Brief in Support of Retired LEO Denied Federal LEOSA Card

Petitioner has standing and states a claim upon which relief may be granted because LEOSA and the Administrative Procedure Act is appropriate for the relief sought. Johnson v. New York State Dep’t of Corr. Servs presents facts that are very different from the facts presented herein.  In Johnson, the Plaintiffs asserted a right to carry under LEOSA.  The court  held that Congress did not intend to create a private cause of action, but rather a private right. The Johnson court stated:

For the same reasons as with consideration of the second Cort factor, the creation of a federal remedy would be inconsistent with LEOSA’s statutory scheme because Congress left the states with the authority to issue concealed firearm certifications. Therefore, this factor also weighs against the determination that Congress intended to establish a private cause of action.

Johnson, supra (emphasis added).  The intent of Congress in enacting LEOSA was actually to remove discretion from the states and federal agencies. The only aspect of LEOSA which the statute places under local and/or state law is the requirement that a retired officer qualify annually:

“(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 (B) a certification issued by the state in which the individual resides that 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 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…”

Although qualification on the range must meet federal, state or local standards (the standards of the agency from which the LEO has retired), the only requirement for agency issued identification under Section (2)(A) above is possession of “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.”

Issuance of such identification (which has previously been provided to the Petitioner Risby) entails no discretion by the Respondent agency. The fact that the federal agency in the present case issues cards to retired LEOs indicating a retired individual’s LEOSA status raises the issue of whether the failure to issue such a card to one individual based on arbitrary and capricious criteria unfairly prejudices that individual. Other similarly situated officers, retired on disabilities and in good standing, receive cards indicating that they are LEOSA qualified.  Notwithstanding the Johnson court’s opinion, the issue of his status as a retired LEO is a separate issue from the issue of whether he has qualified on the range under criteria established by his agency.

Even if states’ traditional control over the locus of plaintiffs’ lawsuit is ignored, plaintiffs’ argument still rests upon the erroneous belief that LEOSA creates a federal requirement for state officers to issue the identification described in subsection (d) of the statute. Rather than commandeer state officials by requiring them to issue the requisite identification under federal law, Congress has left this authority with the states.

Johnson, supra.

Thus, the issue presented herein is not one in which Petitioner is asking the court to commandeer state or federal official by limiting agency discretion. The reason Congress amended LEOSA in 2010 was because, in the process of removing agency and state legislative discretion over the right to carry across state lines, Congress unintentionally created a situation in which local law enforcement had problems determining which officers were retired. Therefore Congress added the requirement for 10 years of service as a provision of the 2010 amendments and provided two alternate methods of identifying who was a retired officer.

Section (2)(a) was included in order to further the original Congressional intent to remove discretion from state, federal and local law enforcement agencies by simply requiring photo identification without any reference to LEOSA qualification.

If a person meets the criteria, then “notwithstanding any other provision of the law of any State or any political subdivision thereof“, he or she may carry a concealed firearm.  As a result, an individual who qualifies under LEOSA does not require a state-issued or federal agency issued permit to carry a concealed firearm in any state. This is because LEOSA, by its terms, provides in its introductory paragraphs (Sections 926B(a) and Section 926C(a)) that notwithstanding the law of any State a person who qualifies under LEOSA is not subject to the carry laws of any state. LEOSA’s legislative history demonstrates the Congressional intent to supersede all state and federal agency discretion by implementing “national measures of uniformity and consistency“.

Congress rejected efforts to allow states to opt out of LEOSA. The House of Representatives also defeated, and the Senate refused to consider, proposed amendments aimed at preserving local law enforcement agencies’ discretion to regulate “the conditions under which their officers may carry firearms.” Thus, both the text of LEOSA and its legislative intent clearly establish that LEOSA applies nationwide, including the home state of the individual. When the Johnson court stated that “the statute is devoid of any intent, either explicit or implicit, to impinge upon the states’ authority to issue the identification in question,” the court’s opinion flew squarely in the face of the plain letters of the LEOSA text itself.

The Petitioner’s argument here is not that Congress intended to create a private cause of action under LEOSA. Nor is Petitioner asking this court to force the agency to violate The Supreme Court’s holding in Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). In Printz, the Court considered the constitutionality of a federal law that required state law enforcement officers to conduct background checks on prospective gun purchasers. 521 U.S. at 901, 117 S.Ct. at 2368. The Johnson court incorrectly stated that LEOSA makes use of states’ pre-existing standards for allowing law enforcement officers to carry firearms. The only state standards that are not preempted by Congress are the agency standards for qualifying with a specific categories of firearms by showing proficiency on the range:

(4) during the most recent 12-month period, has met, at the expense of the individual, the standards for qualification in firearms training for active law enforcement officers, as determined by the former agency of the individual, the State in which the individual resides or, if the State has not established such standards, either a law enforcement agency within the State in which the individual resides or the standards used by a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that State;

18 USC § 926C(c)(4) (emphasis added).

The fact that the 2010 LEOSA amendments provide for certified instructors outside the agency demonstrates the intent of Congress to create a path for retired LEOs who were unable to qualify on the range due to opposition from the agency from which the LEO has retired.

