The Law Enforcement Officers Safety Act

[DetBrowning]

Commonly known as HR 218. In my community we have two HOAs and a "common areas" that is under a 501.c7 LLC. Master Board. The rules of the "Master Board (or does it need to be changed to "primary board") are no firearms, air guns, and a list of additional [weapons] too many and incidental to name may be carried in these common areas.
I thought that perhaps my "HR218" would exempt me from that until I read closely the actual language in that resolution. My HOA that I reside in has no such restrictions. In order to leave the community by foot, bicycle, or motor vehicle I must pass through the aforementioned common areas. I'm in the process of investigating how that affects my ability to carry my EDC pistol.
Additionally, I'm petitioning the Board to change the rules, although the community I reside in may be called the Peoples Republic of ____________ .
Myself and maybe 50 others out of the entire community believe in RKBA.

 

[Joshua M. Smith]

Question: How does an HOA get its power? What if one simply refuses to join?

I can't see how a board of petty tyrants can dictate what you do or don't do, so long as it's legal.

Edited for clarification: how can they enforce their rule, legally? I just don't think what they say would be pertinent here.

 

[Frank Ettin]

Several off-topic posts have disappeared. The OP is asking about a legal issue, so stay focused.

 

[RickD427]

In very simple terms, the LEOSA contains nothing that would assist you in your efforts to change your HOA's rules.

The LEOSA provides an exemption from most state STATUTES that govern the carrying of concealed weapons (with some notable exceptions). But the HOA prohibitions are based in contract, not statute.

 

[wayneinFL]

Since a CWFL in Florida would allow you to carry there, I would think HR218 would allow it. HR218 overrides state laws, so it should override a HOA's rules.

 

[Frank Ettin]

Since a CWFL in Florida would allow you to carry there, I would think HR218 would allow it. HR218 overrides state laws, so it should override a HOA's rules.

Why? How? Cite some actual legal authority to support that conjecture.

 

[wayneinFL]

I want to change my answer.

According to Florida Firearms, Law, Use, amd Ownership, Ninth Edition, page 215, "you could not carry concealed or on private property where the owner/person in authority did not permit it..." under LEOSA.

You could carry with a permit. You wouldn't be illegal, but if you are on private property and someone found out you were carrying, you could be trespassed by the owner of the property. If you had to cross common areas to get to your home, for example, crossing a common area to get to a condominium I have no idea how that would work.

 

[usaral63]

Mr. Ettin, the very statute itself states "to the exclusion" of state or local laws. One carrying under 218 cannot carry in specific specified areas, not be under the influence etc., My take is that OP is exempt from any action absent a state stature he bears no criminal liability . Even so, 218 is clear facially as to the can and cannots!

 

[Frank Ettin]

Mr. Ettin, the very statute itself states "to the exclusion" of state or local laws. One carrying under 218 cannot carry in specific specified areas, not be under the influence etc., My take is that OP is exempt from any action absent a state stature he bears no criminal liability . Even so, 218 is clear facially as to the can and cannots!...

It's very nice that's your "take", but why does your "take" mean anything. If you can't back your "take" up with supporting case law, what makes you think the courts would agree with you.

HOA rules aren't state laws. Compliance with HOA rules is a matter of private contract. When one buys property subject to an HOA, he agrees to comply with the "C,C, & Rs" (Covenants, Conditions, and Restrictions) adopted by the HOA.

 

[lemaymiami]

That last post (once again thank Frank...) is the very reason why I chose to never buy property with an HOA attached... I had entirely enough rules and regs in the service - all those years ago. Down here in paradise there's been more than one case of two or more elderly gents duking it out over this or that condo or HOA dispute in my recollection - either in court or rolling around on the ground like two kids on a playground. On the extreme end one or two homicides if memory serves.

No thanks to any HOA...

 

[InTheSwamp]

When one buys property subject to an HOA, he agrees to comply

+1

is the very reason why I chose to never buy property with an HOA attached

+2

 

[film495]

mmmm .... does whatever rule the HOA have say what the penalty is? They say you can't, but there should be some explanation of what the penalty is for breaking the HOA rule. Are you a Law Enforcement Officer? If not I don't see how the LEOSA applies so I guess you are. Even so, I don't think it permits you to carry on private property if the owner says no.

