The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-2209
___________
FEDERAL LAW ENFORCEMENT OFFICERS
ASSOCIATION;
NEW JERSEY FRATERNAL ORDER OF POLICE;
RICHARD BOWEN;
JOSEPH JAKUBIEC;
CHRISTOPHER MARTINEZ
v.
ATTORNEY GENERAL NEW JERSEY;
SUPERINTENDENT NEW JERSEY STATE POLICE,
Appellants
_______________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 3-20-cv-05762)
District Judge: Honorable Zahid N. Quraishi
Argued on March 30, 2023
Before MATEY, FREEMAN, and FUENTES, Circuit Judges
(Opinion filed: February 14, 2024)
Angela Cai
David Chen [ARGUED]
Timothy Sheehan
Office of Attorney General of New Jersey
Division of Law
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Counsel for Appellants
Michael R. Darbee [ARGUED]
Nicholas C. Harbist [ARGUED]
Stephen M. Orlofsky
Blank Rome
300 Carnegie Center
Suite 220
Princeton, NJ 08540
Counsel for Appellees
___________
OPINION OF THE COURT
___________
FREEMAN, Circuit Judge.
Retired law enforcement officers from various agencies
claim that a federal statute gives them the right to carry
concealed firearms in their home state of New Jersey. New
Jersey argues that the federal statute does not provide that
2
enforceable right. And even if there were such an enforceable
right, New Jersey argues that the federal statute would apply
only to officers who retired from federal or out-of-state law
enforcement agencies—not to officers who retired from New
Jersey law enforcement agencies. We conclude that the federal
statute does provide certain retired officers (those who meet all
the statutory requirements) with an enforceable right, and that
right extends equally to officers who retired from New Jersey
agencies and those who retired from federal or out-of-state
agencies. The federal statute also preempts contrary aspects of
New Jersey law. So we will affirm the District Court’s order
granting declaratory and injunctive relief to the retired officers.
I
This case involves dueling firearm licensing statutes.
One is the federal Law Enforcement Officers Safety Act of
2004, 18 U.S.C. § 926C (“LEOSA”). The other is New
Jersey’s retired police officer permitting law, N.J.S.A.
§ 2C:39-6l (“RPO Law”). While both delineate when and how
retired law enforcement officers may carry firearms without
being subject to criminal penalties, the New Jersey law is more
restrictive.
LEOSA provides: “Notwithstanding any other
provision of the law of any State or any political subdivision
thereof, an individual who is a qualified retired law
enforcement officer and who is carrying the identification
required by [this statute] may carry a concealed firearm that
has been shipped or transported in interstate or foreign
commerce, subject to subsection (b).” 18 U.S.C. § 926C(a).1
1
Subsection (b) provides:
3
It defines “qualified retired law enforcement officer”
(“QRLEO”) as someone who satisfies seven enumerated
criteria, including length of service in a law enforcement role,
separation from the law enforcement agency in good standing,
mental and physical fitness to carry, and a lack of other
disqualifiers under federal law. § 926C(c). A QRLEO may
carry a firearm only when he has in his possession
identification confirming his status as a former officer and
certifying that he has been qualified in firearms training within
the past year. § 926C(d).
LEOSA’s identification requirement can be satisfied in
either of two ways, set forth in subsection (d) of the statute. Id.
Both options contain two components: (i) “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 (ii) a statement that,
within the last year, the retired officer satisfied the state’s (or
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
park.
18 U.S.C. § 926C(b).
4
the law enforcement agency’s) firearms training standards for
the type of firearm being carried. § 926C(d)(1)–(d)(2). Under
the first option (“(d)(1) identification”), both components
appear in a single document issued by the law enforcement
agency from which the officer retired, and the firearms training
standards are “established by the agency.” § 926C(d)(1).
Under the second option (“(d)(2) identification”), the two
components appear in two separate documents. § 926C(d)(2).
The first (photographic identification and proof of previous
law enforcement service) is issued by the retired officer’s
former employer. § 926C(d)(2)(A). The second (certification
regarding firearms training) may be issued by the state or “by
a certified firearms instructor that is qualified to conduct a
firearms qualification test for active duty officers within that
State.” § 926C(d)(2)(B). And the firearms training standards
may be established by the state or, in the absence of state
standards, by any law enforcement agency within the state. Id.
Like LEOSA, New Jersey’s RPO Law allows certain
retired law enforcement officers to carry a firearm if they meet
certain qualifications, but the RPO Law requires retired
officers to obtain a state-issued permit. N.J.S.A. § 2C:39-6l.
And there are other key differences between the two statutes.
One is the age limit: LEOSA imposes none, but the RPO Law
prevents retired officers over the age of 75 from obtaining a
permit to carry. Compare 18 U.S.C. § 926C(c), with N.J.S.A.
§ 2C:39-6l. Another difference is the treatment of hollow-
point ammunition: the RPO Law prohibits retired officers from
carrying it, but LEOSA does not. Compare 18 U.S.C.
