ARTICLE

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ARTICLE

CONTUMACIOUS RESPONSES TO FIREARMS

LEGISLATION (LEOSA) BALANCING

FEDERALISM CONCERNS

Royce de R. Barondes*

ABSTRACT

The Law Enforcement Officers Safety Act (LEOSA) is one of

the handful of federal statutes that preempt state firearms regu-

lation. It allows covered individuals (certain current and retired

qualified law enforcement personnel) to possess firearms notwith-

standing assorted state restrictions—to protect themselves and to

supplement local law enforcement efforts.

The act reflects a careful legislative balancing of federalism

concerns. Although it relies on states and localities to issue the

authorizing credentials, it does not mandate states create a licens-

ing regime out of whole cloth. The act ultimately presents issues

requiring a nuanced assessment of the doctrine proscribing federal

commandeering of the states. This Article probes the interpreta-

tion of LEOSA and the federalism issues raised by the act.

Some state responses to LEOSA seem contumacious. Many

judicial approaches seem hostile to recognizing the rights sought

to be created by the act.

In numerous ways, through patent violations and more debat-

able ones, states and their subdivisions have fettered the rights

LEOSA appears to seek to grant. And there are federal adminis-

trative and local governmental interpretations coordinating the

* James S. Rollins Professor of Law, University of Missouri. The author would like

to acknowledge the generous financial support of the Keith A. Birkes Faculty Research

Fund, the Joe Covington Faculty Research Fellowship, and the Glenn A. McCleary Memo-

rial Faculty Research Fellowship; and helpful observations and assistance from Mike Han-

non, Steve Surowitz, and participants at the 2017 Central States Law Schools Association

annual conference.

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2  HOUSTON LAW REVIEW  [56:1 
scope of LEOSA and the Gun-Free School Zones Act that are not 
required by customary principles of statutory interpretation and 
that significantly curtail LEOSA’s efficacy.  
The reluctance to recognize federally secured firearms rights 
is not  limited  to  executive branch officials. Interpretation of  the 
nuanced manner in which LEOSA endeavors to respect federalism 
principles has yielded miserly judicial interpretations, aberrant in 
the portfolio of authority construing civil rights. 
 
TABLE OF CONTENTS 
I.    INTRODUCTION ............................................................... 3 
II.    BASIC FRAMEWORK OF LEOSA ...................................... 6 
III.    PRIMARY ISSUES OF SCOPE ............................................ 9 
A.  Types of Arms, Especially Magazine Limits. ........ 10 
B.  Requirement to Register Arms; Flouting  
Provisions re. Ammunition. .................................. 21 
C.  Limited Powers of Arrest and  
Part-Time Officers. ................................................ 23 
D.  Gun-Free School Zones Act. .................................. 28 
1.  Geographic Scope of Prohibition if LEOSA 
Licensure Does not Satisfy GFSZA. ................. 30 
2.  Implications for LEOSA’s Limitation to 
Carrying a Firearm; Prohibit Anticipated 
Availability for Defensive Use .......................... 30 
3.  Purpose to Allow Carrying Anywhere in the  
United States .................................................... 33 
4.  Ambiguity in Gun-Free School Zones Act  
Concerning Entity Issuing Licensure ............... 35 
5.  Application of These Interpretative Principles; 
Interpretation in pari materia with Armored 
Car Industry Reciprocity Act of 1993 ............... 40 
E.  Additional Credentialing Issues ........................... 41 
F.  Conclusion ............................................................. 44 
IV.    PRIVATE RIGHTS ........................................................... 44 
A.  Commandeering. ................................................... 45 
B.  Private Right of Action. ......................................... 53 
1.  Causes of Action under State Law. .................. 54 
2.  Implied Right of Action vs. Rights  
Remediable under Section 1983. ...................... 55 
3.  Limits of Section 1983 Remedial Provisions .... 68 

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2018] RESPONSES TO FIREARMS LEGISLATION 3

V. CONCLUSION ................................................................ 75

I. INTRODUCTION

Justice Alito has deprecated the classification of Second

Amendment rights as “second-class.”

Yet, whether as to the pri-

mary right under the Second Amendment itself or as to ancillary

firearms rights arising by statute, the tack of some jurisdictions

and localities seems surprisingly contumacious. This Article ex-

amines one federal statute securing certain rights to current and

retired law enforcement officers, LEOSA.

As will be seen, one can

encounter surprising disobedience to its commands. For example,

Hawaii continues to post a policy directly contradicted by a 2010

amendment to the statute.

Judicial reactions as well can be puzzling—flouting ordinary

interpretative canons. For example, one court suggests LEOSA,

which is designed to authorize firearms possession by active and

retired law enforcement officers, cannot ever benefit retirees be-

cause it is possible at some time a retiree may become intoxicated.

That is, of course, contrary to the interpretative canons biasing in

favor of an interpretation that gives effect to a provision

and

against reaching absurd results.

But the assertion is even more

outlandish because there simply is no statutory language in the

directly cited section that can be so construed.

. McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (“Municipal respondents,

in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an

entirely different body of rules than the other Bill of Rights guarantees that we have held

to be incorporated into the Due Process Clause.”).

. Law Enforcement Officers Safety Act of 2004, Pub. L. No. 108–277, 118 Stat. 865

(codified as amended at 18 U.S.C.A. §§ 926B, 926C (Westlaw through Pub. L. No. 115–223

(including Pub. L. No. 115–225 to 115–231))).

. See infra notes 102–06 and accompanying text.

. In re Wheeler, 81 A.3d 728, 764 n.24 (N.J. Super. Ct. App. Div. 2013) (“As a prac-

tical matter, it is unclear how a permit can be issued based upon LEOSA qualification. That

is so because a retired officer’s status under LEOSA depends, in part, upon whether the

retired officer is or is not intoxicated while in possession of the firearm—a determination

that cannot be made when a permit is issued.”).

. E.g., ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION

OF LEGAL TEXTS 63 (2012) (“A textually permissible interpretation that furthers rather

than obstructs the document’s purpose should be favored.”).

. Id. at 234 (“A provision may be either disregarded or judicially corrected as an

error (when the correction is textually simple) if failing to do so would result in a disposition

that no reasonable person could approve.”).

. The paragraph addressing issuance of credentials does not reference intoxication;

the statute references intoxication only as part of a defined term. 18 U.S.C.A. § 926C(c)(6)

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4 HOUSTON LAW REVIEW [56:1

As noted, LEOSA is designed to allow certain current and for-

mer law enforcement officers to possess firearms. The statute

preempts state and local restrictions, subject to limited exceptions.

More detail of the basic framework is provided in Part II.

There are a number of disputed issues concerning the scope of

LEOSA—the extent of state and local preemption. And one can

encounter public statements that, to varying degrees of certainty,

are contradicted by the language of LEOSA itself. Part III identi-

fies the primary issues concerning LEOSA’s scope. Those issues,

and this Article’s conclusions, include the following:

First, some would question whether LEOSA preempts local

restrictions on features of firearms, e.g., restrictions on magazine

capacities and on laser sighting systems. As explained in Part

III.A, neither a tedious literal reading of the statute nor reference

to its purposes would support the view that these limits are not

preempted.

Second, one can encounter assertions that these arms may

need to be registered under state registration regimes, an asser-

tion not supported by the statutory language.

Third, some would seek to limit the statute to persons who

are or were full-time law enforcement officers. As Part III.C shows,

that assertion is not supported by either the statutory language or

its legislative history.

Fourth, there are assorted statements, by commentators as

well as by federal and local agencies, asserting the act is ineffective

to allow firearms possession within 1000 feet of a school (under the

Gun-Free School Zones Act).

Part III.D shows that these plodding

constructions are unwarranted and inconsistent with the ap-

proach to statutory interpretation taken in King v. Burwell

(in-

volving interpretation of the phrase “established by the State un-

der section 1311,” as used in the Patient Protection and Affordable

Care Act

). Among other things, the interpretative approach this

Article rejects would result in LEOSA generally being ineffective.

Additionally, it would result in a separate statute that attempts to

allow armored car personnel to work interstate while armed,

which would be construed in pari materia, to be completely

(Westlaw). That defined term is not used in the paragraph that addresses the process for,

and the conditions on, the issuance of complying credentials. Id. § 926C(d).

. See infra notes 138–39 and accompanying text.

. King v. Burwell, 135 S. Ct. 2480, 2490 (2015).

. Patient Protection and Affordable Care Act, Pub. L. No. 111–148, § 1401, 124

Stat. 119 (2010) (codified in scattered sections of U.S.C.).

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2018] RESPONSES TO FIREARMS LEGISLATION 5

ineffective.

With this background, we can then turn to federalism issues

presented by LEOSA. The authorization provided by LEOSA relies

on credentialing provided by states and local governments. The

necessary credential for a retiree includes: (i) photographic identi-

fication indicating former employment; and (ii) annual firearms

qualification certification (I won’t dally on credentialing of current

officers, because that is not typically an issue.

)

There is not a general federal mechanism to issue creden-

tials.

Some states do not facilitate the issuance of credentials.

For example, a jurisdiction may refuse merely to confirm to an-

other jurisdiction a retiree’s former employment and status,

thereby preventing accession to rights under LEOSA.

A question arises whether the prohibition on commandeering

would not allow the federal government to require a state to par-

ticipate in the credentialing. Although to benefit from LEOSA one

has to be certified as passing firearms qualification, the scope of

persons who can certify the training is sufficiently broad that often

(although not always) disputes concerning credentialing involve

mere confirmation of former employment. Part IV.A notes nuance

in the commandeering jurisprudence, often elided, would indicate

that it would be constitutional for LEOSA to mandate provision of

information necessary for credentialing.

Part IV.B continues our examination of private rights, exam-

ining authority that has addressed the existence of a private right

of action for LEOSA beneficiaries. A steady stream of authority

restricting a private right of action was countered by a recent opin-

ion from the U.S. Court of Appeals for the District of Columbia

Circuit holding LEOSA creates a right enforceable under 42 U.S.C.

. See infra Part III.D.5.

. But see, e.g., infra note 114.

. See 18 U.S.C.A. § 926C(d)–(e) (Westlaw through Pub. L. No. 115–223 (including

Pub. L. No. 115–225 to 115–231)) (although credentialing is done by the states under §

926C(d)(2)(B), federal agencies may necessarily be involved by issuing photographic iden-

tification for qualifying retired federal officers under § 926C(d)(1)).

Retired federal law enforcement officers do qualify. 18 U.S.C.A. § 926C(c)(2)

(Westlaw). Although credentialing generally is done by the states under § 926C(d)(2)(B),

federal agencies may necessarily be involved by issuing photographic identification or con-

firming firearm qualification for qualifying retired federal officers under § 926C(d).

. E.g., DuBerry v. District of Columbia, 824 F.3d 1046, 1050 (D.C. Cir. 2016) (ad-

dressing failure to certify former employment). See generally LEOSA State by State: Why

Are Retired Police Officers Having Problems?, DAIGLE LAW GRP., LLC, https://daiglelaw

group.com/wp-content/uploads/2017/01/LEOSA-state-by-state.pdf [https://perma.cc/

VJP2-DY92] (last visited Aug. 17, 2018) (discussing assorted difficulties in obtaining cre-

dentials).

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6 HOUSTON LAW REVIEW [56:1

§ 1983.

Much of the earlier authority addressed the issue of whether

there is an implied right of action under LEOSA itself (i.e., without

reference to section 1983),

involving a higher threshold than

would typically be applicable. Because those charged would be

state actors, the more limited set of requirements for a finding of

a right cognizable under section 1983 would be the initial inquiry.

The recent appellate authority, as Part IV.B shows, finding

an enforceable right exists, has the better of the argument. As to

the contrary authority: an opinion from the Southern District of

New York

relies on appellate authority that is both inapposite

and unsupported itself. Other recent authority reflects a misun-

derstanding of the anti-commandeering jurisprudence.

II. BASIC FRAMEWORK OF LEOSA

LEOSA provides in part:

Notwithstanding any other provision of the law of any

State or any political subdivision thereof, an individual who

is a qualified law enforcement officer and who is carrying the

identification required by subsection (d) may carry a con-

cealed firearm that has been shipped or transported in inter-

state or foreign commerce, subject to subsection (b).

Another provision extends similar benefits to retirees, by sub-

stituting a reference to “retired law enforcement officer” for “law

enforcement officer.”

Each section requires the individual not be

under the influence of intoxicants.

Each section excludes from its

preemption: (i) laws of any state that allow private persons to pro-

hibit possession on their property; and (ii) state prohibitions on

possession on state or local government property.

. DuBerry, 824 F.3d 1046.

. See Ramirez v. Port Auth. of N.Y. & N.J., No. 15–cv–3225 (DLC), 2015 WL

9463185, at *6 (S.D.N.Y. Dec. 28, 2015) (discussing court decisions that reject violations of

LEOSA as a basis for a § 1983 claim.)

. Id.

. See infra note 219.

. 18 U.S.C.A. § 926B(a) (Westlaw through Pub. L. No. 115–223 (including Pub. L.

No. 115–225 to 115–231)). See also id. § 926C(a). See generally Rodrigues v. County of Ha-

waii, No. 18–00027 ACK–RLP, 2018 WL 1902544, at *6 (D. Haw. Apr. 20, 2018) (holding

that the permission requires the required credentials be actually carried at the time—

merely having been issued them is insufficient).

. 18 U.S.C.A. § 926C(a) (Westlaw). To qualify, the retiree must have served for an

aggregate of at least 10 years or have separated due to a service-connected disability. Id.

§ 926C(c)(3).

. Id. §§ 926B(c)(5), 926C(c)(6).

. Id. §§ 926B(b), 926C(b). The term “State” is expressly defined as including the

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2018] RESPONSES TO FIREARMS LEGISLATION 7

The drafting is somewhat unexpected in its reference to non-

federal governmental property. In essence, a literal reading of the

statute would provide that the preemption provided by LEOSA

does not extend to state or local property where state law prohibits

possession, but LEOSA does authorize possession on local prop-

erty if it is only a local regulation or an ordinance that bans pos-

session on the local government property.

This literal construction does not necessarily produce an ab-

surd result—one that would in the ordinary case necessarily be

rejected.

Requiring an out-of-state traveler to know the law of

each municipality is orders of magnitude more burdensome than

the burden, substantial in itself, to know the state law of each

state in which one is traveling. Numerous states preempt local reg-

ulation of firearms possession

for this reason.

