Ronald Eugene DUBERRY, et al., Appellants, v. DISTRICT OF COLUMBIA, et al., Appellees.
No. 15-7062
United States Court of Appeals, District of Columbia Circuit.
Argued March 14, 2016. Decided June 3, 2016.
824 F.3d 1046
Before: HENDERSON, ROGERS and KAVANAUGH, Circuit Judges.
Mary L. Wilson, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With her on the brief were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.
Dissenting opinion filed by Circuit Judge HENDERSON.
ROGERS, Circuit Judge:
Four retired D.C. correctional officers appeal the dismissal, for failure to state a claim, of their Section 1983 complaint alleging that the District of Columbia deprived them of their federal right under the Law Enforcement Officers Safety Act (the LEOSA),
I.
The Law Enforcement Officers Safety Act establishes the right of qualified law enforcement officers, both active and retired, to carry a concealed weapon in the United States upon meeting certain conditions. Pub. L. 108-277, 118 Stat. 865 (codified as amended at
Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is [1] a qualified retired law enforcement
officer and who is [2] carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b).
According to the amended complaint, appellants are retired former correctional officers of the D.C. Department of Corrections who reside either in the District of Columbia or Maryland, and frequently travel across state borders. Because they have, since their retirement, frequently encountered former inmates in public and [i]n several of these encounters, the former inmates would recognize [appellants] as former correctional officer[s] and sometimes make threats, and/or threatening gestures toward them, Am. Compl. ¶ 33, they each want to carry a concealed weapon as authorized by the LEOSA. Further, appellants allege that under the
What appellants lack is the firearms certification required by subsection (d)(2)(B), see supra note 1. To obtain that certification, the District of Columbia and Prince George‘s County, Maryland, where appellants reside, require a formal Certification of Prior Law Enforcement Employment by an officer‘s former employer before the officer may receive qualified firearms training from a certified instructor. Am. Compl. ¶¶ 47c-d. When appellants attempted to obtain this certification of historical facts from the D.C. Department of Corrections their requests were denied on the ground that [c]orrectional officers do not meet the full criteria and definition required by ‘LEOSA’ because D.C. law gave correctional officers neither law enforcement status nor arrest authority. Id. ¶¶ 51, 55.
Appellants filed suit for declarative and injunctive relief under
The retired correctional officers appeal. Our review of the Rule 12(b)(6) dismissal of their amended complaint is de novo, Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009), addressing legal conclusions de novo while treating well-pleaded factual allegations in their complaint as true and according appellants the benefit of reasonable inferences, Doe v. Rumsfeld, 683 F.3d 390, 391 (D.C. Cir. 2012).
II.
Appellants contend that, contrary to the district court‘s interpretation, the identification requirement under subsection (a) does not define the category of individual entitled to the LEOSA right to carry, but is simply a prerequisite to the exercise of an existing right under the LEOSA. Their claim is that they, as otherwise qualified law enforcement officers, have been deprived of that right as a result of the District of Columbia‘s unlawful action preventing them from access to required firearms training certificates. They also contend that the district court misconstrued their amended complaint as seeking to vindicate a procedural right to be classified correctly rather than the asserted right to carry concealed firearms under the LEOSA.
Section 1983 provides a remedy for the deprivation of federal constitutional and statutory rights by any person under color of state law.4 Maine v. Thiboutot, 448 U.S. 1, 4 (1980). Its plain text makes clear its remedies encompass violations of federal statutes. The deprivations for which it provides a remedy, however, are only those of rights, privileges, or immunities secured by the Constitution and laws of the United States, ... not the broader or vaguer benefits or interests, Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (quoting
To determine whether appellants had alleged the deprivation of a federal right, the district court looked to Blessing v. Freestone, 520 U.S. 329 (1997): A statute creates a right enforceable under Section 1983 if (1) Congress intended that the provision in question benefit the plaintiff, (2) the plaintiff demonstrate[s] that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence, and (3) the statute ... unambiguously impose[s] a binding obligation on the States using mandatory, rather than precatory, terms. Id. at 340-41, 117 S.Ct.