§ 926C(e),2 with N.J.S.A. § 2C:39-3f. The laws also require
2
LEOSA defines “firearm” to include “ammunition not
expressly prohibited by Federal law or subject to the provisions
5
retired officers to complete firearm qualification training at
different frequencies: once a year under LEOSA, and twice a
year under the RPO Law. Compare 18 U.S.C. §§ 926C(c)(4),
(d), with N.J.S.A. § 2C:39-6l.
Additionally, LEOSA does not require the retired
officer’s former agency or state of residence to verify that the
officer is a QRLEO. See 18 U.S.C. § 926C(c). Indeed, the
statute is written such that advance verification is not possible.
(One criterion for a QRLEO is that an individual “is not under
the influence of alcohol or another intoxicating or
hallucinatory drug or substance . . . .” § 926C(c)(6). This
means a retired officer’s status could change in the course of
any given day—he could awake as a QRLEO and then
consume enough alcohol to lose his qualification to concealed-
carry a firearm.) In contrast, New Jersey will only issue an
RPO permit when the State determines in advance that the
applicant meets the RPO Law’s qualifications and passes
criminal and mental-health background checks. N.J.S.A.
§ 2C:39-6l(1)–(2); see also N.J. State Police Form SP-232,
“Initial Application For a Retired Law Enforcement Officer
Permit to Carry a Handgun,” https://perma.cc/H8JK-7KYF;
N.J. State Police Form SP-66, “Consent for Mental Health
Records Search,” https://perma.cc/8TUW-JMNV.
In October 2018, the New Jersey Attorney General’s
Office issued a document addressing certain “frequently asked
questions” about the interplay between the two laws. It wrote
that retired law enforcement officers who reside in New Jersey
(“NJ RLEOs”) “must meet each of the requirements of [the
of the National Firearms Act,” 18 U.S.C. § 926C(e)(1), which
hollow-point bullets are not, see Plaintiffs’ Supp. App. 10
(Statement of Interest of the United States of America).
6
RPO Law] in order to carry a firearm . . . .” App. 74. It
specified that “LEOSA . . . does not provide an alternate path
to eligibility to carry a firearm . . . .” App. 73–74. It stated that
LEOSA’s purpose “is to bar criminal prosecution of retired
[law enforcement officers] who carry concealed firearms in
interstate commerce,” App. 73 (emphasis added) (citing In re
Casaleggio, 18 A.3d 1082, 1086 (N.J. Super. 2011)), so
LEOSA: (1) does not apply to NJ RLEOs who carry within the
state—those persons must obtain an RPO permit under state
law and carry the permit at all times while carrying a firearm;
and (2) allows NJ RLEOs to carry a firearm outside of New
Jersey without an RPO permit. See also Casaleggio, 18 A.3d
at 1086 (construing New Jersey Legislature’s intent in
referencing LEOSA in the RPO Law as “to permit retired law
enforcement officers from other states . . . who are domiciled
in New Jersey to carry a firearm, provided they meet the same
training and qualification standards that New Jersey retirees
must meet under the law” which “corresponds [to] the limited
purpose of LEOSA”). The document also stated that LEOSA
does not allow retired officers residing in New Jersey to carry
hollow-point bullets because that would violate state law.
In May 2020, three individuals and two organizations—
the Federal Law Enforcement Officers Association and the
New Jersey Fraternal Order of Police—(together, “Plaintiffs”)
sued New Jersey officials (together, “New Jersey”) to
challenge the enforcement of the RPO Law. Plaintiffs alleged
that they (that is, the individual plaintiffs and some of the
organizations’ members) are QRLEOs under LEOSA. They
argued that LEOSA gives them a federal right to carry a
firearm (defined to include hollow-point ammunition)
anywhere in the United States—including within the State of
New Jersey—and that LEOSA preempts any more burdensome
7
state requirements. They brought claims under 18 U.S.C.
§ 1983 and the Declaratory Judgment Act. They sought
declaratory relief and an order enjoining New Jersey from (1)
requiring QRLEOs to obtain an RPO Law permit, (2) arresting
and prosecuting LEOSA-compliant QRLEOs under the RPO
Law, and (3) imposing any other conditions to carry a firearm
that are not required by LEOSA.
New Jersey initially moved to dismiss the complaint,
but it withdrew that motion after the United States filed a
statement of interest in the case. The United States stated that
“LEOSA means exactly what it says”: if Plaintiffs are (as they
allege) QRLEOs with the requisite identification under
LEOSA, they are entitled to carry a concealed firearm
notwithstanding any provision of New Jersey law. Plaintiffs’
Supp. App. 4, 9–10. It also stated that LEOSA’s definition of
“firearm” includes hollow-point bullets.
