Duberry v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2016 Decided June 3, 2016

No. 15-7062

RONALD EUGENE DUBERRY, ET AL.,

APPELLANTS

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-01258)

Aaron Marr Page argued the cause for appellants. With

him on the briefs was F. Peter Silva.

Mary L. Wilson, Senior Assistant Attorney General, Office

of the Attorney General for the District of Columbia, argued the

cause for appellees. With her on the brief were Karl A. Racine,

Attorney General, Todd S. Kim, Solicitor General, and Loren L.

AliKhan, Deputy Solicitor General.

Before: HENDERSON, ROGERS and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

2

Dissenting opinion filed by Circuit Judge HENDERSON.

ROGERS, Circuit Judge: Four retired D.C. correctional

officers appeal the dismissal, for failure to state a claim, of their

Section 1983 complaint alleging that the District of Columbia

deprived them of their federal right under the Law Enforcement

Officers Safety Act (“the LEOSA”), 18 U.S.C. § 926C, to carry

a concealed weapon. The LEOSA creates that right,

notwithstanding contrary state or local law, for active and retired

“qualified law enforcement officer[s]” who meet certain

requirements. Those requirements include that the officer

received firearms training within the twelve months prior to

carrying a concealed weapon and, prior to retirement, had the

power to make arrests. Appellants allege that they meet the

statutory requirements but have been unable to obtain firearms

training because the District of Columbia has refused to certify

that, as correctional officers, they had a statutory power of

arrest. Upon de novo review, we hold that the complaint states

a claim under 42 U.S.C. § 1983, and we reverse and remand the

case for further proceedings.

I.

The Law Enforcement Officers Safety Act establishes the

right of “qualified law enforcement officers,” both active and

retired, to carry a concealed weapon in the United States upon

meeting certain conditions. Pub. L. 108-277, 118 Stat. 865

(codified as amended at 18 U.S.C. §§ 926B, 926C). The Act

provides, as relevant here:

Notwithstanding any other provision of the law of any

State or any political subdivision thereof, an individual

who is [1] a qualified retired law enforcement officer

and who is [2] carrying the identification required by

subsection (d) may carry a concealed firearm that has

3

been shipped or transported in interstate or foreign

commerce, subject to subsection (b).

Id. § 926C(a) (emphasis added). A “qualified retired law

enforcement officer” is defined as an individual who separated

from service in good standing after at least ten years with a

public agency as a law enforcement officer and “before such

separation, was authorized by law to engage in or supervise the

prevention, detection, investigation, or prosecution of, or the

incarceration of any person for, any violation of law, and had

statutory powers of arrest or apprehension.” Id.

§ 926C(c)(1)–(3) (emphasis added). The required identification

under subsection (d) consists of (1) a photographic identification

showing the officer is a former law enforcement officer and (2)

a certification from the officer’s state of residence (or a state-

certified firearms instructor) indicating that the officer has met

the firearms standards for active duty officers.1 Subsection (b)

1

Subsection (d) provides: “The identification required by this

subsection is —

(1) a photographic identification issued by the agency from

which the individual separated from service as a law

enforcement officer that identifies the person as having been

employed as a police officer or law enforcement officer and

indicates that the individual has, not less recently than one

year before the date the individual is carrying the concealed

firearm, been tested or otherwise found by the agency to meet

the active duty standards for qualification in firearms training

as established by the agency to carry a firearm of the same

type as the concealed firearm; or

(2)(A) a photographic identification issued by the agency

from which the individual separated from service as a law

enforcement officer that identifies the person as having been

employed as a police officer or law enforcement officer; and

4

excepts private or state or local government property.2

(B) a certification issued by the State in which the individual

resides or by a certified firearms instructor that is qualified to

conduct a firearms qualification test for active duty officers

within that State that indicates that the individual has, not less

than 1 year before the date the individual is carrying the

concealed firearm, been tested or otherwise found by the State

or a certified firearms instructor that is qualified to conduct a

firearms qualification test for active duty officers within that

State to have met —

(I) the active duty standards for qualification in

firearms training, as established by the State, to carry

a firearm of the same type as the concealed firearm;

or

(II) if the State has not established such standards,

standards set by any law enforcement agency within

that State to carry a firearm of the same type as the

concealed firearm.

18 U.S.C. § 926C(d). For purposes of Chapter 44 of Title 18, a “state”

is defined to include the District of Columbia. Id. § 921(a)(2).

2

Subsection (b) provides:

This section shall not be construed to supersede or limit the

laws of any State that –

(1) permit private persons or entities to prohibit or restrict

the possession of concealed firearms on their property; or

(2) prohibit or restrict the possession of firearms on any

State or local government property, installation, building,

base, or a park.

18 U.S.C. § 926C(b).

5

According to the amended complaint, appellants are retired

former correctional officers of the D.C. Department of

Corrections who reside either in the District of Columbia or

Maryland, and frequently travel across state borders. Because

they have, since their retirement, “frequently encountered

former inmates in public” and “[i]n several of these encounters,

the former inmates would recognize [appellants] as . . . former

correctional officer[s] and sometimes make threats, and/or

threatening gestures” toward them, Am. Compl. ¶ 33, they each

want to carry a concealed weapon as authorized by the LEOSA.

