D.C. Government Goes to the Mat in Fight to Block Implementation of Law Enforcement Officer Safety Act

On March 14, 2016, the D.C. Circuit federal appeals court will hear an important legal challenge testing how far the District of Columbia (and by extension, any state) can go in seeking to block retired law enforcement officers from exercising their rights under the federal Law Enforcement Officers Safety Act (LEOSA).

While “officer safety” might seem like a strange cause to rally against, the District seems to be accepting it as collateral damage in a much larger legal battle to maintain the city’s limitations on concealed carry of firearms, which limits have been repeatedly struck down by federal courts, including the U.S. Supreme Court in the famous District of Columbia vs. Heller case and in more recent litigation. The relevant provision of LEOSA was “designed to protect officers and their families from vindictive criminals” by allowing eligible active and retired officers to carry a concealed weapon notwithstanding certain limitations of state law.

The officers in the case are Ronald Duberry, Harold Bennette, Maurice Curtis, and Robert Smith, each of whom worked for decades with the D.C. Department of Corrections (DOC) (which, for most of their tenure, was a sub-agency of the Federal Bureau of Prisons). The federal LEOSA statute expressly includes “incarceration” officers in its definition of “law enforcement officers.” The statute also requires eligible officers to have had “statutory powers of arrest.” Duberry and his colleagues routinely arrested individuals on prison grounds, during prisoner transports, and in connection with fugitive manhunts and the execution of parole violation warrants. For decades they even carried ID cards that stated explicitly that they were authorized to “make arrest” and that included a citation to D.C. law for good measure.

But when Duberry sought acknowledgment of his eligibility from the DOC, he discovered that the District had crafted a “legal opinion” regarding LEOSA under which he and his colleagues were not eligible because they did not exercise one particular arrest authority in the D.C. Code (one of many) that the District now claims is necessary for LEOSA eligibility. For numerous reasons outlined in the legal papers, this reading of LEOSA is unsupported and desperately strained to reach the result of denying DOC officers eligibility. So, after months of seeking to resolve the issue informally, Duberry went to court: specifically to federal court, to protect his federally-conferred rights, relying on the broad civil rights statute (“Section 1983”) which allows any person to sue where official conduct alleged effects a “deprivation” of his or her rights under any federal law or the Constitution. As the Supreme Court has stated, Section 1983 was designed “to interpose the federal courts between the States and the people, as guardians of the people’s federal rights.”

Rather than defend (or, initially, even explain) its LEOSA interpretation on the merits, the District responded to the lawsuit with a blizzard of jurisdictional and technical arguments, claiming that Duberry and his co-plaintiffs lacked “standing” because they had suffered no injury, that LEOSA unconstitutionally “commandeered” District officials into implementing a federal program, and even that federal courts lacked jurisdiction to review District agency decisions as a general matter. The federal trial court rejected these arguments, but ran with a different one: that Duberry could use Section 1983 because there was no “federal right” at stake. The court acknowledged that LEOSA did provide a crystal-clear federal right to carry a concealed weapon, but held that Duberry could not rely on it because it only “attached” to eligible retired officers . . . and the District had, through the conduct challenged in the suit, blocked Duberry’s eligibility.

The astounding circularity of this conclusion is part of the present appeal that will be argued on March 14. If accepted, this “attachment” argument would allow any official to deprive a federal or constitutional right simply by redirecting efforts at blocking individuals from meeting preconditions or eligibility criteria for a right, rather than at the exercise of the right itself. For example, preventing a voter from registering to vote, rather than refusing to count a vote. Perhaps recognizing the absurdity of this approach, the District only weakly embraced the trial court’s view on appeal and took the unusual step (for a party that prevailed below) of inviting the appellate court to consider and resolve the substantive legal merits of the claim. The outcome of the case, then, could significantly impact the limits or availability of both LEOSA in the District and Section 1983 litigation more broadly.

For Duberry, Bennette, Curtis, and Smith, the back-and-forth about such legal nuances, while not unexpected, are frustrating given that the case for them is about their fundamental safety, and that of their families. As they described in their legal papers—and are itching to explain to a judge willing to hear the case on the merits—they routinely encounter former inmates on the public streets as they go about their daily lives in retirement. These encounters have led to all-too-common ugly threats of violence, and sometimes worse. While they insist as a matter of pride on going about their business as they see fit, they often hesitate to travel to certain areas with family members or other persons they don’t wish to expose to a risk of harm.

Duberry and his colleagues take particular umbrage at the idea that the District thinks DOC officers don’t deserve the protections of LEOSA as a general matter. “A police officer who arrests someone, who maybe even testifies against them in court, that officer only sees the person a handful of times,” said Duberry. “After that they come to us. And we exercise the law over them 24/7, day in and day out, for years upon years. Many times we have to impose discipline. From their perspective, we are the only thing between them and the outside world. You better believe a lot of these guys start to get real evil thoughts in their heads.” Concern about reprisals against officers by vindictive criminals was precisely what motivated Congress to pass LEOSA in 2004.

The plaintiffs are represented by Gowen Rhoades Winograd & Silva, a D.C.-based full service law firm. Aaron Page, an appellate lawyer who is of counsel at the firm and is leading the charge at the D.C. Circuit, said that he expected the case would be reinstated below, where he hoped the District would reconsider its priorities. “This not about who can carry in the District generally. We are talking about a relatively tiny population of LEOSA eligible retired corrections officers. These individuals earned our trust with the required minimum of a decade of service, or more, and they deserve to be protected and feel safe now, in their retirement.”

The case captures two strong aspects of the firm’s civil rights practice, said Chris Gowen, a founder of the firm and former political operative who worked closely with the Clintons for years. “We have no problem taking politically charged and difficult cases,” he said, “but our real focus today is fighting for the little guy, ordinary folks who often just get the run-around in the legal system. Our firm is proud to represent Ron, Harold, Maurice, and Robert in their fight for the rights and the respect they earned in their long careers.”

The plaintiffs’ opening and reply briefs are available here and here. The District’s brief is available here. For more information, contact Page at 202-618-2218 (aaron.page@gowengroup.com) or Kimberly Dillon at 202-380-9355 ext 105 (kdillon@gowenrhoades.com).