Duberry v. Dist. of Columbia, Civil Action No.: 14–1258 (RC)

• Decision Date: 07 June 2018
• Docket Number: Civil Action No.: 14–1258 (RC)
• Parties: Ronald E. DUBERRY, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.
• Court: U.S. District Court — District of Columbia

316 F.Supp.3d 43

Ronald E. DUBERRY, et al., Plaintiffs,

v.DISTRICT OF COLUMBIA, Defendant.

Civil Action No.: 14–1258 (RC)

United States District Court, District of Columbia.

Signed June 7, 2018

F. Peter Silva, II, Gowen, Rhoades, Winograd & Silva PLLC, Aaron Marr Page, Law Office of Aaron Marr Page, Washington, DC, for Plaintiffs.

Chad Wayne Copeland, Matthew Robert Blecher, Michael A. Tilghman, Ty Micha Johnson, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

RUDOLPH CONTRERAS, United States District Judge

DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFFS' CROSS–MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

The Law Enforcement Officers Safety Act ("LEOSA") authorizes active and retired "qualified law enforcement officer[s]" with suitable identification to carry a concealed firearm interstate, contrary state or local law notwithstanding. 18 U.S.C. §§ 926B, 926C. This case, back to this Court on remand from the D.C. Circuit and presently before the Court on cross motions for summary judgment, concerns whether three former District of Columbia Department of Corrections ("DCDOC") officers meet certain statutory prerequisites to be considered "qualified retired law enforcement officer[s]" under LEOSA. Finding that Plaintiffs meet the statutory preconditions at issue in this case—including, that they each "served as a law enforcement officer for an aggregate of 10 years or more" and had "statutory powers of arrest" before separating from DCDOC, id. § 926C(c)(2), (3)(A) —the Court grants Plaintiffs' motion for summary judgment and denies the District of Columbia's motion for the same.

II. BACKGROUND

A. Statutory Framework

Before 2004, a patchwork of state laws governed whether out-of-state current or former law enforcement officers could carry a concealed firearm within a particular state's borders. See H.R. Rep. No. 108–560, at 3 (2004). Beginning in 1992, lawmakers introduced legislation aimed at permitting concealed carry nationwide for certain law enforcement officers. See H.R. 218, 107th (2001); H.R. 218, 106th Cong. (1999); H.R. 218, 105^th Cong. (1997); H.R. 218, 104th Cong. (1995); H.R. 1277, 103d Cong. (1993); H.R. 4897, 102d Cong. (1992). Efforts succeeded in 2004 with the enactment of the Law Enforcement Officers Safety Act, known as "LEOSA." See LEOSA, Pub. L. 108–277, 118 Stat. 865 (2004) (codified at 18 U.S.C. §§ 926B, 926C ); see also S. Rep. No. 108–29, at 2–3 (2003) (describing efforts to enact legislation similar to LEOSA).

LEOSA mandates that all active and retired law enforcement officers be able to carry a concealed firearm anywhere in the United States subject to certain conditions, overriding most contrary state and local laws.¹ See S. Rep. No. 108–29, at 4. The Act's purpose was two-fold—to protect active and retired officers and their families from "vindictive criminals," and to enable such officers to "respond immediately" to crimes spanning multiple jurisdictions. Id. ; see also H.R. Rep. No. 108–560, at 4. LEOSA provides that, "[n]otwithstanding any other provision of the law of any State or any political subdivision thereof," a "qualified law enforcement officer" or "qualified retired law enforcement officer" "may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce," so long as the individual also carries the requisite identification. 18 U.S.C. §§ 926B(a), 926C(a).

Section 926B(c) establishes six conditions that a current employee of a governmental agency must satisfy to be considered a "qualified law enforcement officer" under LEOSA. Id. § 926B(c). First, the employee must be legally authorized "to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law," and must have "statutory powers of arrest" or powers of apprehension under 10 U.S.C. § 807(b). 18 U.S.C. § 926B(c)(1). The individual must also be authorized by the agency to carry a firearm; must meet any standards established by the agency for employees to qualify to use a firearm; must not be under the influence of alcohol or drugs; must not be the subject of any disciplinary action by the agency that might result in suspension or "loss of police powers"; and must not be prohibited by federal law from receiving a firearm. Id. § 926B(c)(2)–(6). Section 926B also establishes that, in order to take advantage of LEOSA rights, a qualified law enforcement officer must carry "photographic identification issued by the governmental agency for which the individual is employed that identifies the employee as a police officer or law enforcement officer of the agency." Id. § 926B(a), (d).