Private persons or entities still have the right to prohibit firearms on their property if they choose, but what is the penalty? If you live there you are not trespassing. My udnerstanding is that is the common complaint for carrying a firearm when the property owner does not want you to, and thus they can ask you to leave or accuse you of trespassing then if you refuse. It is odd though, since you live there, so - I see a contradiction and don't think a trespassing charge could apply. So, what is written in the rules saying what the penalty is if you carry and they call you on it? If there is no written penalty in the association rules or bylaws, then - and I'm not a lawyer, but what could the penalty be? If they don't like it, they can ask you to stop? If you persist is there a crazy board that can assign you some crazy made up penalty off the top of their heads? Throw you out etc.?

If you are permitted to carry - or can legally carry in the state, to me the question boils down to can the HOA restrict your right to carry into and out of your own home? by forcing you to traverse accross a common area where these restrictions are applicable. Although, and I don't know about Florida, but here in NH, your car is considered your private property, like inside your home, and nobody can tell you what you can or can't do arbitrarily if it is not an illegal activity in your own home or auto, is my understanding, so - you might find some case law on if a private entity can restrict your right to have a firearm in your own auto. I've worked at Hospitals which are no-go, no firearm zones big time, and everyone just leaves their firearm in their auto, parked on the hospital property.

This is an interesting question - my guess is the HOA will try to crucify you if you run up against them on this, so - I would figure out to the best of my ability what the penalty might be or not be, and just do what I wanted if I was willign to accept the penalty vs. run up against a HOA, and those people have nothing better to do than enforce whatever crazy rules they make up for everyone to follow and they are hard core about it from my experience.

 

[lemaymiami]

For what it’s worth… here in Florida - trespassing while armed… is a felony. Something that every armed citizen should avoid at all costs.

 

[coloradokevin]

Why? How? Cite some actual legal authority to support that conjecture.

It's very nice that's your "take", but why does your "take" mean anything. If you can't back your "take" up with supporting case law, what makes you think the courts would agree with you.

HOA rules aren't state laws. Compliance with HOA rules is a matter of private contract. When one buys property subject to an HOA, he agrees to comply with the "C,C, & Rs" (Covenants, Conditions, and Restrictions) adopted by the HOA.

For the very reason you stated, I would contend that the violation of an HOA rule will not typically subject the OP to any criminal liability if he chooses to violate that rule and gets caught. Ignoring firearms for a minute here, I would use the example of an HOA that has a rule about the color that you paint your house. If you violate that rule the HOA can fine you, and potentially place a lien on your home, but they won't be able to hold you responsible for violating a criminal law.

However, with this said, the underlying laws in the OP's state might still cause him some grief. Many states have rules that prohibit the carrying of firearms on private property when that location has been signed to indicate that the carriage of firearms is prohibited. In my state those signs have no force of law, but in many states they do. At that point I think we start to get into a bit of a gray area. To wit, does the OP, as an owner in common on this land within his own HOA, have the right to ignore the HOA rule without finding himself in violation of a state statute that allows property owners to prohibit the carriage of firearms on their own property? That legal twist is one I don't feel qualified to examine here at the moment!

 

[lemaymiami]

Here in florida... see what I wrote in post #13. An arrest for trespass is a misdemeanor - unless you're armed - then it's a felony... Yes, the HOA has no authority in criminal situations - but they can place you in a situation where officers that respond to a claimed trespass would be required to act if you're armed... something to be avoided at all costs.

From what I've observed locally over the years - getting in a dispute with an HOA is likely to be expensive, time consuming, and frustrating.... Once again - something to be avoided in my opinion...

 

[Littlef]

Question: How does an HOA get its power? What if one simply refuses to join?

I can't see how a board of petty tyrants can dictate what you do or don't do, so long as it's legal.

Edited for clarification: how can they enforce their rule, legally? I just don't think what they say would be pertinent here.

Most HOA's are not optional. (some are, but the vast majority are not optional.) When you buy a house in a planned urban development (PUD) there is a rider that is filed along with the mortgage, showing its bound to the filed covenants of the development, which is managed by the homeowners' association.

