Duberry v. District of Columbia, 060316 FEDDC, 15-7062

Docket Nº:15-7062
Opinion Judge:Rogers Circuit Judge.
Party Name:Ronald Eugene Duberry, et al., Appellants v. District of Columbia, et al., Appellees
Attorney: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, ...
Judge Panel:Before: Henderson, Rogers and Kavanaugh, Circuit Judges. Karen LeCraft Henderson, Circuit Judge, dissenting:
Case Date:June 03, 2016
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Ronald Eugene Duberry, et al., Appellants

v.

District of Columbia, et al., Appellees

No. 15-7062

United States Court of Appeals, District of Columbia Circuit

June 3, 2016

Argued March 14, 2016

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

Rogers Circuit Judge.

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 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) excepts private or state or local government property.2

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.

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 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 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).

To determine whether appellants had alleged the deprivation of a federal right, the district court...

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