Thus, it is at least

conceivable that the statute was crafted so as to make it more prac-

ticable for a person authorized under LEOSA to determine the pro-

hibited areas.

For a current officer, the required credential is the employer-

issued “photographic identification . . . that identifies the em-

ployee as a police officer or law enforcement officer of the

agency.”

For retired law enforcement officers, the required cre-

dentials constitute photographic identification from the former

agency that “identifies the person as having been employed as a

police officer or law enforcement officer,”

together with certifica-

tion, within the past year, that the retiree meets firearms qualifi-

cation standards from (x) the former agency or (y) the retiree’s

District of Columbia. Id. § 921(a)(2).

. The parsing of the language as to retirees is as follows:

(i) paragraph (a) generally preempts firearms restrictions in a “provision of the

law of any State or any political subdivision thereof.” Id. § 926C(a).

(ii) Paragraph (b) provides an exception under which the section does not “su-

persede or limit the laws of any State that . . . restrict the possession of firearms

on any State or local government property,[etc.] . . . .” Id. § 926C(b).

Thus, the language explicitly distinguishes between prohibitions imposed by state law and

those imposed by local law and, when it sets-forth those restrictions that are not preempted

on government property, it only references “the laws of any State.” See generally C.D.

MICHEL, CALIFORNIA GUN LAWS 264 (4th ed. 2016) (“Consequently, it appears that a person

carrying pursuant to LEOSA is exempt from local restrictions.”).

. E.g., United States v. Am. Trucking Ass’ns, 310 U.S. 534, 543 (1940) (“When that

meaning has led to absurd or futile results, however, this Court has looked beyond the

words to the purpose of the act.”).

. E.g., Joseph Blocher, Firearm Localism, 123 YALE L.J. 82, 133 (2013).

. Id. at 136 (“Supporters of preemption emphasize the difficulty of complying with

different local gun regulations . . . .”).

. 18 U.S.C.A. § 926B(d) (Westlaw).

. Id. § 926C(d)(1), (d)(2)(A).

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8 HOUSTON LAW REVIEW [56:1

state of residence or (z) an instructor qualified to administer qual-

ification tests to active duty officers in the state.

The act does not

explicitly require a state or local government issue the now mini-

mal documentation that can only be provided by a governmental

agency.

However, interpretative principles under which statu-

tory amendments are construed to be efficacious, coupled with leg-

islative history, may cause it to be so construed.

A challenge, un-

der the anti-commandeering principles developed in Printz v.

United States,

to any such obligation should be unsuccessful, as

detailed below.

The preemption extends to “carry[ing] a concealed firearm,”

which often would exclude possession of rifles (at least where pos-

sessed for self-defense).

The act does not preempt restrictions on

fully automatic weapons and silencers.

It was amended in 2010

to preempt prohibitions on possession of “ammunition not ex-

pressly prohibited by Federal law or subject to the provisions of

the National Firearms Act.”

Some states have restrictions on

types of ammunition not prohibited under federal law, which has

given rise to some tension in state accommodation to the

. Id. § 926C(d)(1), (2)(B).

One anomaly in the statute is that qualification for a retiree depends on his or

her having been “separated from service in good standing from service with a public agency

as a law enforcement officer.” Id. § 926C(c)(1). However, the credential is not required to

contain an affirmation that the individual was in “good standing.” Id. § 926C(d)(1). The

phrase “good standing” only appears once in the section. Id. § 926C.

A credentialing unit may endeavor nevertheless to assume some role in assuring

good standing by imposing conditions on the issuance of the permit. See generally, e.g., infra

note 122 and accompanying text (discussing New Jersey’s discretionary issuance of creden-

tials); Kittle v. D’Amico, No. 4763–14, 2015 WL 12805146, at *3–4 (N.Y. Sup. Ct. 2015)

(discussed infra note 253 and accompanying text). State v. Andros reaches the following

conclusion as to the ability to revoke a credential: “But a retired officer’s conduct permits

the licensing state to revoke the permit, as evidenced by the requirements for qualification

and testing every year. In other words, the federal act expressly permits states to set ‘stand-

ards for training and qualification’ consistent with those of ‘active law enforcement offic-

ers.’” 958 A.2d 78, 84 (N.J. Super. Ct. App. Div. 2008) (citation omitted).

. See 18 U.S.C.A. §§ 926B(d), 926C(d) (Westlaw).

. See infra notes 199–04 and accompanying text.

. Printz v. United States, 521 U.S. 898, 935 (1997).

. See infra Part IV.A.

. 18 U.S.C.A. §§ 926B(a), 926C(a) (Westlaw).

. But see infra note 98 (discussing People v. Peterson, No. 08 CF 1169 (Ill. Cir. Ct.

Oct. 1, 2010)). See also James N. Baranowski, Does the LEOSA Carry Law Apply to You?,

(Jan. 17, 2014), https://www.nraila.org/articles/20140117/does-the-leosa-carry-law-apply-

to-you [https://perma.cc/Q8FW-YSU3].

. 18 U.S.C.A. §§ 926B(e), 926C(e) (Westlaw).

. Law Enforcement Officers Safety Act Improvements Act of 2010, Pub. L. No. 111–

272, 124 Stat. 2855 (codified as amended at 18 U.S.C.A. §§ 926B(e)(2), 926C(e)(1)(a)

(Westlaw through Pub. L. No. 115–223 (including Pub. L. No. 115–225 to 115–231))).

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2018] RESPONSES TO FIREARMS LEGISLATION 9

requirements of federal law.

The benefit generally is restricted to persons who have, or

had, “statutory powers of arrest.”

As discussed in Part III.C, in-

fra, there is some disagreement whether the act benefits individu-

als having only limited powers of arrest. Somewhat curiously, a

current officer must be “authorized by the agency to carry a fire-

arm,”

although a retiree’s qualification does not expressly de-

pend on his or her having been so authorized during employ-

ment.

In some ways, the statutory language does not work (at least

as one might expect). It only protects the carrying of an arm, as

opposed to all possession of an arm (the latter category being more

extensive).

Assorted circumstances may result in one who seeks

to benefit from LEOSA being unable to carry it. That can be be-

cause he or she is (or intends to become) intoxicated, or he will

engage in activity that will not allow him or her to keep carrying

the firearm, e.g., certain athletic activities or medical treatment.

Engaging in those activities may make it impossible or impracti-

cable to do something with the arm that is lawful. The arm may

have features that will result in its possession being unlawful

when possessed by anyone, other than under LEOSA.

III. PRIMARY ISSUES OF SCOPE

For ease of exposition, we shall bifurcate our discussion of the

interpretative issues presented by LEOSA. Federalism concerns

abound in consideration of LEOSA. Some of the concerns are rela-

tively straightforward: The act preempts state and local exercise

of ordinary police power

as to certain firearms possession. How-

ever, more complex federalism issues arise because LEOSA

. See infra notes 105–06 and accompanying text.

. 18 U.S.C.A. §§ 926B(c)(1), 926C(c)(2) (Westlaw). Currently, persons having “stat-

utory powers of . . . apprehension under section 807(b) of title 10, United States Code (arti-

cle 7(b) of the Uniform Code of Military Justice))” are also expressly included. Id.

. Id. § 926B(c)(2).

. See id. § 926C(c) (not including such a requirement); see also infra note 117 and

accompanying text. Administrative convenience could account for this statutory construct.

. See infra notes 147–57 and accompanying text.

. See 18 U.S.C.A. § 926C(c)(6) (Westlaw) (noting that to be qualified, the individual

cannot be intoxicated). See also infra note 149 (noting certain courts limit “carry” to having

the firearm on one’s person).

. The default recommendation in these types of cases is to deliver the arm to local

law enforcement. E.g., Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 137 (3d Cir. 2010)

(“Stranded gun owners . . . have the option of going to law enforcement representatives at

an airport or to airport personnel before they retrieve their luggage.”).

. See generally infra note 136 and accompanying text.

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10 HOUSTON LAW REVIEW [56:1

requires the participation of state and local governments in the

issuance of credentials.

As initially enacted, that extended both

to certification of employment or, for retirees, former employment

and firearms qualification testing.

Although the statute was

amended in 2010, expanding the persons who can certify the fire-

arms training for retirees,

state and local governments still need

to engage in the perfunctory task of certifying former employment

if a retiree is to benefit.

We shall proceed by bifurcating our discussion of the compo-

nents of LEOSA that typically give rise to disputes. First, we shall

focus on matters other than credentialing, although some basic is-

sues of credentialing are helpful to address initially:

(i) the extent to which LEOSA preempts state and local re-

strictions on types or features of arms;

(ii) whether LEOSA preempts state and local requirements to

(iii) whether LEOSA benefits persons who have or had cur-

tailed powers of arrest; and

(iv) whether authorization under LEOSA is sufficient to ex-

culpate one from the prohibitions in the federal Gun-Free School

Zones Act, as amended.

Those are examined in Parts III.A–D, below. Then we shall

turn to certain details of the credentialing process in Part III.E,

including Massachusetts’ approach to limiting private party test-

ing. Additional details concerning credentialing will be provided in

Part IV, after introduction of relevant principles of federalism.

A. Types of Arms, Especially Magazine Limits.

Following District of Columbia v. Heller

and McDonald v.

City of Chicago,

a complete ban on handgun possession within a

jurisdiction would be unconstitutional. However, states have

adopted a variety of restrictions on the types of firearms that may

be possessed. Some states promulgate lists of authorized firearms,

. See supra note 27 and accompanying text.

. See Law Enforcement Officers Safety Act of 2004, Pub. L. No. 108–277, 118 Stat.

865, 866–67 (codified as amended at 18 U.S.C.A. §§ 926B, 926C (Westlaw through Pub. L.

No. 115–223 (including Pub. L. No. 115–225 to 115–231))).

. Law Enforcement Officers Safety Act Improvements Act of 2010, Pub. L. No. 111–

272, § 2(C)(2)(B)(ii), 124 Stat. 2855 (Westlaw through Pub. L. No. 115–223 (including Pub.

L. No. 115–225 to 115–231)).

. 18 U.S.C.A. § 922(q) (Westlaw through Pub. L. No. 115–223 (including Pub. L.

No. 115–225 to 115–231)).

. District of Columbia v. Heller, 554 U.S. 570 (2008).

. McDonald v. City of Chicago, 561 U.S. 742 (2010).

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2018] RESPONSES TO FIREARMS LEGISLATION 11

banning sales of those that are not listed.

In addition, state law

may ban possession of firearms having certain features. There are

local bans as well, e.g., Chicago purports to ban possession of a

handgun with laser sights, subject to certain exceptions.

Bans on

magazines that may hold more than a specified number of car-

tridges are particularly relevant for our purposes because millions

of those restricted magazines are privately owned.

. California provides a roster of firearms, prohibiting sale of firearms that are not

on the roster. CAL. PENAL CODE § 32000 (West, Westlaw through urgency legislation

through Ch. 9 of 2017 Reg. Sess.).

A private person cannot purchase a handgun outside his state of residence and

import it into his state of residence. 18 U.S.C.A. § 922(a)(3) (Westlaw). But, in California,

for out-of-state residents, “It is legal to bring an ‘off-Roster’ handgun on your visit to Cali-

fornia.” MICHEL, supra note 23, at 181. Maryland prohibits sales of handguns not on their

roster. MD. CODE ANN. PUB. SAFETY § 5–406(a)(2) (West, Westlaw through legislation effec-

tive June 1, 2017).

. CHICAGO, ILL., MUNICIPAL CODE § 8–20–60 (Current through Council Journal of

June 27, 2018), http://library.amlegal.com/nxt/gateway.dll/Illinois/chicago_il/munici-

palcodeofchicago?f=templates$fn=default.htm$3.0$vid=amlegal:chicago_il [https://perma.

cc/Y8LE-8XV5] (prohibition on possession of a “laser sight accessory,” subject to certain

exceptions for persons acting in the scope of their duties) (visited July 21, 2017). An Illinois

statute preempts some municipal regulation of firearms. 430 ILL. COMP. STAT. ANN. 65/13.1

(West, Westlaw through P.A. 100–585 of the 2018 Reg. Sess.). A search has not disclosed

controlling authority concerning the ban that references a ban of an “accessory” as

preempted and void. The Illinois State Police is required to maintain a list of municipal

ordinances regulating firearms. 430 ILL. COMP. STAT. ANN. 65/13.3. That list, Illinois State

Police, Municipal Ordinances Relating to Firearms, https://www.ispfsb.com/Public/Fire-

arms/MunicipalOrdinances.aspx [https://perma.cc/JM5Q-V7TD] (last visited May 21,

2018), continues to include the Chicago ban on laser sight accessories. Id. (linking to

https://www.ispfsb.com/Public/Firearms/Ordinances/chicago.pdf [https://perma.cc/Y8LE-

8XV5] (last visited May 21, 2018) (reproducing CHICAGO, ILL., MUNICIPAL CODE § 8–20–

60)). A 2015 document indicates the Chicago police were to impound vehicles found to con-

tain laser sight accessories. CHICAGO POLICE DEP’T, PROCESSING FIREARMS VIOLATIONS,

SPECIAL ORDER S06–05 (Oct. 1, 2015), http://directives.chicagopolice.org/direc-

tives/data/a7a57bf0-14450db7-d5814-450e-8defaa3488664866.html?hl=true [https://perma

.cc/RVZ7-3D2S] (referencing vehicle impoundment where the vehicle contains a laser sight

accessory).

. See infra note 62 and accompanying text (addressing the quantity). In addition,

there are concerns about functionality as to some alternative magazines. See infra note 66.

David Kopel provides the history of firearm magazines and prohibitions in David

B. Kopel, The History of Firearm Magazines and Magazine Prohibitions, 78 ALB. L. REV.

849 (2015). New York’s hurriedly-enacted legislation initially prohibited magazines ac-

quired post-enactment that could accommodate more than seven rounds. 2013 Sess. Law

News of N.Y. Ch. 1, § 38 (S. 2230) (McKinney). Complying magazines are unavailable for

many semi-automatic firearms. See generally Jessica Alaimo, N.Y. Gun Law Mandates

Magazines That Don’t Exist, USA TODAY (updated Mar. 1, 2013), https://www.usato-

day.com/story/news/nation/2013/02/27/new-york-gun-law-seven-round-magazines-dont-ex-

ist/1950433/ [https://perma.cc/ARU5-4JSA] (“This means that in less than two months gun

dealers such as Paul Martin, owner of Pro-Gun Services in Victor, who deal mostly in full-

size guns for sports enthusiasts, can only sell something that doesn’t exist yet. Seven-round

and smaller magazines do exist for a number of older and specialty models, including 1911

pistols. But firearms experts said seven-round magazines for the most popular models for

sports enthusiasts are rare and hard to find.”). This limit was subsequently increased to

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12 HOUSTON LAW REVIEW [56:1

Those bans may merely restrict transactions in the weapons,

and thus not prohibit possession where otherwise lawfully ac-

quired, i.e., they would not prohibit possession by out-of-state per-

sons exercising rights under LEOSA. Or they may prohibit posses-

sion as well.

