AGO Opinion 98034
Annual Certification of Firearms Training For Law Enforcement Officers Pursuant To Neb. Rev. Stat. § 81-1412.
DATE: August 5, 1998
SUBJECT: Annual Certification of Firearms Training For Law Enforcement Officers Pursuant To Neb. Rev. Stat. § 81-1412.
REQUESTED BY: Allen Curtis, Director Nebraska Commission on Law Enforcement and Criminal Justice
WRITTEN BY: Don Stenberg, Attorney General
Timothy J. Texel, Assistant Attorney General
You have requested the opinion of this office on three issues
pertaining to annual certification of firearms training for law
enforcement officers under Neb. Rev. Stat. § 81-1412 (Cum. Supp.
1996). In your opinion request, you explain that the Commission on
Law Enforcement and Criminal Justice ("Commission"), the Police
Standards Advisory Council ("PSAC"), and the Law Enforcement
Training Center ("Training Center") are involved in developing
rules and regulations regarding qualifications for a firearms
shooting course, qualifications for firearms instructors, and
requalification procedures for officers who fail to qualify with
firearms, as required in § 81-1412. In order to avoid problems
with the regulations due to issues concerning the Training Center's
statutory authority, you are requesting our opinion.
Waiver of Firearms Certification Requirements
Your first question is "Can the Director of the Nebraska Law
Enforcement Training Center waive the requirements of Neb. Rev.
Stat. Section 81-1412?" As an example, you posed the hypothetical
questions of whether the Director can tell a sheriff that he does
not have to qualify if he does not carry a handgun, or if the
Director can waive the requirement if the officer has a period of
disability in which he or she is unable to shoot. We believe that
the Director of the Training Center does not have the authority to
waive the requirements set out in § 81-1412.
Section 81-1412, in pertinent part, states:
Law enforcement officer; firearm proficiency;
records. (1) In order to maintain proficiency in firearm
operation, a law enforcement officer shall qualify at
least once every calendar year on a firearm shooting
course approved by the director [of the training center].
(2) Qualification on a firearm shooting course
shall be conducted by a qualified firearm instructor
pursuant to rules and regulations adopted and promulgated
by the training center. * * * The director shall adopt
and promulgate rules and regulations for requalification
for the case in which a law enforcement officer fails to
qualify. The peace officer status of a law enforcement
officer who fails to qualify shall be determined by the
Neb. Rev. Stat. § 81-1412 (Cum. Supp. 1996) (emphasis in original).
The fact that the Legislature chose to use the word "shall"
when setting out the requirements for law enforcement officers to
qualify with firearms at least once a year indicates that the
director of the training center does not have discretion to waive
the requirement. As a matter of Nebraska law, "[w]hen the word
shall appears, mandatory or ministerial action is presumed." Neb.
Rev. Stat. § 49-802(1) (1993). This language indicates that,
absent any contrary statutory language, a court would presume that
the requirements set out in § 81-1412(1) are mandatory, and cannot
be waived by the director. Nebraska caselaw also supports this
conclusion. The Nebraska Supreme Court has held that it is a
general rule of statutory construction that the use of the word
"shall" is mandatory and inconsistent with the idea of discretion.
Loup City Public Schools v. Nebraska Dept. of Revenue, 252 Neb.
387, 393, ___ N.W.2d ___, ___ (1997). See also Payne v. Nebraska
Dept. of Correctional Services, 249 Neb. 150, 153, 542 N.W.2d 694,
696 (1996); Smith v. State, 248 Neb. 360, 365, 535 N.W.2d 694, 697
(1995). When the Legislature intends to allow discretionary
action, the word "may" is used. See Neb. Rev. Stat. § 49-802(1)
(1993) . These rules of statutory construction demonstrate that if
the Legislature had intended to provide the director with the
discretion to waive or modify the requirement that all law
enforcement officers must successfully qualify once a year with
firearms, it would have placed language to that effect in the
Our review of the legislative history for § 81-1412 did not
provide any evidence that would contradict the above conclusion.
