Duberry v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2016 Decided June 3, 2016

No. 15-7062

RONALD EUGENE DUBERRY, ET AL.,
APPELLANTS

v.

DISTRICT OF COLUMBIA, ET AL.,
APPELLEES

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 for the Court filed by Circuit Judge ROGERS.
 2

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 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
 3

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)

1
Subsection (d) provides: “The identification required by this
subsection is —

(1) 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; or

(2)(A) 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
 4

excepts private or state or local government property.2

(B) a certification issued by the State in which the individual
resides or by a certified firearms instructor that is qualified to
conduct a firearms qualification test for active duty officers
within that State that indicates that the individual has, not less
than 1 year before the date the individual is carrying the
concealed firearm, been tested or otherwise found by the State
or a certified firearms instructor that is qualified to conduct a
firearms qualification test for active duty officers within that
State to have met —

(I) the active duty standards for qualification in
firearms training, as established by the State, to carry
a firearm of the same type as the concealed firearm;
or

(II) if the State has not established such standards,
standards set by any law enforcement agency within
that State to carry a firearm of the same type as the
concealed firearm.

18 U.S.C. § 926C(d). For purposes of Chapter 44 of Title 18, a “state”
is defined to include the District of Columbia. Id. § 921(a)(2).

2
Subsection (b) provides:

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 a park.

18 U.S.C. § 926C(b).
 5

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.

3
D.C. Code § 24-405, Arrest for violation of parole,
provides:

If [the U.S. Parole Commission], or any member thereof, shall
have reliable information that a prisoner has violated his parole,
said [Commission], or any member thereof, at any time within
the term or terms of the prisoner’s sentence, may issue a warrant
to any officer hereinafter authorized to execute the same for the
retaking of such prisoner. Any officer of the District of
Columbia penal institutions, any officer or designated civilian
 6

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

employee of the Metropolitan Police Department of the District
of Columbia, or any federal officer authorized to serve criminal
process within the United States to whom such warrant shall be
delivered is authorized and required to execute such warrant by
taking such prisoner and returning or removing him to the penal
institution of the District of Columbia from which he was paroled
or to such penal or correctional institution as may be designated
by the Attorney General of the United States.

The statute refers to the D.C. Board of Parole. Its duties were
transferred to the U.S. Parole Commission in 1997 by the National
Capital Revitalization and Self-Government Improvement Act, Pub.
L. No. 105-33 § 11231(a)–(c), 111 Stat. 712, 745 (1997), codified at
D.C. Code § 24-131 (2001). See Bailey v. Fulwood, 793 F.3d 127,
130 (D.C. Cir. 2015).
 7

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
 8

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).

4
Section 1983 provides:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress, except that in any action
brought against a judicial officer for an act or omission taken
in such officer’s judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of this
section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the
District of Columbia.

42 U.S.C. § 1983.
 9

To determine whether appellants had alleged the
deprivation of a federal right, the district court looked to
Blessing v. Freestone, 520 U.S. 329 (1997): A statute creates a
right enforceable under Section 1983 if (1) “Congress . . .
intended that the provision in question benefit the plaintiff,” (2)
“the plaintiff . . . demonstrate[s] that the right assertedly
protected by the statute is not so ‘vague and amorphous’ that its
enforcement would strain judicial competence,” and (3) “the
statute . . . unambiguously impose[s] a binding obligation on the
States” using “mandatory, rather than precatory, terms.” Id. at
340–41. The district court ruled appellants’ claim failed at the
first step because they failed to satisfy the identification
requirement of subsection (a) in the absence of the firearms
qualification certification under subsection (d)(2)(B), and thus
any right under the LEOSA had not “attached” and could not be
asserted by them. DuBerry, 106 F. Supp. 3d at 268–69.

If, as the district court ruled, the LEOSA right that Congress
intended to establish does not attach until appellants have in fact
obtained the firearms certification, then their access to that right
could hinge on the District of Columbia’s (or a state’s)
determination of whether, in its view, a retired law enforcement
officer had the power of arrest or otherwise met the LEOSA’s
requirements. On the other hand, if as appellants contend,
Congress created an individual right of which appellants have
been deprived due to the District of Columbia’s unlawful
interference with their ability to obtain the required certification,
then they have stated a claim and we must remand the case to
the district court for further proceedings.