Assorted litigation has challenged restrictions on types of fire-

arms as violating the Second Amendment. Illustrative are chal-

lenges to California’s “roster;”

to restrictions on modern sporting

rifles;

and to magazine limits.

They have generally been unsuc-

cessful. Two notable exceptions are the invalidation of a New York

requirement that one load no more than seven cartridges in a mag-

azine

and a recent district court opinion, going against the trend,

ten. 2013 Sess. Law News of N.Y. Ch. 57 (S. 2607–D), Part FF, § 2 (McKinney).

. Included in jurisdictions banning are, e.g., New York, N.Y. PENAL LAW

§ 265.00(23) (defining “large capacity ammuniting feeding devices”) (West, Westlaw

through L.2017 chs. 1 to 457), id. § 265.02(8) (generally criminalizing their possession);

Connecticut; Colorado, COLO. REV. STAT. § 18–12–302 (West, Westlaw through First Ex-

traordinary Sess. 71st General Assembly (2017)); and California. Effective July 1, 2017,

California has criminalized mere possession of a magazine that can accept more than 10

cartridges. CAL. PENAL CODE §§ 16740, 32310(c) (West, Westlaw through urgency legisla-

tion through Ch. 9 of 2017 Reg. Sess.). There are exceptions for retired sworn peace officers

and retired sworn federal law enforcement officers. CAL. PENAL CODE § 32406(a) (Westlaw).

The former appears generally not to include out-of-state peace officers. See CAL. PENAL

CODE § 830.39 (Westlaw) (including certain law enforcement officers from adjacent states

as “a peace officer in this state”).

Connecticut has complicated provisions regulating possession of magazines that

may accept more than 10 cartridges. CONN. GEN. STAT. ANN. §§ 53–202w, 53–202x (West,

Westlaw through June 20, 2017). There are certain provisions allowing registration of re-

tired law enforcement officers, which, although ambiguous, appear to be limited to Con-

necticut officers, and, curiously, “[a] member of the military or naval forces of this state or

of the United States.” CONN. GEN. STAT. ANN. § 53–202w(d)(2), (3) (West, Westlaw through

June 20, 2017). Authorized persons are permitted to possess the magazines following re-

tirement only in limited circumstances. CONN. GEN. STAT. ANN. § 53–202x(a)(2), (f)

(Westlaw).

. See generally Pena v. Lindley, No. 2:09–CV–01185–KJM–CKD, 2015 WL 854684

(E.D. Cal. Feb. 26, 2015) (granting summary judgment against a challenger to the roster

requirements); supra note 52 (discussing California’s roster).

. Kolbe v. Hogan, 849 F.3d 114, 121 (4th Cir. 2017) (“[T]he banned assault weapons

and large-capacity magazines are not protected by the Second Amendment.”); N.Y. State

Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 264 (2d Cir. 2015) (upholding restrictions on

certain sporting rifles), cert. denied sub nom. Shew v. Malloy, 136 S. Ct. 2486 (2016); Heller

v. District of Columbia (Heller II), 670 F.3d 1244, 1249, 1264 (D.C. Cir. 2011) (express ban

on AR–15s).

. Kolbe, 849 F.3d at 121 (“[T]he banned assault weapons and large-capacity maga-

zines are not protected by the Second Amendment.”); N.Y. State Rifle & Pistol Ass’n, 804

F.3d at 247 (“We hold that the core provisions of the New York and Connecticut laws pro-

hibiting possession of semiautomatic assault weapons and large-capacity magazines do not

violate the Second Amendment, and that the challenged individual provisions are not void

for vagueness.”); Heller II, 670 F.3d at 1249, 1264 (discussing ban on magazines holding

more than ten rounds).

. N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 264.

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2018] RESPONSES TO FIREARMS LEGISLATION 13

enjoining California’s ban on possession of magazines that can ac-

cept more than ten cartridges.

Whether LEOSA preempts state magazine restrictions is ra-

ther important in practice. Pistols with magazines having capaci-

ties of 15 or 17 rounds are common.

An employee of the National

Shooting Sports Foundation has estimated there are over 100 mil-

lion magazines possessed by consumers that have capacities ex-

ceeding 10 rounds of ammunition, approximately half of all the

magazines possessed by consumers.

An officer or retiree from a

state not having such a limit may not own diminished-capacity

magazines.

A variety of reasons can result in individuals having firearms

for self-defense wishing to have magazines exceeding ten rounds.

One can encounter numerous circumstances where more than ten

rounds are used for defensive purposes. The well-known trainer

Massad Ayoob provides details of five illustrative private defen-

sive firearms uses involving more than fifteen rounds, including

one person who used forty-five cartridges in assisting a law en-

forcement officer who was attacked by persons the officer had de-

tained.

Ayoob notes that in many circumstances, such as a person

who is awakened in the night, the clothing one is wearing may

make it impracticable to carry additional magazines.

He con-

cludes, “Any suggestion that private citizens simply carry more

guns or more ammunition feeding devices would, for the reasons

stated above, be impractical. . . . Criminals bent on causing harm,

. Duncan v. Becerra, 265 F. Supp. 3d 1106, 1139–40 (S.D. Cal. 2017). But see, e.g.,

Wiese v. Becerra, No. CV 2:17–903 WBS KJN, 2018 WL 746398, at *4 (E.D. Cal. Feb. 7,

2018) (“Thus, notwithstanding plaintiffs’ allegations that the ban will not in fact reduce the

incidence and harm of mass shootings, California’s stated interest of reducing the incidence

and harm of mass shootings ‘would be achieved less effectively absent the regulation,’ and

there is a reasonable fit between the ban and California’s important objectives. Because of

this reasonable fit, plaintiffs have not sufficiently alleged that the large capacity magazine

ban fails intermediate scrutiny, and the court will dismiss the Second Amendment claim.”

(quoting Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir. 2015))).

. Duncan, 265 F. Supp. 3d at 1133.

. Declaration of James Curcuruto in Support of Plaintiffs’ Motion for Preliminary

Injunction, at 3, Becerra, 265 F. Supp. 3d 1106 (No. 17–CV–1017–BEN–JLB).

. Declaration of Massad Ayoob in Support of Plaintiffs’ Motion for Preliminary In-

junction; Exhibits A–C, at 5–7, Becerra, 265 F. Supp. 3d 1106 (No. 17–CV–1017–BEN–

JLB). They include: sixteen rounds in response to three attackers; thirty rounds in response

to three attackers; forty-five rounds by a private person assisting a police officer attacked

by an occupant of a detained vehicle, where the private person “prevented the assailants

from ‘finishing off’ the officer;” fifteen rounds discharged by an attacked pizza delivery man;

and approximately nineteen shots by a watch shop owner.

. Id. at 8.

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14 HOUSTON LAW REVIEW [56:1

on the other hand, even assuming they were impeded from obtain-

ing over ten-round magazines by [state law], could simply arm

themselves with multiple weapons, and often do.”

Additionally, one can see anecdotal references to down-sized

magazines not functioning properly in firearms.

There is some uncertainty concerning whether LEOSA

preempts these magazine restrictions. For example, a text on Cal-

ifornia law, written by an eminent practitioner in the firearms law

area, asserts, “[R]estrictions on magazines would apply unless the

officer meets an exemption to those restrictions pursuant to that

state’s laws.”

Although that may be a prudent position to take in

advising a client as to how to proceed, the better reading of the

statute is that it preempts state and local magazine limits.

Let us first turn to the language of LEOSA. It provides in per-

tinent part that, as to a covered person, “Notwithstanding any

other provision of the law of any State or any political subdivision

thereof, an individual . . . may carry a concealed firearm that has

been shipped or transported in interstate or foreign commerce,

subject to subsection (b).”

. Id.

. For example, a search of www.pistol-forum.com [https://perma.cc/4XVK-52EN]

(last visited July 21, 2017) reveals dissatisfaction expressed by someone identified as “staff”

and “S.M.E.” (subject-matter expert) DocGKR, who in a July 11, 2013 post references hav-

ing encountered difficulties with reduced-capacity magazines for a particular, common fire-

arm. This author is not expressing any opinion as to whether those statements are accurate

as to that particular firearm and magazine combination. He is rather indicating that some

have a preference, whether well-founded or otherwise, for the originally-designed OEM

magazines. Post of user DocGKR, How Bad Do 10 Round Glock 19 Magazines Suck?, PISTOL

FORUM (July 11, 2013, 11:00 p.m.), https://pistol-forum.com/showthread.php?8902-how-

bad-do-10-round-glock-19-magazines-suck&highlight=reduced-capacity [https://perma.cc/

H36P-MN2J].

. MICHEL, supra note 23, at 264. See also, e.g., Jeremy Nikolow & Anthony Galante,

Retired Police as Force Multipliers: The LEOSA Effect, IN PUBLIC SAFETY (Jan. 13,

2016), https://inpublicsafety.com/2016/01/retired-police-as-force-multipliers-the-leosa-ef-

fect-2/ [https://perma.cc/XG2L-AU33] (article by adjunct and part-time university faculty

members stating, “High-capacity magazines are not allowed, per the Bureau of Alcohol,

Tobacco, Firearms and Explosives . . . .”); Richard Fairburn, Blue Hawaii: Some States

Make CCW under LEOSA Tough for Cops, POLICEONE.COM (July 6, 2015), https://www.po-

liceone.com/retirement/articles/8651660-Blue-Hawaii-Some-states-make-CCW-under-

LEOSA-tough-for-cops/ [https://perma.cc/N3ED-U5XL] (“The LEOSA statute does not ex-

empt you from the magazine limitations . . . .”); LEOSA Law Enforcement Officers’ Safety

Act, LAW ENF’T OFFICERS SEC. UNIONS, http://www.leosu.org/leosa-law-enforcement-offic-

ers-safety-a [https://perma.cc/PS4H-BZWJ] (last visited Aug. 17, 2018) (“The Bureau of Al-

cohol, Tobacco, Firearms and Explosives (ATF) has ruled that State and local laws and

regulations applying to magazines do apply and the exemption provided by LEOSA applies

only to firearms and ammunition.”).

. 18 U.S.C.A. § 926B(a) (Westlaw through Pub. L. No. 115–223) (addressing current

officers; comparable terms for retired officers at 18 U.S.C.A. § 926C(a)).

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2018] RESPONSES TO FIREARMS LEGISLATION 15

The term “firearm” is defined as follows:

As used in this section, the term “firearm”—

(1) except as provided in this subsection, has the same

meaning as in section 921 of this title;

(2) includes ammunition not expressly prohibited by Fed-

eral law or subject to the provisions of the National Firearms

Act; and

(3) does not include—

(A) any machinegun (as defined in section 5845 of the Na-

tional Firearms Act);

(B) any firearm silencer (as defined in section 921 of this

title); and

this title).

The underlying referenced definition of “firearm” is:

(3) The term “firearm” means (A) any weapon (including a

starter gun) which will or is designed to or may readily be

converted to expel a projectile by the action of an explosive;

(B) the frame or receiver of any such weapon; (C) any firearm

muffler or firearm silencer; or (D) any destructive device.

Such term does not include an antique firearm.

This author’s ultimate conclusion is that there is little support

for concluding that LEOSA does not preempt magazine limits. To

conclude it does not preempt magazine limits, one would need, by

referencing extrinsic language or circumstances, to find ambigu-

ous the facially unambiguous statutory language. One would need

to avoid application of the “cardinal” principle of construction that

rejects an interpretation that makes language surplusage.

And

one would need to distinguish construction of similar language in

another section of the Gun Control Act of 1968, which should be

construed in pari materia and which has been construed as

preempting restrictions on firearm features.

To conclude that au-

thority is incorrect would substantially eviscerate the efficacy of

that other section. Lastly, even were one to take that approach to

legislative interpretation, the legislative history would reject that

position.

. Id. § 926B(e).

. Id. § 921(a)(3).

. See infra notes 82–90 and accompanying text.

. See infra notes 91–94 and accompanying text.

. See infra notes 95–96 and accompanying text.

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16 HOUSTON LAW REVIEW [56:1

Perhaps a first step in applying these statutory provisions is

to note that a magazine is an integral part of a semi-automatic

pistol.

Some semi-automatic pistols will not function if a maga-

zine is not installed.

That is sometimes referenced as a safety

feature, which decreases the likelihood there will be an unin-

tended discharge when the pistol is being cleaned.

Although

many semi-automatic pistols will discharge a round when a mag-

azine is missing, that configuration—with a magazine removed—

is not the one in which they are designed to be possessed for self-

defense.

With that background, then, one can easily ascertain that, by

literal application of the definitions, a semi-automatic pistol hav-

ing a magazine is a firearm—it is a “weapon . . . which . . . is de-

signed to . . . expel a projectile by the action of an explosive,”

and

it is not designed to do anything else. The capacity of the magazine

simply is not relevant to deciding whether the item qualifies as a

firearm, but the magazine (of whatever capacity it is) is necessary

for the item, if possessed, to function as a firearm in the ordinary,

intended way.

To state the obvious, a literal interpretation of a statute re-

quires one reference what is in the statute. One does not begin a

literal interpretation of a statute by ascertaining whether it does

or does not contain a particular word. Rather, one reads the words

actually present. If a person is possessing an ordinary handgun

with its original equipment magazine, e.g., capable of containing

17 rounds, one is possessing a firearm, as that term is used in

LEOSA (provided it is not a machinegun and does not have a sup-

pressor attached to it).

As to that possession by a qualifying per-

son, LEOSA states the item may be carried concealed “[n]otwith-

standing any other provision of the law of any State . . . .”

So, this

literal interpretation is easy. A state prohibition based on a fea-

ture of what is being carried is included in “any other provision.”

So, the state prohibition is preempted.

To put it another way, only by rewriting “any,” substituting

. Duncan v. Becerra, 265 F. Supp. 3d 1106, 1117 (S.D. Cal. 2017) (order granting

preliminary injunction; stating magazines “are necessary and integral to the designed op-

eration” of these arms).

