Benjamin L. Booth case finding (Coast Guard Petty Officer carry protected in New York!)

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The People of the State of New York against Benjamin L. Booth, Jr., Defendant. 2007-940

Defendant is charged in this indictment with the crime of Criminal Possession of a Weapon in the Second Degree.

In his omnibus motion, defendant's moved to dismiss the indictment claiming that he is exempt from prosecution for Criminal Possession of a Weapon in the Second Degree by the application of the Law Enforcement Officers Safety Act of 2003 (LEOSA). To establish that a particular person is exempt from prosecution pursuant to LEOSA, it must be shown that the person is a qualified law enforcement officer and that proper identification was carried with the weapon. In addition, defendant argued that the seizure of the weapon was improper.

Pursuant to the Decision and Order of the court, a hearing was held on May 8, 2008 to determine the lawfulness of the seizure of the handgun from defendant's car and to determine whether the defendant was exempt from prosecution pursuant to LEOSA.

At the hearing facts were presented relating to the stop of defendant's vehicle and facts relating to defendant's status as a qualified law enforcement officer.

On May 16, 2007, City of Newburgh Police Officer Kevin Lahar was on patrol in the City of Newburgh at 12:27 a.m. At that time he observed a four door dark colored Lexus traveling westbound on Broadway as he was driving eastbound on Broadway. He estimated that the defendant's vehicle was traveling at a rate of 40 m.p.h. in a 30 m.p.h. zone.

Officer Lahar turned around and stopped the vehicle and approached. Because the windows were tinted, he could not see how many occupants were in the vehicle until he approached the driver's window which was down. From the driver's window he noticed that there were two occupants inside the defendant's vehicle. He learned that the driver was defendant Benjamin Booth and the passenger was Cornelius Stubbs.

Officer Lahar asked defendant for his license and registration. Defendant provided a New York State Identification card and the vehicle registration. After a radio check of the documentation, Officer Lahar learned that there was a pending warrant for defendant out of the City of Newburgh and that defendant's license was suspended. A backup officer arrived at the scene and learned that the passenger, Cornelius Stubbs, did not have a valid license.

Officer Lahar requested a tow for the vehicle and asked if there was anything in the [*2]vehicle that he should be made aware of. The defendant said "no." Officer Lahar then began to inventory the contents of the car. During the inventory, he found a loaded Glock 23 handgun under the driver's seat in a pull out compartment. The magazine contained 12 rounds and there was an additional round in the chamber. Officer Lahar had another conversation with defendant during which the defendant stated that he did not have a license to possess a firearm. Officer Lahar also recovered two identification cards on the defendant's person. The defendant did not tell the officers that he had identification on his person before it was seized. The defendant was then transported to the police station.

Defendant was brought into a booking room and was advised of his Miranda rights. The defendant signed off on the warnings and agreed to speak with the police officers without counsel present. During the conversation, defendant stated that he received a waiver from the Coast Guard to use the firearm to practice and that he had recently used the gun at the range.

Lieutenant Benjamin William Stevenson of the United States Coast Guard testified credibly regarding the scope and nature of the duties of the defendant as a member of the United States Coast Guard. According to Lt. Stevenson, defendant was permitted to carry a weapon when conducting operations for the Coast Guard. In addition, defendant was required to be in uniform, to use a badge and to carry an identification card when conducting operations. Subject to numerous regulations and rules, the defendant was 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. His authority to carry a weapon did not extend beyond his role as a uniformed member of the Coast Guard and he was not permitted to carry a concealed weapon while out of uniform.

Chapter 44 of Title 18 of the United States Code, Section 926B(a) states in relevant part that "notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has be shipped or transported in interstate or foreign commerce..." Subdivision (c) states that a qualified law enforcement officer means an employee of a governmental agency who "(1) is 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 has statutory powers of arrest: (2) is authorized by the agency to carry a firearm; (3) is not the subject of any disciplinary action by the agency; (4) meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm; (5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and (6) is not prohibited by Federal law from receiving a firearm." Subsection (d) defines identification as photographic identification issued by the governmental agency which employs the individual as a law enforcement officer.

Based upon the testimony at the hearing, it is evident that defendant, Benjamin Booth is a qualified law enforcement officer as set forth in Chapter 44 Section 926B of the United States Code. He is authorized to carry a firearm while engaged in his duties as a boarding officer. These duties were defined as the prevention, detection, investigation of violations of the law and defendant has the authority and duty to arrest violators. He is qualified to carry a firearm and at the time of his arrest, he was not under the influence of alcohol or any other drug. In addition, at the time he was found to be in possession of a handgun in the City of Newburgh, he carried two [*3]forms of photographic identification issued by the Coast Guard.