Further, appellants allege that under the LEOSA they are

qualified retired law enforcement officials to the extent that each

retired in good standing after working for at least ten years for

the D.C. Department of Corrections. Am. Compl. ¶¶ 21–23. As

correctional officers, each was trained and authorized to carry

firearms. Id. ¶ 27. Additionally, each appellant has a photo

identification card issued by the D.C. Department of Corrections

stating that he is a retired employee of the D.C. Department of

Corrections where he had the authority to arrest and apprehend,

and to act in a law enforcement capacity. Id. ¶¶ 56, 61, 66, 71,

76. Indeed, appellant Ronald E. DuBerry was issued a photo

identification card by the D.C. Department of Corrections

stating that he is a law enforcement officer with authority to

make arrests and carry a concealed weapon under D.C. Code

§ 22-3205 (now D.C. Code § 24-405).3 Id. ¶ 61.

3

D.C. Code § 24-405, Arrest for violation of parole,

provides:

If [the U.S. Parole Commission], or any member thereof, shall

have reliable information that a prisoner has violated his parole,

said [Commission], or any member thereof, at any time within

the term or terms of the prisoner’s sentence, may issue a warrant

to any officer hereinafter authorized to execute the same for the

retaking of such prisoner. Any officer of the District of

Columbia penal institutions, any officer or designated civilian

6

What appellants lack is the firearms certification required

by subsection (d)(2)(B), see supra note 1. To obtain that

certification, the District of Columbia and Prince George’s

County, Maryland, where appellants reside, require a formal

Certification of Prior Law Enforcement Employment by an

officer’s former employer before the officer may receive

qualified firearms training from a certified instructor. Am.

Compl. ¶ 47c–d. When appellants attempted to obtain this

certification of historical facts from the D.C. Department of

Corrections their requests were denied on the ground that

“[c]orrectional officers do not meet the full criteria and

definition required by ‘LEOSA’” because D.C. law gave

correctional officers neither law enforcement status nor “arrest

authority.” Id. ¶¶ 51, 55.

Appellants filed suit for declarative and injunctive relief

under 42 U.S.C. § 1983, alleging that “[b]y denying certification

as retired law enforcement officers” the District of Columbia

“deprived [them] of their right to carry concealed firearms under

employee of the Metropolitan Police Department of the District

of Columbia, or any federal officer authorized to serve criminal

process within the United States to whom such warrant shall be

delivered is authorized and required to execute such warrant by

taking such prisoner and returning or removing him to the penal

institution of the District of Columbia from which he was paroled

or to such penal or correctional institution as may be designated

by the Attorney General of the United States.

The statute refers to the D.C. Board of Parole. Its duties were

transferred to the U.S. Parole Commission in 1997 by the National

Capital Revitalization and Self-Government Improvement Act, Pub.

L. No. 105-33 § 11231(a)–(c), 111 Stat. 712, 745 (1997), codified at

D.C. Code § 24-131 (2001). See Bailey v. Fulwood, 793 F.3d 127,

130 (D.C. Cir. 2015).

7

LEOSA.” Id. ¶ 84. The district court dismissed their amended

complaint for failure to state a claim on the ground that the

“LEOSA does not unambiguously create the individual right that

Plaintiffs seek to enforce.” DuBerry v. District of Columbia,

106 F. Supp. 3d 245, 261 (D.D.C. 2015); FED. R. CIV. P.

12(b)(6). It concluded that even if the D.C. Department of

Corrections had violated the law by misclassifying appellants,

appellants had no claim under Section 1983 because any

LEOSA right did not “attach” until appellants obtained the

firearms certification, and alternatively, that the LEOSA did not

create a procedural right to have the Department correctly apply

the LEOSA definition in processing appellants’ prior

employment certification form. Id. at 261, 269.

The retired correctional officers appeal. Our review of the

Rule 12(b)(6) dismissal of their amended complaint is de novo,

Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C.

Cir. 2009), addressing legal conclusions de novo while treating

well-pleaded factual allegations in their complaint as true and

according appellants the benefit of reasonable inferences, Doe

v. Rumsfeld, 683 F.3d 390, 391 (D.C. Cir. 2012).

II.

Appellants contend that, contrary to the district court’s

interpretation, the identification requirement under subsection

(a) does not define the category of individual entitled to the

LEOSA right to carry, but is simply a prerequisite to the

exercise of an existing right under the LEOSA. Their claim is

that they, as otherwise qualified law enforcement officers, have

been deprived of that right as a result of the District of

Columbia’s unlawful action preventing them from access to

required firearms training certificates. They also contend that

the district court misconstrued their amended complaint as

seeking to vindicate a “procedural right to be classified

8

correctly” rather than the asserted right to carry concealed

firearms under the LEOSA.

Section 1983 provides a remedy for the deprivation of

federal constitutional and statutory rights by any person under

color of state law.4 Maine v. Thiboutot, 448 U.S. 1, 4 (1980).

Its plain text makes clear its remedies encompass violations of

federal statutes. The deprivations for which it provides a

remedy, however, are only those of “‘rights, privileges, or

immunities secured by the Constitution and laws’ of the United

States, . . . not the broader or vaguer ‘benefits’ or ‘interests,’”

Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (quoting 42

U.S.C. § 1983)). Thus, to state a claim, a plaintiff must assert

the violation of a federal right. Golden State Transit Corp. v.

City of Los Angeles, 493 U.S. 103, 106 (1989).

4

Section 1983 provides:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any action

brought against a judicial officer for an act or omission taken

in such officer’s judicial capacity, injunctive relief shall not

be granted unless a declaratory decree was violated or

declaratory relief was unavailable. For the purposes of this

section, any Act of Congress applicable exclusively to the

District of Columbia shall be considered to be a statute of the

District of Columbia.