In April 2021, while the suit was ongoing in the District
Court, the New Jersey Attorney General’s Office issued
another “frequently asked questions” document addressing
LEOSA and the RPO Law. It departed from its earlier position
about retired officers “who reside in New Jersey[] and who
separated from an out-of-state or federal law enforcement
agency . . . .” App. 189–90. It said those retired officers may
carry a firearm in New Jersey without an RPO permit if they
meet all LEOSA requirements. But it reiterated its view that
LEOSA does not “provide an alternate path for [retired law
enforcement officers] who separated from a New Jersey law
enforcement agency and who reside in New Jersey” to carry a
firearm in New Jersey without an RPO permit. App. 189. In
effect, it clarified that retired officers from New Jersey
agencies who live in New Jersey may be arrested and
prosecuted for carrying a firearm without an RPO permit,
8
notwithstanding their compliance with LEOSA. And again,
the document explained LEOSA’s purpose as “preempt[ing] a
state’s ability to preclude, or change the requirements for,
carrying the firearm interstate . . . .” Id. (quoting In re Carry
Permit of Andros, 958 A.2d 78, 84 (N.J. Super. 2008)
(emphasis added)); see also Andros, 958 A.2d at 85 (construing
Congress’s intent in enacting LEOSA as “authoriz[ing] a
[firearm] carrier when licensed in one state to possess [the
firearm] in another state”).
Both sides moved for summary judgment. In June
2022, the District Court granted Plaintiffs’ motion and denied
New Jersey’s. It found that the individual plaintiffs and some
of the plaintiff organizations’ members were QRLEOs with
LEOSA-compliant identification. It also concluded that
LEOSA grants those QRLEOs a right that is enforceable under
Section 1983.
The District Court issued a declaration that (1) LEOSA
preempts the RPO Law and the associated state statutes as
applied to any QRLEO with LEOSA-compliant identification,
regardless of their residence; and (2) any QRLEO with
LEOSA-compliant identification may carry a concealed
firearm and hollow-point ammunition without obtaining an
RPO permit regardless of their residence or the agency from
which they retired. It also issued a permanent injunction
prohibiting the State of New Jersey from “arresting and/or
prosecuting any QRLEO who has [LEOSA-compliant
identification] regardless of their residence or the agency from
which they retired.” App. 4. New Jersey timely appealed.
9
II
The District Court had subject-matter jurisdiction under
28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C.
§ 1291.3 We give de novo review to the District Court’s
interpretation of federal law and its preemption ruling.
Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 687 (3d
Cir. 2016) (providing the standard for preemption rulings);
Delaware County, Pa. v. Fed. Hous. Fin. Agency, 747 F.3d
215, 220-21 (3d Cir. 2014) (providing the standard for
statutory interpretation).
III
LEOSA confers an enforceable right upon QRLEOs
who are carrying LEOSA-compliant identification to carry a
concealed firearm (subject to subsection (b)’s exceptions).
And LEOSA expressly preempts New Jersey law to the extent
that it imposes additional conditions or restrictions upon such
QRLEOs who are in possession of compliant identification.
A
3
Whether a party has a valid cause of action under a federal
statute presents a federal question, so our inquiry into whether
the retired officers have a cause of action under Section 1983
is not jurisdictional. Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 128 n.4 (2014) (“[T]he
absence of a valid (as opposed to arguable) cause of action does
not implicate subject-matter jurisdiction, i.e., the court’s
statutory or constitutional power to adjudicate the case.”
(quotations omitted)).
10
“Section 1983 imposes liability on anyone who, under
color of state law, deprives a person ‘of any rights, privileges,
or immunities secured by the Constitution and laws.’”
Blessing v. Freestone, 520 U.S. 329, 340 (1997) (quoting 42
U.S.C. § 1983). The Supreme Court has explained that “[i]n
order to seek redress through § 1983, . . . a plaintiff must assert
the violation of a federal right, not merely a violation of federal
law.” Id. And “[a]lthough federal statutes have the potential
to create § 1983-enforceable rights, they do not do so as a
matter of course.” Health & Hosp. Corp. of Marion Cnty. v.
Talevski, 599 U.S. 166, 183 (2023). Thus, courts must
ascertain whether Congress has “unambiguously conferred” an
individual right upon a class of beneficiaries. Id. (citing
Gonzaga University v. Doe, 536 U.S. 273, 283 (2002)).
The Supreme Court’s decision in Gonzaga sets forth the
“method for ascertaining unambiguous conferral.” Talevski,
599 U.S. at 183. That method requires courts to “employ
traditional tools of statutory construction.” Id. The Gonzaga
test is satisfied when the statute is “phrased in terms of the
persons benefited and contains rights-creating, individual-
centric language with an unmistakable focus on the benefitted
class.” Id. (internal quotation marks and citation omitted). We
must determine that Congress created a right for the persons
benefited, not merely that those persons fall “within the general
zone of interest that the statute is intended to protect.” Id.
(citation omitted). A statute will fail that test if it contains no
rights-creating language, has an aggregate rather than an
individual focus, and primarily serves to direct federal
government funds. Id. at 183–84.
Once we are satisfied that a federal statute creates an
individual right, the right-holder has a “rebuttable presumption
that the right is enforceable under § 1983.” Blessing, 520 U.S.
11
at 341; see also Talevski, 599 U.S. at 183, 186. “[T]he
presumption recognizes that, even where Congress has
unambiguously secured certain federal individual rights by
law, it may have simultaneously given good reason (detectable
with ordinary interpretive tools) to conclude that the § 1983
remedy is not available for those rights . . . .” Talevski, 599
U.S. at 186 n.13.
