Duberry v. District of Columbia

          MEMORANDUM OPINION DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         The Law 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.

         II. BACKGROUND

         A. Statutory Framework

         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. 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, 105^th 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).

         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.^[1] 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).

         Section 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).

         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).

         B. Factual Background and Procedural History

         Before 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.^[2] 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 No. 59-3.

         Beginning 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.

         In 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.

         In July 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 No. 19.

         In a 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.

         The 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.

         Plaintiffs 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)).

         On 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).

         The 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.

         Having 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 ...