42 U.S.C. § 1983.

9

To determine whether appellants had alleged the

deprivation of a federal right, the district court looked to

Blessing v. Freestone, 520 U.S. 329 (1997): 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

statute . . . unambiguously impose[s] a binding obligation on the

States” using “mandatory, rather than precatory, terms.” Id. at

340–41. The district court ruled appellants’ claim failed at the

first step because they failed to satisfy the identification

requirement of subsection (a) in the absence of the firearms

qualification certification under subsection (d)(2)(B), and thus

any right under the LEOSA had not “attached” and could not be

asserted by them. DuBerry, 106 F. Supp. 3d at 268–69.

If, as the district court ruled, the LEOSA right that Congress

intended to establish does not attach until appellants have in fact

obtained the firearms certification, then their access to that right

could hinge on the District of Columbia’s (or a state’s)

determination of whether, in its view, a retired law enforcement

officer had the power of arrest or otherwise met the LEOSA’s

requirements. On the other hand, if as appellants contend,

Congress created an individual right of which appellants have

been deprived due to the District of Columbia’s unlawful

interference with their ability to obtain the required certification,

then they have stated a claim and we must remand the case to

the district court for further proceedings.

A.

The determination whether appellants have alleged a right

remediable under Section 1983 presents the threshold question

of what right Congress created in the LEOSA. The district court

interpreted the right appellants seek to vindicate as a right to

10

receive the employment certification from the D.C. Department

of Corrections. See DuBerry, 106 F. Supp. 3d at 265. In their

amended complaint, however, and as explained in their appellate

brief, appellants claim that the LEOSA grants them, as qualified

retired correctional officers, the right to carry concealed

firearms, including the right to carry them across state lines.

Am. Compl. ¶ 81; Appellants’ Br. 22. Further, they claim that

federal right is due protection under Section 1983, Am. Compl.

¶ 82, and that the LEOSA does not foreclose a remedy under

Section 1983, id. ¶ 83.

We begin with the text of the LEOSA, see Engine Mfrs.

Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252–53

(2004), and conclude that it favors appellants’ view of the

LEOSA right. Congress used categorical language in the

“notwithstanding” clause of subsection (a), to preempt state and

local law to grant qualified law enforcement officers the right to

carry a concealed weapon. As applied to the three-factor

Blessing test, the text of the LEOSA creates the type of right

remediable under Section 1983.

First, the text supports appellants’ claim that Congress

intended the LEOSA to benefit individuals like them directly.

Golden State, 493 U.S. at 106; Blessing, 520 U.S. at 340. The

plain text of the LEOSA grants retired law enforcement officers

a right to carry a concealed firearm “[n]otwithstanding any other

provision of the law of any State or any political subdivision

thereof.” The LEOSA right is not limited to former police

officers, but includes, among others, correctional officers and

parole authorities who “engage[d] in . . . the incarceration of any

person for[ ] any violation of law.” 18 U.S.C. § 926C(c)(2). At

the time the LEOSA was passed, at least 17 states and the

District of Columbia had laws prohibiting the carrying of

concealed firearms. See Report of the House Committee on the

Judiciary, regarding H.R. 218, H.R. Rep. 108-560, at 22 (2004),

11

reprinted in 2004 U.S.C.C.A.N. 805; see, e.g., D.C. Code § 22-

3204 (1994). The LEOSA preempted these statutes with respect

to active duty and retired “qualified law enforcement officers.”

The District of Columbia questions whether appellants are

entitled to claim any right under the 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. Appellee’s Br. 12, 25. To the extent

the existence and nature of appellants’ former statutory power

of arrest present a factual question, the court must, on a motion

to dismiss pursuant to Rule 12(b)(6), accept the allegations of

the amended complaint as true. See Atherton, 567 F.3d at 681.

Appellants allege not only that they are qualified officers but

that the District of Columbia has provided them with

identification cards stating that they had a power of arrest when

they were D.C. correctional officers. Am. Compl. ¶¶ 21–29, 56.

To the extent these allegations present a legal question, it is not

obvious that the District of Columbia’s interpretation of the

LEOSA “powers of arrest” is correct. In the LEOSA, Congress

defined “qualified law enforcement officers” broadly, to include

individuals who engage in or supervise incarceration. Given 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, see Appellee’s Br. 25. Further, 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[].”

Second, the LEOSA right to carry is not the type of “vague

and amorphous” right that is “beyond the competence of the

12

judiciary to enforce.” Golden State, 493 U.S. at 106 (quoting

Wright v. Roanoke Redevelop. & Housing Auth., 479 U.S. 418,

431–32 (1987)). The LEOSA sets specific requirements for

“qualified law enforcement officers” in historical and objective

terms. The definition of such an officer is based on the service

requirements of the officer’s former law enforcement agency

and the circumstances at the time of the officer’s retirement.

Had the officer been a law enforcement officer for at least ten

years? Had the officer retired in good standing? Had the

officer had a statutory power of arrest prior to retirement? The

answers to these questions are to be found in the officer’s

personnel records and the statutes in effect before the officer

retired. Similarly, the requirement for annual firearms training

is defined as the standards for active duty officers and can be

met through either the former employing agency or the officer’s

state of residence or a firearms trainer certified by that state.

The LEOSA, then, falls on the side of statutes that are not so

vague as to be judicially unenforceable, even where the states

may retain some compliance discretion. See Wilder v. Va.

Hosp. Ass’n, 496 U.S. 498, 519–20 (1990).