A.
The determination whether appellants have alleged a right
remediable under Section 1983 presents the threshold question
of what right Congress created in the LEOSA. The district court
interpreted the right appellants seek to vindicate as a right to
 10

receive the employment certification from the D.C. Department
of Corrections. See DuBerry, 106 F. Supp. 3d at 265. In their
amended complaint, however, and as explained in their appellate
brief, appellants claim that the LEOSA grants them, as qualified
retired correctional officers, the right to carry concealed
firearms, including the right to carry them across state lines.
Am. Compl. ¶ 81; Appellants’ Br. 22. Further, they claim that
federal right is due protection under Section 1983, Am. Compl.
¶ 82, and that the LEOSA does not foreclose a remedy under
Section 1983, id. ¶ 83.

We begin with the text of the LEOSA, see Engine Mfrs.
Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252–53
(2004), and conclude that it favors appellants’ view of the
LEOSA right. Congress used categorical language in the
“notwithstanding” clause of subsection (a), to preempt state and
local law to grant qualified law enforcement officers the right to
carry a concealed weapon. As applied to the three-factor
Blessing test, the text of the LEOSA creates the type of right
remediable under Section 1983.

First, the text supports appellants’ claim that Congress
intended the LEOSA to benefit individuals like them directly.
Golden State, 493 U.S. at 106; Blessing, 520 U.S. at 340. The
plain text of the LEOSA grants retired law enforcement officers
a right to carry a concealed firearm “[n]otwithstanding any other
provision of the law of any State or any political subdivision
thereof.” The LEOSA right is not limited to former police
officers, but includes, among others, correctional officers and
parole authorities who “engage[d] in . . . the incarceration of any
person for[ ] any violation of law.” 18 U.S.C. § 926C(c)(2). At
the time the LEOSA was passed, at least 17 states and the
District of Columbia had laws prohibiting the carrying of
concealed firearms. See Report of the House Committee on the
Judiciary, regarding H.R. 218, H.R. Rep. 108-560, at 22 (2004),
 11

reprinted in 2004 U.S.C.C.A.N. 805; see, e.g., D.C. Code § 22-
3204 (1994). The LEOSA preempted these statutes with respect
to active duty and retired “qualified law enforcement officers.”

The District of Columbia questions whether appellants are
entitled to claim any right under the LEOSA because as
correctional officers they were not “trained to determine
whether probable cause exists to make a warrantless arrest for
any crime in the community,” and therefore lack the requisite
statutory power of arrest. Appellee’s Br. 12, 25. To the extent
the existence and nature of appellants’ former statutory power
of arrest present a factual question, the court must, on a motion
to dismiss pursuant to Rule 12(b)(6), accept the allegations of
the amended complaint as true. See Atherton, 567 F.3d at 681.
Appellants allege not only that they are qualified officers but
that the District of Columbia has provided them with
identification cards stating that they had a power of arrest when
they were D.C. correctional officers. Am. Compl. ¶¶ 21–29, 56.
To the extent these allegations present a legal question, it is not
obvious that the District of Columbia’s interpretation of the
LEOSA “powers of arrest” is correct. In the LEOSA, Congress
defined “qualified law enforcement officers” broadly, to include
individuals who engage in or supervise incarceration. Given the
breadth of Congress’s definition, the reference to “statutory
powers of arrest” necessarily means some statutory power of
arrest such as a power to arrest parole violators, and not, as the
District of Columbia suggests, only the police power to arrest
upon probable cause, see Appellee’s Br. 25. Further, contrary
to the District of Columbia’s suggestion at oral argument, the
LEOSA does not require that, prior to retiring, a law
enforcement officer’s job required carrying a firearm in order to
be a “qualified retired law enforcement officer[].”

Second, the LEOSA right to carry is not the type of “vague
and amorphous” right that is “beyond the competence of the
 12

judiciary to enforce.” Golden State, 493 U.S. at 106 (quoting
Wright v. Roanoke Redevelop. & Housing Auth., 479 U.S. 418,
431–32 (1987)). The LEOSA sets specific requirements for
“qualified law enforcement officers” in historical and objective
terms. The definition of such an officer is based on the service
requirements of the officer’s former law enforcement agency
and the circumstances at the time of the officer’s retirement.
Had the officer been a law enforcement officer for at least ten
years? Had the officer retired in good standing? Had the
officer had a statutory power of arrest prior to retirement? The
answers to these questions are to be found in the officer’s
personnel records and the statutes in effect before the officer
retired. Similarly, the requirement for annual firearms training
is defined as the standards for active duty officers and can be
met through either the former employing agency or the officer’s
state of residence or a firearms trainer certified by that state.
The LEOSA, then, falls on the side of statutes that are not so
vague as to be judicially unenforceable, even where the states
may retain some compliance discretion. See Wilder v. Va.
Hosp. Ass’n, 496 U.S. 498, 519–20 (1990).

