Burban v. City of Neptune Beach, 18-11347

• Decision Date: 05 April 2019
• Docket Number: No. 18-11347,18-11347
• Parties: Camille BURBAN, Plaintiff-Appellant, v. CITY OF NEPTUNE BEACH, FLORIDA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

920 F.3d 1274

Camille BURBAN, Plaintiff-Appellant,

v.CITY OF NEPTUNE BEACH, FLORIDA, Defendant-Appellee.

No. 18-11347

United States Court of Appeals, Eleventh Circuit.

April 5, 2019

Bryan E. DeMaggio, Matthew R. Kachergus, Camille Elizabeth Sheppard, William J. Sheppard, Elizabeth Louise White, Jesse B. Wilkison, Sheppard White Kachergus & DeMaggio, PA, Jacksonville, FL, for Plaintiff-Appellant.

Richard J. Plotkin, GrayRobinson, PA, Ashlea Ann Edwards, Akerman, LLP, Jacksonville, FL, for Defendant-Appellee.

Before ED CARNES, Chief Judge, MARTIN, and ANDERSON, Circuit Judges.

MARTIN, Circuit Judge:

The Law Enforcement Officers Safety Act ("LEOSA") allows "a qualified retired law enforcement officer ... who is carrying the identification required by [the Act]" to "carry a concealed firearm," notwithstanding most State or local restrictions. 18 U.S.C. §§ 926C(a), (b). Camille Burban, who is a retired police officer formerly employed by the Neptune Beach Police Department ("the Department"), sued the City of Neptune Beach, Florida seeking to have it issue her the type of identification card required by LEOSA. The District Court dismissed Ms. Burban’s amended complaint, finding that LEOSA does not give rise to a federal right enforceable under 42 U.S.C. § 1983. After careful review, and with the benefit of oral argument, we affirm.

I.

In March 2017, Camille Burban sued Neptune Beach, Florida seeking to enforce her individual rights she believes are granted to her by the Law Enforcement Officers Safety Act, 18 U.S.C. § 926C. LEOSA permits qualified active and retired law enforcement officers who meet certain conditions to carry a concealed firearm anywhere in the United States, even if State or local law would ordinarily prohibit it. See id. §§ 926B(a), 926C(a). But see id. § 926B(b) (establishing that LEOSA does not supersede laws restricting firearms on private property or State or local government property); id. § 926C(b) (same). Section 926C, which is divided into five subsections, addresses retired officers.

Subsection (a) 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 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). As set out in subsection (c), a "qualified retired law enforcement officer" is defined as a person who, among other things, "separated from service in good standing," "served as a law enforcement officer for an aggregate of 10 years or more," and has met certain firearms training standards during the most recent 12-month period. See id. § 926(c) (establishing seven conditions for recognition as a "qualified retired law enforcement officer").

Subsection (d) sets out two options for the type of identification a qualified retired law enforcement officer must possess in order to lawfully carry a concealed weapon under LEOSA. Option one is:

[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[.]

Id. § 926C(d)(1). Option two is "a photographic identification issued by the agency" that identifies the person as retired law enforcement together with a firearms certification issued no more than a year ago by either "the State in which the individual resides or by a [qualified] certified firearms instructor." Id. § 926C(d)(2). The firearms certification must show that the retired officer met the active duty standards "as established by the State, to carry a firearm of the same type as the concealed firearm," or, if the State does not have such standards, "standards set by any law enforcement agency within that State to carry a firearm of the same type as the concealed firearm." Id. § 926C(d)(2)(B)(I), (II). Finally, subsection (e) defines "firearm" and "service with a public agency as a law enforcement officer." Id. § 926(e).

