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DuBerry v. District of Columbia

United States Court of Appeals, District of Columbia Circuit

May 21, 2019

Ronald Eugene DuBerry, et al., Appellees
v.
District of Columbia, Appellant

          Argued March 8, 2019

          Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-01258)

          Mary L. Wilson, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellant. With her on the briefs were Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General, and Caroline S. Van Zile, Deputy Solicitor General.

          Aaron Marr Page argued the cause for appellees. With him on the brief was F. Peter Silva.

          Dan M. Peterson was on the brief for amici curiae Western States Sheriffs' Association, et al. in support of appellees and in support of affirmance.

          Before Rogers and Wilkins, Circuit Judges, and Edwards, Senior Circuit Judge.

          Edwards, Senior Circuit Judge.

         Subject to certain conditions, the Law Enforcement Officers Safety Act ("LEOSA") authorizes "qualified retired law enforcement officer[s]" to carry concealed firearms. 18 U.S.C. § 926C(a). Ronald DuBerry, Maurice Curtis, and Robert Smith ("Appellees") formerly served as correctional officers with the Washington, D.C. Department of Corrections ("DCDOC"). After they had separated from service in good standing, see id. § 926C(c)(1), Appellees sought to invoke LEOSA so that they would be able to carry concealed firearms as "qualified retired law enforcement officers." The District of Columbia ("District") refused to issue the necessary certification forms for Appellees, however. The District claimed that, as former corrections officers, Appellees never had statutory powers of arrest and, therefore, could not claim any rights under LEOSA. Appellees then initiated an action under 42 U.S.C. § 1983 seeking declaratory and injunctive relief to require the District to recognize them as "qualified retired law enforcement officers" for purposes of LEOSA. The District Court dismissed Appellees' complaint for failure to state a claim. This court reversed and remanded the case to the District Court for further proceedings. DuBerry v. District of Columbia ("DuBerry I"), 824 F.3d 1046 (D.C. Cir. 2016).

         In DuBerry I, we found that "LEOSA's plain text, purpose, and context show that Congress intended to create a concrete, individual right to benefit individuals like [Appellees] and that is within the competence of the judiciary to enforce." 824 F.3d at 1054-55 (citation omitted). We rejected the District's theory that rights under LEOSA "attach" only after officers have obtained requisite identifications. Id. at 1055. We therefore held that Appellees had "sufficiently alleged that the federal right they seek to enjoy has been unlawfully deprived by the District of Columbia to be remediable under Section 1983." Id.

         On remand, the District Court granted summary judgment for Appellees, holding that they had met three of LEOSA's statutory requirements necessary to be considered "qualified retired law enforcement officers." DuBerry v. District of Columbia, 316 F.Supp.3d 43, 58 (D.D.C. 2018). Specifically, the court found that each Appellee, in his prior position, possessed "statutory powers of arrest," served as a "law enforcement officer" for an aggregate of at least 10 years, and separated from service in good standing. See 18 U.S.C. § 926C(c). Appellees did not ask the District Court to determine whether they had "identifications" sufficient to satisfy the requirements of 18 U.S.C. § 926C(d). Therefore, the court did not address this issue. Instead, the District Court simply noted that "whether or not [Appellees] have sufficient identification is irrelevant for purposes of determining whether they have met certain statutory preconditions to be considered 'qualified retired law enforcement officers.'" DuBerry, 316 F.Supp.3d at 58. The District now appeals.

         The District presses two arguments on appeal. The principal claim raised by the District is that, under LEOSA, "to carry a concealed weapon, an individual must be both a qualified retired law enforcement officer and hold an identification issued by his former government employer stating that he was a law enforcement officer." District Br. at 14 (emphasis in original). Therefore, according to the District, "since [Appellees] lack the proper identification, they have no enforceable right that is remediable under Section 1983." Id. at 15. The District also suggests that Appellees lack standing to pursue this action, because "even assuming [Appellees] have a viable claim under Section 1983," they have failed to "show a causal link between the District's alleged misconduct and their injury." See id. at 16. In other words, according to the District, Appellees have "failed to show that, but for the District's refusal to complete their employment certification forms, they would have been entitled to carry under LEOSA." Id.

         We find no merit in the District's contentions. The first argument is foreclosed by DuBerry I. The second argument completely misapprehends the relief sought and obtained by Appellees in this litigation. Appellees are not seeking a declaration that they are entitled to carry firearms pursuant to LEOSA. Rather, they have sought to overturn the District's unlawful refusal to certify them as "qualified retired law enforcement officers," which is necessary in order for them to pursue the right to carry under LEOSA. Therefore, it does not matter whether Appellees have yet to obtain the identifications required by Section 926C(d). As the District Court correctly noted, the requirements of Section 926C(d) are not at issue in this case. We therefore affirm the judgment of the District Court.