Third, the LEOSA imposes a mandatory duty on the states
to recognize the right it establishes. It is more than a mere
“‘congressional preference’ for a certain kind of conduct” but
rather “provides a substantive right.” Id. at 509–10. This is
evident from the categorical preemption of state and local law
standing in the way of the LEOSA right to carry, see 18 U.S.C.
§ 927, and the nature of the ministerial inquiries into the
historical facts in the officer’s employment records and
statutory powers of arrest, and into the objective firearms
standard for active duty officers. The ordinary meaning of the
words used by Congress does not afford discretion to the
District of Columbia (or a state) to redefine either who are
“qualified law enforcement officers” or who is eligible for the
LEOSA right. Its plain text, then, confers upon a specific group
 13

of individuals a concrete right the deprivation of which is
presumptively remediable under Section 1983. See Golden
State, 493 U.S. at 107. Although a state may retain some
discretion, for example to the extent it concludes that a retired
law enforcement officer seeking to exercise a LEOSA
concealed-carry right is currently either not physically or
mentally capable of being in responsible possession of a
firearm, see 18 U.S.C. § 926C(c)(5), the District of Columbia
makes no such claim as to any of the appellants and
consequently the issue of any discretion it may retain is not
before this court.

The conclusion that the LEOSA creates an individual right
to carry finds additional support in Congress’s purpose and the
context of its enactment of the LEOSA. See Engine Mfrs., 541
U.S. at 252; District of Columbia v. Dep’t of Labor, No. 14-
5132, slip op. at 13 (D.C. Cir. Apr. 5, 2016). The legislative
history demonstrates that Congress’s purpose was to afford
certain retired law enforcement officers, in view of the nature of
their past law enforcement responsibilities, the present means of
self-protection and protection for the officer’s family and, as an
added benefit, to provide additional safety for the communities
where the officers live and visit. See 150 Cong. Rec. S7301–02
(daily ed. June 23, 2004) (statement of Sen. Leahy); 150 Cong.
Rec. H4812–13 (daily ed. June 23, 2004) (statement of Rep.
Coble); see also Report of the Senate Judiciary Committee,
regarding S. 253, S. Rep. No. 108-29, at 4 (2003); H.R. Rep.
No. 108-560, at 4; 150 Cong. Rec. E1231 (extension of remarks,
June 24, 2004) (statement of Rep. Cunningham). When the
LEOSA is viewed in context, it is not insignificant that
Congress enacted the LEOSA despite strong dissenting views.
See 150 Cong. Rec. H4813 (daily ed. June 23, 2004) (statement
of Rep. Scott); 150 Cong. Rec. S1624–25 (daily ed. Feb. 26,
2004) (statement of Sen. Dodd). Dissenting statements filed
with the Senate and House Judiciary Committees raised
 14

objections to the concealed-carry legislation based on the
demand of federalism and the states’ traditional police powers,
as well as practical concerns about the potential disruption of
the efforts by state and local law enforcement to control
firearms within their jurisdictions. See S. Rep. No. 108-29, at
12–13 (dissenting statement of Sen. Kennedy); H.R. Rep. No.
108-560, at 22–23, 79 (dissenting statement of Rep.
Sensenbrenner & Rep. Flake). The practical concerns extended
to the broad definition of a qualified retired law enforcement
officer to include individuals whose jobs did not require them
to carry a firearm and who therefore had not been trained by
their employer in the use of a firearm. S. Rep. No. 108-29, at
16; H.R. Rep. No. 108-560, at 70. In the Committees, the
response to these objections was expressed in the longstanding
support for concealed carry legislation by the Fraternal Order of
Police (“FOP”) and the Law Enforcement Alliance of America,
see H.R. Rep. 108-560, at 4, pointing to the needs of officers to
defend themselves and to protect their families with the
resultant benefit to their communities of additional law
enforcement officers. See Law Enforcement Officers Safety
Act: Hearing before Committee on House Judiciary,
Subcommittee on Crime, Terrorism, and Homeland Security,
108th Cong., 2d Sess. (2004) (statement of Chuck Canterbury,
FOP National President). The practical objections were
addressed by requiring annual firearms training to ensure that
all retired officers eligible to carry concealed weapons received
the same firearms training as active duty officers. See, e.g.,
H.R. Rep. 108-560, at 11, 59–60.