If, as the district court ruled, the LEOSA right that Congress intended to establish does not attach until appellants have in fact obtained the firearms certification, then their access to that right could hinge on the District of Columbia‘s (or a state‘s) determination of whether, in its view, a retired law enforcement officer had the power of arrest or otherwise met the LEOSA‘s requirements. On the other hand, if as appellants contend, Congress created an individual right of which appellants have been deprived due to the District of Columbia‘s unlawful interference with their ability to obtain the required certification, then they have stated a claim and we must remand the case to the district court for further proceedings.
A.
The determination whether appellants have alleged a right remediable under Section 1983 presents the threshold question of what right Congress created in the LEOSA. The district court interpreted the right appellants seek to vindicate as a right to receive the employment certification from the D.C. Department of Corrections. See DuBerry, 106 F.Supp.3d at 265. In their amended complaint, however, and as explained in their appellate brief, appellants claim that the LEOSA grants them, as qualified retired correctional officers, the right to carry concealed firearms, including the right to carry them across state lines. Am. Compl. ¶ 81; Appellants’ Br. 22. Further, they claim that federal right is due protection under Section 1983, Am. Compl. ¶ 82, and that the LEOSA does not foreclose a remedy under Section 1983, id. ¶ 83.
We begin with the text of the LEOSA, see Engine Mfrs. Ass‘n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252-53 (2004), and conclude that it favors appellants’ view of the LEOSA right. Congress used categorical language in the notwithstanding clause of subsection (a), to preempt state and local law to grant qualified law enforcement officers the right to carry a concealed weapon. As applied to the three-factor Blessing test, the text of the LEOSA creates the type of right remediable under Section 1983.
First, the text supports appellants’ claim that Congress intended the LEOSA to benefit individuals like them directly. Golden State, 493 U.S. at 106; Blessing, 520 U.S. at 340. The plain text of the LEOSA grants retired law enforcement officers a right to carry a concealed firearm [n]otwithstanding any other provision of the law of any State or any political subdivision thereof. The LEOSA right is not limited to former police officers, but includes, among others, correctional officers and parole authorities who engage[d] in ... the incarceration of any person for[] any violation of law.
The District of Columbia questions whether appellants are entitled to claim any right under the LEOSA because
Second, the LEOSA right to carry is not the type of vague and amorphous right that is beyond the competence of the judiciary to enforce. Golden State, 493 U.S. at 106 (quoting Wright v. Roanoke Redevelop. & Housing Auth., 479 U.S. 418, 431-32 (1987)). The LEOSA sets specific requirements for qualified law enforcement officers in historical and objective terms. The definition of such an officer is based on the service requirements of the officer‘s former law enforcement agency and the circumstances at the time of the officer‘s retirement. Had the officer been a law enforcement officer for at least ten years? Had the officer retired in good standing? Had the officer had a statutory power of arrest prior to retirement? The answers to these questions are to be found in the officer‘s personnel records and the statutes in effect before the officer retired. Similarly, the requirement for annual firearms training is defined as the standards for active duty officers and can be met through either the former employing agency or the officer‘s state of residence or a firearms trainer certified by that state. The LEOSA, then, falls on the side of statutes that are not so vague as to be judicially unenforceable, even where the states may retain some compliance discretion. See Wilder v. Va. Hosp. Ass‘n, 496 U.S. 498, 519-20 (1990).