. Rick Hacker, Magazine Disconnect, AM. RIFLEMAN (Sept. 11, 2015),

https://www.americanrifleman.org/articles/2015/9/11/magazine-disconnect/ [https://perma.

cc/LS78-D8A2].

. See e.g., id.

. 18 U.S.C.A. § 921(a)(3) (Westlaw through Pub. L. No. 115–223 (including Pub. L.

No. 115–225 to 115–231)).

. Id.

. Id. § 926C(a).

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2018] RESPONSES TO FIREARMS LEGISLATION 17

“some” or some such, can one have statutory language that would

literally subject this possession to state laws (other than on state

or local property, or private property restricted by a controlling

person). Because “any” does not generally mean “some” in this con-

struct, it requires a peculiar non-literal interpretation to state that

magazine limits are not preempted.

That is of course relevant, because starting with a review of

the language of a statute involves assessing the language as it was

adopted.

One occasionally encounters novelty pistols such as ones that

also have blades mounted on them.

Because the addition of a

blade contemplates a use other than expelling a projectile, one

might quibble whether such an item is within the protection of the

statute, preempting any state law restricting bayonet mounts and

the like.

But, the magazine capacity is not subject to such an ob-

jection.

There are fully automatic pistols,

and those pistols

. E.g., Chris Eger, 5 Knife-Equipped Handguns: Pistols with a Point, GUNS.COM

(Mar. 12, 2013), http://www.guns.com/2013/03/12/5-knife-equipped-handguns-pistols-with-

a-point/ [https://perma.cc/5KJY-2HGS] (last visited July 21, 2017) (“In the early 2000s, the

well-respected Czech arms giant CZ-Brno offered a $100 bayonet attachment for their CZ-

SP01 model handgun.”).

. The corresponding issue has been addressed as to whether “knuckles” become

lawful where attached to a blade. The Court of Appeals of Alaska recently concluded not:

Thrift [, the defendant,] argues that the statute requires the weapon to con-

sist exclusively of finger rings or guards and cannot include finger rings or guards

with a knife blade attached. He has a related argument that the statute “indicates

[that] the finger rings or guards cannot serve another primary purpose, such as

protecting the fingers or reducing the chance the bearer would unintentionally

drop an item.” But the statute does not contain the words “exclusively” or “primary

purpose,” and we do not agree that these restrictive readings can be taken from

the statute. Under Thrift’s interpretation of the statute, the addition of a knife

blade to an illegal weapon—a change that makes the illegal weapon even more

dangerous—would render the formerly illegal weapon into a legal one. This is il-

logical. For example, a prohibited short-barreled shotgun would not become legal

or cease to be a shotgun simply because a bayonet was attached.

Thrift v. State, No. A–11888, 2017 WL 2709732, at *2 (Alaska Ct. App. June 21, 2017)

(approving jury instructions stating, “[a]ttaching a knife to metal knuckles, as defined

above, does not cause the metal knuckles to become legal,” and parenthetically summariz-

ing Thompson v. United States, 59 A.3d 961, 962–64 (D.C. 2013), to the following effect:

“[T]he addition of a blade to metal knuckles simply made the weapon more versatile and

more lethal; exempting it from the statute ‘would have the perverse effect of prohibiting

possession of only the least dangerous versions of knuckles[.]’”).

. See, e.g., Firearms – Guides – Importation & Verification of Firearms – National

Firearms Act Definitions – Machinegun, ATF, https://www.atf.gov/firearms/firearms-

guides-importation-verification-firearms-national-firearms-act-definitions-0

[https://perma.cc/29BF-NF2A] (last reviewed Apr. 21, 2018) (depicting an Ingram MAC-10,

a firearm not having a stock and not having a second, forward grip, in a collection of ma-

chineguns).

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18 HOUSTON LAW REVIEW [56:1

(referenced as “machineguns” in the statute

) can be possessed by

private persons who comply with Title II of the Gun Control Act of

1968, as amended,

and any applicable state or local law. The

same applies to sound suppressors.

Both types of items also can

be possessed by state and local law enforcement officials (posses-

sion by those officials is subject to decreased regulation).

Some states do ban private possession of fully automatic

weapons and firearm sound suppressors.

However, LEOSA ex-

pressly excludes from its protection the carrying of fully automatic

weapons

and sound suppressors.

State laws restricting carry-

ing them are not preempted. This exception indicates, under the

cardinal interpretative principle proscribing construction of lan-

guage as surplusage,

that LEOSA preempts restrictions on mag-

azine capacity of arms otherwise carried in compliance with

LEOSA. If the remainder of the language allowed a state to ban

firearms having particular features, the express exception for ma-

chineguns and “silencers” would not be necessary.

The holding in with Arnold v. City of Cleveland,

interpreting

a different section of the Gun Control Act of 1968, as amended,

confirms that conclusion. Section 926A of title 18 provides a person

who may lawfully possess a firearm:

shall be entitled to transport a firearm for any lawful pur-

pose from any place where he may lawfully possess and carry

. 26 U.S.C.A. § 5845(b) (Westlaw through Pub. L. No. 115–223) (referencing “any

weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically

more than one shot, without manual reloading, by a single function of the trigger”).

. Gun Control Act of 1968, Pub. L. No. 90–618, 82 Stat. 1213 (codified as amended

in scattered sections of 26 U.S.C.A. ch. 53 (Westlaw through Pub. L. No. 115–223 (including

Pub. L. No. 115–225 to 115–231))) (the successor to, and sometimes referenced as, the Na-

tional Firearms Act).

. 26 U.S.C.A. § 5845(a)(7) (Westlaw).

. 26 U.S.C.A. § 5853(a), (c) (Westlaw).

. See, e.g., Hollis v. Lynch, 827 F.3d 436, 450 (5th Cir. 2016) (tabulating assorted

state restrictions on machineguns); N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242,

250 (2d Cir. 2015) (discussing a prohibition on a barrel that can accept a sound suppressor),

cert. denied sub nom. Shew v. Malloy, 136 S. Ct. 2486 (2016).

. 18 U.S.C.A. § 926B(e)(3)(A) (Westlaw).

. Id. § 926B(e)(3)(B).

. E.g., TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is ‘a cardinal principle of

statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it

can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’”

(quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)).

. Arnold v. City of Cleveland, No. 59260, 1991 WL 228628, at *10 (Ohio Ct. App.

Oct. 31, 1991), aff’d on other grounds, 616 N.E.2d 163 (Ohio 1993). The ordinance was

amended to comply with 18 U.S.C. § 926A following the decision of the Ohio Court of Ap-

peals and the relevant part of that court’s opinion was not addressed by the Ohio Supreme

Court. 616 N.E.2d at 165 n.2.

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2018] RESPONSES TO FIREARMS LEGISLATION 19

such firearm to any other place where he may lawfully pos-

sess and carry such firearm if, during such transportation

the firearm is unloaded, and neither the firearm nor any am-

munition being transported is readily accessible or is directly

accessible from the passenger compartment of such trans-

porting vehicle . . . .

These provisions should be interpreted in pari materia.

the statutory language in LEOSA, which provides a person “may

carry a concealed firearm” does not preempt state and local re-

strictions on components having particular features, then the com-

parable language stating a person “shall be entitled to transport a

firearm” also would not preempt state and local restrictions on

component features. However, Arnold holds section 926A does

preempt local bans on firearms having specified magazine capaci-

ties.

The legislative history of LEOSA confirms that it does

preempt state and local magazine limits. The dissenting views of

Reps. Conyers, Berman, Scott, Watt, Waters & Delahunt state: “In

other words, once an officer qualifies to carry a service weapon, he

will have the right under this bill to carry any gun, on-duty or off-

duty . . . .”

Moreover, the House committee rejected a proposed

amendment that would have added to the arms excluded from the

preemption a “semiautomatic assault weapon.”

If state bans on

. 18 U.S.C.A. § 926A (Westlaw).

. Cf. Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111 (1983) (stating the Gun

Control Act of 1968, codified as amended at 18 U.S.C. § 921–931, and 18 U.S.C. App. §

1202(a)(1) (repealed 1986), “a gun control statute similar to and partially overlapping §§

922(g) and (h),” have been treated in pari materia), superseded by statute, Firearms Owners’

Protection Act, Pub. L. No. 99–308, 100 Stat. 449 (1986), amended by Pub. L. No. 99–360,

100 Stat. 766 (1986), superseded by statute as recognized in Logan v. United States, 552

U.S. 23, 27–28 (2007); United States v. Spillane, 913 F.2d 1079, 1084 (4th Cir. 1990) (ref-

erencing construction in pari materia in interpreting 18 U.S.C. § 921(a) and 18 U.S.C.

§ 1073); United States v. Wickstrom, 893 F.2d 30, 32 (3d Cir. 1989) (stating 18 U.S.C. §§

5861, 5845 and 921 should be construed in pari materia because “[a]ll three sections . . .

were passed as part of the Gun Control Act of 1968, Pub. L. 90–618, 82 Stat. 1230 (1968).”).

See generally United States v. Ressam, 553 U.S. 272, 275–77 (2008) (rejecting the Ninth

Circuit’s interpretation that a section of the Gun Control Act of 1968 and a section of a

separate act, regulating explosives, should be construed in pari materia where one had been

amended by Congress and the other had not).

. Arnold, 1991 WL 228628, at *10.

. H.R. REP. NO. 108–560, at 81, 85 (2004). But see generally State v. Andros, 958

A.2d 78, 85 (N.J. Super. Ct. App. Div. 2008) (“[W]hen seeking to determine legislative in-

tent, the United States Supreme Court has stated that ‘[t]he fears and doubts of the oppo-

sition are no authoritative guide to the construction of legislation.’” (quoting Shell Oil Co.

v. Iowa Dep’t of Revenue, 488 U.S. 19, 29 (1988))).

. H.R. REP. NO. 108–560, at 64, 67 (2004). Although a pistol could have constituted

such “semiautomatic assault weapon,” magazine capacity would not have been relevant to

the determination. See Violent Crime Control and Enforcement Act of 1994, Pub. L. No.

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20 HOUSTON LAW REVIEW [56:1

an arm’s features other than those listed (being fully automatic or

having a silencer) were not preempted under the language that

was approved, the proposed amendment would not have been nec-

essary.

There is only limited litigation addressing interpretation of

this aspect of LEOSA. LEOSA’s scope was addressed in an amicus

brief filed for the United States, as amicus curiae, in District of

Columbia v. Barbusin.

There the federal government’s briefing

rejects the argument that LEOSA does not protect possession of

an AR–15, a semi-automatic sporting rifle. It notes the Barbusin

defendant’s reference to the defeat of the proposed amendment to

exclude “any semiautomatic assault weapon” from LEOSA, contin-

uing:

Although each of defendant’s points is valid, more im-

portantly, in 2010, Congress made clear that the term “fire-

arm” “has the same meaning” as in 18 U.S.C. § 921(a)(3) and

also “includes ammunition not expressly prohibited by Fed-

eral law.” In pertinent part, § 921(c)(3)(A) defines a “firearm”

as “any weapon . . . which will . . . expel a projectile by the

action of an explosive.” Defendant’s AR–15 and its accompa-

nying ammunition satisfies this broad definition.

Lastly, one taking the position that LEOSA does not unam-

biguously preempt magazine limits, and who barely managed to

convince a court that the statute is ambiguous, would fail by virtue

of the rule of lenity: “[A]mbiguity concerning the ambit of criminal

statutes should be resolved in favor of lenity.”

The Supreme

Court has stated, as to the rule of lenity:

This venerable rule not only vindicates the fundamental

103–322, § 110102, 108 Stat. 1796, 1998 (codified as amended at 18 U.S.C.A. § 921(a)(30)(C)

(Westlaw 2004)), repealed by id., Pub. L. No. 103–322, § 110105, 108 Stat. at 2000 (stating

the relevant provision was to be repealed effective ten years after enactment).

. See generally Brief for the United States as Amicus Curiae at 5, District of Co-

lumbia v. Barbusin, Crim. No. 2012–CDC–913 (June 29, 2012).

. Id. (quoting 18 U.S.C. § 926B(e)). The charges were ultimately dismissed on the

basis of a discovery violation. Peter Hermann, Gun Charges Against D.C. Officer Dismissed,

WASH. POST (July 29, 2013), https://www.washingtonpost.com/local/gun-charges-against-

dc-officer-dismissed/2013/07/29/674898de-f84c-11e2-afc1-c850c6ee5af8_story.html?utm

_term=.7552063db6e8 [https://perma.cc/KL67-ZRJQ].

One Illinois trial court opinion, reversed on other grounds, declines to decide as a

matter of law whether LEOSA preempts state restrictions on particular types of firearms.

People v. Peterson, No. 08 CF 1169, at 3 (Ill. Cir. Ct. Oct. 1, 2010) (Schoenstedt, J.) (dis-

missing for lack of jurisdiction defendant’s claim on appeal that the prosecution was

preempted by LEOSA), vacated on other grounds, People v. Peterson, 923 N.E.2d 890, 897–

98 (Ill. App. Ct. 2010). The claim there involved allegations the rifle violated state law for

having a barrel less than 16 inches. Peterson, 923 N.E.2d at 892.

. Rewis v. United States, 401 U.S. 808, 812 (1971).

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2018] RESPONSES TO FIREARMS LEGISLATION 21

principle that no citizen should be held accountable for a vi-

olation of a statute whose commands are uncertain, or sub-

jected to punishment that is not clearly prescribed. It also

places the weight of inertia upon the party that can best in-

duce Congress to speak more clearly and keeps courts from

making criminal law in Congress’s stead.

100

Treating state and local magazine restrictions as not

preempted by LEOSA fosters the harms the Court indicates the

rule of lenity seeks to avoid: to subject a person to criminal liability

where the statutory framework is not certain in doing so, and

places on the courts the responsibility for proscribing conduct

criminally when the Congress itself declined to do so. The latter is

particularly informative, where Congress did express itself as to

possession of firearms with some features, explicitly allowing

criminalization of some and explicitly rejecting allowing criminal-

ization of others.

101

B. Requirement to Register Arms; Flouting Provisions re.

Ammunition.

Some jurisdictions require registration of firearms. Hawaii

guidelines published by its Department of the Attorney General

state that a person taking a firearm to the state under the author-

ity of LEOSA is required to comply with registration require-

ments.

102

LEOSA’s preemption of state law has no exception for

100

. United States v. Santos, 553 U.S. 507, 514 (2008).