Taken together, the LEOSA’s plain text, purpose, and
context show that Congress intended to create a concrete,
individual right to benefit individuals like appellants and that is
within “the competence of the judiciary to enforce.” Golden
State, 493 U.S. at 106 (quoting Wright, 479 U.S. at 431–32). To
the extent the district court ruled appellants were not those
 15

Congress intended the LEOSA to benefit under an attachment
theory — where they lack the right until they obtain the
subsection (d)(2)(B) firearms certification, see DuBerry, 106 F.
Supp. 3d at 266–67 — there is no textual indication that
Congress contemplated the concealed-carry right to be other
than as defined in the straightforward text. Nor is any
legislative history cited to the court to that effect. In enacting
the requirements for “qualified law enforcement officers” to
claim this right, Congress gave every signal that it contemplated
no state reevaluation or redefinition of federal requirements.
Consequently, the firearms certification requirement does not
define the right itself but is rather a precondition to the exercise
of that right. Understood as an individual right defined by
federal law, the LEOSA concealed-carry right that appellants
allege Congress intended for them to have is remediable under
Section 1983. Their further allegation that they have been
deprived of their ability to obtain and exercise that right because
of the District of Columbia’s unlawful action is sufficient to
state a claim. As the district court observed, “there might be
some cases in which a failure to classify an individual as a ‘law
enforcement officer’ denies that individual his right to carry a
concealed firearm, which right he attained by satisfying the
requirements of subsection (a).” DuBerry, 106 F. Supp. 3d at
268. Appellants claim this is such a case, and we hold
appellants have sufficiently alleged that the federal right they
seek to enjoy has been unlawfully deprived by the District of
Columbia to be remediable under Section 1983.

The decisions of our sister circuits on which the district
court relied were not interpreting the LEOSA, and are
distinguishable. See Ass’n of N.J. Rifle & Pistol Clubs, Inc. v.
Port Auth. of N.Y. & N.J., 730 F.3d 252 (3d Cir. 2013); Torraco
 16

v. Port Auth. of N.Y. & N.J., 615 F.3d 129 (2d Cir. 2010).5 In
Torraco, 615 F.3d at 137, the Second Circuit held that the right
conferred was too “vague and amorphous” for enforcement
under Section 1983 in view of the difficulty facing a state
officer who stopped someone transporting a weapon of knowing
the gun laws of both the origin and destination jurisdictions.
Under the LEOSA, the officer is required to carry identification
indicating the statutory requirements, thereby resolving officer
uncertainty. Association of New Jersey Rifle and Pistol Clubs,
730 F.3d at 257, turned on a limitation of the right to carry a
weapon interstate to use of a “transporting vehicle,” which was
held not to include transport by plane, and so plaintiffs were not
intended beneficiaries. Appellants face no comparable obstacle
under the LEOSA.

Similarly, the cases relied upon by the District of Columbia
are unpersuasive support for the dismissal of appellants’
amended complaint. In Ramirez v. Port Authority of New York
& New Jersey, 15-cv-3225, 2015 WL 9463185 (S.D.N.Y. Dec.
28, 2015), the district court ruled that the LEOSA created only
a defense to civil and criminal liability, but nothing indicates
Congress intended to place “qualified law enforcement officers”

5
Section 926A, at issue in New Jersey Rifle and Pistol Clubs
and in Torraco, authorizes, in pertinent part:

any person who is not otherwise prohibited by this chapter . . .
to transport a firearm for any lawful purpose from any place
where he may lawfully possess and carry such firearm to any
other place where he may lawfully possess and carry such
firearm if, during such transportation the firearm is unloaded,
and neither the firearm nor any ammunition being transported
is readily accessible or is directly accessible from the
passenger compartment of such transporting vehicle.

18 U.S.C. § 926A (emphasis added).
 17

at such risks before the concealed-carry right could be
exercised, much less that Congress intended to foreclose a
Section 1983 remedy. The other district court opinions on the
LEOSA cited by the District of Columbia did not address
Section 1983, but rather found alternative grounds for denying
the claims. See, e.g., Friedman v. Las Vegas Metro. Police, No.
2:14-cv-0821, 2014 WL 5472604 (D. Nev. Oct. 24, 2014);
Johnson v. N.Y. State Dep’t of Corr. Servs., 709 F. Supp. 2d 178
(N.D.N.Y. 2010); Moore v. Trent, No. 09 C 1712, 2010 WL
5232727 (N.D. Ill. Dec. 16, 2010). We have no occasion to
address such alternative grounds here.