Thus, the fact that the agency herein has arbitrarily refused to issue a card indicating LEOSA status to Petitioner, does not prevent him from qualifying and lawfully carrying pursuant to the LEOSA provisions. Nevertheless, the fact that the Respondent issues such a card creates a high degree of risk that if he is questioned by law enforcement, his failure to possess such a card creates an unreasonable risk that he may be detained and even booked into jail, entailing great expense and hardship such that he is unduly prejudiced by the agency’s assertion that he lacks standing to hold the agency to its own rules and policies.  Department of Homeland Security, Directive Number: 257-01 (Issue Date: 10/10/2008) states as follows:

  1. Photographic Identification: DHS Components currently allow law enforcement officers who are retiring in good standing to retain their credentials (containing their photograph, name, signature and position title) stamped or perforated with the word “Retired.” To minimize costs and administrative burden, Components may utilize these “Retired” credentials as the “Photographic Identification” required by the LEOSA. Components are also authorized, but not required, to issue an additional photographic identification, specifically for LEOSA purposes, containing the retiree’s photograph, name, signature, and the title of the law enforcement position from which he or she retired, proceeded by the word “Retired,” and the name of the Component or Subcomponent from which the individual retired (e.g., “Retired Special Agent, U.S. Customs Service”). Components are authorized to issue these additional LEOSA identification cards to retirees from their present Components and to retirees from those parts of their predecessor agencies that were merged into their present Components (e.g., Border Patrol into U.S. Customs & Border Protection [CBP], Customs and INS investigational elements into U.S. Immigration & Customs Enforcement [ICE]). All LEOSA identification cards issued must meet Department-wide identification standards in effect at the time of issuance. Because of unavailability of or excessive cost/difficulty of retrieving older records, Components may establish cut-off dates, and advise retirees who retired before those dates that their requests for LEOSA identification cards cannot be honored.
  2. Certification Issued by the State: Under no circumstances will DHS Components perform or assist with annual firearms testing for their retirees. To meet LEOSA requirements, law enforcement retirees from DHS Components and their predecessor agencies must “be tested or otherwise be found …to meet …standards” by a non-DHS entity authorized to issue “a certification ….by the State in which the [retiree] resides” indicating that the retiree has “been tested or otherwise found by the State to meet the standards established by the State for training and qualification for active law enforcement officers…” The availability of such “certifications” varies by State, and it is the responsibility of the individual DHS law enforcement retiree to determine and meet the requirements of his or her state of residence for obtaining this “certification.”

 

The above referenced directive does not indicate any discretion on the part of DHS except in regard to the issue of whether or not a component may decide to to issue such a photographic identification indicating LEOSA status, but not in regard to who will be issued such an identification cards. As stated above, the practice has been to issue to retired officers in good standing who meet the provisions forth in LEOSA’s provisions. DHS Instruction Number: 257-01-001 (dated 11/05/2008; Instruction Guide on the Law Enforcement Officers Safety Act states:

Qualified Retired Law Enforcement Officer: Consistent with the provisions of LEOSA at 18 U.S.C. 926C(c), a qualified retired law enforcement officer is an officer or agent retired from a DHS Component or predecessor agency who:

  1. Retired in good standing from service with a public agency as a law enforcement officer, other than for reasons of mental instability;
  2.  Before such retirement, 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;
  3. Before such retirement, was regularly employed as a law enforcement officer for an aggregate of 15 years or more3; or Retired from service with such organization or Component, after completing any applicable probationary period of such service, due to a service-connected disability, as determined by the organization or Component;
  4. Has a nonforfeitable right to benefits under the retirement plan of the agency;
  5. During the most recent 12-month period, has met, at the expense of the individual, the State’s standards for training and qualification for active law enforcement officers to carry firearms;
  6. Is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and
  7. Is not prohibited by Federal law from receiving a firearm.

In Johnson v. New York State Dep’t of Corr. Serv., 709 F.Supp.2d, 178 (2010), the court clearly stated that a minimum LEOSA creates a federal right.  By virtue of the agency creating a policy to provide LEOSA credentials it has provided a basis for an implied contract and therefore, a remedy.

Petitioner is a retired federal law enforcement officer meeting the definition under LEOSA.

The LEOSA statute specifically mentions “service as a law enforcement officer or peace officer of the executive branch of the federal government.”  Therefore, it is clear that Congress intent  was to insure retired federal agents were meant to be included in the statute.

LEOSA is a federal scheme, the defendants are employed by the Department of Homeland Security/Immigration and Customs, a federal agency.  Petitioner is a retired federal agent of the agency.  This is a matter within the jurisdiction of this court.

There is no language contained within 18 USC 926C that gives the agency or its employees discretion on issuing the LEOSA ID as long as the policies and Instruction Guide are satisfied.  Said policies are expressed in the terms that mirror the definition of a “Qualified Law Enforcement Officer” pursuant to the text of LEOSA.  The agency has not provided any reasons for denying such an identification card that indicates LEOSA status.  Petitioner has met said qualifications, including the identification/credentials mentioned in 2 (A) (B) of the statute.

The named defendants have not performed their duty in approving issuance of the LEOSA ID card to petitioner.  This matter clearly falls within the guidelines of the Administrative Procedures Act 28 USC 1361.

Agencies are bound by their internal rules according to the Accardi Doctrine, which provides that when an agency fails to follow its own procedures or regulations, that agency’s actions are generally invalid. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268, 74 S.Ct. 499, 98 L.Ed. 681 (1954); see Pollock v. Patuxent Inst. Bd. of Review, 374 Md. 463, 823 A.2d 626, 639-45

A Petitioner for Writ of Mandamus may be invoked only where three elements co-exist:  the petitioner has to show a clear right to the relief sought; the respondent has a clear duty to do the particular act requested by petitioner; and, no other adequate remedy is available.

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