Third, the LEOSA imposes a mandatory duty on the states

to recognize the right it establishes. It is more than a mere

“‘congressional preference’ for a certain kind of conduct” but

rather “provides a substantive right.” Id. at 509–10. This is

evident from the categorical preemption of state and local law

standing in the way of the LEOSA right to carry, see 18 U.S.C.

§ 927, and the nature of the ministerial inquiries into the

historical facts in the officer’s employment records and

statutory powers of arrest, and into the objective firearms

standard for active duty officers. The ordinary meaning of the

words used by Congress does not afford discretion to the

District of Columbia (or a state) to redefine either who are

“qualified law enforcement officers” or who is eligible for the

LEOSA right. Its plain text, then, confers upon a specific group

13

of individuals a concrete right the deprivation of which is

presumptively remediable under Section 1983. See Golden

State, 493 U.S. at 107. Although a state may retain some

discretion, for example to the extent it concludes that a retired

law enforcement officer seeking to exercise a LEOSA

concealed-carry right is currently either not physically or

mentally capable of being in responsible possession of a

firearm, see 18 U.S.C. § 926C(c)(5), the District of Columbia

makes no such claim as to any of the appellants and

consequently the issue of any discretion it may retain is not

before this court.

The conclusion that the LEOSA creates an individual right

to carry finds additional support in Congress’s purpose and the

context of its enactment of the LEOSA. See Engine Mfrs., 541

U.S. at 252; District of Columbia v. Dep’t of Labor, No. 14-

5132, slip op. at 13 (D.C. Cir. Apr. 5, 2016). The legislative

history demonstrates that Congress’s purpose was to afford

certain retired law enforcement officers, in view of the nature of

their past law enforcement responsibilities, the present means of

self-protection and protection for the officer’s family and, as an

added benefit, to provide additional safety for the communities

where the officers live and visit. See 150 Cong. Rec. S7301–02

(daily ed. June 23, 2004) (statement of Sen. Leahy); 150 Cong.

Rec. H4812–13 (daily ed. June 23, 2004) (statement of Rep.

Coble); see also Report of the Senate Judiciary Committee,

regarding S. 253, S. Rep. No. 108-29, at 4 (2003); H.R. Rep.

No. 108-560, at 4; 150 Cong. Rec. E1231 (extension of remarks,

June 24, 2004) (statement of Rep. Cunningham). When the

LEOSA is viewed in context, it is not insignificant that

Congress enacted the LEOSA despite strong dissenting views.

See 150 Cong. Rec. H4813 (daily ed. June 23, 2004) (statement

of Rep. Scott); 150 Cong. Rec. S1624–25 (daily ed. Feb. 26,

2004) (statement of Sen. Dodd). Dissenting statements filed

with the Senate and House Judiciary Committees raised

14

objections to the concealed-carry legislation based on the

demand of federalism and the states’ traditional police powers,

as well as practical concerns about the potential disruption of

the efforts by state and local law enforcement to control

firearms within their jurisdictions. See S. Rep. No. 108-29, at

12–13 (dissenting statement of Sen. Kennedy); H.R. Rep. No.

108-560, at 22–23, 79 (dissenting statement of Rep.

Sensenbrenner & Rep. Flake). The practical concerns extended

to the broad definition of a qualified retired law enforcement

officer to include individuals whose jobs did not require them

to carry a firearm and who therefore had not been trained by

their employer in the use of a firearm. S. Rep. No. 108-29, at

16; H.R. Rep. No. 108-560, at 70. In the Committees, the

response to these objections was expressed in the longstanding

support for concealed carry legislation by the Fraternal Order of

Police (“FOP”) and the Law Enforcement Alliance of America,

see H.R. Rep. 108-560, at 4, pointing to the needs of officers to

defend themselves and to protect their families with the

resultant benefit to their communities of additional law

enforcement officers. See Law Enforcement Officers Safety

Act: Hearing before Committee on House Judiciary,

Subcommittee on Crime, Terrorism, and Homeland Security,

108th Cong., 2d Sess. (2004) (statement of Chuck Canterbury,

FOP National President). The practical objections were

addressed by requiring annual firearms training to ensure that

all retired officers eligible to carry concealed weapons received

the same firearms training as active duty officers. See, e.g.,

H.R. Rep. 108-560, at 11, 59–60.

Taken together, the LEOSA’s plain text, purpose, and

context show that Congress intended to create a concrete,

individual right to benefit individuals like appellants and that is

within “the competence of the judiciary to enforce.” Golden

State, 493 U.S. at 106 (quoting Wright, 479 U.S. at 431–32). To

the extent the district court ruled appellants were not those

15

Congress intended the LEOSA to benefit under an attachment

theory — where they lack the right until they obtain the

subsection (d)(2)(B) firearms certification, see DuBerry, 106 F.

Supp. 3d at 266–67 — there is no textual indication that

Congress contemplated the concealed-carry right to be other

than as defined in the straightforward text. Nor is any

legislative history cited to the court to that effect. In enacting

the requirements for “qualified law enforcement officers” to

claim this right, Congress gave every signal that it contemplated

no state reevaluation or redefinition of federal requirements.

Consequently, the firearms certification requirement does not

define the right itself but is rather a precondition to the exercise

of that right. Understood as an individual right defined by

federal law, the LEOSA concealed-carry right that appellants

allege Congress intended for them to have is remediable under

Section 1983. Their further allegation that they have been

deprived of their ability to obtain and exercise that right because

of the District of Columbia’s unlawful action is sufficient to

state a claim. As the district court observed, “there might be

some cases in which a failure to classify an individual as a ‘law

enforcement officer’ denies that individual his right to carry a

concealed firearm, which right he attained by satisfying the

requirements of subsection (a).” DuBerry, 106 F. Supp. 3d at

268. Appellants claim this is such a case, and we hold

appellants have 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.

