CAMILLE BURBAN v. CITY OF NEPTUNE BEACH, FLORIDA
No. 18-11347
United States Court of Appeals, Eleventh Circuit
April 5, 2019
D.C. Docket No. 3:17-cv-00262-MMH-JBT
Bеfore ED CARNES, Chief Judge, MARTIN, and ANDERSON, Circuit Judges.
[PUBLISH]
Appeal from the United States District Court for the Middle District of Florida
The Law Enforcement Officers Safety Act (“LEOSA“) allows “a qualified retired law enforcement officer ... who is carrying the identification required by [the Act]” to “carry a concealed firearm,” notwithstanding most State or local restrictions.
In March 2017, Camille Burban sued Neptune Beach, Florida seeking to enforce her individual rights she believes are granted to her by the Law Enforcement Officers Safety Act,
Subsection (a) provides:
Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified retired law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed fireаrm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b).
Subsection (d) sets out two options for the type of identification a qualified retired law enforcement officer must possess in order to lawfully carry a concealed weapon under LEOSA. Option one is:
[A] photographic identification issued by the agеncy from which the individual separated from service as a law enforcement officer that identifies the person as having been employed as a police officer or law enforcement officer and indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the agency to meet the active duty standards for qualification in firearms training as established by the agency to carry a firearm of the same type as the concealed firearm[.]
According to Ms. Burban‘s amended complaint, she was an officer with the Department for more than ten years before she retired from service in 2013. In October 2016, she asked the Department to issue her the type of photographic identification card rеquired by LEOSA. The Department denied her request, explaining that under its policy, these cards are issued only to officers who retired in good standing and who qualify with a Department-certified
Ms. Burban‘s suit challenged the Department‘s requirements as inconsistent with federal law. More to the point, Ms. Burban asserted that she is a qualified retired law enforcement officer as defined in LEOSA. She said the City‘s refusal to supply her with LEOSA-compliant identification deprived her of federal rights conferred upon her by LEOSA and enforceable under
The City moved to dismiss Ms. Burban‘s amended complaint. The District Court applied the framework set out in Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353 (1997). In doing so, the District Court found that LEOSA did not give Ms. Burban an individually enforceable federal right and dismissed her complaint for failure to state a claim on which relief may be granted. This is Ms. Burban‘s appeal.
II.
“We review de novo the district court‘s grant of a motion to dismiss under Rule 12(b)(6) for failure to state a claim, aсcepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff.” Am. Dental Ass‘n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010) (quotation marks omitted).
III.
This appeal must address whether LEOSA creates a right enforceable under
A.
Section 1983 provides a private cause of action against any person who, under color of state law, deprives an individual of “any rights, privileges, or immunities secured by the Constitution and laws” of the United States.
In Blessing, the Supreme Court described the framework for deciding whether a federal statute creates rights enforceable under § 1983. First, a court must break down a plaintiff‘s complaint into “manageable analytic bites,” identifying “exactly what rights, considered in their most concrete, specific form, [plaintiff] [is] asserting.” Id. at 342, 346, 117 S. Ct. at 1360, 1362; see, e.g., Harris v. James, 127 F.3d 993, 1005–1012 (11th Cir. 1997) (assessing provision-by-provision whether the Medicaid Act creates a federal right to transportation to and from medical providers); cf. Doe 1-13 ex rel. Doe, Sr. 1-13 v. Chiles, 136 F.3d 709, 714–15 (11th Cir. 1996) (explaining that the Harris panel‘s conclusion that the Medicaid Act did not create a federal right to transportation to and from medical providers did not reach the question of whether any provisions of that same Act created a federal right to reasonably prompt provision of medical assistance). It is a mistake for a court to take a “blanket approach” to determining
Once the right being asserted has been identified, a court must cоnsider three factors:
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandаtory, rather than precatory, terms.
Id. at 340-41, 117 S. Ct. at 1359 (citations omitted). If all three of these factors are satisfied, this creates a rebuttable presumption that a right is enforceable under § 1983. Id. at 341, 117 S. Ct. at 1360. However, a defendant is able to rebut that presumption by showing Congress expressly or impliedly foreclosed a remedy under § 1983. Id. If a provision fails to meet any one of the three Blessing factors, it does not provide a person with a federal right enforceable under § 1983. See Arrington v. Helms, 438 F.3d 1336, 1345 (11th Cir. 2006).
Since Blessing, the Supreme Court has explicitly “reject[ed] the notion that anything short of an unambiguously conferred right” may support a cause of action brought under § 1983. Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S. Ct. 2268, 2275 (2002). Thus, “where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit . . . under § 1983.” Id. at 286, 122 S. Ct. at 2277.
B.
We need not belabor our analysis because no provision of § 926C, read individually or together, “unambiguously imрose[s] a binding obligation on the States” to give agency-issued, LEOSA-compliant identification to retired law enforcement officers.1 Blessing, 520 U.S. at 341, 117 S. Ct. at 1359. The failure to satisfy one of the Blessing factors dooms Ms. Burban‘s complaint. See Arrington, 438 F.3d at 1345. We therefore affirm its dismissal.
A provision unambiguously imposes a binding obligation on the States when “the asserted right [is] couched in mandatory, rather than precatory, terms.” Blessing, 520 U.S. at 341, 117 S. Ct. at 1359. We typically look to the language of
a provision for words like “must” and “shall.” See Kingdomware Techs., Inc. v. United States, 579 U.S. ___, 136 S. Ct. 1969, 1977 (2016) (“Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a requirement.“); see also, e.g., Wilder v. Va. Hosp. Ass‘n, 496 U.S. 498, 512, 110 S. Ct. 2510, 2519 (1990) (concluding the Boren Amendment, which provided that a State plan “‘must’ ‘provide for payment ... of hospital[s]’ according to rates the State finds are reasonable and adequate,” is cast in mandatory terms (alterations and emphasis in original) (quoting
separate provision providing for “reasonable efforts” to prevent or eliminate removal of a child from his or her home).
