United States Court of Appeals, District of Columbia Circuit
March 8, 2019
from the United States District Court for the District of
Columbia (No. 1:14-cv-01258)
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.
Marr Page argued the cause for appellees. With him on the
brief was F. Peter Silva.
Peterson was on the brief for amici curiae Western States
Sheriffs' Association, et al. in support of appellees and
in support of affirmance.
Rogers and Wilkins, Circuit Judges, and Edwards, Senior
Edwards, Senior Circuit Judge.
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).
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.
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.
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.
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.
The Law Enforcement Officers Safety Act
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
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.
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).
Court's Decision in DuBerry I
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)