United States District Court, District of Columbia
RONALD E. DUBERRY, et al., Plaintiffs,
DISTRICT OF COLUMBIA, Defendant.
MEMORANDUM OPINION DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT; GRANTING PLAINTIFFS' CROSS-MOTION FOR
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.
Enforcement Officers Safety Act (“LEOSA”)
authorizes active and retired “qualified law
enforcement officer[s]” with suitable identification to
carry a concealed firearm interstate, contrary state or local
law notwithstanding. 18 U.S.C. §§ 926B, 926C. This
case, back to this Court on remand from the D.C. Circuit and
presently before the Court on cross motions for summary
judgment, concerns whether three former District of Columbia
Department of Corrections (“DCDOC”) officers meet
certain statutory prerequisites to be considered
“qualified retired law enforcement officer[s]”
under LEOSA. Finding that Plaintiffs meet the statutory
preconditions at issue in this case-including, that they each
“served as a law enforcement officer for an aggregate
of 10 years or more” and had “statutory powers of
arrest” before separating from DCDOC, id.
§ 926C(c)(2), (3)(A)-the Court grants Plaintiffs'
motion for summary judgment and denies the District of
Columbia's motion for the same.
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.
See H.R. Rep. No. 108-560, at 3 (2004). Beginning in
1992, lawmakers introduced legislation aimed at permitting
concealed carry nationwide for certain law enforcement
officers. See H.R. 218, 107th (2001); H.R. 218,
106th Cong. (1999); H.R. 218, 105th Cong. (1997);
H.R. 218, 104th Cong. (1995); H.R. 1277, 103d Cong. (1993);
H.R. 4897, 102d Cong. (1992). 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 (2004) (codified at 18 U.S.C.
§§ 926B, 926C); see also S. Rep. No.
108-29, at 2-3 (2003) (describing efforts to enact
legislation similar to 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. See S. Rep. No. 108-29,
at 4. The Act's purpose was two-fold- to protect active
and retired officers and their families from
“vindictive criminals, ” and to enable such
officers to “respond immediately” to crimes
spanning multiple jurisdictions. Id.; see
also H.R. Rep. No. 108-560, at 4. 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).
926B(c) establishes six conditions that a current employee of
a governmental agency must satisfy to be considered a
“qualified law enforcement officer” under LEOSA.
Id. § 926B(c). First, the employee must be
legally authorized “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 “statutory powers of
arrest” or powers of apprehension under 10 U.S.C.
§ 807(b). 18 U.S.C. § 926B(c)(1). The individual
must also be authorized by the agency to carry a firearm;
must meet any standards established by the agency for
employees to qualify to use a firearm; must not be under the
influence of alcohol or drugs; must not be the subject of any
disciplinary action by the agency that might result in
suspension or “loss of police powers”; and must
not be prohibited by federal law from receiving a firearm.
Id. § 926B(c)(2)- (6). Section 926B also
establishes that, in order to take advantage of LEOSA rights,
a qualified law enforcement officer must carry
“photographic identification issued by the governmental
agency for which the individual is employed that identifies
the employee as a police officer or law enforcement officer
of the agency.” Id. § 926B(a), (d).
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).
Factual Background and Procedural History
their retirements, Plaintiffs Ronald E. Duberry, Maurice
Curtis, and Robert L. Smith worked as correctional officers
in the District of Columbia Department of Corrections, each
beginning in the 1970s or 1980s and serving for at least
sixteen years. See Pls.' Statement of
Undisputed Material Facts (“Pls.' SUMF”)
¶ 1, ECF No. 59-2; Def. District of Columbia's
Statement of Undisputed Material Facts (“Def.'s
SUMF”) ¶¶ 22-25, ECF No. 53-19. As
corrections officers, Plaintiffs were responsible for, among
other things, the treatment, custody, counseling, and
supervision of individuals incarcerated at DCDOC-operated
correctional institutions, including the Lorton Correctional
Complex in Lorton, Virginia. See Position
Descriptions, Exs. 12-14, Def.'s SUMF, ECF Nos. 53-31,
53-32, 53-33; Decl. of Robert Smith (“Smith
Decl.”) ¶ 1, ECF No. 59-5; Decl. of Ronald Duberry
(“Duberry Decl.”) ¶ 1, ECF No. 59-4; Decl.
of Maurice Curtis (“Curtis Decl.”) ¶ 1, ECF
in November 2012, Plaintiffs individually sought to enjoy the
concealed carry right that they believed LEOSA afforded them.