Application of principles of lenity are potentially more complex than is typically

the case. Here we are construing separate exceptions to criminal liability, as opposed to

simply construing a statute that criminalizes certain conduct. One can see the principle of

lenity as arising from notions one should have notice of what is criminalized, and that

courts should not usurp the role of selecting what conduct is criminal. See, e.g., id. On these

bases, that one is construing a preemption from criminalization, as opposed to the act af-

firmatively criminalizing conduct, would not seem to matter.

It bears mention that this intersection of lenity and federalism is perhaps the

opposite of the ordinary case. In addition to the typical justification of lenity as implicating

Due Process and the need for fair notice of illegality, one justification sometimes involves

limiting the scope of federal crimes to exclude federal intrusion into matters typically reg-

ulated by the states. Here we would have application of lenity that would implicate Due

Process concerns but in a fashion that operated to enhance federal intrusion into state reg-

ulation of an area traditionally regulated by states. But see generally Fowler v. United

States, 563 U.S. 668, 684–85 (2011) (Scalia, J., concurring) (identifying a federalism inter-

est supporting lenity in rejecting an interpretation that would federally criminalize local

criminal conduct).

101

. 18 U.S.C.A. § 926C(e) (Westlaw through Pub. L. No. 115–223 (including Pub. L.

No. 115–225 to 115–231)) (allowing firearms as defined by section 921 but expressly not

including any machinegun, silencer or destructive device).

102

. The document states:

If you bring a firearm to Hawaii and remain longer than five (5) days, you must

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22 HOUSTON LAW REVIEW [56:1

state registration requirements,

103

and the document fails to pro-

vide any theory under which the state requirement is not

preempted.

Occasionally one encounters responses to LEOSA that might

be classified as contumacious. Hawaii’s response to LEOSA may

well be an illustration. A document from its Attorney General also

states that a person exercising rights under LEOSA is required to

comply with Hawaii law restricting permissible ammunition: “The

ammunition loaded in your concealed firearm CANNOT be Teflon

coated or designed to explode or segment upon impact.”

104

LEOSA

was amended in 2010 to preempt state and local restrictions on

types of ammunition (other than ammunition “expressly prohib-

ited by Federal law or subject to the provisions of the National

Firearms Act”

105

). Segmenting ammunition is, however, commer-

cially available to members of the public.

106

This Hawaii policy

manifestly is in violation of federal law.

Every person arriving in the State who brings, or by any manner causes to be

brought into the State, a firearm SHALL register the firearm with the chief of

police of the county within five (5) days after arrival of the firearm or the person,

whichever arrives later. See H.R.S. § 134–3.

DEP’T OF THE ATTORNEY GEN., STATE OF HAW., GUIDELINE FOR CARRYING A CONCEALED

FIREARM IN THE STATE OF HAWAII BY A “QUALIFIED LAW ENFORCEMENT OFFICER” PURSUANT

TO 18 UNITED STATES CODE § 926B (Apr. 21, 2015), https://ag.hawaii.gov/cjd/files/2013/

01/LEOSA-guideline-for-QLEO-926B.pdf [https://perma.cc/LPZ9-U9BE].

103

. See generally 18 U.S.C.A. §§ 926B, 926C (omitting any provision that explicitly

creates an exception) (Westlaw).

104

. DEP’T OF THE ATTORNEY GEN., STATE OF HAW., supra note 102, at 3.

105

. Law Enforcement Officers Safety Act Improvements Act of 2010, Pub. L. No. 111–

272, 124 Stat. 2855 (Westlaw through Pub. L. No. 115–223 (including Pub. L. No. 115–225

to 115–231)). “Sections 922(a)(7) and (8) [of title 18] prohibit, with exceptions, the manufac-

ture or importation of armor piercing ammunition, and the sale of such ammunition by a

manufacturer or importer.” STEPHEN P. HALBROOK, FIREARMS LAW DESKBOOK § 2:31,

Westlaw (database updated Sept. 2017). Exploding ammunition may constitute a destruc-

tive device regulated by Title II. See United States v. Thomas, 111 F.3d 426, 428 (6th Cir.

1997) (exploding shotgun shells).

106

. The Cabela’s chain sells G2 Research R.I.P. Handgun Ammunition, which is de-

scribed as follows:

Feed your handgun with G2 Research’s R.I.P. Handgun Ammunition for deep

penetration and explosive fragmentation. Unique 100% copper-plated trocar de-

sign gives R.I.P. (Radically Invasive Projectile) bullets the ability to penetrate

while the petals break from the base, creating additional, individual wound chan-

nels while the base continues on course. This penetration and separation combines

to deliver maximum shock wave and wound path.

G2 Research R.I.P. Handgun Ammunition, CABELA’S, http://www.cabelas.com/product/G-

RESEARCH-R-I-P-HANDGUN-AMMO/2262015.uts [https://perma.cc/937D-AZU6] (last

visited Aug. 17, 2018).

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2018] RESPONSES TO FIREARMS LEGISLATION 23

C. Limited Powers of Arrest and Part-Time Officers.

Of course, it is entirely common for law enforcement officers

to have territorial restrictions on assorted law enforcement activi-

ties.

107

There has been some litigation involving classification for

LEOSA purposes of persons holding positions other than those

that immediately come to mind when one thinks of a law enforce-

ment officer.

108

Thorne v. United States

109

holds that a person hold-

ing a Virginia court appointment as a “special conservator[] of the

peace” is not a law enforcement officer for purposes of LEOSA,

where his employer is a private party (in that case, the Alexandria

107

. E.g., N.J. STAT. ANN. § 40A:14–152 (West, Westlaw through L.2017, c. 100 and

J.R. No. 7) (“The members and officers of a police department and force, within the territo-

rial limits of the municipality, shall have all the powers of peace officers and upon view

may apprehend and arrest any disorderly person or any person committing a breach of the

peace.”); State v. Cohen, 375 A.2d 259, 264 (N.J. 1977) (stating the authority of police offic-

ers of the Port Authority of New York “to arrest on view and without warrant a violator of

any order, rule or regulation of the Authority for the regulation and control of traffic on

bridge, tunnel, plaza or approach . . . extend . . . to all other facilities now operated by the

Authority” and to “the whole territorial area of the Port District itself,” and stating, “Con-

sequently police officers can normally exercise the powers inhering in their office only

within the confines of the jurisdiction which employs them.”).

108

. For example, the benefits of LEOSA are limited to persons who have or had “stat-

utory powers of arrest or apprehension under [10 U.S.C. 807(b)].” 18 U.S.C.A. §§ 926B(c)(1),

926C(c)(2) (Westlaw). In re Casaleggio, 18 A.3d 1082, 1086 (N.J. Super. Ct. App. Div. 2011)

(footnote omitted) holds, “[T]he reference to LEOSA in N.J.S.A. 2C:39–6(l) does not encom-

pass retired assistant prosecutors or deputy attorneys general. Rather, it is intended to

accommodate retired law enforcement officers from out of state who have relocated to New

Jersey.” However, prosecutors may have “statutory powers of arrest.” State v. Winne, 96

A.2d 63, 71 (N.J. 1953) (stating a county prosecutor is not “required personally to detect,

arrest, indict and convict, though he may and often does do so”); N.J. STAT. ANN. § 2A:158–

5 (West, Westlaw through L.2017, c. 100 and J.R. No. 7) (“Each prosecutor shall be vested

with the same powers and be subject to the same penalties, within his county, as the attor-

ney general shall by law be vested with or subject to, and he shall use all reasonable and

lawful diligence for the detection, arrest, indictment and conviction of offenders against the

laws.”). See generally 94 C.J.S. Weapons § 51, Westlaw (database updated September 2018).

Prior to a 2013 amendment, National Defense Authorization Act for Fiscal Year 2013, Pub.

L. No. 112–239, § 1089, 126 Stat. 1632, 1970–71 (2013), “[m]ilitary police officers did not

qualify for protection under LEOSA because they possess[ed] statutory powers of appre-

hension, not arrest, as required by the statute.” State v. Pompey, No. A–3985–15T2, 2017

WL 655515, at *1 (N.J. Super. Ct. App. Div. Feb. 17, 2017). There is an analogous issue

under state law. See, e.g., Orange Cty. Employees Assn., Inc. v. County of Orange, 14 Cal.

App. 4th 575, 577, 582 (1993) (holding deputy coroners and court service officers are entitled

to carry concealed firearms without a permit under state law); Stumpff v. State, 998 So. 2d

1186, 1187–88 (Fla. Dist. Ct. App. 2009) (holding an inactive volunteer/reserve/auxiliary

officer with the Florida Fish and Wildlife Commission was exempt from state licensing re-

quirements). See generally infra notes 124, 128 (providing legislative history addressing the

broad scope).

109

. Thorne v. United States, 55 A.3d 873 (D.C. 2012).

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24 HOUSTON LAW REVIEW [56:1

Security Patrol Corporation).

110

Foley v. Godinez

111

upholds a de-

termination that retired parole agents, who allegedly had “en-

gaged in or supervised the prevention of crimes and the incarcer-

ation of people for violating state criminal laws and had statutory

powers of arrest,” are not officers benefitting from LEOSA,

112

af-

firming denial of the required credentials because the determina-

tion was discretionary and thus not subject to mandamus re-

view.

113

It seems that treatment of corrections officers is particularly

likely to give rise to disputes.

114

The court in DuBerry v. District of

Columbia

115

suggests that retired corrections officers do benefit

from LEOSA, noting, “Congress defined ‘qualified law enforcement

officers’ broadly, to include individuals who engage in or supervise

incarceration,” although leaving the ultimate determination un-

settled, because it raises factual issues.

116

The court continues,

“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[].’”

117

New Jersey, like Hawaii, seems to take a contumacious atti-

tude toward LEOSA. A 2005 memorandum from the state’s

110

. Id. at 882. There are a number of reported cases involving these positions. Ord v.

D.C., 587 F.3d 1136, 1138 (D.C. Cir. 2009) (holding plaintiff could assert preenforcement

challenge), remanded to Ord v. D.C., 810 F. Supp. 2d 261 (D.D.C. 2011), aff’d, No. 11–7134,

2012 WL 1155808 (D.C. Cir. Mar. 1, 2012).

111

. Foley v. Godinez, 62 N.E.3d 286 (Ill. App. Ct. 2016).

112

. Id. at 290.

113

. Id. at 295 (“[E]ven if the Director erred in finding that plaintiffs were not qualified

retired law enforcement officers, mandamus cannot be used to reach a different decision.”).

See generally Memorandum of Law in Support of Motion for Summary Judgment at 10–11,

Moore v. Trent, No. 09 C 1712, 2010 WL 5232727 (N.D. Ill. Dec. 16, 2010) (stating, “correc-

tional or parole officer’s arrest powers are not plenary, but are limited to the narrow cate-

gories enumerated,” and arguing, “The Training and Standards Board can legitimately take

the position that only fully trained law enforcement officers, that is police officers, are eli-

gible for the LEOSA identification card. This determination is fully consistent with LEOSA,

which leaves it to the States to have a concealed carry certification program and to establish

eligibility criteria for the wide range of job classifications that come under the generic cat-

egory of law enforcement officers.”).

114

. For example, Sonoma County Law Enforcement Ass’n v. County of Sonoma, 379

F. App’x 658 (9th Cir. 2010), involves “correctional deputies who work in the county jails”

issued credentials that state “while correctional deputies are authorized to carry concealed

firearms off-duty within California, they are not ‘qualified law enforcement officers’ within

the meaning of 18 U.S.C. § 926B . . . .” Brief of Appellees at 4, Sonoma Cty. Law Enf’t Ass’n

v. County of Sonoma, 379 F. App’x 658 (9th Cir. 2010) (No. 09–16277), 2009 WL 6809634,

at *4.

115

. DuBerry v. District of Columbia, 824 F.3d 1046 (D. C. Cir. 2016).

116

. Id. at 1053.

117

. Id. (modification in original).

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2018] RESPONSES TO FIREARMS LEGISLATION 25

Attorney General, a document that remains available through the

state’s web site twelve years later, states in part:

The passage of the Federal Law Enforcement Officers

Safety Act does not alter the obligation of retired New Jersey

law enforcement officers to comply with the provisions of

N.J.S.A. 2C:39–6l in order to carry a firearm in this state.

Absent statutory changes to our retired officer permitting

procedures, it remains in full effect and officers must comply

with its requirements.

118

That statute exempts certain retirees from the New Jersey

prohibition on “unlawful possession of weapons.”

119

The New Jer-

sey statute was amended in 2007 to add to the excluded persons

those who are qualified retired law enforcement officers domiciled

in New Jersey,

120

and again amended in 2017 to add miscellaneous

full-time officers.

121

The statute the New Jersey Attorney General

indicates must be complied-with requires annual applications be

made to the New Jersey Superintendent of State Police. The stat-

ute does not require issuance of the permit (i.e., it is discretionary),

and contemplates hearings being available for those aggrieved by

a denial.

122

Under LEOSA, a person who has retired as a potentially

qualifying New Jersey police officer and becomes a domiciliary of

another state, as long as he or she has the photographic

identification attesting to his or her having been employed as a

law enforcement officer, can get the remainder of his or her

credentials from his or her state of residence.

123

LEOSA does not

vest in the state from which an officer retired the exclusive control

over licensure following retirement. This is relevant insofar as

118

. Memorandum on Guidance Regarding the Law Enforcement Officers Safety Act

of 2004 [PL 108–277 (HR 218)] from Peter C. Harvey, Attorney Gen., State of N.J., to all

New Jersey County Prosecutors (June 7, 2005), http://www.nj.gov/lps/dcj/agguide/pdfs/hr-

218.pdf [https://perma.cc/P8MU-Z6FF] (last visited Aug. 17, 2018).

119

. N.J. STAT. ANN. § 2C:39–5 (West, Westlaw through L.2017, c. 100 and J.R. No. 7)

(providing exemptions to “unlawful possession of weapons” as outlined in § 2C:39–5).

120

. The relevant paragraph of the statute was amended in 2007 to increase the age

to 75 and to add an express exclusion for “; or is a qualified retired law enforcement officer,

as used in the federal ‘Law Enforcement Officers Safety Act of 2004,’ Pub.L.108–277, dom-

iciled in this State,” in addition to other adjustments. 2007 N.J. Sess. Law Serv. Ch. 313,

§ 1 (Assembly 2158) (Westlaw). Modest changes were made in 2007 N.J. Sess. Law Serv.

Ch. 314, § 1 (Assembly 2224) (Westlaw). The statutory change was not well-written; it does

not parse.