Our dissenting colleague’s view that the district court
lacked subject matter jurisdiction misapplies Shoshone Mining
Co. v. Rutter, 177 U.S. 505 (1900). According to the amended
complaint, the District of Columbia acknowledged in official
Departmental identification cards that appellants, while they
were working as D.C. correctional officers, had a power of
arrest. See Am. Compl. ¶¶ 61, 66, 71, 76. Only when
appellants, as retirees, sought to exercise their concealed-carry
right under the LEOSA did the District of Columbia change its
position. Then, as now, it asserted that appellants lack the
power of arrest that Congress intended. It offers no support for
this conclusion in the statutory text of the LEOSA or even in the
legislative history. Congress defined who is a qualified law
enforcement officer to apply not only to police officers but to
employees in related law enforcement areas who had a power
of arrest. As Congress deemed the federal right to be of
preeminent importance, notwithstanding state laws prohibiting
the concealed carry of firearms, it left no discretion for a state
to revise the historical record of an individual qualified law
enforcement officer. Thus, there is no question of rights under
D.C. law at issue here, and the Supreme Court’s focus in
Shoshone on “local customs” and limiting state laws where
possession of mining rights was at issue, 177 U.S. at 508, is
 18

inapposite. Federal law governs appellants’ contention that the
District of Columbia has unlawfully interfered with a federal
right bestowed on them by Congress.

B.
Finally, “even when the plaintiff has asserted a federal
right, the defendant may show that Congress ‘specifically
foreclosed a remedy under § 1983.’” Golden State, 493 U.S. at
106 (quoting Smith v. Robinson, 468 U.S. 992, 1005 n.9
(1984)). The burden to show congressional intent to foreclose
a Section 1983 remedy is on the defendant, and courts “do not
lightly conclude that Congress intended to preclude reliance on
§ 1983 as a remedy for the deprivation of a federally secured
right.” Wright, 479 U.S. at 423–24. The District of Columbia
has made no such showing. Appellants’ amended complaint
does not arise under the Spending Clause where the Supreme
Court has embraced a narrow interpretation of private damages
actions, absent clear contrary congressional intent, because “the
typical remedy for state noncompliance with federally imposed
conditions is not a private cause of action for noncompliance
but rather action by the Federal Government to terminate funds
to the State.” Gonzaga University, 536 U.S. at 280 (quoting
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28
(1981)). Nor does anything in the LEOSA itself or its
legislative history indicate that exclusive enforcement lies
elsewhere or that private enforcement is foreclosed. See
Wright, 479 U.S. at 425.

Nor has the District of Columbia otherwise rebutted
appellants’ presumed right to relief under Section 1983. Its
reliance on the anti-commandeering doctrine, see Printz v.
United States, 521 U.S. 898, 925–26 (1997), appears to be
misplaced; at least it cites no authority that the doctrine is
applicable to it. See U.S. Con. Art. I, sec. 8, cl. 17; Palmore v.
United States, 411 U.S. 389 (1973). Neither the State of
 19

Maryland nor Prince George’s County are parties in this case.
In any event, there is no occasion to consider whether the
doctrine is implicated were the LEOSA interpreted as requiring
states to conduct the firearm certification training or to issue the
photographic identification in subsection (d)(1) & (2)(A).
According to the amended complaint, the District of Columbia
and Prince George’s County, Maryland voluntarily provide the
necessary training and voluntarily established a procedure to
obtain needed historical information about appellants. Am.
Compl. ¶ 47c–d; cf. Lomont v. O’Neill, 285 F.3d 9, 14 (D.C.
Cir. 2002). Moreover, any such reservoir of power would not
vest the District of Columbia with authority to revise the
statutory definition of “qualified retired law enforcement
officers” in a manner to deprive appellants of the right to which
they are entitled. In preempting state and local law that would
interfere with its purpose and intent, 18 U.S.C. § 927; see
Arizona v. United States, 132 S. Ct. 2492 (2012), Congress set
the requirements for LEOSA officers in terms of historical facts
about the officer’s service and powers of arrest. Appellants
allege that the District of Columbia’s actions resulting from its
erroneous interpretation of how the LEOSA applies to these
facts have deprived them of their federally established
concealed-carry right.

Accordingly, because appellants’ amended complaint states
a claim under Section 1983, we reverse the dismissal of their
amended complaint and remand the case to the district court for
further proceedings.
 KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
My colleagues conclude that the plaintiffs have alleged a
cause of action under 42 U.S.C. § 1983. Ordinarily the
existence vel non of a federal cause of action determines a
federal court’s subject-matter jurisdiction. See Franchise Tax
Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 8 (1983).
But this rule knows one “rare exception,” Mims v. Arrow Fin.
Servs., LLC, 132 S. Ct. 740, 748 n.8 (2012), and I believe this
case falls within it. In my view the district court was without
subject-matter jurisdiction and I would therefore affirm its
dismissal order on that ground.

