Gowen Group Litigates Precedent-Setting Civil Rights Case On Behalf Of Retired Department of Corrections Officers

DOCCivil rights attorneys from the Gowen Group filed a major brief last week in a lawsuit on behalf of retired D.C. Department of Corrections (DOC) Officers claiming that the District of Columbia is unlawfully interfering with the Officers’ rights under a federal law designed to protect them in their retirement.  The federal Law Enforcement Officers Safety Act (LEOSA) was “designed to protect officers and their families from vindictive criminals” by allowing current and former law enforcement officers, including those whose work involved “supervising incarceration,” to carry a concealed weapon under a special federal mandate that supersedes the patchwork of state concealed-carry laws.

In a powerful complaint filed earlier this year, the Officers, each of whom worked for the DOC for well over a decade, described how they routinely encounter ex-convicts as they go about their daily lives, and how these encounters often lead to menacing gestures, verbal threats including death threats, and even violence.  These encounters, the Officers described, leave them with a pervasive sense of insecurity, not just for their own safety but for the safety of their loved ones and social companions, at a time when they are supposed to be enjoying their retirement after decades of service to the District and to the community.

The state-level concealed carry permits currently available are of little help, in part because the Officers all routinely cross between the District, Maryland, and Virginia, and cannot obtain the necessary permits in all jurisdictions.

But when the Officers submitted a simple one-page form asking for certification of their former job status, the DOC responded that it was taking a “legal position” that the Officers were not eligible under LEOSA, even though the DOC was not responsible for the certification that the Officers were seeking.  The basis for the DOC’s “legal position,” which was apparently vetted with attorneys for the District, was that the Officers did not exercise “statutory powers of arrest” during their time at DOC.

But in fact, D.C. law does empower correction officers to make arrests in certain situations and during their time at DOC, the Officers even carried photo ID explicitly stating that they had the power to “make arrest.”  The Officers were routinely required to arrest parole violators, inmates attempting to escape during transportation, and inmates on prison grounds for unlawful conduct.

Despite the clear law and the indisputable facts, as well as the District’s claim that it is “sympathetic” to the plight faced by the Officers, the District has offered no explanation as to why it is going to such great lengths to deny the Officers of their rights under a federal law designed to protect them.  The DC Government’s long-standing resistance to the lawful exercise of the gun rights in the District is an obvious alternative explanation.

Instead, the District has fought the lawsuit aggressively and strategically.  Earlier last month it filed a 29-page motion to dismiss raising a blizzard of technical jurisdictional and “standing” arguments, that seemed to try anything and everything to avoid a contest on the merits of the Officers’ claim.  For example, the District claimed that although LEOSA guarantees a “right to carry,” it doesn’t guarantee a “right to be certified” to carry, even if you are eligible under the law.  The District challenged the Officers “standing” to bring the lawsuit by claiming the past threats the Officers faced on the streets are “irrelevant” and characterizing the natural assumption that such threats will continue in the future as “vague speculation.”  The District even sought to dismiss case because the Officers stated in the complaint that “wished” to carry concealed weapons, not that they “would” carry them.

Last week, the Gowen Group filed a robust response making clear that the Officers have standing to bring the lawsuit, that the federal District Court for the District of Columbia does have jurisdiction to hear the case, and that the merits of the Officers’ case are far more than “plausible” (the standard required at this stage) and in fact are overwhelming.

The lawsuit is being brought under the bedrock federal civil rights statute referred to as “Section 1983,” which allows plaintiff to go to court for damages and injunctive relief any time a government official (or any person purporting to act “under the color of law”) deprives the plaintiff of “any rights, privileges, or immunities secured by the Constitution and laws” of the United States.  The Officers are seeking injunctive relief that would require the DOC to “acknowledge” their LEOSA eligibility and that would potentially apply to all other retired DOC officers who face a similar deprivation of their rights.

The Gowen Group maintains a robust civil rights practice dedicated to ensuring that individuals receive the full benefit of the rights they have under the law.  Other Gowen Group civil rights matters include cases seeking redress for police misconduct, cases to vindicate the rights of consumer under a variety of important consumer protection statutes in D.C., Maryland, and Virginia, cases to ensure fair treatment of employees and full payment of wages, and many others.

The Gowen Group clients in the LEOSA case are Ronald Duberry, Harold Bennette, Maurice Curtis, and Robert Smith.  The case is Duberry et al. v. District of Columbia et al., Case No. 14-cv-1258.

Retired DOC officers interested in discussing the possibility of joining the lawsuit are encouraged to contact the Gowen Group at (202) 380-9355.