In fact, the language in the introducer's statement indicates that
the firearms requirements were intended to apply to every law
enforcement officer, regardless of rank or position. One of the
stated purposes for the original bill was "to insure that all law
enforcement officers maintain a standard level of proficiency with
their service firearm." Committee Records on LB 1055, 94th Neb.
Leg., 2nd Sess., Introducer's Statement of Intent, (Feb. 1, 1996).
The statement also explains that "LB 1055 addresses the issue of
adequate firearm training for all law enforcement officers at all
levels in Nebraska." Id. These statements appear to indicate that
the bill was intended to ensure that all Nebraska law enforcement
officers, at all ranks and levels, meet a minimum level of firearm
proficiency. Neither the statute nor the legislative history
demonstrate that the Legislature intended to allow this requirement
to be avoided or waived.
Meaning of the Word "Status" in § 81-1412
Your second question is based on the provision in § 81-1412(2)
stating that "[t]he peace officer status of a law enforcement
officer who fails to qualify shall be determined by the director."
Although the statute states that the director shall determine the
officer's status, you ask what this entails. You go on to inquire
"Does this entail revocation of an officer's certification which
can only be statutorily accomplished through actions by the PSAC as
approved by the Commission or does it mean a temporary suspension
of certificate?" You also ask "does this allow the Director to
tell an agency that its officer who failed to qualify cannot carry
a handgun?" Although the issue is not entirely clear, it is our
opinion that in using the term "status," the Legislature intended
that the director of the training center was the authority
responsible for making the official determination that an officer
failing to qualify with a firearm no longer was eligible to be a
certified law enforcement officer in the State of Nebraska.
Although § 81-1401 (Cum. Supp. 1996) provides definitions of
the terms used in §§ 81-1401 to 81-1414, it does not define the
word "status." Absent a statutory definition, when construing
statutes we must normally determine and give effect to the purpose
and intent of the Legislature as ascertained from the entire
language of the statute as considered in its plain, ordinary, and
popular sense. SID No. 57 v. City of Elkhorn, 248 Neb. 486, 500,
___ N.W.2d ___, ___ (1995). However, the word status as used in §
81-1412(2) could be read to mean the director should determine
whether an individual can retain his or her standing as a certified
law enforcement officer, or it could mean that the director can
impose restrictions on the activities or duties in which a person
failing to qualify could engage. In its plain and ordinary sense,
it would seem that status could include either meaning, or both.
The word status has been defined to mean "Standing; state or
condition; social position. The legal relation of [an] individual
to [the] rest of the community. The rights, duties, capacities and
incapacities which determine a person to a given class." Black's
Law Dictionary, 1410 (6th ed. 1990). Unfortunately, this
definition does little to clarify whether the director's authority
is to deny certification or to take some other unspecified action.
The statute in this situation does not provide a clear
indication as to how the term "status" should be construed. We
must therefore examine the legislative history in order to try to
ascertain the meaning. "When statutory language is ambiguous and
must be construed, recourse should be had to the legislative
history for the purpose of discovering the intent of the
lawmakers." Witherspoon v. Sides Construction Company, 219 Neb.
117, 121, 362 N.W.2d 35, 40 (1985).
There were several amendments made to LB 1055 (the bill which
created § 81-1412) prior to its adoption. Some of the amendments
dealt specifically with the provisions about which the Commission
has concerns. On February 12, 1996, Senator Jerry Schmitt, the
bill's principal sponsor, offered amendment AM 3083. The amendment
changed the last sentence of what is now § 81-1412(2) to read "The
peace officer status of a law enforcement officer who fails to
qualify shall be determined by the person in charge of the law
enforcement agency where the law enforcement officer is employed."
Nebraska Legislative Journal, 94th Neb. Leg., 2nd Sess., p. 764
(Feb. 12, 1996). During floor debate, questions arose regarding
the potential problems with allowing agency heads to determine the
peace officer status of themselves and their employees when either
group failed to qualify on the firearms course. The following
discussion took place on this topic:
SENATOR CHAMBERS: If they fail to qualify and they are
the heads of their agencies, there is nobody under this
law, who could determine that they will lose their peace
officer status. Isn't that true?
