Duberry v. District of Columbia

824 F.3d 1046, 423 U.S. App. D.C. 35, 2016 U.S. App. LEXIS 10096, 2016 WL 3125217
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 3, 2016
Docket15-7062
StatusPublished
Cited by25 cases

This text of 824 F.3d 1046 (Duberry v. District of Columbia) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duberry v. District of Columbia, 824 F.3d 1046, 423 U.S. App. D.C. 35, 2016 U.S. App. LEXIS 10096, 2016 WL 3125217 (D.C. Cir. 2016).

Opinions

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 officers]” 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 [1049]*1049officer 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. § 9260(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 officers] 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 [1050]*1050LEOSA 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. Du-Berry 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 “[cjorrectional 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. Crv. P. 12(b)(6). It concluded that even if the D.C. Department of Corrections had violated the law by misclassify-ing 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 [1051]*1051correctly 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.

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Bluebook (online)
824 F.3d 1046, 423 U.S. App. D.C. 35, 2016 U.S. App. LEXIS 10096, 2016 WL 3125217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duberry-v-district-of-columbia-cadc-2016.