Jаmes Roger Thorne appeals from his convictions for Carrying a Pistol Without a License (“CPWL”) in violation of D.C.Code § 22-4504 (2009 Supp.), Possession of an Unregistered Firearm (“UF”) in violation of D.C.Code § 7-2502.01 (2009 Supp.), and Unlawful Possession of Ammunition (“UA”) in violation of D.C.Code § 7-2506.01 (2009 Supp.). Mr. Thorne is employed by the Alexandria Security Patrol Corporation, which secured for him two Virginia-court appointments as a “special conservator of the peace” (“SCOP”). As an SCOP, Mr. Thorne has some authority to act in a law enforcement capacity, including the power to make arrests and to carry a gun, while he is “engaged in the performance of his duties” for the Alexandria Security Patrol Corporation. Based on his status as an SCOP, Mr. Thorne argues that he is exempt from prosecution for CPWL, UF, and UA under the exception for law enforcement officers that each of these statutes contains. Alternatively, Mr. Thorne argues that, if D.C. law does not protect him, he is exempt from prosecution under the federal Law Enforcement Officers Safety Act (“LEOSA”), 18 U.S.C. § 926B (2010 Supp.). Failing that, Mr. Thorne asserts that the District’s CPWL, UF, and UA statutes, as applied to him, violatе the Second Amendment of the United States Constitution.
We hold that the limited D.C. and federal law exemptions that permit law enforcement officers to carry weapons and ammunition in the District do not apply to Mr. Thorne based on the record he has presented to the court. Specifically, Mr. Thorne, who only possesses authority to act in a law enforcement capacity while he is working for his private employer, is not a “law enforcement officer” within the meaning of the statutory provisions on which he relies. We also reject Mr.
I. Facts and Procedural History
At the time he was arrested, Mr. Thorne was a special conservator of the peace pursuant to two appointments, from two different courts in Virginia, under Va.Code Ann. § 19.2-13. Both appointments were made upon an application by his еmployer, the Alexandria Security Patrol Corporation.
One appointment was from the Circuit Court for the City of Alexandria. The court’s Order of Appointment gave Mr. Thorne “all the powers, functions, duties, responsibilities and authority of any other conservator of the peace when [Mr. Thorne] is engaged in the performance of duties, as a special conservator of the peace, for the [Alexandria Security Patrol Corporation] at or on the premises described in the application.” The Order stated that the “pоwers of the special conservator of the peace appointed herein shall be exercised ... within the territorial limits of the City of Alexandria.” It further provided that Mr. Thorne was “authorized to carry a firearm while acting within the course and scope of his ... employment and appointment as a special conservator of the peace.”
A second appointment was issued by the Circuit Court of Fairfax County. In that court’s Order, Mr. Thorne was similarly given:
all the powers, functions, duties, responsibilities and authority of any other conservаtor of the peace when [Mr. Thorne] is engaged in the performance of duties as a special conservator of the peace as allowed by Virginia Code § 46.2-1023, for the use in services contracted by Alexandria Security Patrol only.1
Like the Alexandria Order, the Fairfax Order of Appointment further provided that “the powers of the special conservator of the peace appointed herein shall be exercised within the territorial limits of Fairfax County and only in connection with services provided by the [Alexandria Seсurity Patrol Corporation],” and that Mr. Thorne “is authorized to carry a firearm while acting within the course and scope of his or her employment and appointment as a special conservator of the peace.”
Turning to the criminal conduct charged, the record reflects that police approached Mr. Thorne on the street in the District on August 25, 2010, at 4:20 a.m., to see if he had any information about a recent report of gunshots. The police discovered that he was in possession of a loaded firearm. Mr. Thorne wаs then placed under arrest and was subsequently charged with CPWL, UF, and UA.
Following the filing of the charges, Mr. Thorne filed a motion to dismiss, arguing that he was not subject to the District’s gun control laws because both D.C. and federal law exempt law enforcement officers. Mr. Thorne did not allege that, in the absence of statutory protection, he had a Second Amendment right to carry a gun.
