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Duberry et al v. District of Columbia et al (LEOSA)


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#1 skinnyb82

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Posted 05 June 2016 - 04:19 PM

This one out of the Court of Appeals for the District of Columbia, Mr. Duberry and other Plaintiffs are retired correctional officers denied LEOSA permits. The Circuit ruled that retired correctional officers are entitled to permits under LEOSA. Judge Rogers delivered the majority opinion with Judge Henderson dissenting....yet again, as she does in every single firearm-related case that she hears.

"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."

This will likely trickle its way into the court's sister Circuits. I'm actually very surprised that Judge Rogers would take the side of retired correctional officers rather than the "We know what's best for you so sit down and shut up" District of Columbia. More on this later as I JUST found this opinion.

http://cloud.tapatal...062-1616502.pdf

EDIT: Looks like Judge Rogers is calling BS on D.C.'s claim that it can deny LEOSA to whomever it wishes, says Congress intended for LEOSA to be a substantive right rather than merely a benefit or entitlement (thus necessitating strict scrutiny, would be great if they'd apply strict scrutiny in all Second Amendment cases).

"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 officers 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 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©(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."


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Edited by skinnyb82, 05 June 2016 - 04:29 PM.

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#2 Gamma

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Posted 05 June 2016 - 07:10 PM

So Congress can pass a statute and the "rights" under that statute get strict scrutiny almost by default, yet when it's printed in the Constitution there's a lot of waffle room. Gotcha.
Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#3 POAT54

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Posted 05 June 2016 - 07:15 PM

So Congress can pass a statute and the "rights" under that statute get strict scrutiny almost by default, yet when it's printed in the Constitution there's a lot of waffle room. Gotcha.

+1


“Those who surrender freedom for security will not have, nor do they deserve, either one.”
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"The right of the people to keep and bear Arms, shall not be infringed."


#4 skinnyb82

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Posted 07 June 2016 - 10:32 AM

Yes, I too see the paradox which the court has created. Law which is passed by the legislative branch creates a substantive right which, if infringed upon, strict scrutiny is applied to the regulation or law that is in question natural law. On the other hand, our rights are natural rights, flowing from the Constitution, and they are subject to intermediate scrutiny. Not just 2A cases. Also cases involving protected speech, questionably (un)lawful search and seizure by adding more exceptions to the exclusionary rule to the Warrants Clause, Takings (civil asset forfeiture)and Self-Incrimination (was it involved within 90 seconds of.... Or some other asinine bright line), with our natural rights flowing from the Constitution. While LEOSA may be the law, conferring a substantive right on retired LE as passed by Congress, the right to keep and bear arms is a natural right. The text is plain as day, yet our courts ignore the Constitutional text, apply intermediate scrutiny while the exact same court, exact same judge(s) will apply strict scrutiny in a case involving retired law enforcement. Plain as day text of the Second Amendment, "The right to keep and bear arms shall not be infringed," coupled with post-Revolutionary text by Mason, Jefferson, et al, and early law mandating households and travelers be armed, that's a no-brainer that the Framers intended the right to be an individual right. The only right contained in the Bill of Rights which was, up until Heller, NOT an individual right but a collective. Why would the Second Amendment be contained in the Bill of (Individual) Rights if it isn't an individual right? They throw common sense out the window. Sent from my VS987 using Tapatalk
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