I'm an auxiliary police officer in the town of Greenburgh [NY] and was hoping you might have some insight regarding how LEOSA applies to NYS auxiliaries who are authorized by their departments (as we are in Greenburgh) for duty carry. In short, do you know if auxiliary officers in NYS are covered for concealed carry under LEOSA?

I first looked at HR 218 and over a year ago and just took another quick look.  Following is my response:

The two main parts of this law that need to be looked at to determine whether or not it could apply to an Auxiliary Police Officer in NYS is the status of "employee" and the existence of "statutory powers of arrest".

First, is an Auxiliary Police Officer an employee?

Sec 2 (a) Sec. 926B (c)(1) states that a "qualified law enforcement officer" is an employee of a governmental agency.

Looking at the IRS definition of an employee, it seems clear that Auxiliary Police Officers are employees.  Additionally, at least some Auxiliary Police Officers such as those in Nassau County have Worker's Compensation coverage while performing duties which are outside the scope of the Defense Emergency Act of 1951.  Workers compensation cases have held volunteers to be employees.  Therefore, I believe that auxiliary police officers are employees.

Second, Statutory Powers of Arrest.

Sec 2 (a) Sec. 926B (c)(1) applies to a "qualified law enforcement officer" ...[who] "has statutory powers of arrest". I have already stated my opinion, that NY Auxiliary Police Officers have peace officer status only 1) during an actual attack by enemy forces; 2) during the threat of an imminent attack by enemy forces; and 3) during authorized drills.

It is my opinion that H.R. 218 permits a NY Auxiliary Police Officer who is a "qualified law enforcement officer" (assuming the Auxiliary Police officer meets the other qualifications) to carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, pursuant to the restrictions of the act, during 1) an actual attack by enemy forces; or 2) threat of an imminent attack by enemy forces.

Note for other states:  In some states, some Auxiliary Police and Reserve Police have peace officer status and even full police officer status at all times.  Although I am not able to render a legal opinion as to its application in another state and this article is for informational purposes only, I believe that these officers would be entitled to benefit from H.R. 218.
 

Conclusion

A NY Auxiliary Police Officer who is authorized by a police agency to carry a firearm while on duty cannot carry a concealed firearm pursuant to H.R. 218 unless there is an actual attack by enemy forces or a threat of an imminent attack by enemy forces.

Philip L. Franckel, Esq.
Counsel NYS Auxiliary Police