The decisions of our sister circuits on which the district

court relied were not interpreting the LEOSA, and are

distinguishable. See Ass’n of N.J. Rifle & Pistol Clubs, Inc. v.

Port Auth. of N.Y. & N.J., 730 F.3d 252 (3d Cir. 2013); Torraco

16

v. Port Auth. of N.Y. & N.J., 615 F.3d 129 (2d Cir. 2010).5 In

Torraco, 615 F.3d at 137, the Second Circuit held that the right

conferred was too “vague and amorphous” for enforcement

under Section 1983 in view of the difficulty facing a state

officer who stopped someone transporting a weapon of knowing

the gun laws of both the origin and destination jurisdictions.

Under the LEOSA, the officer is required to carry identification

indicating the statutory requirements, thereby resolving officer

uncertainty. Association of New Jersey Rifle and Pistol Clubs,

730 F.3d at 257, turned on a limitation of the right to carry a

weapon interstate to use of a “transporting vehicle,” which was

held not to include transport by plane, and so plaintiffs were not

intended beneficiaries. Appellants face no comparable obstacle

under the LEOSA.

Similarly, the cases relied upon by the District of Columbia

are unpersuasive support for the dismissal of appellants’

amended complaint. In Ramirez v. Port Authority of New York

& New Jersey, 15-cv-3225, 2015 WL 9463185 (S.D.N.Y. Dec.

28, 2015), the district court ruled that the LEOSA created only

a defense to civil and criminal liability, but nothing indicates

Congress intended to place “qualified law enforcement officers”

5

Section 926A, at issue in New Jersey Rifle and Pistol Clubs

and in Torraco, authorizes, in pertinent part:

any person who is not otherwise prohibited by this chapter . . .

to transport a firearm for any lawful purpose from any place

where he may lawfully possess and carry such firearm to any

other place where he may lawfully possess and carry such

firearm if, during such transportation the firearm is unloaded,

and neither the firearm nor any ammunition being transported

is readily accessible or is directly accessible from the

passenger compartment of such transporting vehicle.

18 U.S.C. § 926A (emphasis added).

17

at such risks before the concealed-carry right could be

exercised, much less that Congress intended to foreclose a

Section 1983 remedy. The other district court opinions on the

LEOSA cited by the District of Columbia did not address

Section 1983, but rather found alternative grounds for denying

the claims. See, e.g., Friedman v. Las Vegas Metro. Police, No.

2:14-cv-0821, 2014 WL 5472604 (D. Nev. Oct. 24, 2014);

Johnson v. N.Y. State Dep’t of Corr. Servs., 709 F. Supp. 2d 178

(N.D.N.Y. 2010); Moore v. Trent, No. 09 C 1712, 2010 WL

5232727 (N.D. Ill. Dec. 16, 2010). We have no occasion to

address such alternative grounds here.

Our dissenting colleague’s view that the district court

lacked subject matter jurisdiction misapplies Shoshone Mining

Co. v. Rutter, 177 U.S. 505 (1900). According to the amended

complaint, the District of Columbia acknowledged in official

Departmental identification cards that appellants, while they

were working as D.C. correctional officers, had a power of

arrest. See Am. Compl. ¶¶ 61, 66, 71, 76. Only when

appellants, as retirees, sought to exercise their concealed-carry

right under the LEOSA did the District of Columbia change its

position. Then, as now, it asserted that appellants lack the

power of arrest that Congress intended. It offers no support for

this conclusion in the statutory text of the LEOSA or even in the

legislative history. Congress defined who is a qualified law

enforcement officer to apply not only to police officers but to

employees in related law enforcement areas who had a power

of arrest. As Congress deemed the federal right to be of

preeminent importance, notwithstanding state laws prohibiting

the concealed carry of firearms, it left no discretion for a state

to revise the historical record of an individual qualified law

enforcement officer. Thus, there is no question of rights under

D.C. law at issue here, and the Supreme Court’s focus in

Shoshone on “local customs” and limiting state laws where

possession of mining rights was at issue, 177 U.S. at 508, is

18

inapposite. Federal law governs appellants’ contention that the

District of Columbia has unlawfully interfered with a federal

right bestowed on them by Congress.

B.

Finally, “even when the plaintiff has asserted a federal

right, the defendant may show that Congress ‘specifically

foreclosed a remedy under § 1983.’” Golden State, 493 U.S. at

106 (quoting Smith v. Robinson, 468 U.S. 992, 1005 n.9

(1984)). The burden to show congressional intent to foreclose

a Section 1983 remedy is on the defendant, and courts “do not

lightly conclude that Congress intended to preclude reliance on

§ 1983 as a remedy for the deprivation of a federally secured

right.” Wright, 479 U.S. at 423–24. The District of Columbia

has made no such showing. Appellants’ amended complaint

does not arise under the Spending Clause where the Supreme

Court has embraced a narrow interpretation of private damages

actions, absent clear contrary congressional intent, because “the

typical remedy for state noncompliance with federally imposed

conditions is not a private cause of action for noncompliance

but rather action by the Federal Government to terminate funds

to the State.” Gonzaga University, 536 U.S. at 280 (quoting

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28

(1981)). Nor does anything in the LEOSA itself or its

legislative history indicate that exclusive enforcement lies

elsewhere or that private enforcement is foreclosed. See

Wright, 479 U.S. at 425.