It is New Jersey’s burden to rebut the presumption. Id.;
Gonzaga, 536 U.S. at 284. It can do so by demonstrating that
“Congress has either expressly or impliedly foreclosed the
section 1983 remedy for that particular right.” Ass’n of N.J.
Rifle & Pistol Clubs Inc. v. Port Auth. of N.Y. & N.J., 730 F.3d
252, 254 (3d Cir. 2013) (citing Blessing, 520 U.S. at 341). If
Congress has not foreclosed the Section 1983 remedy, then
right-holders have a private cause of action under Section 1983
to enforce their right. Gonzaga, 536 U.S. at 284. See Wright
v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423–24
(1987) (“We do not lightly conclude that Congress intended to
preclude reliance on § 1983 as a remedy for the deprivation of
a federally secured right.” (internal quotation and citation
omitted)).
1
Applying the Gonzaga test, we conclude that LEOSA
reflects Congress’s clear and unambiguous intent to confer a
right upon individual QRLEOs who comply with the statute’s
identification requirements to carry a concealed firearm.
LEOSA’s text demonstrates that Congress’s “unmistakable
focus” was on the individual right-holder. Talevski, 599 U.S.
at 183 (quotation marks omitted). Congress used “individual-
centric language,” id., when it conferred a benefit upon “an
individual who is a qualified retired law enforcement officer
12
and who is carrying the identification required by [this
statute],” 18 U.S.C. § 926C(a) (emphasis added). And when it
wrote that any such individual “may carry a concealed firearm
that has been shipped or transported in interstate or foreign
commerce,” id, it phrased the right in terms of the persons
benefited, Talevski, 599 U.S. at 183. LEOSA binds state actors
by enabling the right-holder to carry a firearm
“[n]otwithstanding any other provision of the law of any State
or any political subdivision.” 18 U.S.C. § 926C(a). This
means that individuals acting on behalf of a given state or
political subdivision may not enforce firearms regulations that
burden the right-holder’s ability to carry under LEOSA.
The Gonzaga test seeks to distinguish rights-granting
statutes from those “that focus on the person regulated rather
than the individuals protected . . . .” Gonzaga, 536 U.S. at 287
(citation omitted); see also id. at 284 (rights-creating language
is “phrased with an unmistakable focus on the benefited class”
(quotation marks omitted)). No particular language must be
present in a statute to confer rights. See, e.g., Talevski, 599
U.S. at 184 (holding that the Federal Nursing Home Reform
Act, which requires nursing homes to “protect and
promote . . . [t]he right to be free from . . . any physical or
chemical restraints . . . not required to treat the resident’s
medical symptoms” is rights-creating); Gonzaga, 536 U.S. at
284, 287 (recognizing that Title VI of the Civil Rights Act of
1964 and Title IX of the Education Amendments of 1972
“create individual rights” by providing that “[n]o person . . .
shall . . . be subjected to discrimination”).
Guided by Title VI of the Civil Rights Act of 1964 and
Title IX of the Education Amendments of 1972 “as exemplars
of rights-creating language,” we have recognized that statutes
phrased in terms of what a state must do for a specified class
13
of persons create enforceable rights. Sabree ex rel. Sabree v.
Richman, 367 F.3d 180, 189–90 (3d Cir. 2004). In Sabree, we
evaluated three statutory provisions in the Medicaid Act, which
provide:
“A State plan for medical assistance must . . .
provide that all individuals wishing to make
application for medical assistance under the plan
shall have opportunity to do so, and that such
assistance shall be furnished with reasonable
promptness to all eligible individuals,” 42 U.S.C.
§ 1396a(a)(8);
“[a] State plan for medical assistance must . . .
provide . . . for making medical assistance
available, . . . to . . . all [eligible] individuals,” 42
U.S.C. § 1396a(a)(10); and
“[t]he term ‘medical assistance’ means payment
of part or all of the cost of the following care and
services . . . for individuals . . . who are [eligible:]
. . . services in an intermediate care facility for
the mentally retarded . . . .” 42 U.S.C.
§ 1396d(a)(15).
Id. at 182 nn. 4, 5, 6 (emphases omitted). We held that these
provisions grant eligible individuals a right to a medical
assistance plan covering “medical services from an
intermediate care facility for persons with mental retardation”
with “reasonable promptness.” Id. at 181–82, 190. Combined,
these statutory texts showed that “Congress conferred specific
entitlements on individuals in terms that could not be clearer,”
id. at 190 (cleaned up), even absent phrases like “right” or
“entitlement.” See also Colon-Marrero v. Velez, 813 F.3d 1,
14
18 (1st Cir. 2016) (holding that a statutory provision that “no
registrant may be removed [from the official list of eligible
voters] solely by reason of a failure to vote,” 52 U.S.C.
§ 21083(a)(4)(A), “confers a right on every registrant not to be
removed from a state’s active registry for failure to participate
in one general election” (cleaned up)).