Third, the LEOSA imposes a mandatory duty on the states to recognize the right it establishes. It is more than a mere ‘congressional preference’ for a certain kind of conduct but rather provides a substantive right. Id. at 509-10. This is evident from the categorical preemption of state and local law standing in the way of the LEOSA right to carry, see
The conclusion that the LEOSA creates an individual right to carry finds additional support in Congress‘s purpose and the context of its enactment of the LEOSA. See Engine Mfrs., 541 U.S. at 252; District of Columbia v. Dep‘t of Labor, 819 F.3d 444, 450 (D.C. Cir. 2016). The legislative history demonstrates that Congress‘s purpose was to afford certain retired law enforcement officers, in view of the nature of their past law enforcement responsibilities, the present means of self-protection and protection for the officer‘s family and, as an added benefit, to provide additional safety for the communities where the officers live and visit. See 150 Cong. Rec. S7301-02 (daily ed. June 23, 2004) (statement of Sen. Leahy); 150 Cong. Rec. H4812-13 (daily ed. June 23, 2004) (statement of Rep. Coble); see also Report of the Senate Judiciary Committee, regarding S. 253, S. Rep. No. 108-29, at 4 (2003); H.R. Rep. No. 108-560, at 4; 150 Cong. Rec. E1231 (extension of remarks, June 24, 2004) (statement of Rep. Cunningham). When the LEOSA is viewed in context, it is not insignificant that Congress enacted the LEOSA despite strong dissenting views. See 150 Cong. Rec. H4813 (daily ed. June 23, 2004) (statement of Rep. Scott); 150 Cong. Rec. S1624-25 (daily ed. Feb. 26, 2004) (statement of Sen. Dodd). Dissenting statements filed with the Senate and House Judiciary Committees raised objections to the concealed-carry legislation based on the demand of federalism and the states’ traditional police powers, as well as practical concerns about the potential disruption of the efforts by state and local law enforcement to control firearms within their jurisdictions. See S. Rep. No. 108-29, at 12-13 (dissenting statement of Sen. Kennedy); H.R. Rep. No. 108-560, at 22-23, 79 (dissenting statement of Rep. Sensenbrenner & Rep. Flake). The practical concerns extended to the broad definition of a qualified retired law enforcement officer to include individuals whose jobs did not require them to carry a firearm and who therefore had not been trained by their employer in the use of a firearm. S. Rep. No. 108-29, at 16; H.R. Rep. No. 108-560, at 70. In the Committees, the response to these objections was expressed in the longstanding support for concealed carry legislation by the Fraternal Order of Police (FOP) and the Law Enforcement Alliance of America, see H.R. Rep. 108-560, at 4, pointing to the needs of officers to defend themselves and to protect their families with the resultant benefit to their communities of additional law enforcement officers. See Law Enforcement Officers Safety Act: Hearing before Committee on House Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, 108th Cong., 2d Sess. (2004) (statement of Chuck Canterbury, FOP National President). The practical objections were addressed by requiring annual firearms training to ensure that all retired officers eligible to carry concealed weapons received the same firearms training as active duty officers. See, e.g., H.R. Rep. 108-560, at 11, 59-60.
Taken together, the LEOSA‘s plain text, purpose, and context show that Congress intended to create a concrete, individual right to benefit individuals like appellants and that is within the compe-
The decisions of our sister circuits on which the district court relied were not interpreting the LEOSA, and are distinguishable. See Ass‘n of N.J. Rifle & Pistol Clubs, Inc. v. Port Auth. of N.Y. & N.J., 730 F.3d 252 (3d Cir. 2013); Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129 (2d Cir. 2010).5 In Torraco, 615 F.3d at 137, the Second Circuit held that the right conferred was too vague and amorphous for enforcement under Section 1983 in view of the difficulty facing a state officer who stopped someone transporting a weapon of knowing the gun laws of both the origin and destination jurisdictions. Under the LEOSA, the officer is required to carry identification indicating the statutory requirements, thereby resolving officer uncertainty. Association of New Jersey Rifle and Pistol Clubs, 730 F.3d at 257, turned on a limitation of the right to carry a weapon interstate to use of a transporting vehicle, which was held not to include transport by plane, and so plaintiffs were not intended beneficiaries. Appellants face no comparable obstacle under the LEOSA.