Nor has the District of Columbia otherwise rebutted

appellants’ presumed right to relief under Section 1983. Its

reliance on the anti-commandeering doctrine, see Printz v.

United States, 521 U.S. 898, 925–26 (1997), appears to be

misplaced; at least it cites no authority that the doctrine is

applicable to it. See U.S. Con. Art. I, sec. 8, cl. 17; Palmore v.

United States, 411 U.S. 389 (1973). Neither the State of

19

Maryland nor Prince George’s County are parties in this case.

In any event, there is no occasion to consider whether the

doctrine is implicated were the LEOSA interpreted as requiring

states to conduct the firearm certification training or to issue the

photographic identification in subsection (d)(1) & (2)(A).

According to the amended complaint, the District of Columbia

and Prince George’s County, Maryland voluntarily provide the

necessary training and voluntarily established a procedure to

obtain needed historical information about appellants. Am.

Compl. ¶ 47c–d; cf. Lomont v. O’Neill, 285 F.3d 9, 14 (D.C.

Cir. 2002). Moreover, any such reservoir of power would not

vest the District of Columbia with authority to revise the

statutory definition of “qualified retired law enforcement

officers” in a manner to deprive appellants of the right to which

they are entitled. In preempting state and local law that would

interfere with its purpose and intent, 18 U.S.C. § 927; see

Arizona v. United States, 132 S. Ct. 2492 (2012), Congress set

the requirements for LEOSA officers in terms of historical facts

about the officer’s service and powers of arrest. Appellants

allege that the District of Columbia’s actions resulting from its

erroneous interpretation of how the LEOSA applies to these

facts have deprived them of their federally established

concealed-carry right.

Accordingly, because appellants’ amended complaint states

a claim under Section 1983, we reverse the dismissal of their

amended complaint and remand the case to the district court for

further proceedings.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:

My colleagues conclude that the plaintiffs have alleged a

cause of action under 42 U.S.C. § 1983. Ordinarily the

existence vel non of a federal cause of action determines a

federal court’s subject-matter jurisdiction. See Franchise Tax

Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 8 (1983).

But this rule knows one “rare exception,” Mims v. Arrow Fin.

Servs., LLC, 132 S. Ct. 740, 748 n.8 (2012), and I believe this

case falls within it. In my view the district court was without

subject-matter jurisdiction and I would therefore affirm its

dismissal order on that ground.

The district court held that it had subject-matter

jurisdiction under 28 U.S.C. § 1331 which provides that

“district courts shall have original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties of the

United States”. Duberry v. Dist. of Columbia, 106 F. Supp.

3d 245, 260 & n.14 (D.D.C. 2015). The plaintiffs do not

assert an alternative basis for its jurisdiction so I do not

consider others. See Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994) (“burden of establishing

[subject-matter jurisdiction] rests upon the party asserting

jurisdiction”). The District of Columbia (District) likewise

does not challenge the district court’s jurisdictional holding

but we have a sua sponte duty to verify jurisdiction. Arbaugh

v. Y & H Corp., 546 U.S. 500, 506 (2006).

Section 1331 is known as the “general federal-question

jurisdiction” statute. Mims, 132 S. Ct. at 747. “Although the

language of § 1331 parallels that of the ‘arising under’ clause

of Article III” of the Constitution, it is well established that

“Article III ‘arising under’ jurisdiction is broader than federal

question jurisdiction under § 1331.” Verlinden B.V. v. Cent.

Bank of Nigeria, 461 U.S. 480, 494–95 (1983); see also

Franchise Tax Bd., 463 U.S. at 8 n.8. In other words, section

1331 bestows jurisdiction on a smaller class of cases than

does the Constitution. Reducing to a formula what claims are

2

(and what claims are not) provided for is something of a

puzzle. “The most familiar” construction of section 1331’s

“arising under” language is that “[a] suit arises under the law

that creates the cause of action.” Franchise Tax Bd., 463 U.S.

at 8–9 (emphasis added) (quoting Am. Well Works Co. v.

Layne & Bowler Co., 241 U.S. 257, 260 (1916)). This rule,

also known as “Justice Holmes’ test” in recognition of the

American Well Works author, states that where “federal law

creates the cause of action,” section 1331 provides federal

question jurisdiction. Merrell Dow Pharm. Inc. v. Thompson,

478 U.S. 804, 808, 809 n.5 (1986).

Although the Justice Holmes’ test resolves jurisdiction

under section 1331 in “the vast majority of cases,” id. at 808,

it does not answer the issue completely. For instance, a claim

“may arise under federal law ‘where the vindication of a right

under state law necessarily turn[s] on some construction of

federal law.’ ” Id. at 808 (emphasis added) (quoting

Franchise Tax Bd., 463 U.S. at 9).1 Thus, absence of a

1

In the case that established this exception, the plaintiff

shareholder sought to “prevent the directors” of a “Missouri

corporation” from “doing an act . . . alleged to be contrary to their

duty . . . [under] laws of Missouri.” Smith v. Kansas City Title &

Trust Co., 255 U.S. 180, 214 (1921) (Holmes, J., dissenting). The

corporation sought to “invest[] the funds of the company in farm

loan bonds issued by [federal authorities] under authority of [a

federal statute].” Id. at 195 (majority opinion). The plaintiff

alleged that the statute was unconstitutional, giving rise to a state-

law breach of duty claim. Id. at 195–96. Because the decision

“depend[ed] upon the determination” of the “constitutional validity

of an act of Congress,” the majority found subject-matter

jurisdiction. Id. at 201–02. Justice Holmes, citing his American

Well Works opinion, dissented, declaring that “a suit cannot be said

to arise under any other law than that which creates the cause of

action,” and ultimately concluding that Smith’s claim arose from

Missouri law. Id. at 214–15 (Holmes, J., dissenting).