The district court held that it had subject-matter
jurisdiction under 28 U.S.C. § 1331 which provides that
“district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the
United States”. Duberry v. Dist. of Columbia, 106 F. Supp.
3d 245, 260 & n.14 (D.D.C. 2015). The plaintiffs do not
assert an alternative basis for its jurisdiction so I do not
consider others. See Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994) (“burden of establishing
[subject-matter jurisdiction] rests upon the party asserting
jurisdiction”). The District of Columbia (District) likewise
does not challenge the district court’s jurisdictional holding
but we have a sua sponte duty to verify jurisdiction. Arbaugh
v. Y & H Corp., 546 U.S. 500, 506 (2006).

Section 1331 is known as the “general federal-question
jurisdiction” statute. Mims, 132 S. Ct. at 747. “Although the
language of § 1331 parallels that of the ‘arising under’ clause
of Article III” of the Constitution, it is well established that
“Article III ‘arising under’ jurisdiction is broader than federal
question jurisdiction under § 1331.” Verlinden B.V. v. Cent.
Bank of Nigeria, 461 U.S. 480, 494–95 (1983); see also
Franchise Tax Bd., 463 U.S. at 8 n.8. In other words, section
1331 bestows jurisdiction on a smaller class of cases than
does the Constitution. Reducing to a formula what claims are
 2
(and what claims are not) provided for is something of a
puzzle. “The most familiar” construction of section 1331’s
“arising under” language is that “[a] suit arises under the law
that creates the cause of action.” Franchise Tax Bd., 463 U.S.
at 8–9 (emphasis added) (quoting Am. Well Works Co. v.
Layne & Bowler Co., 241 U.S. 257, 260 (1916)). This rule,
also known as “Justice Holmes’ test” in recognition of the
American Well Works author, states that where “federal law
creates the cause of action,” section 1331 provides federal
question jurisdiction. Merrell Dow Pharm. Inc. v. Thompson,
478 U.S. 804, 808, 809 n.5 (1986).

Although the Justice Holmes’ test resolves jurisdiction
under section 1331 in “the vast majority of cases,” id. at 808,
it does not answer the issue completely. For instance, a claim
“may arise under federal law ‘where the vindication of a right
under state law necessarily turn[s] on some construction of
federal law.’ ” Id. at 808 (emphasis added) (quoting
Franchise Tax Bd., 463 U.S. at 9).1 Thus, absence of a
1
In the case that established this exception, the plaintiff
shareholder sought to “prevent the directors” of a “Missouri
corporation” from “doing an act . . . alleged to be contrary to their
duty . . . [under] laws of Missouri.” Smith v. Kansas City Title &
Trust Co., 255 U.S. 180, 214 (1921) (Holmes, J., dissenting). The
corporation sought to “invest[] the funds of the company in farm
loan bonds issued by [federal authorities] under authority of [a
federal statute].” Id. at 195 (majority opinion). The plaintiff
alleged that the statute was unconstitutional, giving rise to a state-
law breach of duty claim. Id. at 195–96. Because the decision
“depend[ed] upon the determination” of the “constitutional validity
of an act of Congress,” the majority found subject-matter
jurisdiction. Id. at 201–02. Justice Holmes, citing his American
Well Works opinion, dissented, declaring that “a suit cannot be said
to arise under any other law than that which creates the cause of
action,” and ultimately concluding that Smith’s claim arose from
Missouri law. Id. at 214–15 (Holmes, J., dissenting).
 3
federal cause of action is not fatal and some courts have
observed Justice Holmes’ test is not “useful for . . . the
exclusion for which it was intended.” T.B. Harms Co. v.
Eliscu, 339 F.2d 823, 827 (2d Cir. 1964) (Friendly, J.).
Although the test is “more useful” as a rule of inclusion, see
Franchise Tax Bd., 463 U.S. at 9; see also Merrell Dow, 478
U.S. at 814 n.12 (Holmes test is “usual[ly] reliabl[e] . . . as an
inclusionary principle”), that notion “is not without its
exceptions,” Rogers v. Platt, 814 F.2d 683, 688 (D.C. Cir.
1987).