And as Title VI of the Civil Rights Act of 1964 and Title
IX of the Education Amendments of 1972 show, statutes that
provide specified individuals with defined freedoms from
certain state conduct are rights-creating. Gonzaga, 536 U.S. at
284, 287. We have determined that LEOSA’s neighboring
statute, 18 U.S.C. § 926A, “establish[ed] a clear positive
entitlement” to “transport firearms in certain circumstances”
because the statute stated that qualified persons “shall be
entitled” to do so. N.J. Rifle & Pistol Clubs Inc., 730 F.3d at
254. We see no meaningful difference between the phrase
“shall be entitled to” carry “[n]otwithstanding” contrary state
laws, 18 U.S.C. § 926A, and the phrase “may” carry
“[n]otwithstanding” contrary state laws, § 926C(a). Niz-
Chavez v. Garland, 593 U.S. 155, 160 (2021) (requiring courts
“to afford the law’s terms their ordinary meaning” using
“textual and structural clues”) (internal quotations and citations
omitted)). Both phrases permit, but do not mandate, an
individual to engage in conduct without government
interference. This is the nature of an individual right.
In prior cases, we applied the three-part Blessing test to
determine whether Congress created a right in a federal statute.
See N.J. Rifle & Pistol Clubs Inc., 730 F.3d at 254–57. Under
Blessing, a statute confers a right if the text meets each of three
factors:
15
First, Congress must have intended that the
provision in question benefit the plaintiff.
Second, the plaintiff must demonstrate that the
right assertedly protected by the statute is not so
‘vague and amorphous’ that its enforcement
would strain judicial competence. Third, the
statute must unambiguously impose a binding
obligation on the States. In other words, the
provision giving rise to the asserted right must be
couched in mandatory, rather than precatory,
terms.
Blessing, 520 U.S. at 340–41 (internal citations omitted). But
recent Supreme Court authority casts doubt upon the continued
applicability of the Blessing factors. In its June 2023 Talevski
opinion, the Supreme Court evaluated whether a statute created
a right by using the Gonzaga test, without reference to the
Blessing factors. Talevski, 599 U.S. at 183–84, 186. Still, the
Supreme Court has not expressly held that the Blessing factors
are no longer relevant. See, e.g., Sabree, 367 F.3d at 184
(“Gonzaga . . . carefully avoided disturbing, much less
overruling, Wright [479 U.S. 418] and Wilder [v. Va. Hosp.
Ass’n, 496 U.S. 498 (1990)],” the precedent “the Blessing
Court drew on” to “formulate[] [the] three-prong test”). And,
applying the Blessing factors, we reach the same result.4
4
First, as noted above, the language of LEOSA shows that
“Congress . . . intended [] the provision” to benefit qualifying
retired law enforcement officers who are carrying subsection
(d) identification, which include some of the plaintiffs here (at
the times when they meet both the historical and the dynamic
LEOSA conditions). Blessing, 520 U.S. at 340. Second, “the
right assertedly protected by” LEOSA is a right to carry
16
We join the D.C. Circuit in holding that LEOSA confers
an individual right upon QRLEOs with compliant
identification. In DuBerry v. District of Columbia, that court
reasoned that the “notwithstanding” clause of LEOSA’s
subsection (a) contains “categorical language” reflecting
Congress’s intent to “preempt state and local law [by]
grant[ing] qualified law enforcement officers the right to carry
a concealed weapon.” 824 F.3d 1046, 1052 (D.C. Cir. 2016).
And that clause shows that Congress enacted LEOSA for the
direct benefit of qualified individuals. Id. The court also
observed that LEOSA’s text imposes “a mandatory duty on the
states to recognize” such officers’ right to carry. Id. at 1053;
see also id. at 1053–54 (“Its plain text, then, confers upon a
specific group of individuals a concrete right the deprivation of
which is presumptively remediable under Section 1983.”).5
We agree.
notwithstanding contrary local laws, so it “is not so ‘vague and
amorphous’ that its enforcement would strain judicial
competence.” Id. at 340–41. Third, the “notwithstanding”
clause “unambiguously impose[s] a binding obligation on the
States” to refrain from enforcing local laws that interfere with
the right to carry, and it does so “in mandatory, rather than
precatory, terms.” Id. at 341.
5
The D.C. Circuit explained that the three Blessing factors
support its conclusion that “the text of the LEOSA creates the
type of right remediable under Section 1983.” DuBerry, 824
F.3d at 1052–54.
17
The Fourth Circuit held otherwise in Carey v. Throwe,
957 F.3d 468 (4th Cir. 2020).6 First, it stated that LEOSA
“lacks any express rights-creating language.” Id. at 479. The
court noted that the statute “states that certain qualified officers
‘may’ carry concealed firearms under certain circumstances,”
and it reasoned that this is “precatory rather than mandatory
language.” Id. Second, the court stated that LEOSA lacks an
express remedial provision. Id. (“This omission . . . is telling
because Congress passed LEOSA after the Blessing and
Gonzaga Courts made apparent that a statute would need to be
unambiguous for it to be enforceable under § 1983.”). Third,
the court reasoned that LEOSA does not unambiguously bind
the states because it provides them discretion over whether to
issue LEOSA identification and what to require of individuals
seeking that identification. Id. at 479–80. It stated, therefore,
that the statute merely “prevent[s] states from prosecuting out-
of-state officers who choose to carry under a LEOSA-
compliant permit already issued.” Id. at 480 (emphasis
omitted).
