allows cops to carry their weapons in any state.

Newburgh city police arrested Petty Officer Benjamin Booth last year, after finding a loaded semiautomatic handgun in his car. In a five-page decision that was made public late this afternoon, Orange County Court Judge Robert Freehill ruled that Booth is covered by the Law Enforcement Officers Safety Act of 2004. He carries a weapon while on duty, he’s authorized to make arrests and “generally take part in law enforcement duties as part of his duties as a boarding officer with the Coast Guard,� the judge wrote.

And while Booth didn’t identify himself as a Coast Guard officer when he was arrested, he was carrying two Coast Guard IDs that police found in his clothing after he was stopped.

“This is a very good day for Mr. Booth,� said Bill Wolfe, one of the lawyers who defended him. “Now he can get back to living his life and hopefully, resume his duties with the Coast Guard and continue to keep New York Harbor and America safe.�

Orange County prosecutors hadn’t seen the decision last night and couldn’t say if they’d appeal.

Booth is still contesting a federal firearms charge that’s pending in U.S. District Court in Brooklyn.

[CHL/LEO]

Orange County prosecutors hadn’t seen the decision last night and couldn’t say if they’d appeal.

If it's not appealed it won't become case law - the ruling will only apply to this specific case although it does provide guidance for others. I doubt if it does get appealed and it will be interesting to see what happens to the other charge that is pending.

[dukalmighty]

I'm not sure if he would be required to notify he had a gun in the car in NY,being he was driving while suspended and had a warrant he was arrested and his car was inventoried prior to towing which is when gun was discovered.Anybody know what the federal firearms charge might be that's pending