For example, the Supreme Court “has sometimes found
that formally federal causes of action were not properly
brought under federal-question jurisdiction because of the
overwhelming predominance of state-law issues.” Merrell
Dow, 478 U.S. at 814 n.12 (emphasis added). Probably the
most prominent example is Shoshone Mining Co. v. Rutter,
177 U.S. 505 (1900), in which case a federal statute
authorized suit brought to “determine the question of the right
of possession” to “mineral lands.” Id. at 507, 510. The
existence of the right of possession, however, was to “be
determined by ‘local customs of rules of miners . . . or ‘by the
statute of limitations for mining claims of the state or territory
where the same may be situated.’ ” Id. at 508. Because “[t]he
recognition by Congress of local customs and statutory
provisions as at times controlling the right of possession does
not incorporate them into the body of Federal law,” a suit to
“determine the right of possession may not involve any
question as to the construction or effect of the . . . laws of the
United States”; on the contrary, it may involve no more than
“determination of the meaning and effect of certain local
rules . . . or the effect of state statutes.” Id. at 508–09.
Although the case included the “right of possession,” id. at
507 (emphasis added), and its corresponding federal
recognition via “title from the [federal] government,” id. at
 4
513, the Court found no subject matter jurisdiction. It
concluded that notwithstanding a right may have “its origin in
the laws of the United States,” it may not, in the language of
section 1331, “necessarily [involve a claim] arising under . . .
laws of the United States.” Id. at 507 (emphasis added). If a
federal statute specifies that state law governs the existence
and scope of a right, and compliance with state law is the only
disputed issue, no federal question arises and therefore no
subject-matter jurisdiction exists under section 1331. Cf. id.
at 507 (“The suit must, in part at least, arise out of a
controversy between the parties in regard to the operation and
effect of the Constitution or laws [of the United States].”
(emphasis added)).

Assuming, as the majority concludes, that section 1983
establishes a cause of action to enforce the LEOSA, i.e., that
it “creates [a] claim for relief,” Mims, 132 S. Ct. at 748 n.8, I
nonetheless believe that, under Shoshone, the district court
lacked subject-matter jurisdiction. The majority’s conclusion
establishes only that the LEOSA and section 1983 combine to
“authoriz[e] an action to establish a right”—no more, no less.
Shoshone, 177 U.S. at 510. But state law governs whether “a
right” exists and, for subject-matter jurisdiction to arise, “the
[federal] Act”—here, the LEOSA—must also “supply the
governing law.” Mims, 132 S. Ct. at 748 n.8. Although the
LEOSA may do so in some cases, cf. Shoshone, 177 U.S. at
513 (“these suits may sometimes so present questions arising
under the Constitution or laws of the United States that the
Federal courts will have jurisdiction” (emphasis added)), it
does not do so here.

The plaintiffs seek “an Order directing the District . . . to
certify and/or acknowledge Plaintiffs as retired law
enforcement officers for purposes of the [LEOSA],” Corr.
Am. Compl. 17, which, in this case, turns on whether, while
 5
serving as corrections officers, they had a “statutory power[]
of arrest” under D.C. law, see Maj. Op at 6; 18 U.S.C.
§ 926C(c)(2). No one may carry a concealed weapon under
the LEOSA unless he “had statutory powers of arrest” before
separation from service. 18 U.S.C. § 926C(c)(2). Because
the plaintiffs were D.C. corrections officers, D.C. law
provided the authority under which they exercised their
powers. Accordingly, whether they possess any right under
the LEOSA depends on a “determination of local rules and
customs, or state statutes, or even only a mere matter of fact.”
Shoshone, 177 U.S. at 508. In support of their authority the
plaintiffs allege that D.C. Code § 24-4052 provided them a
“statutory power[] of arrest.” The District responds that
section 24-405 confers authority to execute only a limited
type of warrant, not a “statutory power[] of arrest,” relying
on, inter alia, a D.C. Court of Appeals decision interpreting
“arrest” to require an officer’s independent decision regarding
whether to charge a suspect with a criminal offense. Appellee
Br. 22–23 (citing In re M.E.B., 638 A.2d 1123 (D.C. 1993)).
Plainly, then, at least to me, this suit “involve[s] no
controversy as to the scope and effect of” federal law, rather,
the merits outcome turns on application of “local rules” and
“the effect of state statutes.” Shoshone, 177 U.S. at 509, 510.

My colleagues offer two additional bases for subject-
matter jurisdiction. First, they emphasize the Congress’s
“use[] [of] categorical language in the ‘notwithstanding’

2
D.C. Code § 24–405 provides that “[a]ny officer of the
District of Columbia penal institutions . . . is authorized and
required to execute” a warrant “for the retaking of” “a prisoner
[who] has violated his parole” “by taking such prisoner and
returning or removing him to the penal institution of the District of
Columbia from which he was paroled or to such penal or
correctional institution as may be designated by the Attorney
General of the United States.”
 6
clause of subsection (a),” Maj Op. 10; see 18 U.S.C.
§ 926C(a) (“Notwithstanding any other provision of the law
of any State . . . 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.”)
and posit that the District took “unlawful action,” Maj. Op.
15, to deny the plaintiffs their alleged right. The plaintiffs
claim error in the District’s decision that they do not meet the
state law condition precedent that the LEOSA requires—i.e.,
that they do not possess a “statutory power[] of arrest,” 18
U.S.C. § 926C(c)(2). The “notwithstanding” proviso is not
implicated. In any event, the proviso itself is limited to “a
qualified retired law enforcement officer,” which prerequisite
is determined by reference to D.C. law. Id. § 926C(a)
(emphasis added).