SENATOR SCHMITT: That's probably correct, yes, the way
that's written. I understand where you're coming from,
SENATOR CHAMBERS: And if the sheriff couldn't shoot
straight and the chief couldn't shoot straight, it would
be difficult for the sheriff or the chief, as the case
might be, to restrict the status of a deputy or a police
officer who couldn't shoot straight. Isn't that true?
SENATOR SCHMITT: That could happen, I believe, Senator,
yes. Although in dealing with a lot of people on the
ranges and stuff, they work with these people, and I
can't believe that somebody couldn't qualify, but it's
possible that it could happen, yes.
Floor Debate on LB 1055, 94th Neb. Leg., 2nd Sess., 11558-11559
(Feb. 12, 1996).
The above discussion indicates that there was some concerns
that sheriffs or police chiefs may be reluctant to take any action
against themselves or deputies or officers who failed to qualify
with firearms. In order to address these concerns, another
amendment was offered. Senator Schmitt offered amendment AM 3521,
which changed the last sentence in what is now § 81-1412(2).
Senator Schmitt's amendment moved to strike the language "by the
person in charge or the law enforcement agency where the law
enforcement officer is employed" and replace it with "by the
director." Nebraska Legislative Journal, 94th Neb. Leg., 2nd
Sess., p. 1171 (March 11, 1996). Thus, the director of the
training center was given the responsibility to determine the peace
officer status of officers failing the firearms course, instead of
sheriffs and chiefs of police.
Senator Schmitt, speaking in support of AM 3521, explained why
the new language was necessary:
SENATOR SCHMITT: Yes, Mr. Speaker, members. AM3521
addresses Senator Chambers' concern about having the head
of the employing law enforcement agency determine the
peace officer status as an officer who fails to qualify.
Under this amendment, the director of the Law Enforcement
Training Center would determine the peace officer's
status of all officers who failed to qualify. The bill
already gives the director the authority to develop rules
and regs for requalification for those officers who fail
to qualify, allowing the director the final decision of
peace officer's status, simply follows along that same
line. This should resolve any questions about fairness,
or motivation by completely removing that decision from
the head of the agency that the officer works for. This
was worked out, Senator Chambers had concerns about this,
and I appreciate his willingness to work on this because
by doing this I feel that it makes the bill a better bill
and a fairer bill and makes it fairer for the officers
involved. . . .
Floor Debate on LB 1055, 94th Neb. Leg., 2nd Sess., 14322-14323
(March 27, 1996).
Although it is not altogether clear, it appears to us that the
Legislature understood the amendments to mean that the director
would make the decision whether a law enforcement officer who
failed to qualify with firearms would lose his or her standing as
a certified peace officer. As previously stated, these changes
addressed concerns that sheriffs and police chiefs may be reluctant
to take action against themselves or their employees for failing to
qualify on the firearms course. The director, on the other hand,
could make the decision as a neutral third party, removed from the
agency involved. We find no specific indication in the statute or
the legislative history that the Legislature intended to authorize
the director to only place limitations or restrictions on officers
who failed to qualify with firearms, and no guidelines whatsoever
are provided on this topic.
Although we believe that the above conclusion is reasonable
and correct given the information available, the issue is not
clear. It is possible a court could view the term "status" to mean
that the director has the discretion to place limitations on a law
enforcement officer's standing as a certified peace officer when
the officer fails to qualify with firearms. We are not aware of
any caselaw which has addressed this particular issue. In order to
remove the uncertainties surrounding this topic, legislative action
would probably be required.