         I. BACKGROUND

         A. The Law Enforcement Officers Safety Act

         The District Court's opinion cogently explains the relevant portions of LEOSA, as follows:

Before 2004, a patchwork of state laws governed whether out-of-state current or former law enforcement officers could carry a concealed firearm within a particular state's borders. . . . Beginning in 1992, lawmakers introduced legislation aimed at permitting concealed carry nationwide for certain law enforcement officers. . . . Efforts succeeded in 2004 with the enactment of the Law Enforcement Officers Safety Act, known as "LEOSA." See LEOSA, Pub. L. 108-277, 118 Stat. 865[, 866] (2004) (codified at 18 U.S.C. §§ 926B, 926C).
LEOSA mandates that all active and retired law enforcement officers be able to carry a concealed firearm anywhere in the United States subject to certain conditions, overriding most contrary state and local laws. . . . LEOSA provides that, "[n]otwithstanding any other provision of the law of any State or any political subdivision thereof," a "qualified law enforcement officer" or "qualified retired law enforcement officer" "may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce," so long as the individual also carries the requisite identification. 18 U.S.C. §§ 926B(a), 926C(a).
Section 926C sets forth the requirements to be considered a "qualified retired law enforcement officer," which differ in some respects from the qualifications for active officers. See id. § 926C(c). To qualify for LEOSA rights, a retired employee must have "separated from service in good standing . . . with a public agency as a law enforcement officer." Id. § 926C(c)(1). The individual must also meet the relevant standards for qualification in firearms training; must not have been found unqualified for reasons related to mental health; must not be under the influence of alcohol or another intoxicating substance; and must not be prohibited by federal law from receiving a firearm. Id. § 926C(c)(4)- (7). In addition, before separating from the agency, the individual must have "served as a law enforcement officer for an aggregate of 10 years or more"; must have had legal authority to "engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law"; and must have had either "statutory powers of arrest" or powers of apprehension pursuant to 10 U.S.C. § 807(b). 18 U.S.C. § 926C(c)(2)-(3). Qualified retired law enforcement officers must carry "photographic identification issued by the agency . . . that identifies the person as having been employed as a police officer or law enforcement officer." Id. § 926C(d)(1), (2)(A). And, if the agency-issued identification does not indicate that the retired officer has completed the appropriate firearms training, the officer must carry a separate certification form so establishing. Id. § 926C(d)(2).

DuBerry v. District of Columbia, 316 F.Supp.3d at 45-46.

         B. Background Facts

         Appellees worked as correctional officers with the DCDOC for at least sixteen years before retiring in good standing. As correctional officers, they were responsible for the treatment, custody, counseling, and supervision of individuals incarcerated in District correctional facilities. Following their retirements, and starting in approximately November 2012, Appellees individually sought to exercise concealed-carry rights under LEOSA.

         The District Court's opinion lucidly recounts the facts leading to Appellees' initiation of this litigation after the District denied their requests for certifications required by LEOSA:

In Prince George's County, Maryland (where [Appellee] Duberry and [Appellee] Curtis reside) and in the District of Columbia (where [Appellee] Smith resides), an individual must submit a prior employment certification form completed by the law enforcement agency for which he previously worked before seeking firearm certification. On this certification form, the agency must answer a series of questions by checking boxes for "yes" or "no." One question asks whether the applicant, while employed, possessed various authorizations enumerated in subsection (c)(2) of LEOSA, including "statutory powers of arrest." Relatedly, another question asks whether the applicant was "regularly employed as a law enforcement officer" for the indicated duration of time.
In response to both of these questions on [Appellee] Duberry's prior employment certification form, a DCDOC human resources officer checked the boxes for "no" and wrote that Mr. Duberry was "not a law enforcement officer." DCDOC took the same position with respect to the other [Appellees], with the agency's former director explaining to [Appellees'] counsel that the agency does not believe that active or retired correctional officers of DCDOC meet all of the LEOSA requirements.
In July 2014, [Appellees] initiated this action against the District of Columbia . . . . [Appellees'] amended complaint alleged that [the District's] actions had denied them rights under LEOSA in violation of 42 U.S.C. § 1983. [Appellees] contended that they met all of the LEOSA conditions, including that they had "statutory powers of arrest." In support of this claim, [Appellees] asserted that they were given identification cards stating that they had such powers under D.C. Code § 24-405. [Appellees] sought injunctive and declaratory relief requiring [the District] to recognize them as retired law enforcement officers for purposes of LEOSA.
Interpreting [Appellees'] complaint as seeking "the right to have [DC]DOC classify them as retired 'law enforcement officers' under subsection (c)(2) for purposes of completing their application[s] for [] concealed carry permit[s]," the [District Court] could not say that Congress intended to confer upon [Appellees] the right that they sought to enforce in this action. Rather, the Court construed LEOSA as conferring only one right-the right to carry a concealed firearm-and doing so only with respect to individuals who already have status as "qualified retired law enforcement officer[s]" and who already possess the identification documents required by subsection (d). Accordingly, [the District Court] explained that even if the District had misclassified [Appellees]-an issue that [the District Court] did not reach-[Appellees] could not seek to correct that error through § 1983.

316 F.Supp.3d at 47-48 (citations omitted); see also DuBerry v. District of Columbia, 106 F.Supp.3d 245 (D.D.C. 2015) (District Court's initial decision).

         C. This Court's Decision in DuBerry I

         This court reversed the District Court's judgment in favor of the District. DuBerry v. District of Columbia ("DuBerry I"), 824 F.3d 1046 (D.C. Cir. 2016). The court applied the three- factor test enunciated in Blessing v. Freestone, 520 U.S. 329 (1997), and concluded that Appellees' lawsuit rested on a viable cause of action under 42 U.S.C. § 1983. DuBerry I, 824 F.3d at 1051-55. Under Blessing, 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 ...


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