121

. 2017 N.J. Sess. Law. Serv. Ch. 110 (Assembly 2690) (Westlaw).

122

. N.J. STAT. § 2C:39–6(l)(4), (5) (West, Westlaw through L.2017, c. 91 and J.R. No.

7).

123

. 18 U.S.C.A. § 926C(d)(2)(B) (Westlaw through Pub. L. No. 115–223 (including

Pub. L. No. 115–225 to 115–231)).

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26 HOUSTON LAW REVIEW [56:1

New Jersey seeks to exercise discretion in deciding whom to per-

mit. Thus, insofar as the New Jersey policy purports to require its

retirees to qualify under its statute (which is apparently the literal

reading of that policy), the policy is unlawful.

This is also relevant to retirees who worked part-time. It ap-

pears New Jersey takes the position that it need not recognize un-

der LEOSA persons whose law enforcement activities were or are

not full-time.

124

The statutory language does not support this lim-

itation. Although the statute, as initially enacted, limited retiree

benefits to a person who “before such retirement, was regularly

employed as a law enforcement officer for an aggregate of 15 years

or more”

125

(there was no corresponding limitation applicable to

124

. The 2005 memorandum of the New Jersey Attorney General states LEOSA “al-

lows full-time active duty and retired law enforcement officers . . . to carry concealed fire-

arms . . . without having first obtained permits to carry from a foreign state.” See Harvey,

supra note 118, at 1. This provision, of course, does not literally state persons who are not

full-time do not benefit from LEOSA, though that is the better reading of the document—

the inclusion of reference to “full-time” officers would be redundant without it.

A part-time New Jersey sheriff, allegedly otherwise qualifying under LEOSA,

who was denied a permit was one of the unsuccessful plaintiffs in Drake v. Filko, 724 F.3d

426 (3d Cir. 2013). See Declaration of Finley Fenton at 1, Piszczatoski v. Filko, 840 F. Supp.

2d 813 (D.N.J. 2012) (Civ. No. 10–06110 (WHW)), aff’d sub nom. Drake v. Filko, 724 F.3d

426 (3d Cir. 2013). The initial complaint recites that New Jersey takes the view that part-

time officers do not benefit from LEOSA:

75. Mr. Fenton is a “qualified law enforcement officer” within the meaning

of the Law Enforcement Officers Safety Act of 2008 (“LEOSA”), and as such, fed-

eral law authorizes him to “carry a concealed firearm that has been shipped or

transported in interstate or foreign commerce.” 18 U.S.C. § 926B(a).

76. However, the State of New Jersey, in a policy directive issued by De-

fendant Paula T. Dow on June 7, 2005, maintains that LEOSA protects only “full

time” police officers. [See http://www.nj.gov/lps/dcj/agguide/pdfs/hr-218.pdf.] Mr.

Fenton is afraid that he will be arrested and charged if he carries a handgun to

protect himself while off-duty.

Complaint for Deprivation of Civil Rights under Color of Law at 75–76, Piszczatoski v.

Filko, 840 F. Supp. 2d 813 (D.N.J. 2012) (Civ. No. 10–06110 (WHW)), 2010 WL 10378297,

aff’d sub nom. Drake v. Filko, 724 F.3d 426 (3d Cir. 2013). The trial court disposed of the

complaint without the defendants having filed a responsive answer.

Part of the discussion captured in the House Report on the legislation shows the

breadth of individuals who would be entitled to benefit from LEOSA:

Ms. LOFGREN. Reclaiming my time, in California, as the other Members from

California will know, you become a law enforcement officer when you are accepted

for peace officer standards and training training [sic], if you are POST certified.

That includes weights and measure inspectors, it includes zoning administrators.

It is very, very broad, and only some of those people actually get training. I mean,

real cops obviously do, but there are a lot of people with POST training who are

legally police officers, who are qualified under law, but who don’t ever use a gun—

museum guards.

H.R. REP. NO. 108–560, at 60 (2004) (statement of Rep. Lofgren).

125

. Law Enforcement Officers Safety Act of 2004, Pub. L. No. 108–277, 118 Stat. 865

(adding 18 U.S.C.A. § 926C(c)(3)(A) (Westlaw through Pub. L. No. 115–223 (including Pub.

L. No. 115–225 to 115–231))).

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2018] RESPONSES TO FIREARMS LEGISLATION 27

current officers), that requirement was amended in 2010.

126

LEOSA provides its benefits extend to persons involved in the

detection, investigation or prosecution of “any violation of law, and

has [or had] statutory powers of arrest.”

127

Legislators’ discussion

of the scope referenced authorization of game and fisheries offic-

ers.

128

The structure of the act is thus not amenable to a limiting

construction under which it benefits only individuals who can be

expected frequently to need to deploy firearms. It was clearly con-

templated that it would not be so limited.

Additionally, under LEOSA, a New Jersey domiciliary who

has retired from a position in another state can, under LEOSA,

obtain the required credentials and certification from the out-of-

state agency.

129

No action of New Jersey is required. Requiring the

New Jersey domiciliary to obtain a permit from the New Jersey

Superintendent of State Police is unauthorized by LEOSA.

130

In some circumstances, courts restrictively construe federal

statutes that impinge on the ordinary boundaries between federal

and state regulation of activity. Bond v. United States

131

references

the following “well-established” interpretative principle:

“‘[I]t is incumbent upon the federal courts to be certain of

Congress’” intent before finding that federal law overrides

“the usual constitutional balance of federal and state pow-

ers.” To quote Frankfurter again, “if the Federal Government

would ‘radically readjust[ ] the balance of state and national

authority, those charged with the duty of legislating [must

be] reasonably explicit’” about it.

132

126

. Law Enforcement Officers Safety Act Improvements Act of 2010, Pub. L. No. 111–

272, § 2(c)(1)(C)(ii), 124 Stat. 2855 (Westlaw through Pub. L. No. 115–223 (including Pub.

L. No. 115–225 to 115–231)) (substituting “served” for “was regularly employed”).

127

. 18 U.S.C.A. § 926B(c)(1) (Westlaw); id. § 926C(c)(2) (substituting “had” for “has”).

128

. H.R. REP. NO. 108–560, at 55 (2004) (statement of Rep. Scott). See also id. at

53–54 (“Thinking back to my many years in local government, there are many peace officers

that you would not think of as peace officers. We have park police, we have transit police,

for example, we have all the correctional officers in Santa Clara County, where I served.

There is a huge issue.”) (statement of Rep. Lofgren concerning a rejected amendment

providing the act “shall not be construed to supersede or limit the rules, regulations, poli-

cies, or practices of any State or local law enforcement”); 150 CONG. REC. 13,674 (2004)

(“Under this proposal, a retired Customs inspector from Alabama can come into Massachu-

setts carrying a concealed weapon, and my local sheriff or my local police chief can do noth-

ing about it.”) (statement of Rep. Delahunt).

129

. Law Enforcement Officers Safety Act of 2004 § 3 (codified as amended at 18

U.S.C.A. § 926C(d)(1) (Westlaw through Pub. L. No. 115–223 (including Pub. L. No. 115–

225 to 115–231))).

130

. See id. (allowing permitting from state of residence or state of retirement).

131

. Bond v. United States, 134 S. Ct. 2077 (2014).

132

. Id. at 2089 (quoting Felix Frankfurter, Some Reflections on the Reading of

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28 HOUSTON LAW REVIEW [56:1

This approach is sometimes termed a clear statement princi-

ple

133

or the plain statement rule

134

of statutory construction.

135

Justice Breyer, in dissent, has asserted, “Private gun regulation is

the quintessential exercise of a State’s ‘police power’ . . . .”

136

But it would be difficult to construe LEOSA restrictively so as

to allow New Jersey to interpose this type of veto on retirees from

New Jersey who were part-time and moved out-of-state, or on New

Jersey retirees who moved out of state following retirement and

whom, for whatever reason, the state decided not to license.

Preemption of state and local regulation (subject to the express

statutory limits) is patent and at the core of the act.

137

Thus, inso-

far as New Jersey would purport to restrict reliance on LEOSA by

its retirees who no longer need the state’s assistance in obtaining

required credentials, that view is simply unsupported. A more dif-

ficult question, addressed in Part IV, arises where some further

act is required of New Jersey (or another state that wishes to re-

strict the types of persons who may be qualified under LEOSA).

D. Gun-Free School Zones Act.

A variety of sources, both commentators

138

and government

entities,

139

have asserted that LEOSA does not authorize

Statutes, 47 COLUM. L. REV. 527, 539–40 (1947) (first and second alterations in original)).

See generally Royce de R. Barondes, Federalism Implications of Non-Recognition of Licen-

sure Reciprocity under the Gun-Free School Zones Act, 32 J.L. & POL. 139, 195–201 (2017)

(discussing the principle in the context of the Gun-Free School Zones Act).

133

. E.g., Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 543 (2002).

134

. E.g., Gregory v. Ashcroft, 501 U.S. 452, 460–61 (1991).

135

. A 1999 Executive Order also illustrates the bias against interpretations of Fed-

eral law that implicate Federalism concerns. Exec. Order No. 13,132, Federalism, 64 Fed.

Reg. 43,255, 43,257 (Aug. 4, 1999).

136

. McDonald v. City of Chicago, 561 U.S. 742, 922 (2010) (Breyer, J., dissenting).

137

. See 18 U.S.C.A. §§ 926B(a), 926C(a) (Westlaw through Pub. L. No. 115–223 (in-

cluding Pub. L. No. 115–225 to 115–231)).

138

. E.g., James M. Baranowski, Law Enforcement Officer Safety Act: Off-limit Areas?,

NAT’L RIFLE ASS’N, http://le.nra.org/leosa/off-limit-areas.aspx (last visited Aug. 17, 2018)

(“[I]ndividuals carrying under LEOSA do not qualify for the same exemptions some state

permit holders benefit from in terms of . . . Gun Free School Zones (GFSZ).”); John Com-

paretto, How Does HR–218 (The Law Enforcement Officers Safety Act) Apply to You in

2015?, THE BADGE NEWSLETTER, N.Y. STATE FRATERNAL ORDER OF POLICE, May/June

2015, at 13, https://web.archive.org/web/20160405042635/http://www.fop997.org/pdf/The

BadgeNewsletter-Issue1.pdf [https://perma.cc/5KME-2P37] (“No good in GUN FREE

SCHOOL ZONES (Note: you cannot be anywhere in the Borough of Manhattan and not be

within 1000’ of a school zone).”).

139

. E.g., Secretary of the Navy, SECNAV Instruction 5580.3, at 3–4, DEP’T OF THE

NAVY (Jan. 19, 2017), https://doni.documentservices.dla.mil/Directives/05000%20General

%20Management%20Security%20and%20Safety%20Services/05-500%20Security%20Ser-

vices/5580.3.pdf [https://perma.cc/GK2W-SNXH] (“This instruction does not . . . [c]ircum-

vent the provisions of § 922(q) of reference (h), which prohibits the possession of a firearm

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2018] RESPONSES TO FIREARMS LEGISLATION 29

possession of a firearm within 1000 feet of an elementary or sec-

ondary school—possession that generally is restricted by the Gun-

Free School Zones Act.

140

The Gun-Free School Zones Act has

seven exceptions to the criminalization of firearms possession

within 1000 feet of an elementary or secondary school, including

the following:

(ii) if the individual possessing the firearm is licensed

to do so by the State in which the school zone is located or a

political subdivision of the State, and the law of the State or

political subdivision requires that, before an individual

obtains such a license, the law enforcement authorities of the

State or political subdivision verify that the individual is

qualified under law to receive the license; . . .

(vi) by a law enforcement officer acting in his or her of-

ficial capacity . . . .

141

Clause (vi) does not exempt off-duty law enforcement officials

and does not exempt retirees. So, the benefits of LEOSA would not

extend to those persons whose travels take them within 1000 feet

of a school, unless either LEOSA implicitly repeals part of the

Gun-Free School Zones Act or the exception in clause (ii) is broadly

interpreted. As a literal matter, clause (ii) involves licensure “by”

the State where the school zone is located and thus may not, under

a tediously literal interpretation, extend to federal licensure or li-

censure by another state. Nevertheless, because that hyper-literal

interpretation would substantially eviscerate the core objective of

LEOSA, and applying that interpretative approach to a separate

provision exempting certain security personnel from state

at a place the individual knows, or has reason to believe, is a school zone, unless the indi-

vidual is officially on law enforcement duties.”); EAST HAVEN POLICE DEP’T, Policies & Pro-

cedures No. 312.1 (May 28, 2015), http://www.easthavenpolice.com/wp-content/up-

loads/2017/02/312.1_-_Retired_Officers_Firearms_LEOSAEffective_07-01-2015.pdf

[https://perma.cc/QU4S-BSA3] (“LEOSA by its terms does not permit or authorize an indi-

vidual to . . . [c]arry a firearm in violation of the Gun Free School Zone Act (18 U.S. Code

922(q)) or similar State law. . . . Federal laws governing the carrying of concealed firearms

. . . are not superseded by LEOSA . . . .”).

On the other hand, a document posted on the FBI’s web site notes prohibitions on

possession on state and local property are not preempted, but it fails to mention the Gun-

Free School Zones Act. Michael J. Bulzomi, Off-Duty Officers and Firearms, LAW ENF’T

BULLETIN (Jan. 1, 2011), https://leb.fbi.gov/2011/january/off-duty-officers-and-firearms

[https://perma.cc/GK2W-SNXH] (last visited July 24, 2017). Because that document refer-

ences retirees, its failure to reference the Gun-Free School Zones Act prohibitions would be

a surprising omission were there a conscious decision by the FBI that the Gun-Free School

Zones Act prohibits retiree possession.

140

. 18 U.S.C.A. § 922(q) (Westlaw through Pub. L. No. 115–223 (including Pub. L.

No. 115–225 to 115–231)).

141

. Id. § 922(q)(2)(B).

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30 HOUSTON LAW REVIEW [56:1

licensure would eviscerate it,

142

a thoughtful court would reject it.

1. Geographic Scope of Prohibition if LEOSA Licensure Does

not Satisfy GFSZA. Before turning to applying the principles of

statutory interpretation, it is helpful to provide the context by

describing the impact of this hyper-literal interpretation.

Representative Coble, who supported the bill,

143

stated as to

LEOSA, “The legislation is fairly broad in some areas. It allows

current and retired State and local law enforcement officers to

carry a concealed weapon anywhere in the country.”

144

Chairman

Sensenbrenner, who opposed the legislation, noted it “would

override States’ right-to-carry laws and mandate that retired and

active police officers could carry a concealed weapon anywhere

within the United States.”