Similarly, the cases relied upon by the District of Columbia are unpersuasive support for the dismissal of appellants’ amended complaint. In Ramirez v. Port Authority of New York & New Jersey, 15-cv-3225, 2015 WL 9463185 (S.D.N.Y. Dec. 28, 2015), the district court ruled that the LEOSA created only a defense to civil and criminal liability, but nothing indicates Congress intended to place qualified law enforcement officers at such risks before the concealed-carry right could be exercised, much less that Congress intended to foreclose a Section 1983 remedy. The other district court opinions on the LEOSA cited by the District of Columbia did not address Section 1983, but rather found alternative grounds for denying the claims. See, e.g., Friedman v. Las Vegas Metro. Police, No. 2:14-cv-0821, 2014 WL 5472604 (D. Nev. Oct. 24, 2014); Johnson v. N.Y. State Dep‘t of Corr. Servs., 709 F.Supp.2d 178 (N.D.N.Y. 2010); Moore v. Trent, No. 09 C 1712, 2010 WL 5232727 (N.D. Ill. Dec. 16, 2010). We have no occasion to address such alternative grounds here.
Our dissenting colleague‘s view that the district court lacked subject matter jurisdiction misapplies Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900). According to the amended complaint, the District of Columbia acknowledged in official Departmental identification cards that appellants, while they were working as D.C. correctional officers, had a power of arrest. See Am. Compl. ¶¶ 61, 66, 71, 76. Only when appellants, as retirees, sought to exercise their concealed-carry right under the LEOSA did the District of Columbia change its position. Then, as now, it asserted that appellants lack the power of arrest that Congress intended. It offers no support for this conclusion in the statutory text of the LEOSA or even in the legislative history. Congress defined who is a qualified law enforcement officer to apply not only to police officers but to employees in related law enforcement areas who had a power of arrest. As Congress deemed the federal right to be of preeminent importance, notwithstanding state laws prohibiting the concealed carry of firearms, it left no discretion for a state to revise the historical record of an individual qualified law enforcement officer. Thus, there is no question of rights under D.C. law at issue here, and the Supreme Court‘s focus in Shoshone on local customs and limiting state laws where possession of mining rights was at issue, 177 U.S. at 508, is inapposite. Federal law governs appellants’ contention that the District of Columbia has unlawfully interfered with a federal right bestowed on them by Congress.
B.
Finally, even when the plaintiff has asserted a federal right, the defendant may show that Congress ‘specifically foreclosed a remedy under § 1983.’ Golden State, 493 U.S. at 106 (quoting Smith v. Robinson, 468 U.S. 992, 1005 n. 9 (1984)). The burden to show congressional intent to foreclose a Section 1983 remedy is on the defendant, and courts do not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for the deprivation of a federally secured right. Wright, 479 U.S. at 423-24. The District of Columbia has made no such showing. Appellants’ amended complaint does not arise under the Spending Clause where the Supreme Court has embraced a narrow interpretation of private damages actions, absent clear contrary congressional intent, because the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State. Gonzaga University, 536 U.S. at 280 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981)). Nor does anything in the LEOSA itself or its legislative history indicate that exclusive enforcement lies elsewhere or
Nor has the District of Columbia otherwise rebutted appellants’ presumed right to relief under Section 1983. Its reliance on the anti-commandeering doctrine, see Printz v. United States, 521 U.S. 898, 925-26 (1997), appears to be misplaced; at least it cites no authority that the doctrine is applicable to it. See
Accordingly, because appellants’ amended complaint states a claim under Section 1983, we reverse the dismissal of their amended complaint and remand the case to the district court for further proceedings.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
My colleagues conclude that the plaintiffs have alleged a cause of action under
The district court held that it had subject-matter jurisdiction under
Section 1331 is known as the general federal-question jurisdiction statute. Mims, 132 S.Ct. at 747. Although the language of § 1331 parallels that of the ‘arising under’ clause of Article III of the Constitution, it is well established that Article III ‘arising under’ jurisdiction is broader than federal question jurisdiction under § 1331. Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 494-95 (1983); see also Franchise Tax Bd., 463 U.S. at 8 n. 8. In other words, section 1331 bestows jurisdiction on a smaller class of cases than does the Constitution. Reducing to a formula what claims are (and what claims are not) provided for is something of a puzzle. The most familiar construction of section 1331‘s arising under language is that [a] suit arises under the law that creates the cause of action. Franchise Tax Bd., 463 U.S. at 8-9 (emphasis added) (quoting Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916)). This rule, also known as Justice Holmes’ test in recognition of the American Well Works author, states that where federal law creates the cause of action, section 1331 provides federal question jurisdiction. Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808-09 n. 5 (1986).