See Corr. Am. Compl. ¶¶ 48-59, ECF No. 15.
Because each Plaintiff purportedly has photographic
identification classifying them as retired employees of
DCDOC, see Corr. Am. Compl. ¶ 56-identification
that they believe satisfies the requirements of subsection
(d)(2)(A)-they focused on securing firearm certification to
meet the requirement of subsection (d)(2)(B). In Prince
George's County, Maryland (where Mr. Duberry and Mr.
Curtis reside) and in the District of Columbia (where Mr.
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. See Corr. Am. Compl. ¶ 47. On
this certification form, the agency must answer a series of
questions by checking boxes for “yes” or
“no.” See Ex. 1, Corr. Am. Compl. One
question asks whether the applicant, while employed,
possessed various authorizations enumerated in subsection
(c)(2) of LEOSA, including “statutory powers of
arrest.” Certification of Prior Law Enforcement
Employment, Pls.' Ex. B, ECF No. 23-2. Relatedly, another
question asks whether the applicant was “regularly
employed as a law enforcement officer” for the
indicated duration of time. Certification of Prior Law
Enforcement Employment, Pls.' Ex. B.
response to both of these questions on Mr. 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.”
Certification of Prior law Enforcement Employment, Pls.'
Ex. B; see also Corr. Am. Compl. ¶¶ 49-51,
55, 57. DCDOC took the same position with respect to the
other Plaintiffs, with the agency's former director
explaining to Plaintiffs' counsel that the agency does
not believe that active or retired correctional officers of
DCDOC meet all of the LEOSA requirements. See Email
from Thomas Faust to William J. Phelan (Feb. 28, 2013) at DC
Duberry001748, Ex. 1, Def.'s SUMF, ECF No. 53-20; Email
from Marie D. Oliveria to William J. Phelan (May 21, 2014) at
DC Duberry001760-61, Ex. 1, Def.'s SUMF, ECF. No. 53-20.
2014, Plaintiffs initiated this action against the District
of Columbia, former Mayor Vincent Gray in his official
capacity, and former Director of DCDOC Thomas Faust in his
official capacity. See Compl., ECF No. 1.
Plaintiffs' amended complaint alleged that
Defendants' actions had denied them rights under LEOSA in
violation of 42 U.S.C. § 1983. See Corr. Am.
Compl. ¶¶ 5, 80-96. Plaintiffs contended that they
met all of the LEOSA conditions, including that they had
“statutory powers of arrest.” In support of this
claim, Plaintiffs asserted that they were given
identification cards stating that they had such powers under
D.C. Code § 24-405. See Corr. Am. Compl.
¶¶ 61, 66, 71. Plaintiffs sought injunctive and
declaratory relief requiring Defendants to recognize them as
retired law enforcement officers for purposes of LEOSA.
See Corr. Am. Compl. ¶¶ 89, 96. In
addition, Plaintiffs asked this Court to make any order with
regard to their status applicable to all retired DCDOC
officers-and all DCDOC officers who would retire in the
future-who otherwise meet the qualification of LEOSA.
See Corr. Am. Compl. at 17. Defendants subsequently
moved to dismiss Plaintiffs' amended complaint.
See Defs.' Mot. to Dismiss 2d Am. Compl., ECF
prior opinion, this Court granted Defendants' motion to
dismiss. See Duberry v. District of Columbia, 106
F.Supp.3d 245, 270 (D.D.C. 2015). This Court first found
that, contrary to Defendants' arguments, Plaintiffs had
standing to seek declaratory and injunctive relief as to
themselves. See Id. at 253. However, the Court
agreed with Defendants that Plaintiffs did not have standing
to bring claims as to future retired correctional officers.
See Id. This Court then dismissed individual
Defendants Gray and Faust from the action, reasoning that
claims asserted against them were duplicative of claims
against the District. Id. at 260-61. Finally, the
Court dismissed Plaintiffs' remaining claims. See
Id. at 261-70.