We decline to follow the Fourth Circuit’s path. By
treating the word “may” in Section 926C(a) as “precatory
rather than mandatory language,” id. at 479, the court construes
6
Although the Eleventh Circuit has addressed LEOSA, it has
not considered whether it creates an individual right for certain
persons to concealed-carry. In Burban v. City of Neptune
Beach, it held that LEOSA does not grant retired law
enforcement officers a right to compel governments or law
enforcement agencies to issue LEOSA-compliant
identification. 920 F.3d 1274, 1277–79 (11th Cir. 2019). It
remained silent as to “what other rights LEOSA might confer.”
Id. at 1282.
18
the word divorced from its neighboring words. See Freeman
v. Quicken Loans, Inc., 566 U.S. 624, 634–35 (2012) (“[A]
word is given more precise content by the neighboring words
with which it is associated.”). Although “‘may’ . . . usually
implies some degree of discretion,” Carey, 957 F.3d at 479
(quoting United States v. Rodgers, 461 U.S. 677, 706 (1983)),
when used in LEOSA the word “may” grants discretion to the
QRLEO who may choose whether to carry a firearm. It does
not grant states discretion about whether to allow a QRLEO
with compliant identification to concealed-carry a firearm. To
the contrary, the statute’s text unambiguously allows QRLEOs
with compliant identification to concealed-carry
“notwithstanding” contrary state law. 18 U.S.C. § 926C(a).
Moreover, there is no requirement that Congress
include an express remedial provision in a rights-creating
statute. As the Supreme Court held in Gonzaga, “where a
statute is phrased in . . . explicit rights-creating terms,”
plaintiffs suing under Section 1983 “do not have the burden of
showing an intent to create a private remedy because § 1983
generally supplies a remedy for the vindication of rights
secured by federal statutes.” Gonzaga, 536 U.S. at 284.7
While LEOSA may not require states to issue LEOSA
7
New Jersey notes that LEOSA’s neighboring statute, 18
U.S.C. § 925A, provides a limited remedy for individuals
erroneously denied a firearm. But Section 925A is not an
appropriate comparator. New Jersey does not argue that
Section 925A contains any rights-creating language, and no
such language is apparent from that statute’s text. In the
absence of a right, the presence of a remedy in a statute is
irrelevant to our analysis.
19
identification or adopt firearms qualification training
standards, it does require states to recognize existing LEOSA-
compliant identification that a retired officer has obtained from
his former agency—whether that agency is within the retired
officer’s state of residence or elsewhere.8
2
Because we hold that LEOSA confers upon certain
retired law enforcement officers a right to concealed-carry a
firearm, we next must consider whether the right can be
enforced via 42 U.S.C. § 1983. Talevski, 599 U.S. at 186.
LEOSA’s text shows that Congress has not foreclosed a
Section 1983 remedy for this right.
LEOSA “lacks any indicia of congressional intent to
preclude § 1983 enforcement . . . .” Talevski, 599 U.S. at 188.
Congress did not include any language expressly foreclosing a
Section 1983 remedy. Id. at 183. Nor did it create a remedial
8
We are not persuaded by New Jersey’s arguments to the
contrary. New Jersey argues that it may choose to recognize
only (d)(1) identification—it need not also recognize (d)(2)
identification. That argument is belied by the statutory text.
LEOSA applies to a QRLEO who is carrying (d)(1)
identification “or” (d)(2) identification. 18 U.S.C.
§ 926C(d)(1)–(2) (emphasis added). Without any evidence or
arguments to the contrary, we assume Congress’s use of the
word “or” has its “ordinary disjunctive meaning.” Encino
Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018). So
states must recognize the right of a QRLEO who is carrying
either (d)(1) identification or (d)(2) identification, regardless
of the identification a state may choose to issue to its own law
enforcement officers.
20
scheme within LEOSA itself that is incompatible with Section
1983 enforcement. City of Rancho Palos Verdes v. Abrams,
544 U.S. 113, 121 (2005) (quotation and citation omitted);
Talevski, 599 U.S. at 187 (“[T]he sine qua non of a finding that
Congress implicitly intended to preclude a private right of
action under § 1983 is incompatibility between enforcement
under § 1983 and the enforcement scheme that Congress has
enacted.” (citation omitted)).
New Jersey argues that LEOSA’s placement within the
criminal code implies that Congress intended LEOSA to
function as an immunity from prosecution rather than as a right
remediable via Section 1983. But Congress did not foreclose
a cause of action here, as it has done with rights it created
elsewhere in the criminal code. E.g., 18 U.S.C. §§ 3771(a),
(d)(6) (providing “[a] crime victim” with certain “rights” but
stating “[n]othing in this chapter shall be construed to authorize
a cause of action for damages or to create, to enlarge, or to
imply any duty or obligation to any victim or other person for
the breach of which the United States or any of its officers or
employees could be held liable in damages.”). And, of course,
Section 1983 by its terms provides a cause of action for “the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws.” 42 U.S.C. § 1983 (emphasis
added); see also, e.g., Playboy Enters., Inc. v. Pub. Serv.