You also asked whether the director's authority entails
revocation of an officer's certification, or whether it means a
temporary suspension of certificate? We believe the statutory
language in § 81-1412 anticipates the director to make the initial
determination regarding an officer's certification as a peace
officer. If an officer fails to qualify on the firearms course, it
seems the statute anticipates that the director will make a
determination whether the officer is no longer a certified peace
officer in Nebraska. The determination would be largely
ministerial, based on the objective test results of the officer's
performance on the firearms course. This procedure would not
obviate the normal due process rights which must be afforded any
certified peace officer prior to final action taking away his or
her certification. However, we believe the language in § 81-
1412(2) stating that "the director shall adopt and promulgate rules
and regulations for requalification for the case in which a law
enforcement officer fails to qualify" indicates that the director
has the statutory authority to promulgate regulations which provide
for a temporary suspension of a certificate, pending
requalification. The fact that the statute allows the director to
adopt rules and regulations for "requalification" may indicate that
there is a distinction between initial qualification and
requalification for those persons who are already certified law
enforcement officers. Although this point is not clear, we believe
the director could provide for temporary suspensions of peace
officer certifications in the regulations promulgated pursuant to
The last question in the second part of your inquiry asks
whether the use of the term status allows the director to tell an
agency that officers who fail the firearms course cannot carry a
handgun. We see no support for this in the statute or the
legislative history. We believe rather that the director is
required to determine whether the person qualified on the firearms
course, which would then control the director's decision regarding
whether the person retained his or her standing as a certified
peace officer. There are no provisions for the director to
determine specific limitations on local law enforcement agencies or
their personnel in § 81-1412(2) other than the certification status
of the officers.
Effect of § 81-1412(2) on the Relative
Powers of the Director and the PSAC.
In your opinion request you state that the role of the PSAC
was established in Neb. Rev. Stat. § 81-1403. You then go on to
ask "Does Neb. Rev. Stat. § 81-1412 diminish the role of the Police
Standards Advisory Council and give more power to the Director than
the Council?" Although the § 81-1412(2) allocates some limited
powers to the director and the Training Center which might
otherwise have fallen under the purview of the PSAC, we do not
believe the PSAC's general authority over the Training Center or
the authority stated in § 81-1403 are otherwise affected. It is
our opinion that § 81-1412(2) carves specific exceptions, requiring
the director of the Training Center to promulgate rules and
regulations pertaining to firearms requalification, and requiring
the Training Center to adopt and promulgate rules and regulations
concerning qualification for firearm shooting courses and firearm
instructors, but that these exceptions do not otherwise diminish
the role or authority of the PSAC with respect to the director.
Section 81-1403 establishes the PSAC's duties. These duties
include the requirement to "[a]dopt and promulgate rules and
regulations for the operation of the training center." Neb. Rev.
Stat. § 81-1403(1) (1994). The PSAC also has general oversight to
"[d]o all things necessary to carry out the purpose of the training
center, except that functional authority for budget and personnel
matters shall remain with the commission." Neb. Rev. Stat. § 81-
1403(10) (1994). If the Legislature had not specifically given the
director of the Training Center the responsibility to promulgate
and adopt rules and regulations for the requalification of officers
who fail the firearms course, that responsibility would fall on the
PSAC due to the provisions of § 81-1403. However, the Legislature
chose to create an exception for rules and regulations pertaining
to requalification of officers failing to qualify on the firearms
This exception only affects the director's ability to adopt
and promulgate rules and regulations on the specific topic set out
in § 81-1412(2). The director is not thereby given a broad grant
of power which would alter the PSAC's general oversight of the
training center. "To the extent there is a conflict between two
statutes on the same subject, a specific statute prevails over a
general statute." AMISUB v. Board of County Comm'rs of Douglas
County, 244 Neb. 657, 663, 508 N.W.2d 827, 832 (1993). See also
State ex rel. Stenberg v. Murphy, 247 Neb. 358, 370, 527 N.W.2d
185, 195 (1995). Any potential conflict between the authority
granted the PSAC in § 81-1403 and the authority given the director
of the Training Center in § 81-1412(2) is resolved by the rule of
statutory construction that a specific statute will control over a
general one. As previously stated, the limited exception granted
to the director in § 81-1412(2) does not diminish the PSAC's
authority over the Training Center in any other areas other than
those explicitly mentioned.
Timothy J. Texel
Assistant Attorney General