 

[starnbar]

The HR218 Law Enforcement Officers Safety Act (LEOSA) of 2004 is a federal law, enacted in 2004, which allows two classes of persons - the “qualified law enforcement officer” and the “qualified retired law enforcement officer”- to carry a concealed firearm in any jurisdiction in the United States, regardless of any state or local law to the contrary, with certain exceptions.
This course facilitates the required qualification/re-qualification for retired law enforcement officers to carry concealed nationwide under the HR218 LEOSA. All necessary paperwork and qualification cards are provided.
What are the limitations of the LEOSA?


The LEOSA has limits and exceptions. It does not apply to all firearms and weapons. For example, it does not authorize either qualified law enforcement officers, or qualified retired law enforcement officers, to carry any of the following: machineguns, silencers, or destructive Page 3 devices.

 

[Shanvanvocht]

It might be possible to make the argument that. an HOA is a collective of the members (homeowners) and the common areas are owned by the members individually and collectively. Under that interpretation, common areas are the individual owners private property and otherwise lawful activity cannot be proscribed. Might make an interesting, though expensive, court case: however, the threat of legal action will frequently make a Board back down.

 

[Littlef]

It might be possible to make the argument that. an HOA is a collective of the members (homeowners) and the common areas are owned by the members individually and collectively. Under that interpretation, common areas are the individual owners private property and otherwise lawful activity cannot be proscribed. Might make an interesting, though expensive, court case: however, the threat of legal action will frequently make a Board back down

A homeowner in an PUD with an HOA does not own the common elements. They would be given access to and use of the common elements, typically through easements (for street access) and the Covenants, conditions, and restrictions would specify terms of use of common elements, which are filed of record in covenants when the land developer plans the subdivision. The homeowner only has actual ownership of the specific portions of real estate described in the legal description of the deed to their property. Contesting a firearm ban in common elements is a complicated matter which would need real estate attorneys. My opinion (which is fairly worthless in this discussion) is that a homeowner would probably be found they have rights to carry in their vehicle during ingress or egress from the home, but most likely the ban would be upheld in any other circumstance.

 

[RetiredUSNChief]

My usual preface here...I ain't not no lawyer, and if I need real legal advice, I finds me one and pays for it.

However...that doesn't mean I don't have a brain that I can use to at least question things. (Then I can make best use of my dollars when I seek that legal advice.)


"In order to leave the community by foot, bicycle, or motor vehicle I must pass through the aforementioned common areas."

This statement itself begs legal clarification. While an HOA can lay down lots of bylaws, enforceable in the courts, within your actual domicile itself is another matter. This is not to say that they have absolutely no authority over anything at all within the domicile, but rather their authority is more limited...and, of course, has to be explicitly spelled out.

An HOA cannot abrogate your legal rights you hold as a citizen. For example, if the police came to your home and wanted to conduct a warrantless search, and you denied them permission to do so, the HOA cannot step in and grant them that permission simply because they may have some authority themselves to enter your home under specific conditions outlined in the HOA agreement.


Let's look at another circumstance involving firearms restrictions. Keep in mind, however, that what I'm about to discuss deals with actual statutes (law) and not a civil contract (like an HOA). There are very real differences between the two and not everything applies (directly or indirectly) from one to the other. However, both have a lot to do with the right to keep and bear arms itself.

The Gun Free School Zone Act (GFSZA) of 1990 clearly states within it the following:

It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

It also defines school as "a school which provides elementary or secondary education, as determined under State law" and a school zone as "in, or on the grounds of, a public, parochial or private school; or within a distance of 1,000 feet from the grounds of a public, parochial or private school".

Anybody with an ounce of brains can pull out a map of any city/town and start drawing the 1,000 foot line around all the schools/school properties and see that this includes a rather significant portion of the city/town...and that a great many private properties are included.

Therefore, the GFSZA also includes a number of exceptions because they cannot outright deny any person their RKBA simply because their private property lies within the defined school zone. I won't list them all, but I will cite a few. Such as on private property not part of school grounds. Or unloaded an in a locked container, or locked firearms rack that is on a motor vehicle.