The trial judge ruled that Mr. Thorne was not a law enforcement officer under D.C. or federal law and denied his motion to dismiss. Mr. Thorne then waived his right to a trial by jury, and agreed to a trial based on stipulated facts. In those facts, Mr. Thorne acknowledged that, at the time of his arrest, he was not on duty for his employer and was not traveling directly home from his job in Virginia to his home in Maryland. The trial judge found Mr. Thorne guilty of all three charged offenses.
II. D.C.Code Provisions
Mr. Thorne had the burden in Superior Court to establish facts sufficient to bring himself within one of the provisions exempting law enforcement officers from prosecution for CPWL, UF, and UA. See Bsharah v. United States,
A. Carrying a Pistol Without a License
We begin our analysis with the CPWL charge. D.C.Code § 22-4504 states: “No person shall carry within the District of Columbia either openly or cоncealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law.” The Code then exempts a number of officials from this broad prohibition, most relevant to this case: “marshals, sheriffs, prison or jail wardens, or their deputies, policemen or other duly appointed law enforcement officers.” D.C.Code § 22-4505. The term “law enforcement officer” is not defined.
“The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used.” Varela v. Hi-Lo Powered Stirrups, Inc.,
As discussed in our case law, the ordinary understanding of policemen and law enforcement officers is that these terms describe professionals with “general duties and broad authority.” Franklin v. United States,
Mr. Thorne is not a policeman or other duly appointed law enforcement officer under the ordinary sense of those terms because, outside of specific times when he is working, he does not have general police authority or authorization to carry a gun. His Order of Appointment from the City of Alexandria limits his authority as a conservator of the peace to times when he “is engaged in the performance of duties ... at or on the premises described in the application.” Similarly, his Order of Appointment from Fairfax County limits his authority to times when he “is engaged in the performance of duties ... for the use in services contracted by Alexandria Security Patrol only.” In addition, both orders specifically limit his ability to carry a firearm to times when he is on duty. Mr. Thorne never presented evidence regarding the scope of his work hours for the Alexandria Security Patrol Corporation, but we can infer from the language of his two appointments that he was not expected to be on duty twenty-four hours per day, seven days a week, otherwise there would be no reason to include language limiting his authority as an SCOP to times when he was “engaged in the performance of his duties.”
Even though our statutes and precedent are clear that policemen and law enforcement officers are those with general law enforcement authority and responsibility, we have also recognized that certain professionals who are given police powers “while on duty and in [their] prescribed area of authority, must of necessity possess certain powers that are accorded to policemen.” Franklin,
Mr. Thorne does not fall under the additional, narrow exception for individuals with limited law enforcement authority because he was not acting within the scope of his employment when he was arrested.
Although D.C. law and our interpretation thereof controls the question before us — ie., who is “a law enforcement officer” within the meaning of the D.C.Code — it is worth noting that Mr. Thorne does not appear to be a law enforcement officer in the eyes of Virginia either. Unlike the D.C.Code, Virginia law defines the term “law enforcement officer” as “any full-time or part-time employеe of a police department or sheriffs office which is a part of or administered by the Commonwealth or any political subdivision thereof, and who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth.” Va.Code Ann. § 9.1-101 (2012). Mr. Thorne stipulated that he was employed by the Alexandria Security Patrol Corporation, and his orders of appointment were tied to his employment with this entity (which, given its name, appears to be a private company).