Comm’n of P.R., 906 F.2d 25, 32 (1st Cir. 1990) (“We have no
doubt the protection from liability provided cable operators by
[47 U.S.C.] § 558 . . . is an ‘immunity’ created by federal law
and enforceable by the courts” through Section 1983).
New Jersey has not carried its burden to rebut the
presumption that a LEOSA right-holder may enforce his right
under Section 1983. Therefore, QRLEOs with LEOSA-
21
compliant identification may enforce their right to concealed-
carry through Section 1983’s private right of action.9
B
As discussed above, LEOSA gives QRLEOs with the
requisite identification a right to concealed-carry a firearm.
And when Congress enacted LEOSA, it expressly preempted
contrary state law. So New Jersey may not limit the LEOSA
right or burden that right by imposing additional requirements
upon right-holders.
Under the Supremacy Clause, the laws of the United
States are “the supreme Law of the Land; . . . any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding.” U.S. Const. art. VI, cl. 2. When “Congress
enacts a law that imposes restrictions or confers rights on
private actors [and] a state law confers rights or imposes
restrictions that conflict with the federal law[,] . . . the federal
law takes precedence and the state law is preempted.” Murphy
v. Nat’l Coll. Athletic Ass’n, 584 U.S. 453, 477 (2018). “Put
simply, federal law preempts contrary state law.” Hughes v.
Talen Energy Mktg., LLC, 578 U.S. 150, 162 (2016).
Nonetheless, our preemption analysis must be “rooted
in the respect for states as independent sovereigns in our
9
Because we conclude that the plaintiffs may enforce their
rights under Section 1983, they may seek declaratory relief
under the Declaratory Judgment Act. 28 U.S.C. § 2201
(enabling a party to bring a civil action to “declare the rights
and other legal relations of any interested party seeking such
declaration” when the case is “within [the court’s]
jurisdiction”).
22
federal system.” In re Fed.-Mogul Glob. Inc., 684 F.3d 355,
365 (3d Cir. 2012). So we are “guided by two principles.”
Pennsylvania v. Navient Corp., 967 F.3d 273, 288 (3d Cir.
2020). First, we rely on “traditional tools of statutory
interpretation” to discern Congress’s intent in enacting the
federal law at issue. Va. Uranium, Inc. v. Warren, 139 S. Ct.
1894, 1901 (2019). The statute must reflect that preemption is
“the clear and manifest purpose of Congress.” Lorillard
Tobacco Co. v. Reilly, 533 U.S. 525, 542 (2001) (citation
omitted). And second, we presume that Congress did not
intend to preempt state law, especially “when the state is
exercising its police power.” Navient Corp., 967 F.3d at 288.
“State law may be preempted ‘by express language in a
congressional enactment . . . .’” Fed.-Mogul Glob., 684 F.3d
at 364 (quoting Lorillard Tobacco, 533 U.S. at 541). But even
then, we must address “the scope of the preemption provision.”
Farina v. Nokia Inc., 625 F.3d 97, 118 (3d Cir. 2010). We
construe the preempted domain narrowly in deference to state
sovereignty. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485
(1996).
In LEOSA, Congress’s intent to preempt contrary state
law is express and unmistakable.10 The statute opens by
stating: “Notwithstanding any other provision of the law of any
State or any political subdivision thereof” a QRLEO carrying
the requisite identification may concealed-carry a firearm that
has traveled in interstate commerce. 18 U.S.C. § 926C(a). It
“is difficult to imagine” a clearer statement of preemption.
10
Because LEOSA expressly preempts contrary state and local
law, we need not address conflict preemption or field
preemption. See Navient Corp., 967 F.3d at 287–88
(summarizing the “three classes of preemption”).
23
Fed.-Mogul Glob., 684 F.3d at 369; see also id. (concluding
that “[t]he plain language of [11 U.S.C.] § 1123(a) evinces
Congress’s clear intent to preempt state law” because the
statute’s “‘notwithstanding’ clause clearly signals the drafter’s
intention that the provisions of the ‘notwithstanding’ section
override conflicting provisions” (cleaned up)); DuBerry, 824
F.3d at 1053 (discussing the “categorical preemption of state
and local law standing in the way of the LEOSA right to
carry”).
LEOSA’s text also clarifies the scope of the preemption
provision. Subsection (b) includes a list of laws that are not
preempted: state laws that prohibit or restrict firearm
possession on state or local government property, and state
laws that allow private parties to prohibit or restrict concealed-
carry on their property. 18 U.S.C. § 926C(b)(1)–(2). By
implication, all other state or local laws that conflict with
LEOSA are inapplicable to LEOSA right-holders. N.L.R.B. v.
SW Gen., Inc., 580 U.S. 288, 302 (2017) (under the interpretive
canon expressio unius est exclusio alterius, “expressing one
item of an associated group or series excludes another left
unmentioned” (cleaned up)).
