Legislative Corner and Opinion
Dissecting USC 18 930
- Possession of firearms and dangerous weapons in Federal facilities

by Raoul Watson, Trustee Lodge 222

Charles Samuels, the new Director of the Federal Bureau of Prisons, put out a message on August 10, 2012 on Sallyport, the Bureau of Prisons' internal Intranet site which to me is another slap in the face for BOP employees.

Here is an excerpt of a section which to me is an insult and totally inappropriate (emphasis added):

"The majority of our hard-working professional staff perform their duties with dedication and integrity. They deserve to feel safe in their work environment and this type of misconduct jeopardizes the safety of all staff.

Reports of misconduct involving personal weapons will be thoroughly investigated, and when substantiated, the agency will impose administrative sanctions and refer the matter for prosecution when appropriate. We cannot allow the relatively few employees who engage in this type of misconduct to compromise the safety of staff, inmates, or the public, or to interfere with our ability to carry out our mission."

He uses the term "misconduct" referring to staff firearms incidents. To call the tragic Tallahassee incident which caused a death, misconduct and criminal, that I can live with. However, to label "misconduct" for accidental introduction of firearms to a BOP screening site is downright an insult. The problem I think is a misunderstanding of 18 USC 930 which regulates possession of firearms and dangerous weapons in Federal facilities. Let's analyze the areas of the misunderstanding.

For starters, let's see how USC 18 930 begins.

"(a) Except as provided in subsection (d), whoever knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal facility..."

Ok so before we even begin, the law provides an exemption, which is written in subsection (d). So it doesn't matter what the can't, don't and shall not is written in the body of USC 18 930, if you are in subsection (d) then it does not apply to you.

So let's analyze subsection (d) emphasis added:

"(d) Subsection (a) shall not apply to

(1) the lawful performance of official duties by an officer, agent, or employee of the United States, a State, or a political subdivision thereof, who is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of law;

(2) the possession of a firearm or other dangerous weapon by a Federal official or a member of the Armed Forces if such possession is authorized by law; or

(3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes."

Let's analyze the application of these exemptions in a day to day BOP facility operation.

Scenario 1:
An NYPD officer, ATF agent and FBI agent walked into the lobby of the prison carrying their firearms to interview an inmate. They have violated USC 18 930 (introduction of firearms or other dangerous weapon into a Federal Facility). However, it is perfectly OK because they are covered under subsection (d)(1) "lawful performance of official duties by an officer, agent, or employee of the United States, a State, or a political subdivision thereof.."

So the lobby officer will politely direct them to a gun locker where they can secure their firearms,

Scenario 2:
A BOP employee strolls into the lobby to begin his morning watch duties at midnight. He has in his bag his personal firearm and completely forgot to secure it in his vehicle's gun safe prior to entering the building. He has violated USC 18 930 (introduction of firearms or other dangerous weapon into a Federal Facility).

The BOP Director would like us to stop here and refer this case to OIG for criminal prosecution and future disciplinary sanction.

However looking at subsection (d)(2) it is clear that a Federal official is exempted if such possession is authorized by law.

So the only thing to determine now is if the possession is authorized by law. The clear answer is "Yes" because BOP staff are covered under USC 18 926B Carrying of concealed firearms by qualified law enforcement officers, or PL108-277 and PL 111-272 (also known as LEOSA).

It is apparent that subsections (d)(1) and (d)(2) were separated for a reason, otherwise Federal Official in subsection (d)(2) would have been covered by (d)(1) -- it would have been redundant. The lawmakers must have realized that there is another possibility aside from "lawful performance of official duties by an officer, agent, or employee of the United States, a State, or a political subdivision thereof...", perhaps an off-duty Federal Official? (who has a possession that is authorized by law).

The lawmakers yet recognized another possibility covered by (d)(3) "the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes." A weapon carried legally under LEOSA for self defense would constitute "other lawful purposes."

For the Bureau of Prisons to treat its employees as criminals when they brought firearms onto Bureau grounds and not giving them a courtesy extended to others (to remove and secure their firearms) is clearly not what Congress intended. LEOSA was designed so that off-duty law enforcement officers are afforded the ability to defend themselves and their families. To prosecute staff who accidentally still has their firearms at the screening site is totally absurd.

Everyone in the BOP and the Union would agree that introduction of firearms into the secure facility, i.e. the point beyond the Control Center where inmate would have access to, is definitely considered a serious breach of security and safety of the institution. No one will dispute that.

The screening site however, is outside the secure perimeter and if the screening site catches an employee with a firearm then it has accomplished its mission. After all, the screening site was placed to prevent the introduction of contraband. Prevention is the key word.

The fact that search procedures are preventative measures can be corroborated by 28 CFR 511.10-15 which also made it clear that the purpose has always been "to prevent prohibited objects from entering a Bureau facility..." 28 CFR 511.10 (b)(1) -- and "to keep out prohibited objects" 28 CFR 511.13. 

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Disclaimer:
The opinion presented in this section is solely the opinion of the staff writer and is not that of Fraternal Order of Police
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