These are legal exceptions within the statute (i.e. "laws"). These things to not automatically cross over to civil contracts directly. However, there are several legal foundations that statutes and civil contracts are based upon which dictate how these statutes and contracts may or may not be written.


State laws also allow for the lawful possession of firearms within your own home, whether you own that home or are renting it. And that includes hotels (At least if your state has statutes to this effect. SC does under their Protection of Persons and Property Act, SC Code 16-11-410 through 450.)

Being a member of an HOA does not mean the HOA can forbid a person from possessing firearms within their own home. Nor can the HOA affect rules which prevent a person from transporting their lawfully owned firearms to and from their own home.

This would mean that while an HOA MAY have rules which do not allow firearms in certain common areas, they cannot completely surround a person's private property/home with "common areas" and use that to prevent transportation of legally owned firearms to and from the person's home. You may not be able to "carry" a firearm in those common areas, but you MAY be able to "transport" a firearm through them.


HOAs may be very restrictive indeed. But they do have limitations. In my non-legally educated opinion, this is one of them for the reasons I outlined above. HOWEVER...find yourself an actual attorney who practices law in your jurisdiction and pay him for that hour or three it would take to get his professional opinion on the matter.

 

[Shanvanvocht]

A homeowner in an PUD with an HOA does not own the common elements. They would be given access to and use of the common elements, typically through easements (for street access) and the Covenants, conditions, and restrictions would specify terms of use of common elements, which are filed of record in covenants when the land developer plans the subdivision. The homeowner only has actual ownership of the specific portions of real estate described in the legal description of the deed to their property. Contesting a firearm ban in common elements is a complicated matter which would need real estate attorneys. My opinion (which is fairly worthless in this discussion) is that a homeowner would probably be found they have rights to carry in their vehicle during ingress or egress from the home, but most likely the ban would be upheld in any other circumstance.

I didn't say that w, as the case, merely that it would make an interesting legal argument. In any case, a lot depends on the laws of the particular state and the status of the roads in the given subdivision. In our case ( I am a member of the board) the streets are dedicated to public use and are under the jurisdiction of the local government. That is to say the roadways are not part of the common elements of the HOA.

 

[Littlef]

I didn't say that w, as the case, merely that it would make an interesting legal argument. In any case, a lot depends on the laws of the particular state and the status of the roads in the given subdivision. In our case ( I am a member of the board) the streets are dedicated to public use and are under the jurisdiction of the local government. That is to say the roadways are not part of the common elements of the HOA.

certainly every PUD is different, being dictated by the terms of their individually recorded covenants.

 

[Frank Ettin]

....it would make an interesting legal argument. ...

Well, it could be an interesting argument if there were a real possibility that it could be successful. But folks come up with all sorts of "interesting", fatuous arguments that have no cognizable basis in law. And so the Legal Forum Guidelines provides:

...Comments and opinions should be based on legal principles and supported where appropriate with reference to legal authority, including court decisions, statutes and scholarly articles. Comments based on wishful thinking may be openly refuted or simply deleted by the staff.....

 

[Miami_JBT]

@DetBrowning

1. LEOSA does not allow one to carry on private property if said property bans the carrying of a concealed firearm. If you are relying solely on LEOSA, then the HOA wins.

2. Florida is now a permitless concealed carry state. If you qualify for LEOSA, you qualify to carry under the authority of FL Chapter 790 since to qualify for LEOSA you cannot be a convicted felon, have a restraining order, be declared mentally ill, be convicted of misdemeanor domestic battery, etc... it is similar requirements to meet statutory legality to carry under FL Chapter 790.


* As a result, your HOA can go suck eggs. If they simply have a posted sign, it carry no weight of law in FL.

I carry under LEOSA and FL Chapter 790.

 

[armoredman]

I find the whole concept fascinating - if any HOA had tried to slide "no guns" into a contract out here in AZ, they would have been laughed out of the state, at least to the best of my knowledge. I lived under an HOA once for about 3 years - I will never, ever, ever again do that, ever. It took many years to get that refusal to pay off my credit report, but I will never ever give those ridiculous cretins a dollar of my money, and I was willing to take the hit to my credit to do it. Good luck with this one, and please keep us updated? Very interesting.