- The Washington Times - Thursday, December 18, 2014

It’s been six years since Robert L. Smith retired from his job as a corrections officer at the D.C. Jail, but he says he still receives threats from former inmates he supervised.

He keeps a legally registered handgun inside his Southwest D.C. home, but he would like to be able to carry it to protect himself. As a former jail employee, he said, he should qualify for a permit under federal statutes that allow retired law enforcement officers to carry guns without obtaining state licenses.

But the D.C. Department of Corrections doesn’t see it that way, and the agency has declined to provide the required approvals for his request.

So Mr. Smith and three other retired employees have sued the District over the issue, wading into a debate playing out across the country over whether the federal Law Enforcement Officers Safety Act should be interpreted to allow those who staff the country’s jails and prisons to carry guns outside of work.

The act was signed into law in 2004 by President George W. Bush as a force multiplier, giving off-duty and retired law enforcement officers the ability to respond to situations requiring use of a firearm but also as a way for officers to protect themselves from vindictive criminals.

“They remember you,” Mr. Smith said of the thousands of inmates he supervised in the 25 years he worked for the Department of Corrections.

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“As soon as the police arrest somebody off the street, they don’t have to see them no more except maybe in court,” said Mr. Smith, who now works security for a federal agency. “We’ve got to supervise them. We’ve got to feed them. We’ve got to take them to the parole board.”

That’s why Mr. Smith questions whether a group of men who opened fire on him in 2012 in the alley behind his home might have been former inmates.

“I was emptying the trash one day, and next thing I know four guys had firearms down the alley. And they started shooting, and I could actually feel the bullets real close to me,” he said.

The fear of retaliation is the same reason Mr. Smith doesn’t like to talk about his former job with strangers. He never knows whether someone he doesn’t remember might remember him.

He has applied for a concealed carry permit under a new set of regulations approved by the D.C. Council, but it’s unclear whether he will qualify under the strict rules that require a person to show a specific need.

D.C. Jail officials have refused to sign off on paperwork that would certify Mr. Smith and his co-plaintiffs — Ronald DuBerry, Harold Bennette and Maurice Curtis — as retired law enforcement officers, making them ineligible to carry firearms under the federal act.

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“In spite of their years of service that would qualify them to have a firearms permit under LEOSA, the District of Columbia is improperly asserting that these individuals never qualified as law enforcement officers with arrest authority,” attorneys William J. Phelan and F. Peter Silva II wrote in the lawsuit filed this summer in U.S. District Court for the District.

In conversation, attorney Chris Gowen, who is also working on the case, puts it more bluntly.

“In my opinion, it’s purely political,” he said.

Until this summer, when D.C. laws banning the carrying of handguns were overturned by a U.S. District Court judge, a federal permit was one of the few ways a D.C. resident could qualify to carry a firearm in the city.

Police officers, federal law enforcement officials, sheriff’s deputies and even Amtrak police can qualify under the federal law as long as they meet other criteria, such as retiring in good standing and keeping up firearms qualifications.

The first step to getting the federal certification is having a former employer sign paperwork to certify law enforcement experience.

But when human resource officials at the city’s jail received the request, officials checked a box indicating that the corrections officers did not have “statutory powers of arrest,” an automatic disqualifier for those seeking to carry under the federal statute.

The city takes the position that D.C. laws “do not in fact accord corrections officers with law enforcement status and arrest authority,” corrections spokeswoman Sylvia Lane said in an email response to questions.

She said corrections director Tom Faust “will not certify an application request for carrying a concealed weapon under LEOSA for retired employees, as corrections officers do not meet all of the required elements necessary.”

The National Fraternal Order of Police, which lobbied for the Law Enforcement Officers Safety Act, takes issue with the response, believing the law was meant to include corrections officers. But given the wide latitude in the authority and responsibilities of those who oversee local and state jails, jurisdictions have differed in practice.

“The authority of corrections officers vary widely,” said Jim Pasco, executive director of the National Fraternal Order of Police legislative center. “Some have arrest authority, and some do not.”

In Maryland, state corrections employees must have “full police powers” to be eligible, said Mark A. Vernarelli, a spokesman for the Maryland Department of Public Safety and Correctional Services.

“Among correctional and Parole and Probation personnel, this might limit the eligibility to those such as detectives and Warrant Unit officers with 10 years of service and full police powers,” Mr. Vernarelli said.

Corrections officers at the Prince George’s County Department of Corrections also do not have powers of arrest and would not qualify, but department spokeswoman Yolanda Evans said the agency lets the state make the decision by offering letters to any retired employee who asks that they certify the number of years an employee worked there and whether or not they left in good standing.

Other corrections facilities, such as the Fairfax County Adult Detention Center, are run by sheriff’s deputies, who are considered to have full police powers and would qualify under the federal law.

Brian Dawe, director of the nonprofit American Correctional Officer, said he thinks departments are worried about liability issues.

“When it comes to this particular benefit, they don’t want to give it out,” Mr. Dawe said.

The federal law stipulates that among the requirements for a government employee to be a qualified law enforcement officer, he or she must be “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” and “authorized by the agency to carry a firearm.”

But Sgt. John Rosser, chairman of the District’s Fraternal Order of Police labor unit representing corrections officers, said the issue is simpler than that.

“We, too, can be threatened as a result of our careers,” he said. “I believe we meet the criteria.”

The corrections officers’ lawsuit says D.C. law backs them up. Key provisions that call for enhanced penalties in the killing of police and that allow guns to be carried by on-duty law enforcement personnel both recognize corrections officers.

“These guys were law enforcement officers in every way, shape and form,” said attorney Aaron Page, who is also assisting in the lawsuit.

Within the jail facilities, they were empowered to make arrests and investigate incidents such as assaults on inmates or other corrections officers, Mr. Page said. They could also make arrests in cases of parole violations.

“They are really no different than Park Police. They just have a certain jurisdiction,” he said.

In court, attorneys for the District have said the case should be thrown out, in part putting forth an argument that suggests the act does not convey a right to carry a gun for self-protection.

“LEOSA does not confer a federal right to be free from fear or to an increased feeling of confidence because one carries a concealed weapon. And it does not require a state agency to classify a retired employee as having been a ‘law enforcement officer,’” the attorney general’s office argued in recent court filings.

Mr. Smith, who in his later years at the Department of Corrections also worked as a firearms instructor, vehemently disagrees.

“I know this agency is wrong, but they look at us as the little people,” he said. “I can protect dignitaries and protect you by keeping criminals inside a penitentiary, but yet I can’t protect myself when I’m off.”

• Andrea Noble can be reached at anoble@washingtontimes.com.

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