Although the Justice Holmes’ test resolves jurisdiction under section 1331 in the vast majority of cases, id. at 808, it does not answer the issue completely. For instance, a claim may arise under federal law where the vindication of a right under state law necessarily turn[s] on some construction of federal law. Id. at 808 (emphasis added) (quoting Franchise Tax Bd., 463 U.S. at 9).1 Thus, absence of a federal cause of action is not fatal and some courts have observed Justice Holmes’ test is not useful for ... the exclusion for which it was intended. T.B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (2d Cir. 1964) (Friendly, J.). Although the test is more useful as a rule of inclusion, see Franchise Tax Bd., 463 U.S. at 9; see also Merrell Dow, 478 U.S. at 814 n. 12 (Holmes test is usual[ly] reliabl[e] ... as an inclusionary principle), that notion is not without its exceptions, Rogers v. Platt, 814 F.2d 683, 688 (D.C. Cir. 1987).
For example, the Supreme Court has sometimes found that formally federal causes of action were not properly brought under federal-question jurisdiction because of the overwhelming predominance of state-law issues. Merrell Dow, 478 U.S. at 814 n. 12 (emphasis added). Probably the most prominent example is Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900), in which case a federal statute authorized suit brought to determine the question of the right of possession to mineral lands. Id. at 507. The existence of the right of possession, however, was to be determined by local customs of rules of miners ... or by the statute of limitations for mining claims of the state or territory where the same may be situated. Id. at 508. Because [t]he recognition by Congress of local customs and statutory provisions as at times controlling the right of possession does not incorporate them into the body of Federal law, a suit to determine the right of possession may not involve any question as to the construction or effect of the ... laws of the United States; on the contrary, it may involve no more than determination of the meaning and effect of certain local rules ... or the effect of state statutes. Id. at 508-09. Although the case included the right of possession, id. at 507 (emphasis added), and its corresponding federal recognition via title from the [federal] government, id. at 513, the Court found no subject matter jurisdiction. It concluded that notwithstanding a right may have its origin in the laws of the United States, it may not, in the language of section 1331, necessarily [involve a claim] arising under ... laws of the United States. Id. at 507 (emphasis added). If a federal statute specifies that state law governs the existence and scope of a right, and compliance with state law is the only disputed issue, no federal question arises and therefore no subject-matter jurisdiction exists under section 1331. Cf. id. at 507 (The suit must, in part at least, arise out of a controversy between the parties in regard to the operation and effect of the Constitution or laws [of the United States]. (emphasis added)).
Assuming, as the majority concludes, that section 1983 establishes a cause of action to enforce the LEOSA, i.e., that it creates [a] claim for relief, Mims, 132 S.Ct. at 748 n. 8, I nonetheless believe that, under Shoshone, the district court lacked subject-matter jurisdiction. The majority‘s conclusion establishes only that the LEOSA and section 1983 combine to authoriz[e] an action to establish a right—no more, no less. Shoshone, 177 U.S. at 510. But state law governs whether a right exists and, for subject-matter jurisdiction to arise, the [federal] Act—here, the LEOSA—must also supply the governing law. Mims, 132 S.Ct. at 748 n. 8. Although the LEOSA may do so in some cases, cf. Shoshone, 177 U.S. at 513 (these suits may sometimes so present questions arising under the Constitution or laws of the United States that the Federal courts will have jurisdiction (emphasis added)), it does not do so here.