Section 926C sets forth the requirements to be considered a "qualified retired law enforcement officer," which differ in some respects from the qualifications for active officers. See id. § 926C(c). To qualify for LEOSA rights, a retired employee must have "separated from service in good standing ... with a public agency as a law enforcement officer." Id. § 926C(c)(1). The individual must also meet the relevant standards for qualification in firearms training; must not have been found unqualified for reasons related to mental health; must not be under the influence of alcohol or another intoxicating substance; and must not be prohibited by federal law from receiving a firearm. Id. § 926C(c)(4)–(7). In addition, before separating from the agency, the individual must have "served as a law enforcement officer for an aggregate of 10 years or more"; must have had legal authority to "engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law"; and must have had either "statutory powers of arrest" or powers of apprehension pursuant to 10 U.S.C. § 807(b). 18 U.S.C. § 926C(c)(2)–(3). Qualified retired law enforcement officers must carry "photographic identification issued by the agency ... that identifies the person as having been employed as a police officer or law enforcement officer." Id. § 926C(d)(1), (2)(A). And, if the agency-issued identification does not indicate that the retired officer has completed the appropriate firearms training, the officer must carry a separate certification form so establishing. Id. § 926C(d)(2).

B. Factual Background and Procedural History

Before their retirements, Plaintiffs Ronald E. Duberry, Maurice Curtis, and Robert L. Smith worked as correctional officers in the District of Columbia Department of Corrections, each beginning in the 1970s or 1980s and serving for at least sixteen years.² See Pls.' Statement of Undisputed Material Facts ("Pls.'

SUMF") ¶ 1, ECF No. 59–2; Def. District of Columbia's Statement of Undisputed Material Facts ("Def.'s SUMF") ¶¶ 22–25, ECF No. 53–19. As corrections officers, Plaintiffs were responsible for, among other things, the treatment, custody, counseling, and supervision of individuals incarcerated at DCDOC-operated correctional institutions, including the Lorton Correctional Complex in Lorton, Virginia. See Position Descriptions, Exs. 12–14, Def.'s SUMF, ECF Nos. 53–31, 53–32, 53–33; Decl. of Robert Smith ("Smith Decl.") ¶ 1, ECF No. 59–5; Decl. of Ronald Duberry ("Duberry Decl.") ¶ 1, ECF No. 59–4; Decl. of Maurice Curtis ("Curtis Decl.") ¶ 1, ECF No. 59–3.

Beginning in November 2012, Plaintiffs individually sought to enjoy the concealed carry right that they believed LEOSA afforded them. See Corr. Am. Compl. ¶¶ 48–59, ECF No. 15. Because each Plaintiff purportedly has photographic identification classifying them as retired employees of DCDOC, see Corr. Am. Compl. ¶ 56—identification that they believe satisfies the requirements of subsection (d)(2)(A)—they focused on securing firearm certification to meet the requirement of subsection (d)(2)(B). In Prince George's County, Maryland (where Mr. Duberry and Mr. Curtis reside) and in the District of Columbia (where Mr. Smith resides), an individual must submit a prior employment certification form completed by the law enforcement agency for which he previously worked before seeking firearm certification. See Corr. Am. Compl. ¶ 47. On this certification form, the agency must answer a series of questions by checking boxes for "yes" or "no." See Ex. 1, Corr. Am. Compl. One question asks whether the applicant, while employed, possessed various authorizations enumerated in subsection (c)(2) of LEOSA, including "statutory powers of arrest." Certification of Prior Law Enforcement Employment, Pls.' Ex. B, ECF No. 23–2. Relatedly, another question asks whether the applicant was "regularly employed as a law enforcement officer" for the indicated duration of time. Certification of Prior Law Enforcement Employment, Pls.' Ex. B.

In response to both of these questions on Mr. Duberry's prior employment certification form, a DCDOC human resources officer checked the boxes for "no" and wrote that Mr. Duberry was "not a law enforcement officer." Certification of Prior law Enforcement Employment, Pls.' Ex. B; see also Corr. Am. Compl. ¶¶ 49–51, 55, 57. DCDOC took the same position with respect to the other Plaintiffs, with the agency's former director explaining to Plaintiffs' counsel that the agency does not believe that active or retired correctional officers of DCDOC meet all of the LEOSA requirements. See Email from Thomas Faust to William J. Phelan (Feb. 28, 2013) at DC Duberry001748, Ex. 1, Def.'s SUMF, ECF No. 53–20; Email from Marie D. Oliveria to William J. Phelan (May 21, 2014) at DC Duberry001760–61, Ex. 1, Def.'s SUMF, ECF. No. 53–20.

In July 2014, Plaintiffs initiated this action against the District of Columbia, former Mayor Vincent Gray in his official capacity, and former Director of DCDOC Thomas Faust in his official capacity. See Compl., ECF No. 1. Plaintiffs' amended complaint alleged that Defendants' actions had denied them rights under LEOSA in violation of 42 U.S.C....