There is no provision of § 926C that compels the States to provide LEOSA-cоmpliant identification. Two of the five subsections of § 926C do not so much as mention identification. See
Subsection (a) indicates that a retired officer may only carry a concealed weapon pursuant to LEOSA if he or she is also “carrying the identification requirеd by subsection (d).”
purely definitional. And this Court has made clear that definitional provisions are not enforceable under § 1983. See 31 Foster Children v. Bush, 329 F.3d 1255, 1271 (11th Cir. 2003) (“Because §§ 675(5)(D) and (E) are definitional in nature, they alone cannot and do not supply a basis for conferring rights enforceable under § 1983.“). We thus conclude that no provision of § 926C compels a State to issue identification. This being the case, we cannot say LEOSA provides the right Ms. Burban seeks to enforcе.
C.
Beyond the Blessing test, we are also mindful of the “anticommandeering” doctrine. This doctrine follows from the Tenth Amendment‘s explicit reservation of “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, . . . to the States respectively, or to the people.”
Ms. Burban argues that because Florida law already has mechanisms for providing identification сards to qualified retired law enforcement officers, her request does not raise a commandeering problem. See
federal standards does not mean it must forgo any challenge to other federal standards with which it does not want to comply.
Ms. Burban‘s interpretation of § 926C would, in our view, raise serious anticоmmandeering concerns. Contrary to her suggestion, her proposal that we require states to issue identification plainly seeks to control how States regulate private parties, as opposed to regulating state activities. Cf. Reno, 528 U.S. at 151, 120 S. Ct. at 672 (noting that the Driver‘s Privacy Protection Act of 1994, which regulates disclosure of personal information contained in records of state motor vehicle deрartments, “does not require state officials to assist in the enforcement of federal
D.
Ms. Burban‘s other arguments for why § 926C might afford a right to agency-identification are also unpersuasive. For example, she argues LEOSA‘s purpose, intent, and text demonstrate that Congress intended to extend to retired law еnforcement officers the right to carry concealed firearms. She gleans from this general desire that Congress must have wanted to obligate agencies to issue LEOSA-compliant identification. But, as we have already explained, the rule is that Congress must have “unambiguously impose[d] a binding obligation on the States.” Blessing, 520 U.S. at 341, 117 S. Ct. at 1359. We do not stack inference on inference to impose an obligation on the Stаtes that Congress did not obviously impose. There is simply no provision of § 926C that tells a State it must do as Ms. Burban asks.
We view Ms. Burban‘s focus on the overall purpose of LEOSA as misguided. Blessing teaches that we must identify the “most concrete, specific” right a plaintiff is asserting and assess whether Congress afforded that particular right. Id. at 346, 117 S. Ct. at 1362. We cannot interpret Ms. Burban‘s complaint as seeking to generally vindicate LEOSA rights. Because shе has no enforceable right to agency-issued identification, her complaint must necessarily fail no matter what other rights LEOSA might confer. See id.
Ms. Burban also asks this Court to follow DuBerry v. District of Columbia, 824 F.3d 1046 (D.C. Cir. 2016), which is a decision of the D.C. Circuit. In DuBerry, four retired D.C. correctional officers sued the District of Columbia because it refused to certify that they had served as law enforcement officers. Id. at 1048, 1050. According to the officers’ complaint, they could not get the firearm certification required by subseсtion (d)(2)(B) without certification of their prior law enforcement service. Id. The D.C. Circuit held that LEOSA created a right enforceable under § 1983. Id. at 1054–55.
To begin, DuBerry is not binding authority in this Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (“Under the established federal legal system the decisions of one circuit are not binding on other circuits.“). And we decline to follow it here.
First, the DuBerry plaintiffs asserted a different right than the one Ms. Burban seeks to vindicate here. In DuBerry, the plaintiffs sought only certification of the “historical fact[]” of their service. See 824 F.3d at 1050. They did not seek identification. Indeed, their complaint alleged that “each [plaintiff] has a photo identification card issued by the D.C. Department of Corrections stating that he is a retired employee of the D.C. Department of Corrections where he had the authority to arrest and apprehend, and to act in a law enforcement capacity.” Id. (citing plaintiffs’ amended complaint); see also DuBerry v. District of Columbia, 106 F. Supp. 3d 245, 263 n.18 (D.D.C. 2015) (“Plaintiffs here do not assert a right to the identification required in subsection (d).“), reversed on other grounds by DuBerry, 824 F.3d at 1055. Given Blessing‘s command that courts are to assess the specific, concrete rights a plaintiff asserts, 520 U.S. at 346, 117 S. Ct. at 1362, we do not read DuBerry as reaching the question presented here.
Second, we do not view the request in DuBerry to raise the commandeering issues present here. That suit was not against a State or a political division within a State, but instead against the District of Columbia. See DuBerry, 824 F.3d at 1048. The Constitution plainly recognizes that “Congress shall have Power . . . To exercise exclusive Legislation in all Cases whatsoever,” over the District as “the Seat of the Government of the United States.”
***
Because no provision of § 926C compels the States to provide LEOSA-compliant identification, we conclude LEOSA does not confer such right. We therefore AFFIRM the dismissal of Ms. Burban‘s amended complaint.
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