Appeals from the Superior Court of the District of Columbia (CF2-15750-10) (Hon. Anthony C. Epstein, Trial Judge)
The opinion of the court was delivered by: Easterly, Associate Judge
Before FISHER and EASTERLY, Associate Judges, and NEWMAN, Senior Judge.
James 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, violate 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. Thorne‟s as-applied constitutional challenge to his convictions for CPWL, UF, and UA; this argument was not made at trial and is subject to plain error review. Under current law, it is not plain that Mr. Thorne, in his capacity as an off-duty SCOP from the state of Virginia, has a Second Amendment right to carry a gun and ammunition in the District. Thus, we affirm.
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 employer, 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 "powers 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 conservator 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.*fn1
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 Security 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 was 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.
In support of his statutory arguments, Mr. Thorne argued that his designation as a special conservator of the peace in Virginia made him a law enforcement officer. Mr. Thorne attached his two Virginia-court appointments to his motion. As noted above, both orders limited Mr. Thorne‟s authority to act as an SCOP to when he was engaged in the performance of his duties. Mr. Thorne presented no evidence regarding the scope of his duties for the Alexandria Security Patrol Corporation - his work hours, work obligations, work locations, etc. - much less any evidence indicating that his law enforcement authority as an SCOP exceeded his work hours. Mr. ...