According to Ms. Burban’s amended complaint, she was an officer with the Department for more than ten years before she retired from service in 2013. In October 2016, she asked the Department to issue her the type of photographic identification card required by LEOSA. The Department denied her request, explaining that under its policy, these cards are issued only to officers who retired in good standing and who qualify with a Department-certified firearms instructor. The Department policy also requires an officer to serve for at least fifteen years to be eligible to receive an identification for LEOSA purposes, even though the statute requires just ten. Ms. Burban’s later petitions for clarification about the Department’s reasons for denying her request went unanswered.

Ms. Burban’s suit challenged the Department’s requirements as inconsistent with federal law. More to the point, Ms. Burban asserted that she is a qualified retired law enforcement officer as defined in LEOSA. She said the City’s refusal to supply her with LEOSA-compliant identification deprived her of federal rights conferred upon her by LEOSA and enforceable under 42 U.S.C. § 1983.

The City moved to dismiss Ms. Burban’s amended complaint. The District Court applied the framework set out in Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). In doing so, the District Court found that LEOSA did not give Ms. Burban an individually enforceable federal right and dismissed her complaint for failure to state a claim on which relief may be granted. This is Ms. Burban’s appeal.

II.

"We review de novo the district court’s grant of a motion to dismiss under Rule 12(b)(6) for failure to state a claim, accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff." Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010) (quotation marks omitted).

III.

This appeal must address whether LEOSA creates a right enforceable under 42 U.S.C. § 1983 to LEOSA-compliant, agency-issued identification. As set out below, we conclude that it does not and therefore affirm the District Court.

A.

Section 1983 provides a private cause of action against any person who, under color of state law, deprives an individual of "any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. Section 1983 actions may be brought to enforce rights created by federal statutes as well as by the Constitution. See Maine v. Thiboutot, 448 U.S. 1, 4–8, 100 S.Ct. 2502, 2504–06, 65 L.Ed.2d 555 (1980). But "to seek redress through § 1983... a plaintiff must assert the violation of a federal right, not merely a violation of federal law." Blessing, 520 U.S. at 340, 117 S.Ct. at 1359 (emphasis in original).

In Blessing, the Supreme Court described the framework for deciding whether a federal statute creates rights enforceable under § 1983. First, a court must break down a plaintiff’s complaint into "manageable analytic bites," identifying "exactly what rights, considered in their most concrete, specific form, [plaintiff] [is] asserting." Id. at 342, 346, 117 S.Ct. at 1360, 1362 ; see, e.g., Harris v. James, 127 F.3d 993, 1005–1012 (11th Cir. 1997) (assessing provision-by-provision whether the Medicaid Act creates a federal right to transportation to and from medical providers); cf. Doe 1-13 ex rel. Doe, Sr. 1-13 v. Chiles, 136 F.3d 709, 714–15 (11th Cir. 1996) (explaining that the Harris panel’s conclusion that the Medicaid Act did not create a federal right to transportation to and from medical providers did not reach the question of whether any provisions of that same Act created a federal right to reasonably prompt provision of medical assistance). It is a mistake for a court to take a "blanket approach" to determining whether a statute is rights-creating. Blessing, 520 U.S. at 344, 117 S.Ct. at 1361.

Once the right being asserted has been identified, a court must consider three factors:

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.

Id. at 340–41, 117 S. Ct. at 1359 (citations omitted). If all three of these factors are satisfied, this creates a rebuttable presumption that a right is enforceable under § 1983. Id. at 341, 117 S.Ct. at 1360. However, a defendant is able to rebut that presumption by showing Congress expressly or impliedly foreclosed a remedy under § 1983. Id. If a provision fails to meet any one of the three Blessing factors, it does not provide a person with a federal right enforceable under § 1983. See Arrington v. Helms, 438 F.3d 1336, 1345 (11th Cir. 2006).

Since Blessing, the Supreme Court has explicitly "reject[ed] the notion that ... anything short of an unambiguously conferred right" may support a cause of action brought under § 1983. Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 2275, 153 L.Ed.2d 309 (2002). Thus, "where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit ... under § 1983." Id. at 286, 122...