145

But vast swaths of non-rural parts of the country are within

1000 feet of a school zone.

146

It can easily be the case that one can-

not go about one’s business in a non-rural area without passing

through a school zone. These locations are too ubiquitous to assert

they are de minimis and that legislators could simultaneously as-

sert LEOSA allows firearms possession “anywhere” in the United

States and elide reference to an exception for school zones were

such an exception intended.

2. Implications for LEOSA’s Limitation to Carrying a

Firearm; Prohibit Anticipated Availability for Defensive Use. The

United States asserted in an amicus brief in District of Columbia

v. Barbusin that LEOSA preemption is restricted to the act of

“carrying a concealed firearm”—the term “carry” being more

restrictive than (defining a subset of) mere possession.

147

What

precisely constitutes carrying a firearm for purposes of LEOSA is

not clear. The Supreme Court has stated that to “carry” a firearm,

as used in another section of the Gun Control Act of 1968, as

amended, includes one who is transporting it in a vehicle even if

not immediately accessible, as in a locked glove compartment.

148

142

. See infra notes 190–92 and accompanying text.

143

. H.R. REP. NO. 108–560, at 75 (2004) (vote of Rep. Coble).

144

. Id. at 22 (statement of Rep. Coble).

145

. Id. (statement of Rep. Sensenbrenner) (noting as well, “It is no secret that I am

opposed to this legislation.”).

146

. See generally Barondes, supra note 132, at 190–91.

147

. Brief for the United States as Amicus Curiae at 7, District of Columbia v. Bar-

busin, Crim. No. 2012–CDC–913 (June 29, 2012) (“However, LEOSA’s plain language is

limited to the narrow act of carrying a concealed firearm, and does not include the broader

act of possessing a concealed firearm without having ready access to it.”).

148

. Muscarello v. United States, 524 U.S. 125, 138 (1998).

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2018] RESPONSES TO FIREARMS LEGISLATION 31

Model jury instructions define carry as follows:

“Carrying” a firearm includes carrying it on or about

one’s person. [“Carrying” also includes knowingly possessing

and conveying a firearm in a vehicle which the person accom-

panies including in the glove compartment or trunk.]

149

On the other hand, one may be considered as possessing a

firearm in circumstances where one is not carrying it.

150

The mere

presence of a firearm in the bedroom of a location where a person

was found has been held inadequate to prove the person carried

the firearm.

151

Thus, if authorization under LEOSA does not ex-

tend to locations within 1000 feet of a school zone, a person may

not be able even to leave the firearm outside a school zone while

he or she is engaged in activity within, or passes through, a school

zone.

For example, if the plodding interpretation is correct, it would

appear that a person relying on LEOSA in California would not be

able to leave a firearm containing a normal capacity magazine in

some location outside a school zone. California would ban

149

. SIXTH CIRCUIT COMM. ON PATTERN CRIMINAL JURY INSTRUCTIONS, PATTERN

CRIMINAL JURY INSTRUCTIONS: SIXTH CIRCUIT 12.02 (2017 ed.). See also 2A KEVIN F.

O’MALLEY ET AL., FEDERAL JURY PRACTICE & INSTRUCTIONS: CRIMINAL § 39:20 (6th ed.),

Westlaw (database updated Feb. 2018) (providing the following as a Seventh Circuit jury

instruction: “A person ‘carries’ a firearm when he knowingly transports it on his person [or

in a vehicle or container]. [A person may ‘carry’ a firearm even when it is not immediately

accessible because it is in a case or compartment [such as a glove compartment or trunk of

a car], even if locked.]”).

There is some varying authority. E.g. 2A O’MALLEY ET AL., supra, § 39:20 (provid-

ing Third Circuit jury instruction stating, “‘Carry’ means that the defendant (had the fire-

arm on (his)(her) person) (possessed the firearm).” (emphasis removed).

It bears mention that authority construing carrying in other statutory provisions

may involve a nexus between the carrying and some other criminal act, e.g., United States

v. Wilson, 884 F.2d 174, 176–77 (5th Cir. 1989); United States v. Phelps, 877 F.2d 28, 30

(9th Cir. 1989), and thus incorporate additional components.

150

. For example, the 11th Circuit stated:

In order to be convicted under § 922(g)(1), a defendant must be a convicted felon

that knowingly possesses a firearm that is “in or affecting interstate commerce.”

“Possession of a firearm may be either actual or constructive.” A defendant is in

constructive possession of a firearm when the defendant does not actually possess

the firearm “but instead knowingly has the power or right, and intention to exer-

cise dominion and control over the firearm.” Jury instructions that imply

knowledge or an awareness of the object possessed when defining constructive

possession, substantially cover the requirement that a defendant knowingly pos-

sess a firearm—the use of such an instruction does not constitute reversible error.

United States v. Hill, 799 F.3d 1318, 1320–21 (11th Cir. 2015) (citations and paragraph

break omitted) (quoting, inter alia, United States v. Perez, 661 F.3d 568, 576 (11th Cir.

2011)).

151

. United States v. Sheppard, 149 F.3d 458, 463 (6th Cir. 1998) (“‘Carry,’ in the or-

dinary sense of the word, means to move or transport.”).

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32 HOUSTON LAW REVIEW [56:1

possession of the magazine,

152

and that could result in its being

possessed when it was not carried.

153

One cannot elide this issue by taking the position that these

restrictions on features are not preempted by LEOSA. This prob-

lem is not limited to possession of items as to which there is a dis-

agreement concerning whether LEOSA preempts the relevant

state restriction.

For example, New Jersey makes it a crime if one “knowingly

has in his possession” “hollow nose” ammunition, subject to limited

exceptions.

154

In the 9 millimeter caliber, this type of ammunition,

not prohibited by federal law, is commonly used to limit the possi-

bility of over-penetration, i.e., for safety purposes.

155

New Jersey

authority indicates that one would be treated as “having in his

possession” hollow point ammunition if it is left in a location over

which one has exclusive access.

156

Thus, if LEOSA licensure by an-

other state (or the federal government) does not satisfy the Gun-

Free School Zones Act, an individual relying on LEOSA in these

kinds of circumstances might, while in a school zone, need to keep

the arm unloaded in a locked container he was carrying (that

would be within another Gun-Free School Zones Act exception).

Simply leaving it at his temporary dwelling might be criminal.

152

. CAL. PENAL CODE §§ 16740, 32310(c) (West, Westlaw through urgency legislation

through Ch. 181 of 2018 Reg. Sess.).

153

. See MICHEL, supra note 23, at 50 (“‘Constructive possession’ means that you

knowingly have control of, or have the right to control the object, either directly or through

another person.”); JUDICIAL COUNCIL OF CAL. ADVISORY COMM. ON CRIMINAL JURY

INSTRUCTIONS, JUDICIAL COUNCIL OF CALIFORNIA CRIMINAL JURY INSTRUCTION 2500,

Westlaw (database updated Apr. 2018) (sample jury instruction stating, “A person does not

have to actually hold or touch something to possess it. It is enough if the person has (control

over it/ [or] the right to control it), either personally or through another person.”).

154

. N.J. STAT. ANN. §§ 2C:39–3(f)–(g) (Westlaw through L.2018, c. 62 and J.R. No. 5).

There are assorted exceptions in New Jersey, which are not applicable to restrictions on

possession of hollow point ammunition, for possession of some other arms. Id. §§ 2C:39—

6(e) to –6(f).

155

. E.g., State v. Tyriq T., No. 2803777, 2012 WL 6582550, at *2 n.9 (Conn. Super.Ct.

Nov. 15, 2012) (quoting Hollowpoint Bullet, WIKIPEDIA, https://en.wikipedia.org/wiki/Hol-

low-point_bullet [https://perma.cc/Z6GQ-HKVP] (last visited Aug. 17, 2018)); In re Hessney,

16 N.Y.S.3d 918, 920–21 (N.Y. County Ct. 2015) (referencing testimony of part-time sheriff

deputy); Michael S. Obermeier, Comment, Scoping Out the Limits of “Arms” Under the Sec-

ond Amendment, 60 U. KAN. L. REV. 681, 699 n.136 (2012); cf. People v. Baillie, No.

E050832, 2011 WL 675974, at *1 (Cal. Ct. App. Feb. 25, 2011) (“If a hollow point projectile

‘mushroom[ed] out,’ it might slow down enough to stop inside a person.”).

156

. State v. Aitken, No. A–0467–10T4, 2012 WL 1057954, at *14, *16–17 (N.J. Super.

Ct. App. Div. Mar. 30, 2012) (affirming a conviction where the ammunition was found in

the defendant’s car while at his dwelling, rejecting the argument that an exception for

transport between dwellings should be supplied by the court; reversing conviction for pos-

session of larger capacity magazine because a witness “was not qualified to testify that the

magazines were capable of feeding ammunition”).

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2018] RESPONSES TO FIREARMS LEGISLATION 33

Of course, carrying a firearm in this manner is not suitable

for use in self-defense. But allowing one to carry a firearm in a

condition suitable for use in self-defense is a primary purpose of

the act:

While a police officer may not remember the name and

face of every criminal he or she has locked behind bars, crim-

inals often have long and exacting memories. A law enforce-

ment officer is a target in uniform and out; active or retired;

on duty or off.

The Law Enforcement Officers Safety Act of 2003 is de-

signed to “protect officers and their families from vindictive

criminals.”

157

Moreover, loading and unloading the firearm in a public loca-

tion would create alarm.

158

In sum, this plodding interpretation

would anomalously frustrate firearms possession of the type the

act was designed to allow.

3. Purpose to Allow Carrying Anywhere in the United States.

The five sentence Purpose and Summary of LEOSA, provided in

the House report, states: “H.R. 218, the ‘Law Enforcement Officers

Safety Act of 2003,’ would override State laws and mandate that

retired and active police officers could carry a concealed weapon

anywhere within the United States.”

159

There are numerous other

references in the report to the act authorizing possession

“anywhere in” or “anywhere within the United States,” by both

supporters and opponents of the act.

160

Legislative history from the Senate is less clear in this regard.

157

. S. REP. NO. 108–29, at 4 (2003). The report continues, noting an additional pur-

pose to allow “certified law enforcement officers . . . to carry concealed firearms in situations

where they can respond immediately to a crime across state and other jurisdictional lines.”

Id.

158

. Users also might not be inclined to do so for fear it would adversely affect the

functionality of the ammunition. E.g., Richard, Ammunition Failure Warning, BLUE

SHEEPDOG, http://www.bluesheepdog.com/2012/03/08/ammunition-failure-warning/

[https://perma.cc/8D7U-QYR7] (last visited Aug. 17, 2018) (reporting a Gwinnett County

Sheriff’s Department training bulletin as stating “[T]he cause of the misfire was determined

to be from the primer mix being knocked out of the primer when the round was cycled

through the firearm multiple times.”).

159

. H.R. REP. NO. 108–560, at 3 (2004).

160

. Id. at 22 (stating LEOSA would “mandate that retired and active police officers

carry [sic] a concealed weapon anywhere within the United States”) (statement of Rep. Co-

ble); id. (“The legislation is fairly broad in some areas. It allows current and retired State

and local law enforcement officers to carry a concealed weapon anywhere in the country.”);

id. (“H.R. 218 would override States’ right-to-carry laws and mandate that retired and ac-

tive police officers could carry a concealed weapon anywhere within the United States.”)

(statement of Rep. Sensenbrenner); id. at 79 (“H.R. 218 would override State ‘right to carry’

laws and mandate that retired and active police officers could carry a concealed weapon

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34 HOUSTON LAW REVIEW [56:1

The body text of the summarized purposes, reproduced in full in

the margin,

161

states the act “does not seek to supersede Federal

law,” without explicit reference to the Gun-Free School Zones Act,

and notes state firearms law was previously preempted in part by

the Armored Car Industry Reciprocity Act of 1993.

162

The question

for present purposes is whether reference in the report to LEOSA

not superseding “federal law” indicates a conscious intent to per-

petuate state exclusivity in licensing firearms possession by cur-

rent and retired law enforcement personnel within 1000 feet of a

school.

The act explicitly indicates that state restrictions on some

types of arms whose possession is regulated under federal law (ma-

chineguns, silencers and destructive devices)

163

are not made in-

applicable to persons authorized under LEOSA. But this reference

is insufficient to clarify what is not superseded, as it pertains to

school zones. If LEOSA authorization is sufficient to authorize

firearms possession in school zones, what is ultimately superseded

is a state’s failure to license the possession, because it is only such

a state failure that results in a prohibition within 1000 feet of a

school. A review of the references in the report to the term “school”

suggests there was not a conscious decision made to have this fed-

eral authorization be insufficient to authorize firearms possession

within 1000 feet of a school.

The character string “school” appears four times in that re-

port; all are in part of the dissenting views of Senator Kennedy. In

anywhere within the United States.”) (dissenting views of Reps. Sensenbrenner and Flake);

id. at 80 (“These officers, while performing an admirable service, will not necessarily have

the experience of the beat police officer, yet, this legislation insists we allow them the same

authority to carry concealed weapons anywhere in the country.”).

161

. The report states:

The purpose of S. 253, the ‘‘Law Enforcement Officers Safety Act of 2003,’’ is

to amend title 18, United States Code, to authorize qualified off-duty law enforce-

ment officers and qualified retired law enforcement officers carrying photographic

identification issued by a governmental agency for which the individual is, or was,

employed as a law enforcement officer, notwithstanding State or local laws, to

carry a concealed firearm that has been shipped or transported in interstate or

foreign commerce. This Act, however, does not seek to supersede Federal law or

limit the laws of any State that permit private persons or entities to prohibit or

restrict the possession of concealed firearms on their property; or prohibits or re-

stricts the possession of firearms on any State or local government property, in-

stallation, building, base, or park.

S. REP. NO. 108–29, at 1–2 (2003).

162

. Id. at 2 (referencing Armored Car Industry Reciprocity Act of 1993, Pub. L. No.

103–55, 107 Stat. 276 (codified as amended at 15 U.S.C.A. §§ 5901–5904 (Westlaw through

Pub. L. No. 115–223 (including Pub. L. No. 115–225 to 115–231))).

163

. 18 U.S.C.A. §§ 926B(e), 926C(e) (Westlaw through Pub. L. No. 115–223 (including

Pub. L. No. 115–225 to 115–231)); see S. REP. NO. 108–29, at 1–2 (2003).