In addition, Virginia law itself distinguishes between law enforcement officers and special conservators of the peace. Virginia permits its circuit courts to grant to special conservators of the peace “all the powers, functions, duties, responsibilities and authority of any other conservator of the peace” but only “within such geographical limitations as the court may deem appropriate” and “whenever such special conservator of the peace is engaged in the performance of his duties as such.” Va.Code Ann. § 19.2-13 (2008). The statute further authorizes courts, in an order of appointment, to “provide that the special conservator of the peace is a ‘law-enforcement officer’ for the purposes of Article 4 (§ 37.2-808 et seq.) of Chapter 8 of Title 37.2 [addressing emergency custody and involuntary detention of a person with a mental illness], or Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1 [addressing the psychiatric treatment of minors]” — thus indicating that, absent such designation in the order of appointment, an SCOP is not considered a law enforcement officer for any purpose.
Lastly, Virginia has different standards for law enforcement officers and special conservators of the peace with respect to its gun laws. The Virginia Code exempts “[a]ny law-enforcement officer, wherever such law-enforcement officer may travel in the Commonwealth,” but only exempts conservators of the peace “while in the discharge of their official duties, or while in transit to or from such duties.” Va. Code Ann. § 18.2-308.
We reiterate that Virginia’s definition of law enforcement officer is not dispositive of thе question before us, but if Mr. Thorne is not a law enforcement officer under Virginia law, we see no reason to make him a law enforcement officer for the purposes of the District of Columbia’s gun control laws.
B. Unregistered Firearm
We next turn to Mr. Thorne’s conviction under D.C.Code § 7-2502.01, which states in relevant part: “no person or organization in the District shall possess or control any firearm, unless the person or organization holds a valid registration certificate for the firearm.” Like the CPWL
Any law enforcement officer or agent of the District or the United States, or any law enforcement officer or agent of the government of any state or subdivision thereof, or any member of the armed forces of the United States, the National Guard or organized reserves, when such officer, agent, or member is authorized to possess such a firearm or device while on duty in the performance of official authorized functions.
D.C.Code § 7 — 2502.01(b)(1). Without question, this provision exempts law enforcement officers from othеr states. However, by its terms it still only applies to law enforcement officers or agents. As discussed, supra, Mr. Thorne is not a law enforcement officer or agent (1) under the ordinary understanding of those terms, (2) under the narrow exemption this court has recognized for professionals accorded limited law enforcement authority, or (3) even in the jurisdiction in which he works. Therefore, Mr. Thorne is not entitled to the exemption under D.C.Code § 7-2502.01(b)(1).
C. Unlawful Possession of Ammunition
Lastly, we turn to Mr. Thorne’s conviction for unlawful possession of ammunition under D.C.Code § 7-2506.01, which states: “[n]o person shall possess ammunition in thе District of Columbia” subject to a few exemptions. Specifically, like CPWL and UF, UA has its own distinct law enforcement exemption for “an officer, agent, or employee of the District of Columbia or the United States of America, on duty and acting within the scope of his duties when possessing such ammunition.” D.C.Code § 7-2506.01(a)(2). Though this provision seems to apply only to officers of the District of Columbia and the United States — and therefore not to officers of other states — we decline, as we did with the CPWL exemption, to determine whether officers from other states are foreclosed from its protection. The statute applies only to an officer who is “on duty and acting within the scope of his duties.” Again, because Mr. Thorne’s Orders of Appointment coupled with his admission establishes that he was not on duty or acting within the scope of his duties at the time of his arrest, he plainly does not qualify for this exemption.
III. Law Enforcement Officers Safety Act
Mr. Thorne argues that, even if he is not exempt from prosecution for CPWL, UF, and UA under the D.C.Code, he is exempt under the federal Law Enforcement Officers Safety Act (LEOSA). As with the D.C.Code provisions, we review this question of statutory interpretation de novo. See McNeely,
The parties stipulated that Mr. Thorne was an employee of the Alexandria Security Patrol Corporation. Although no information about the Alexandria Security Patrol Corporation was presented to the trial court, the word “corporation” in its name seems to imply that Mr. Thorne is employed by a private business entity, not a branch of the government.