New Jersey urges us to adopt the Fourth Circuit’s view
that LEOSA’s “notwithstanding” clause preempts only those
laws “that could be used to criminally prosecute a LEOSA-
qualified officer for carrying a concealed firearm across state
lines.” Carey, 957 F.3d at 480 (emphasis added). But that
would impose an atextual limitation on the scope of LEOSA’s
preemption of state and local law.11 LEOSA preempts any state
11
Likewise, New Jersey’s interpretation of LEOSA’s interstate
commerce provision is inconsistent with the statute’s plain
text. See Appellant Br. at 4 (contending that LEOSA’s purpose
24
law that directly conflicts with its provisions such that “the two
cannot be reconciled or consistently stand together.” 18 U.S.C.
§ 927.
We will be specific about the preemption arguments in
this case. We hold that—subject to the exceptions in LEOSA’s
subsection (b)—LEOSA preempts the following provisions of
New Jersey law, as applied to QRLEOs who are carrying
subsection (d)(1) or (d)(2) identification:
(1) LEOSA’s definition of “firearm,” 18 U.S.C.
§ 926C(e)(1), preempts New Jersey law that bars
the carrying of hollow-point ammunition,
N.J.S.A. § 2C:39-3f;
(2) LEOSA’s definition of “qualified retired law
enforcement officer,” § 926C(c), preempts New
Jersey law limiting an individual’s ability to
concealed-carry a firearm on the basis of age,
state of residence, or jurisdiction of former law
enforcement service, § 2C:39-6l; and
(3) LEOSA’s definition of required identification,
§ 926C(d), preempts New Jersey law that
requires individuals to obtain additional
identification and/or more frequent firearms
is to “allow[] interstate concealed carry by retired officers
already approved to carry by their home States”). LEOSA
requires that the firearm at issue has travelled in interstate
commerce—not that the QRLEO has personally carried the
firearm over state lines. 18 U.S.C. § 926C(a) (certain
individuals “may carry a concealed firearm that has been
shipped or transported in interstate or foreign commerce”).
25
certification training before carrying a firearm,
§ 2C:39-6l.
New Jersey argues that construing LEOSA to preempt
the RPO Law will burden active law enforcement officers in
the field.12 We understand and appreciate that concern. But
implementation challenges cannot override Congress’s
12
New Jersey does not challenge the scope of the District
Court’s injunction. (It only argues that the District Court
misinterpreted LEOSA such that the injunction must be
vacated.) We note, however, that the injunction does not
appear to be limited to the plaintiffs in this case. App. 4
(granting injunctive relief to “any QRLEO who has
identification required by 18 U.S.C. § 926C(d)”). See Ameron,
Inc. v. U.S. Army Corps of Eng’rs, 787 F.2d 875, 888 (3d Cir.),
aff’d on reh’g, 809 F.2d 979 (3d Cir. 1986) (holding that, in a
non-class-action, the plaintiff is only entitled to obtain
injunctive relief for itself). Further, the injunction appears to
bar New Jersey from arresting or prosecuting a QRLEO who
has subsection (d) identification for any reason. See App. 4
(“[T]he State of New Jersey is enjoined from arresting and/or
prosecuting any QRLEO who has identification required by 18
U.S.C. § 926C(d) regardless of their residence or the agency
from which they retired . . . .”). But presumably QRLEOs
remain subject to arrest or prosecution for violating laws
unrelated to their LEOSA-compliant concealed-carry.
Nevertheless, because this appeal is devoid of any overbreadth
arguments, we make no rulings on the scope of the injunction.
See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993)
(declining to reach an issue appellants failed to raise on
appeal).
26
unmistakable intent to preempt contrary state law. And active
law enforcement officers in New Jersey are already faced with
determining whether retirees from federal or out-of-state law
enforcement agencies are qualified to carry under LEOSA.
App. 189–90 (New Jersey Attorney General’s Office’s
statement that QRLEOs who meet all the requirements of
LEOSA, who reside in New Jersey, and who separated from an
out-of-state or federal law enforcement agency may carry a
firearm without applying for an RPO Law permit).
Determining LEOSA qualifications for retirees from New
Jersey law enforcement agencies is unlikely to be more
burdensome.13
13
The District Court found that certain plaintiffs are QRLEOs
who possess compliant subsection (d) identification. New
Jersey does not contest this finding, and we do not disturb it.
But we note (and Plaintiffs acknowledge) that an individual’s
compliance with LEOSA’s requirements must be assessed at
the time of his concealed-carry. See 18 U.S.C. § 926C(a) (a
QRLEO must be carrying subsection (d) identification while
carrying a concealed firearm); § 926C(c)(6)-(7) (a QRLEO
must not be under the influence of alcohol or certain other
substances and must not be prohibited by Federal law from
receiving a firearm); § 926C(d) (compliant identification must
indicate that the QRLEO has completed firearms training “to
carry a firearm of the same type as the concealed firearm” no
more than one year before the concealed-carry); see also
Appellees’ Br. at 34 (acknowledging that some LEOSA
qualifications “must be determined in real-time, such as
whether a retired officer is intoxicated or otherwise
disqualified from carrying a firearm under federal law”).
27
* * *
We may not ignore Congress’s unambiguous conferral
of an individual right or its clear intent to preempt state law. In
LEOSA, Congress granted certain retired law enforcement
officers a right to carry a concealed firearm. And LEOSA
expressly preempts contrary provisions of state law.
We will affirm the District Court’s order.
28