CHAPTER 320

FORMERLY

SENATE BILL NO. 299

AS AMENDED BY

SENATE AMENDMENT NO. 2

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO CONCEALED FIREARMS CARRIED BY QUALIFIED ACTIVE AND RETIRED LAW ENFORCEMENT OFFICERS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend Chapter 5, Title 11 of the Delaware Code by adding thereto a new §1441A to read:

"§1441A. State implementation of the federal Law Enforcement Officers Safety Act of 2004.

(a) For purposes of this section, unless the context otherwise requires:

(1) 'firearm' means a weapon as defined in 18 U.S.C. §921(a)(3), but does not include a machine gun as defined in §5845(b) of the National Firearms Act, 26 U.S.C. §5845(b), or a firearm silencer as defined in 18 U.S.C. §921(a)(24), or a destructive device as defined in 18 U.S.C. §921(a)(4);

(2) 'Law Enforcement Officers Safety Act' means an Act of the United States Congress known as The Law Enforcement Officers Safety Act of 2004, Pub. L. No. 108-277, 118 STAT. 865(2004), and codified at 18 U.S.C. §§926B and 926C;

(3) 'officer' means a qualified active duty law enforcement officer or a qualified retired law enforcement officer, or both;

(4) 'parent agency' means the agency from which a qualified retired law enforcement officer retired;

(5) 'qualified active duty law enforcement officer' means an employee of a governmental agency who:

(A) 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 who has statutory powers of arrest;

(B) is authorized by the agency to carry a firearm;

(C) is not the subject of any disciplinary action by the agency;

(D) meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;

(E) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and

(F) is not prohibited by federal law from receiving a firearm;

(6) 'qualified retired law enforcement officer' means an individual who:

(A) retired in good standing from service with a governmental agency in Delaware as an active duty law enforcement officer, other than for reasons of mental instability;

(B) before retirement, was 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 who had statutory powers of arrest;

(C) (i) before retirement, was regularly employed as an active duty law enforcement officer for an aggregate of 15 years or more; or

(ii) retired from service with a governmental agency in Delaware, after completing any applicable probationary period of service, due to a service-connected disability, as determined by the agency;

(D) has a nonforfeitable right to benefits under the retirement plan of the agency;

(E) during the most recent 12-month period, has met, at his or her expense, Delaware's standards for training and qualification for qualified active duty law enforcement officers to carry firearms;

(F) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and

(G) is not prohibited by federal law from receiving a firearm.

(b) The State and any agency or political subdivision of the State employing one or more active duty officers shall issue a photographic identification card to each officer retired from employment by them who has fulfilled the requirements and standards of subsection (a)(6) of this section. The card must indicate the status of the officer as being an officer who has retired from service.

(c) The proficiency standards for retired officers of this State which meet the minimum requirements under the federal Law Enforcement Officers Safety Act are:

(1) A retired officer shall, within the year immediately preceding the carrying of the firearm, fire a score equal to or greater than 80% on the Standard Off-Duty Qualification Course; and

(2) A retired officer shall demonstrate the required level of proficiency through one course of fire for each type and caliber of firearm that the officer intends to carry pursuant to the federal Law Enforcement Officers Safety Act. The types of firearms are revolver and semi-automatic pistol; the calibers vary. A photographic identification card issued pursuant to this section must indicate the type or types and caliber or calibers of firearm with which the officer demonstrated the required proficiency and the date upon which proficiency was demonstrated.

(d) (1) A retired officer wishing to demonstrate the levels of proficiency required by subsection (c) of this section may do so either through his or her parent agency or through an instructor qualified under the Council of Police Training to conduct the training required. The parent agency of a retired officer may recover the cost of ammunition and targets from retired officers using the parent agency to meet the requirements of subsection (c) of this section. A parent agency that receives a request for the issuance of a photographic identification card from a retired officer who possesses a certificate of demonstrated proficiency, signed by an instructor authorized to attest to a retired officer's proficiency pursuant to this section, shall accept the certificate, make a record of it, and, in a timely fashion, issue the photographic identification card, if, and only if, the retired officer submits, at a minimum, to a criminal history records check.

(2) A retired officer who was an active officer in a state other than Delaware must apply to the other state for a photographic identification card, although he or she may receive a certification for firearm proficiency standards in this State under subsection (f) of this section.

(e) The Attorney General of the State of Delaware, acting in the capacity of the chief law enforcement officer of the State of Delaware, is responsible for ensuring the standard of the form of a photographic identification card and otherwise ensuring that Delaware law meets the requirements of federal law for implementing the Law Enforcement Officers Safety Act within the State.

(f) A retired officer residing in the State whose parent agency is physically located or headquartered in another state may use the services of a qualified instructor authorized to conduct the training required, or may use the services of any Delaware-based law enforcement agency, at the option of the agency, to meet the proficiency standards under subsection (c) of this section. A retired officer residing in the State who uses the provisions of this section, has an affirmative duty to report to the Delaware Department of Justice any fact or circumstance which may act as a legal impediment to the officer's legal right to keep and bear arms, including, but not limited to, any conviction making the officer a person prohibited from purchasing, owning, possessing, or controlling a deadly weapon or ammunition for a firearm under §1448 of this title.

(g) A Delaware parent agency, its officers, agents, and employees, and all other persons authorized to certify and attest to the required level of officer proficiency pursuant to subsection (c) of this section, are not subject to, and are immune from, claim, suit, liability, damages, and any other civil recourse arising from any act, decision, or determination undertaken or performed, or from any recommendation made, in conjunction with the determination of a retired officer's proficiency as required in subsection (c) of this section, so long as their act, decision, determination, or recommendation does not rise to the level of willful and wanton, reckless, or grossly negligent conduct.

(h) Nothing contained in this section may interfere in any manner with a retired officer's ability to obtain or renew a license to carry a concealed deadly weapon under §1441 of this title.

(i) This section may not be construed to grant to or bestow upon a retired officer any law enforcement powers or authority not otherwise held by the officer. Likewise, this section may not be construed to extend or enlarge upon the law enforcement powers or authority of current, active-duty officers.".

Approved July 9, 2008