The plaintiffs seek an Order directing the District ... to certify and/or acknowledge Plaintiffs as retired law enforcement officers for purposes of the [LEOSA], Corr. Am. Compl. 17, which, in this case, turns on whether, while serving as corrections officers, they had a statutory pow-er[] of arrest under D.C. law, see Maj. Op at 1050;
My colleagues offer two additional bases for subject-matter jurisdiction. First, they emphasize the Congress‘s use[] [of] categorical language in the ‘notwithstanding’ clause of subsection (a), Maj Op. 1052; see
In addition, my colleagues conclude—as part of their Blessing3 inquiry—that the District misinterpreted the term statutory powers of arrest, see Maj. Op. 1052-53, specifically, that it reevaluat[ed] or redefin[ed] [the] federal requirement[ ], id. at 1055; see also id. at 1057 (District has no power to revise the statutory definition), concluding that the existence of a state statutory power of arrest is a federal question, id. at 1055 (right defined by federal law). I do not see how. As they concede, the inquiry whether the officer had a statutory power of arrest is answer[ed] by the officer‘s personnel records and the statutes in effect before the officer retired, id. at 1053, in other words, by state statutes, or even only a mere matter of fact, Shoshone, 177 U.S. at 508. They apparently also believe that the definition of arrest is itself found in federal law and that the term should be construed broadly, Maj. Op. 1052-53, but in doing so they offer no definition at all. The fact is that the plaintiffs’ arrest power can only arise under local law and, in my view, whether the plaintiffs possessed the arrest power under the D.C. definition of that term decides this case. In any event, [t]he inquiry along Federal lines, to the extent there is one, is only incidental to a determination of the local question of what the state has prescribed. Shoshone, 177 U.S. at 509.4
Finally, Blessing illustrates what this case is not about, at least for the purpose of subject-matter jurisdiction. 520 U.S. 329. Blessing involved a federal program that provided funds to states operating federally-qualified child support enforcement programs. Id. at 333. A participating state was required to structure its implementing agency in a particular way, staff its units at federally mandated levels, and set up computer systems that met numerous federal specifications to maintain detailed records. Id. at 334. The plaintiffs alleged that Arizona deprived them of child support services because the state agency‘s structural defects made them ineligible to receive the federal program‘s benefits. Id. at 337. In other words, they alleged that Arizona had not complied with federal requirements. By contrast, here the plaintiffs do not claim that the District‘s implementation of the LEOSA is lacking nor that the District has failed to meet federal requirements. Instead, they claim that D.C. misinterpreted the authority of its own former law enforcement officers under D.C. law, as the LEOSA instructs. Appellant Br. 19 (arguing that the District wrongly concluded that correctional officers do not have ‘law enforcement status and arrest authority’ under D.C. law); see also Corr. Am. Compl. ¶ 61;
I note that some regard subject-matter jurisdiction under section 1331 to be, at bottom, a question of congressional intent and that Shoshone, because it involved a local land dispute, can be explained in this way. See Merrell Dow, 478 U.S. at 810, 814 n. 12 (section 1331 require[s] sensitive judgments about congressional intent and Shoshone was suit with insufficient federal interest); see also Shoshone, 177 U.S. at 506 ([t]he question ... is not one of the power of Congress, but of its intent). To me, it makes perfect sense to likewise conclude that the Congress intended a state court to determine whether one of its retired law enforcement officers is qualified, that is, whether he possessed certain state law authority, see
For the foregoing reasons, I respectfully dissent.