Mr. Thorne nevertheless argues that we should consider Alexandria Security Patrol Corporation to be a governmental agency under LEOSA for three reasons. None have merit. First, Mr. Thorne argues that the Alexandria Security Patrol Corporation was a governmental agency because it was a “criminal justice agency” as defined by Va.Code Ann. § 9.1-101. Mr. Thorne misreads this statutе. When defining criminal justice agency, this section expressly distinguishes between private corporations and government agencies and states that a private corporation employing special conservators of the peace is a criminal justice agency only for the limited purpose of another section of the Virginia Code covering Virginia’s criminal record system. Id. Second, Mr. Thorne makes an argument sounding in principles of agency law: that because the Alexandria Security Patrol Corporation is acting as an agent of the government when its employees are protecting property and preserving the peace, the corporation should be considered a governmental agency. But Mr. Thorne does not point to any authority in support of the proposition that, contrary to its ordinary meaning, the statute is referencing agency law when it says “governmental agency.” Finally, Mr. Thorne points to a case from New York State, in which the Supreme Court (ie., the trial court) ruled that an elected Pennsylvania constable who functioned as аn “independent contractor” but nonetheless was paid directly by the government, was entitled to LEOSA’s protection. See New York v. Rodriguez, N.Y. Sup.Ct., N.Y. County, Nov. 3, 2006, Zweibel, J., indictment No.
IV. Second Amendment
In the absence of any statutory protection from prosecution, Mr. Thorne argues that D.C.’s gun control laws, as applied to him as a special conservator of the peace who is permitted to carry a firearm while on duty, violate his rights under the Second Amendment. U.S. Const. amend. II. Because Mr. Thorne “failed to preserve this issue in the trial court, we review only for plain error.”
Mr. Thorne has not shown a “clear or “obvious” violation of the Second Amendment, either at the time of trial or at the time of his appeal. In Heller, the Supreme Court held that “the District’s ban on handgun possession in the home violates the Second Amendment.” Heller,
For the foregoing reasons, we affirm.
So ordered.
Notes
. Virginia Code § 46.2-1023 refers only to the use of flashing red or red and white lights on vehicles. Presumably, when referencing this section of the Virginia Code, the Fairfax Order of Appointment was describing only one aspect of Mr. Thorne’s authority and not the entirety of that authority.
. We note that the CPWL statute was written by Congress in 1932, before home rule, whereas the UF аnd UA exemptions were part of comprehensive gun control legislation written by the Council in 1976.
. The CPWL statute also does not state whether it applies to law enforcement officers
. We recognize that Bsharah was decided before District of Columbia v. Heller,
. The general rule that Metropolitan Police Department officers are always on duty does not apply when the officer is outside of the jurisdiction. Rife v. District of Columbia Police & Firefighters' Ret. & Relief Bd.,
. Mr. Thorne argues that he had broad geographic authority throughout the City of Alexandria and Fairfax County. However, even if we accept Mr. Thorne’s argument that his authority extends throughout Alexandria and Fairfax, the orders of appointment are unambiguous that his police authority and ability to carry a firearm are confined to the times when he is on duty.
. In Timus v. United States,
. Those requirements, which we do not need to discuss here, are:
(1) is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers оf arrest;
(2) is authorized by the agency to carry a firearm;
(3) is not the subject of any disciplinary action by the agency which could result in suspension or loss of police powers;
(4) meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;
(5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and
(6) is not prohibited by Federal law from receiving a firearm.
18 U.S.C. § 926B (c).
. Mr. Thorne seems to agree with this interpretation: when arguing that his employer was a criminal justice agency under Virginia law, see infra, he emphasized the portion of the statute referring to private corporations.
. Mr. Thome argues that his failure to make a constitutional argument in Superior Court should be excused because his Second Amendment claim did not arise until after the Superior Court judge ruled that he was not exempt from prosecution under D.C. or federal law. This argument has no merit. Mr. Thome’s Second Amendment rights, such as they are, are constant.
. Mr. Thome particularly relies on the D.C. Circuit's opinion in Heller v. District of Columbia,