In addition, my colleagues conclude—as part of their
Blessing3 inquiry—that the District misinterpreted the term
“statutory powers of arrest,” see Maj. Op. 11, specifically,
that it “reevaluat[ed] or redefin[ed] [the] federal
requirement[],” id. at 15; see also id. at 19 (District has no
power “to revise the statutory definition”), concluding that the
existence of a state “statutory power of arrest” is a federal
question, id. at 15 (“right defined by federal law”). I do not
see how. As they concede, the inquiry whether “the officer
had a statutory power of arrest” is “answer[ed]” by “the
officer’s personnel records and the statutes in effect before the
officer retired,” id. at 12, in other words, by “state statutes, or
even only a mere matter of fact,” Shoshone, 177 U.S. at 508.
They apparently also believe that the definition of “arrest” is
itself found in federal law and that the term should be
construed “broadly,” Maj. Op. 11, but in doing so they offer
no definition at all. The fact is that the plaintiffs’ arrest power

3
Blessing v. Freestone, 520 U.S. 329 (1997).
 7
can only arise under local law and, in my view, whether the
plaintiffs possessed the arrest power under the D.C. definition
of that term decides this case. In any event, “[t]he inquiry
along Federal lines,” to the extent there is one, “is only
incidental to a determination of the local question of what the
state has . . . prescribed.” Shoshone, 177 U.S. at 509.4

Finally, Blessing illustrates what this case is not about, at
least for the purpose of subject-matter jurisdiction. 520 U.S.
329. Blessing involved a federal program that provided funds
to states operating federally-qualified child support
enforcement programs. Id. at 333. A participating state was
required to “structure” its implementing agency in a particular
way, staff its units at federally mandated levels, and “set up
computer systems that met numerous federal specifications”
to “maintain detailed records.” Id. at 334. The plaintiffs
alleged that Arizona deprived them of child support services
because the state agency’s “structural defects” made them
ineligible to receive the federal program’s benefits. Id. at
337. In other words, they alleged that Arizona had not
4
My colleagues submit that the District “acknowledged in
official Departmental identification cards that appellants . . . had a
power of arrest” but that the District “change[d] its position” “only
when appellants . . . sought to exercise their concealed-carry right.”
Maj. Op. 17 (citing plaintiffs’ complaint). The full extent of the
District’s purported “acknowledg[ment]” is the fact that, before
retiring, the corrections officers carried identification cards that
referenced D.C. Code § 24–405. Whatever the significance of the
identification card, it is irrelevant in determining subject-matter
jurisdiction. My colleagues believe that the District got the local
law question wrong—pointing to the identification card as
evidence. But whether the District misinterpreted its own former
officers’ authority is not a federal question, no matter how badly it
erred. In concluding otherwise they misread not only the LEOSA
but also Shoshone’s reach.
 8
complied with federal requirements. By contrast, here the
plaintiffs do not claim that the District’s implementation of
the LEOSA is lacking nor that the District has failed to meet
federal requirements. Instead, they claim that D.C.
misinterpreted the authority of its own former law
enforcement officers under D.C. law, as the LEOSA instructs.
Appellant Br. 19 (arguing that the District wrongly concluded
"that correctional officers do not have 'law enforcement status
and arrest authority' under D.C. law"); see also Corr. Am.
Compl. ¶ 61; 18 U.S.C. § 926C(c)(2).

I note that some regard subject-matter jurisdiction under
section 1331 to be, at bottom, a question of congressional
intent and that Shoshone, because it involved a local land
dispute, can be explained in this way. See Merrell Dow, 478
U.S. at 810, 814 n.12 (section 1331 “require[s] sensitive
judgments about congressional intent” and Shoshone was suit
with insufficient “federal interest”); see also Shoshone, 177
U.S. at 506 (“[t]he question . . . is not one of the power of
Congress, but of its intent”). To me, it makes perfect sense to
likewise conclude that the Congress intended a state court to
determine whether one of its retired law enforcement officers
is “qualified,” that is, whether he possessed certain state law
authority, see 18 U.S.C. § 926C(c)(1), (2), (3), so that he can
obtain a state-issued certification, id. § 926C(d), a condition
precedent of LEOSA’s authorization to carry a concealed
weapon.

For the foregoing reasons, I respectfully dissent.