Municipal Volunteer Fire Departments in Oklahoma draw volunteers from a widerange of backgrounds who wish to serve their community in this critical position. It is not uncommon for Law Enforcement Officers to volunteer their time as Volunteer Firefighters. Law Enforcement Officers can (and typically do) carry firearms while off duty. Can an off duty Law Enforcement Officers carry a firearm while performing their duties as a Volunteer Firefighter? Should they be allowed to?
Legally the carrying of a firearm is governed by the Oklahoma Statutes. Prior to about a year ago (when the so called “Constitutional Carry” Bill was adopted), it was generally illegal to carry a gun, but there were statutory exceptions including exceptions for law enforcement and for citizens who had been issued a permit under the Self Defense Act. After the “Constitutional Carry” Bill, adults over 21 who are not legally precluded from owning or possessing a gun have a right to carry a firearm in public. But there are limitations on where they can carry, and they may not possess or carry in public buildings.
CLEET certified peace officers and reserve peace officers can also carry guns and can carry them in places citizens cannot, such as public buildings. Under 21 O.S. § 1289.23, there is a distinction between those who are Peace Officer certified (full time officers) and those who are reserve certified. The Statute provides:
B. When a full-time duly appointed officer carries an approved weapon, the officer shall be wearing the law enforcement uniform prescribed by the employing agency or plainclothes. When not wearing the prescribed law enforcement uniform, the officer shall be required:
1. To have the official peace officers badge, Commission Card and CLEET Certification Card on his or her person at all times when carrying a weapon approved by the employing agency; and
2. To keep the approved weapon on his or her person at all times, except when the weapon is used within the guidelines established by the employing agency. …
D. A reserve peace officer who has satisfactorily completed a basic police course of not less than one hundred twenty (120) hours of accredited instruction for reserve police officers and reserve deputies from the Council on Law Enforcement Education and Training or a course of study approved by CLEET may carry an approved weapon when such officer is off duty as provided by subsection E of this section, provided:
1. The officer has been granted written authorization signed by the director of the employing agency; and
2. The employing agency shall maintain a current list of any officers authorized to carry an approved weapon while the officers are off duty and shall provide a copy of such list to the Council on Law Enforcement Education and Training. Any change to the list shall be made in writing and mailed to the Council on Law Enforcement Education and Training within five (5) days.
E. When an off-duty reserve peace officer carries an approved weapon, the officer shall be wearing the law enforcement uniform prescribed by the employing agency or when not wearing the prescribed law enforcement uniform, the officer shall be required:
1. To have his or her official peace officer's badge, Commission Card, CLEET Certification Card; and
2. To keep the approved weapon on his or her person at all times, except when the weapon is used within the guidelines established by the employing agency.
Finally, there is a new statute specific to municipalities at 11 O.S. § 22-139 that is limited to those City employees who have been issued a permit under the Self Defense Act which allows the governing body of the City/Town to vote to allow those employees to go through the CLEET armed security guard training program or the reserve Peace Officer academy. Once the employee does so, the City can allow the person to carry a concealed firearm on duty and provides an immunity from liability for both the City and the employee for any injuries that result from the employee carrying a firearm on duty.
Against that backdrop, can or should allow a volunteer firefighter to carry while performing the duties of a volunteer firefighter?
First, if the person is just a volunteer firefighter with the municipality (i.e. not also a paid employee in a different Department), then municipality could not use § 22-139 since that only applies to paid employees.
Second, if they are CLEET certified as a Peace Officer or Reserve Peace Officer, then they legally can carry a firearm while off duty provided they meet the requirements in § 1289.23. But that does not mean, by extension, that they have a right to carry a firearm while off duty from their Law Enforcement job but while working for Municipality as a volunteer firefighter.
This gets us to the question of whether the municipality affirmatively allows or requires a volunteer firefighter to carry, or whether the municipality simply does not outright prohibit it. If the municipality affirmatively decides to allow volunteer firefighters to carry (or require it), then there is certainly the potential for liability if the volunteer is carrying and then do something that causes an injury to persons or property. By contrast, if the municipality simply does not outright prohibit it, then the liability exposure is lessened.
A basic rule of thumb for legal liability is whether the employee or volunteer caused an injury while acting within the scope of their duties. This can include actions by the employee/volunteer that are directly related to their duties or are incidental to the carrying out of their duties. If the municipality affirmatively allows or requires the person to carry, then it starts to create a link between their duties and the carrying of the firearm which could be used to try to link liability for any loss they may cause with the firearm back to Municipality. If the municipality simply doesn’t prohibit it, then that link is diminished, but not eliminated, and the liability exposure is lessened significantly.
If the municipality simply does not wish to prohibit it, then I would, at a minimum, make clear that the volunteer is not being asked to carry a firearm, and is not authorized to use or brandish the firearm while in the performance of their duties a volunteer firefighter. Say the volunteer firefighter is reserve certified, and per § 1289.23(E)(2) they believe they cannot leave their gun in their truck when they respond to a fire (since that statute suggests they are to keep the firearm on their person at all times while carrying off duty). In that instance, the municipality would have documented that nothing directly or incidentally related to their duties as a volunteer firefighter involves the use of a gun, and if they use the gun they would clearly be outside the scope of their duties. The liability exposure would stay with the person and a strong argument would exist that municipality would have no liability.
When volunteer firefighters are performing their duties, they take off their “hat” as a citizen (and as a law enforcement official) and they put on their municipality firefighter “hat”. But guns engender very strong feelings (on all sides of the debate) among people, and some cities and towns prefer to take a more lax approach when it comes to their employees and volunteers “exercising their Constitutional rights” related to guns. A municipality cannot authorize a person to carry a gun in a public building outside of the narrow exceptions outlined above. But if they fit an exception above, or they are only carrying outside a public building while in “public”, the law allows for that. Employees and volunteers do not “surrender” all of their rights while performing their duties, but they can be limited on the exercise of certain rights while performing official duties for a Municipality.
DISCLAIMER: OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG offers this guidance to help your municipality make informed decisions. You should always consult with your City Attorney before taking any actions based on this guidance. If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department (see https://www.omag.org/legal-services for contact information).