3

federal cause of action is not fatal and some courts have

observed Justice Holmes’ test is not “useful for . . . the

exclusion for which it was intended.” T.B. Harms Co. v.

Eliscu, 339 F.2d 823, 827 (2d Cir. 1964) (Friendly, J.).

Although the test is “more useful” as a rule of inclusion, see

Franchise Tax Bd., 463 U.S. at 9; see also Merrell Dow, 478

U.S. at 814 n.12 (Holmes test is “usual[ly] reliabl[e] . . . as an

inclusionary principle”), that notion “is not without its

exceptions,” Rogers v. Platt, 814 F.2d 683, 688 (D.C. Cir.

1987).

For example, the Supreme Court “has sometimes found

that formally federal causes of action were not properly

brought under federal-question jurisdiction because of the

overwhelming predominance of state-law issues.” Merrell

Dow, 478 U.S. at 814 n.12 (emphasis added). Probably the

most prominent example is Shoshone Mining Co. v. Rutter,

177 U.S. 505 (1900), in which case a federal statute

authorized suit brought to “determine the question of the right

of possession” to “mineral lands.” Id. at 507, 510. The

existence of the right of possession, however, was to “be

determined by ‘local customs of rules of miners . . . or ‘by the

statute of limitations for mining claims of the state or territory

where the same may be situated.’ ” Id. at 508. Because “[t]he

recognition by Congress of local customs and statutory

provisions as at times controlling the right of possession does

not incorporate them into the body of Federal law,” a suit to

“determine the right of possession may not involve any

question as to the construction or effect of the . . . laws of the

United States”; on the contrary, it may involve no more than

“determination of the meaning and effect of certain local

rules . . . or the effect of state statutes.” Id. at 508–09.

Although the case included the “right of possession,” id. at

507 (emphasis added), and its corresponding federal

recognition via “title from the [federal] government,” id. at

4

513, the Court found no subject matter jurisdiction. It

concluded that notwithstanding a right may have “its origin in

the laws of the United States,” it may not, in the language of

section 1331, “necessarily [involve a claim] arising under . . .

laws of the United States.” Id. at 507 (emphasis added). If a

federal statute specifies that state law governs the existence

and scope of a right, and compliance with state law is the only

disputed issue, no federal question arises and therefore no

subject-matter jurisdiction exists under section 1331. Cf. id.

at 507 (“The suit must, in part at least, arise out of a

controversy between the parties in regard to the operation and

effect of the Constitution or laws [of the United States].”

(emphasis added)).

Assuming, as the majority concludes, that section 1983

establishes a cause of action to enforce the LEOSA, i.e., that

it “creates [a] claim for relief,” Mims, 132 S. Ct. at 748 n.8, I

nonetheless believe that, under Shoshone, the district court

lacked subject-matter jurisdiction. The majority’s conclusion

establishes only that the LEOSA and section 1983 combine to

“authoriz[e] an action to establish a right”—no more, no less.

Shoshone, 177 U.S. at 510. But state law governs whether “a

right” exists and, for subject-matter jurisdiction to arise, “the

[federal] Act”—here, the LEOSA—must also “supply the

governing law.” Mims, 132 S. Ct. at 748 n.8. Although the

LEOSA may do so in some cases, cf. Shoshone, 177 U.S. at

513 (“these suits may sometimes so present questions arising

under the Constitution or laws of the United States that the

Federal courts will have jurisdiction” (emphasis added)), it

does not do so here.

The plaintiffs seek “an Order directing the District . . . to

certify and/or acknowledge Plaintiffs as retired law

enforcement officers for purposes of the [LEOSA],” Corr.

Am. Compl. 17, which, in this case, turns on whether, while

5

serving as corrections officers, they had a “statutory power[]

of arrest” under D.C. law, see Maj. Op at 6; 18 U.S.C.

§ 926C(c)(2). No one may carry a concealed weapon under

the LEOSA unless he “had statutory powers of arrest” before

separation from service. 18 U.S.C. § 926C(c)(2). Because

the plaintiffs were D.C. corrections officers, D.C. law

provided the authority under which they exercised their

powers. Accordingly, whether they possess any right under

the LEOSA depends on a “determination of local rules and

customs, or state statutes, or even only a mere matter of fact.”

Shoshone, 177 U.S. at 508. In support of their authority the

plaintiffs allege that D.C. Code § 24-4052 provided them a

“statutory power[] of arrest.” The District responds that

section 24-405 confers authority to execute only a limited

type of warrant, not a “statutory power[] of arrest,” relying

on, inter alia, a D.C. Court of Appeals decision interpreting

“arrest” to require an officer’s independent decision regarding

whether to charge a suspect with a criminal offense. Appellee

Br. 22–23 (citing In re M.E.B., 638 A.2d 1123 (D.C. 1993)).

Plainly, then, at least to me, this suit “involve[s] no

controversy as to the scope and effect of” federal law, rather,

the merits outcome turns on application of “local rules” and

“the effect of state statutes.” Shoshone, 177 U.S. at 509, 510.