Court explained that, pursuant to the Supreme Court's
decision in Blessing v. Firestone, 520 U.S. 329
(1997), a federal statute creates a right enforceable under
42 U.S.C. § 1983 when (1) Congress intended that the
provision in question benefit the plaintiff, (2) the right
assuredly protected by the statute is not so “vague and
amorphous” that its enforcement would strain judicial
competence, and (3) the statute imposes a mandatory
obligation on the states. Id. at 261-62.
Interpreting Plaintiffs' 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], ” id. at 265, the Court could
not say that Congress intended to confer upon Plaintiffs the
right that they sought to enforce in this action.
Id. at 266-68. 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).
Id. at 268-70. Accordingly, this Court explained
that even if the District had misclassified Plaintiffs-an
issue that this Court did not reach-Plaintiffs could not seek
to correct that error through § 1983. See id.
appealed, and the D.C. Circuit reversed this Court's
decision and remanded the matter for further proceedings.
See Duberry v. District of Columbia
(“Duberry I”), 824 F.3d 1046, 1057 (D.C.
Cir. 2016). The Circuit concluded that Plaintiffs had, in
fact, alleged a right remediable under § 1983. See
Id. In the Circuit's view, the LEOSA right that
Plaintiffs' sought to vindicate satisfied each prong of
Blessing. See Id. First, the Circuit
explained that the text of LEOSA supported Plaintiffs'
claim that Congress intended LEOSA to benefit individuals
like them directly. See Id. at 1052. Specifically,
the LEOSA right reached not only police officers, but also
“correctional officers and parole authorities who
‘engage[d] in . . . the incarceration of any person
for any violation of law.'” Id. (quoting
18 U.S.C. § 926C(c)(2)).
appeal, the District had “question[ed] whether
[Plaintiffs] are entitled to claim any right under LEOSA
because as correctional officers they were not ‘trained
to determine whether probable cause exists to make a
warrantless arrest for any crime in the community, ' and
therefore lack the requisite statutory power of
arrest.” Id. at 1052-53 (quoting
Appellee's Br. at 12, 25). The Circuit offered two
responses. Assuming that the matter of whether Plaintiffs had
statutory powers of arrest presented a factual question, the
Circuit explained that such an issue would not provide a
basis for dismissing Plaintiffs' claims. See Id.
at 1053. Plaintiffs had alleged in their complaint that they
had such powers and had claimed that DCDOC had provided them
with identification cards stating as much. See Id.
Those allegations were sufficient to permit Plaintiffs to
survive a motion to dismiss. Assuming that the matter of
Plaintiffs' statutory powers of arrest instead presented
a legal question, the Circuit explained that “[g]iven
the breadth of Congress's definition, the reference to
‘statutory powers of arrest' necessarily means some
statutory power of arrest such as a power to arrest parole
violators, and not, as the District of Columbia suggests,
only the police power to arrest upon probable cause.”
Id. (citing Appellee's Br. at 25). Thus,
Plaintiffs' claims still were not subject to dismissal.
The Circuit also noted that “contrary to the District
of Columbia's suggestion at oral argument, the LEOSA does
not require that, prior to retiring, a law enforcement
officer's job required carrying a firearm in order to be
a ‘qualified retired law enforcement
officer.'” Id. (alteration in original).
Circuit next found that the right that Plaintiffs sought to
vindicate was not vague or amorphous, satisfying the second
prong of Blessing. See Id. Because Congress
had provided statutory criteria for defining the LEOSA right
and for establishing eligibility for rights under the
statute, the scheme was subject to judicial enforcement.
See Id. Looking to Congress's “categorical
preemption of state and local law standing in the way of the
LEOSA right to carry, ” the Circuit concluded that
states have a “mandatory duty” to
“recognize the right” LEOSA establishes, meeting
the third Blessing prong. Id. The Circuit
observed that Congress did not afford states the discretion
to “redefine either who are ‘qualified law
enforcement officers' or who is eligible for the LEOSA
right.” Id. at 1053-54.
already concluded that Plaintiffs stated claims under §
1983, the Circuit cited additional support for its decision
in the form of legislative history. See Id. at 1054.
The Circuit then addressed the possibility that this Court
had determined that Plaintiffs were not those Congress
intended LEOSA to benefit until they obtained the subsection
(d)(2)(B) firearms certification. The Circuit explained that
“the firearms certification ...