Based upon a reading of Chapter 44 of Title 18 of the United States Code, Section 926B(a) and applying the facts brought forth at the hearing, the court finds that the defendant is exempt from prosecution under New York State Law as a result of LEOSA. None of the arguments put forth by the People supply any proof that defendant was not protected from criminal prosecution by this act. Although the proof at the hearing indicates that the defendant engaged in a violation of rules, regulations and policies of the United States Coast Guard by possessing a handgun for which he had no license, these violations do not act to lessen the scope of LEOSA as it is applied in this instance. When distilled to the salient facts, the evidence presented at the hearing showed that the defendant was a qualified law enforcement officer who possessed photographic identification issued by the Coast Guard. Accordingly, he is exempt from prosecution and the indictment must be dismissed.

Issues surrounding the defendant's claims that the search and seizure was improper need not be decided in light of the finding that the defendant is exempt from prosecution.

Sounds like the right call.

Don't speed.

If you're stopped don't tell the LEO that not not carrying if you are.

Cops hate to be lied to. Drives them nuts.

It’s interesting for sure. And I might object to the ruling, if I could be enlightened on one highly relevant point (and in fact, I DO object to the ruling, if the court didn’t deal with this issue before handing down the ruling). That point would be the grounds for the pending warrant against the defendant. Not that I think being any sort of LEO should be a free pass to carry a gun, while ordinary citizens are being denied that right. But if this guy’s warrant was for some violent crime, and he knew about the warrant (which I assume he did, since a Coast Guard officer still showing up for duty on a regular basis wouldn’t be hard to track down) and hadn’t turned himself in, he should be in deep doo-doo.

A rogue LEO, on the lam from a warrant in one jurisdiction, while the jurisdiction giving him his LEO status is unaware of the outstanding warrant or the offense it’s based on, should not be free to be running around with a gun, while law-abiding citizens have to jump through all sorts of hoops to get permits to carry a gun. Seems to me that running from an arrest warrant should automatically cancel any and all privileges associated holding with LEO status.

And don't drive without a valid license, and don't skip out on arrest warrants.

The arresting officers must be fuming over this, and I can't say I'd really blame them. They stop a guy who is
1) speeding,
2) doesn't produce a driver's license at all, and turns out to have a suspended license,
3) has an outstanding arrest warrant,
4) has a loaded gun in his car without the accompanying license that would be required for an ordinary law-abiding citizen in the state to do this, and
5) claims he's entitled to have the gun because he's a LEO

And then the case goes to court and the judge agrees with the perp!

Of course, he'll still face legal consequences for the speeding, driving with suspended license, running from warrant, and whatever he did to get the warrant. But saying this guy should have any privileges based on holding LEO status just seems bass-ackwards.

“Of course, he'll still face legal consequences for the speeding, driving with suspended license, running from warrant, and whatever he did to get the warrant. But saying this guy should have any privileges based on holding LEO status just seems bass-ackwards.”

I disagree. It seems to show that states cannot restrict people that the Federal Government says can carry. Under Heller, it seems more likely that we will get some kind of Federal required recognition of CCW permits, rather like drivers licenses.

This seems to me a precursor of that sort of ruling.

Of course, this could be the exception, an honest New York Judge, but I don't really know that.

I have no law background. It was my understanding, if a military personnel was under orders, local law officials could not interfere with that person in the performance of his official duties. When the Navy paid in cash, the personnel that went to pick up the money routinely carried Thompson sub machine guns. Similarly, when moving brig prisoners on or off the base..

The Coast Guard is different than other military services because it is not bound by the posse comitatus act (I believe) because Coast Guard personnel can enforce some Federal laws.

The interesting thing about this case is that the person was not on official duty IMHO

The interesting thing about this case is that the person was not on official duty IMHO

I agree. And I suspect when the Coast Guard is done dealing with him, he's unlikely to retain his LEO status. The military services generally have an extremely low tolerance for their members violating laws. This guy pulled a three-fer (speeding, driving with suspended license, running from warrant) and then used his Coast Guard status to get off the hook on number four.

>It seems to show that states cannot restrict people that the Federal Government says can carry.<

I don’t know if Newburgh, Orange County, NY has a sheriffs dept or not but my understanding is that the sheriff is the top LEO in the County and it is him who issues the concealed carry permits to all federal agents stationed in his County.

You are correct in that the local court(represented by the Sheriff’s Office) is top law dog when it comes to issuing concealed carry permits. Federal Agents, however, are not required to obtain permits from the local Sheriff carry concealed.

Interesting case. Does this have any precedent possibility nationwide? That would’ve come in handy back in the day... though I got concealed permits anyway.

This guy has done us a favor, though it’s not the end of troubles for this PO. His command is going to have some things to say about the other parts. He won’t get drummed out, but he’ll probably lose a stripe or two.

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