My colleagues offer two additional bases for subject-

matter jurisdiction. First, they emphasize the Congress’s

“use[] [of] categorical language in the ‘notwithstanding’

2

D.C. Code § 24–405 provides that “[a]ny officer of the

District of Columbia penal institutions . . . is authorized and

required to execute” a warrant “for the retaking of” “a prisoner

[who] has violated his parole” “by taking such prisoner and

returning or removing him to the penal institution of the District of

Columbia from which he was paroled or to such penal or

correctional institution as may be designated by the Attorney

General of the United States.”

6

clause of subsection (a),” Maj Op. 10; see 18 U.S.C.

§ 926C(a) (“Notwithstanding any other provision of the law

of any State . . . an individual who is a qualified retired law

enforcement officer and who is carrying the identification

required by subsection (d) may carry a concealed firearm.”)

and posit that the District took “unlawful action,” Maj. Op.

15, to deny the plaintiffs their alleged right. The plaintiffs

claim error in the District’s decision that they do not meet the

state law condition precedent that the LEOSA requires—i.e.,

that they do not possess a “statutory power[] of arrest,” 18

U.S.C. § 926C(c)(2). The “notwithstanding” proviso is not

implicated. In any event, the proviso itself is limited to “a

qualified retired law enforcement officer,” which prerequisite

is determined by reference to D.C. law. Id. § 926C(a)

(emphasis added).

In addition, my colleagues conclude—as part of their

Blessing3 inquiry—that the District misinterpreted the term

“statutory powers of arrest,” see Maj. Op. 11, specifically,

that it “reevaluat[ed] or redefin[ed] [the] federal

requirement[],” id. at 15; see also id. at 19 (District has no

power “to revise the statutory definition”), concluding that the

existence of a state “statutory power of arrest” is a federal

question, id. at 15 (“right defined by federal law”). I do not

see how. As they concede, the inquiry whether “the officer

had a statutory power of arrest” is “answer[ed]” by “the

officer’s personnel records and the statutes in effect before the

officer retired,” id. at 12, in other words, by “state statutes, or

even only a mere matter of fact,” Shoshone, 177 U.S. at 508.

They apparently also believe that the definition of “arrest” is

itself found in federal law and that the term should be

construed “broadly,” Maj. Op. 11, but in doing so they offer

no definition at all. The fact is that the plaintiffs’ arrest power

3

Blessing v. Freestone, 520 U.S. 329 (1997).

7

can only arise under local law and, in my view, whether the

plaintiffs possessed the arrest power under the D.C. definition

of that term decides this case. In any event, “[t]he inquiry

along Federal lines,” to the extent there is one, “is only

incidental to a determination of the local question of what the

state has . . . prescribed.” Shoshone, 177 U.S. at 509.4

Finally, Blessing illustrates what this case is not about, at

least for the purpose of subject-matter jurisdiction. 520 U.S.

329. Blessing involved a federal program that provided funds

to states operating federally-qualified child support

enforcement programs. Id. at 333. A participating state was

required to “structure” its implementing agency in a particular

way, staff its units at federally mandated levels, and “set up

computer systems that met numerous federal specifications”

to “maintain detailed records.” Id. at 334. The plaintiffs

alleged that Arizona deprived them of child support services

because the state agency’s “structural defects” made them

ineligible to receive the federal program’s benefits. Id. at

337. In other words, they alleged that Arizona had not

4

My colleagues submit that the District “acknowledged in

official Departmental identification cards that appellants . . . had a

power of arrest” but that the District “change[d] its position” “only

when appellants . . . sought to exercise their concealed-carry right.”

Maj. Op. 17 (citing plaintiffs’ complaint). The full extent of the

District’s purported “acknowledg[ment]” is the fact that, before

retiring, the corrections officers carried identification cards that

referenced D.C. Code § 24–405. Whatever the significance of the

identification card, it is irrelevant in determining subject-matter

jurisdiction. My colleagues believe that the District got the local

law question wrong—pointing to the identification card as

evidence. But whether the District misinterpreted its own former

officers’ authority is not a federal question, no matter how badly it

erred. In concluding otherwise they misread not only the LEOSA

but also Shoshone’s reach.

8

complied with federal requirements. By contrast, here the

plaintiffs do not claim that the District’s implementation of

the LEOSA is lacking nor that the District has failed to meet

federal requirements. Instead, they claim that D.C.

misinterpreted the authority of its own former law

enforcement officers under D.C. law, as the LEOSA instructs.

Appellant Br. 19 (arguing that the District wrongly concluded

"that correctional officers do not have 'law enforcement status

and arrest authority' under D.C. law"); see also Corr. Am.

Compl. ¶ 61; 18 U.S.C. § 926C(c)(2).

I note that some regard subject-matter jurisdiction under

section 1331 to be, at bottom, a question of congressional

intent and that Shoshone, because it involved a local land

dispute, can be explained in this way. See Merrell Dow, 478

U.S. at 810, 814 n.12 (section 1331 “require[s] sensitive

judgments about congressional intent” and Shoshone was suit

with insufficient “federal interest”); see also Shoshone, 177

U.S. at 506 (“[t]he question . . . is not one of the power of

Congress, but of its intent”). To me, it makes perfect sense to

likewise conclude that the Congress intended a state court to

determine whether one of its retired law enforcement officers

is “qualified,” that is, whether he possessed certain state law

authority, see 18 U.S.C. § 926C(c)(1), (2), (3), so that he can

obtain a state-issued certification, id. § 926C(d), a condition

precedent of LEOSA’s authorization to carry a concealed

weapon.

For the foregoing reasons, I respectfully dissent.