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2018] RESPONSES TO FIREARMS LEGISLATION 35

three locations, the report makes reference to extant state re-

strictions on firearms possession in schools; and in one, it makes

reference to a rejected amendment that would have preserved

state restrictions in schools and other locations.

164

No mention is

made of subjecting persons qualified under LEOSA to federal pro-

hibitions in the Gun-Free School Zones Act.

Of course, a need to preserve state restrictions on firearms in

private schools would have been moot if LEOSA does not authorize

possession within 1000 feet of a school. That Senate report, then,

cannot fairly be understood as reflecting a conscious determina-

tion not to allow persons qualified under LEOSA to possess fire-

arms in areas regulated by the Gun-Free School Zones Act. In fact,

the discussion of the referenced rejected amendment indicates the

converse—that the act, by virtue of not having been so amended,

would allow firearms possession by persons under LEOSA in

school zones (although not on public school property itself) without

the authorization of the corresponding state.

4. Ambiguity in Gun-Free School Zones Act Concerning

Entity Issuing Licensure. The question then becomes whether the

Gun-Free School Zones Act is sufficiently unambiguous so as to

prevent its interpretation to give effect to these purposes—to allow

general carrying of a firearm for self-defense by law enforcement

officers and retirees. For those who emphasize textualism, a

starting point would be, one supposes, the definition of “by,”

because the Gun-Free School Zones Act references one “licensed to

do so by the State in which the school zone is located.”

165

One can

find numerous definitions of “by” that are not limited to a meaning

of “through the agency of,” such as “in the general region of,” “in

164

. The four statements are all on the same page:

(i) “They have offered no explanation why Congress is better suited than states,

cities, and towns to decide how to best protect police officers, schoolchildren,

church-goers, and other members of their communities.”

(ii) “I also offered an amendment to preserve state and local laws that prohibit

concealed weapons in churches, schools, bars and other places where alcohol is

served, sports arenas, government offices, and hospitals. In many states, cities,

and towns, these places are singled out as deserving special protection from the

threat of gun violence.”

(iii) “Michigan has a law that prohibits concealed firearms in schools, sports

arenas, bars, churches, and hospitals.”

(iv) “Kentucky prohibits carrying concealed firearms in bars and schools.”

S. REP. NO. 108–29, at 13.

165

. 18 U.S.C.A. § 922(q)(2)(B)(ii) (Westlaw through Pub. L. No. 115–223 (including

Pub. L. No. 115–225 to 115–231)).

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36 HOUSTON LAW REVIEW [56:1

the matter of” and “with respect to.”

166

One might assert that “through the agency of” is the best lit-

eral reading of “by,” in the phrase “licensed to do so by the State,”

when one focuses solely on those seven words. The litigation in

King v. Burwell,

167

involving interpretation of the phrase “estab-

lished by the State under [section] 1311,” as used in the Patient

Protection and Affordable Care Act,

168

provides helpful insight.

Professors Eskridge, Ferejohn, Fried, Manheim and Strauss wrote

in an amicus brief in King v. Burwell concerning construction of

the phrase “established by the State under section 1311”:

The broader problem, however, is not that Petitioners’ re-

sponses to those provisions are unpersuasive; it’s that they

ignore the “cardinal rule that a statute is to be read as a

whole.” Petitioners start—and end—by looking to Section

36B’s seven words, and conclude that those seven words,

read in isolation, unambiguously forbid the IRS from provid-

ing tax credits to customers who purchase plans on the HHS-

created exchanges. To the extent that they look to the other

provisions of the ACA at all, they do so only to ask whether

those provisions would be rendered “patently absurd” under

their theory.

But the whole-text canon doesn’t authorize courts to in-

terpret seven words in isolation and then ask whether that

interpretation renders other statutory provisions absurd.

Rather, courts must interpret a provision in the first instance

in light [sic] its context and place in the statutory scheme.

Statutory construction, after all, is a “holistic endeavor.” So

the question here isn’t just whether Petitioners’ reading of

Section 36B renders absurd the various provisions discussed

166

. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE

UNABRIDGED 307 (2002) [hereinafter WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY],

includes the following in its definition of “by”:

1 . . . b : in the general region of <they commonly commanded both ~ sea and

land—John & William Langhorne> 2 . . . b . . . (2) : at or into (as another’s house)

on passing <he came ~ the house for a few minutes yesterday> . . . 7 . . . b : on the

basis of (as a distinction or classification) : in the matter of : with respect to <a

Kansan ~ birth> <a lawyer ~ profession> 8 a : in or to the amount or extent of—

used in expressions involving comparison to indicate an amount or degree of ex-

cess or increase or of deficiency or decrease esp. in space, time, quantity, or weight

<won the race ~ two yards> <missed the train ~ five minutes> <carried his ward

~ 80 votes> <lighter ~ six pounds> <better ~ far> . . . .

167

. King v. Burwell, 135 S. Ct. 2480, 2485 (2015).

168

. Patient Protection and Affordable Care Act, Pub. L. No. 111–148, § 1401, 124

Stat. 119, 213 (2010) (codified as amended in scattered sections of U.S.C.); see 26 U.S.C.A.

§ 36B (Westlaw through Pub. L. No. 115–223 (including Pub. L. No. 115–225 to 115–231))

(section of the Patient Protection and Affordable Care Act containing “established by the

State under 1311”).

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2018] RESPONSES TO FIREARMS LEGISLATION 37

above. Rather, the question is this: What does the ACA, read

as a whole, say about tax credits when you take into account

all its provisions?

169

In that litigation, the United States rejected the argument

that “established by” refers to action through the agency of the

named locale.

170

The Government argued the phrase “serves to

identify the Exchange in a particular State.”

171

“Its presence or

absence in the Act’s provisions reflects style and grammar—not a

substantive limitation on the type of Exchange at issue.”

172

analogy, one might assert that the reference in the Gun-Free

School Zones Act to one being licensed “by” a jurisdiction involves

mere identification the location where one can possess a firearm

(akin to the first-reproduced definition of “by”

173

as meaning “in

the general region of,” as in the phrase “they commonly

commanded both by sea and land;” or as in “in the matter of” or

“with respect to,” as in “a lawyer by profession”

174

Assorted authority supports the view that interpretation fo-

cused on a disembodied literal reading of a specific phrase is im-

proper.

175

For example, the Supreme Court has reached the

169

. Brief of William N. Eskridge et al. in Support of Respondents at 2, 18–19, Burwell,

135 S. Ct. 2480 (No. 14–114), 2015 WL 428994, at *2, *18–19 (first quoting King v. St.

Vincent’s Hosp., 502 U.S. 215, 221 (1991); then quoting United Sav. Ass’n of Tex. v. Timbers

of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)) (citation omitted).

170

. Brief for the Respondents at 33, Burwell, 135 S. Ct. 2480 (No. 14–114), 2015 WL

349885, at *33.

171

. Id.

172

. Id.

173

. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, supra note 166, at 307.

174

. See id.

175

. For example, Deal v. United States, 508 U.S. 129, 132 (1993), states, “Petitioner’s

contention overlooks, we think, this fundamental principle of statutory construction (and,

indeed, of language itself) that the meaning of a word cannot be determined in isolation,

but must be drawn from the context in which it is used.” Graham County Soil & Water

Conservation District v. U.S. ex rel. Wilson, 545 U.S. 409, 415 (2005), states, “Statutory

language has meaning only in context . . . .”

Utility Air Regulatory Group v. E.P.A., 134 S. Ct. 2427, 2442 (2014), states:

[R]easonable statutory interpretation must account for both “the specific context

in which . . . language is used” and “the broader context of the statute as a whole.”

A statutory “provision that may seem ambiguous in isolation is often clarified by

the remainder of the statutory scheme . . . because only one of the permissible

meanings produces a substantive effect that is compatible with the rest of the

law.” Thus, an agency interpretation that is “inconsisten[t] with the design and

structure of the statute as a whole” does not merit deference.

Id. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997); United Sav. Assn. of Tex.

v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988); Univ. of Tex. Sw. Med.

Ctr. v. Nassar, 133 S.Ct. 2517, 2529 (2013)).

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000), states

in part:

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38 HOUSTON LAW REVIEW [56:1

following statutory interpretations:

the term “employee” includes a former employee;

176

the term “person” includes only natural persons, thereby ex-

cluding entities from those who may proceed in forma pauperis,

notwithstanding a definition in the Dictionary Act

177

that the word

“person” includes assorted entities;

178

the term “original sentence,” when used in connection with

resentencing someone who violated probation, references instead

the maximum sentence in a range provided by sentencing guide-

lines;

179

the term “tangible object” excludes fish (in the context, it is

limited to items “used to record or preserve information”);

180

and

a statute prohibiting the “deport[ation] or return” of an alien

does not prohibit the return of persons intercepted outside U.S.

territorial waters.

181

In determining whether Congress has specifically addressed the question at

issue, a reviewing court should not confine itself to examining a particular statu-

tory provision in isolation. The meaning—or ambiguity—of certain words or

phrases may only become evident when placed in context. It is a “fundamental

canon of statutory construction that the words of a statute must be read in their

context and with a view to their place in the overall statutory scheme.” A court

must therefore interpret the statute “as a symmetrical and coherent regulatory

scheme,” and “fit, if possible, all parts into an harmonious whole,” Similarly, the

meaning of one statute may be affected by other Acts, particularly where Congress

has spoken subsequently and more specifically to the topic at hand.

Id. (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989); Gustafson v. Alloyd

Co., 513 U.S. 561, 569 (1995); FTC v. Mandel Bros., Inc., 359 U.S. 385, 389 (1959)) (citations

omitted).

Davis v. Michigan Department of Treasury, 489 U.S. at 809, states:

Although the State’s hypertechnical reading of the nondiscrimination clause

is not inconsistent with the language of that provision examined in isolation, stat-

utory language cannot be construed in a vacuum. It is a fundamental canon of

statutory construction that the words of a statute must be read in their context

and with a view to their place in the overall statutory scheme.

176

. Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997).

177

. 1 U.S.C.A. § 1 (1958), amended by 21st Century Language Act of 2012, Pub. L.

No. 112–231, 126 Stat. 1619 (Westlaw through Pub. L. No. 115–223 (including Pub. L. No.

115–225 to 115–231 amending other definitions)).

178

. Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 196,

199 (1993).

179

. United States v. Granderson, 511 U.S. 39, 54, 56–57 (1994).

180

. Yates v. United States, 135 S. Ct. 1074, 1079 (2015) (announcing the judgment of

the court, in an opinion joined by three other justices).

181

. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 170–71, 173–74 (1993); id. at

188–89 (Blackmun, J., dissenting) (“Today’s majority nevertheless decides that the forced

repatriation of the Haitian refugees is perfectly legal, because the word ‘return’ does not

mean return, because the opposite of ‘within the United States’ is not outside the United

States, and because the official charged with controlling immigration has no role in enforc-

ing an order to control immigration.”) (citations omitted).

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2018] RESPONSES TO FIREARMS LEGISLATION 39

So, although it might well be the best literal interpretation of

“licensed to do so by [a particular] State,” as a detached sentence

fragment, to limit that to persons having received authorization

directly through the agency of that particular state, that it not the

relevant inquiry.

Thoughtfulness in avoiding literal interpretation of individual

sentence fragments in light of the entire statutory context is of in-

creased importance where one is considering the interaction of

multiple statutes, particularly statutory language enacted at dif-

ferent times. Even a textualist can state: “This classic judicial task

of reconciling many laws enacted over time, and getting them to

‘make sense’ in combination, necessarily assumes that the impli-

cations of a statute may be altered by the implications of a later

statute.”

182

Even if the understanding of one definition of “by” in

the Gun-Free School Zones Act would have been most reasonable

when the act was adopted, the relevant question for our purposes

is whether that choice is so required that, to enact rights contem-

plated by LEOSA, it was necessary to re-write that existing statu-

tory language not otherwise amended by LEOSA (in addition to

adding new language of LEOSA itself).

An interesting illustration is provided by Holland v.

A discussion by Popkin would urge inclusion of United States v. Hutcheson, 312

U.S. 219 (1941), in this list. He states, “Finally, in United States v. Hutcheson, Justice

Frankfurter engaged in what the dissent called ‘a process of construction never . . . hereto-

fore indulged by this Court,’ by interpreting a later statute denying a labor injunction to be

an implicit repeal of a prior criminal statute.” William D. Popkin, An “Internal” Critique of

Justice Scalia’s Theory of Statutory Interpretation, 76 MINN. L. REV. 1133, 1152 (1992) (foot-

note omitted) (quoting Hutcheson, 312 U.S. at 245 (Roberts, J., dissenting)). Hutcheson may

well not be a good candidate. The main opinion notes statutory language, not referenced in

the dissent, that makes the case more supportable by noting the latter statute: “also re-

lieved such practices of all illegal taint by the catch-all provision, ‘nor shall any of the acts

specified in this paragraph be considered or held to be violations of any law of the United

States.’” Hutcheson, 312 U.S. at 230 (majority opinion).

Church of the Holy Trinity v. United States, 143 U.S. 457, 458 (1892), is the fash-

ionable reference to interpretation rejecting textualism. There, the court holds that a stat-

ute prohibiting contractual assistance of migrations of aliens “to perform labor or service of

any kind in the United States,” subject to specific exceptions including “professional actors,

artists, lecturers, singers and domestic servants,” id. at 458–59, does not prohibit a contract

for an alien to serve as a rector and pastor. Id. at 457–58. In reaching the conclusion, the

court notes, “So far, then, as the evil which was sought to be remedied interprets the stat-

ute, it also guides to an exclusion of this contract from the penalties of the act.” Id. at 464.

Providing a counterpoint for that case, “[A]s the second Mr. Justice Harlan said,

when speaking for the Court in another context, a statute ‘is not an empty vessel into which

this Court is free to pour a vintage that we think better suits present-day tastes.’ Consid-

erations of this kind are for the Congress, not the courts.” Nat’l Broiler Mktg. Ass’n v.

United States, 436 U.S. 816, 827 (1978) (quoting United States v. Sisson, 399 U.S. 267, 297

(1970)).

182

. United States v. Fausto, 484 U.S. 439, 453 (1988) (Scalia, J.).

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40 HOUSTON LAW REVIEW [56:1

Commonwealth.

183

A Kentucky law limiting parole eligibility of vi-

olent offenders has an exception for “a person who has been deter-

mined by a court to have been a victim of domestic violence or

abuse pursuant to KRS 533.060 with regard to the offenses involv-

ing the death of the victim or serious physical injury to the vic-

tim.”

184

The cited section of the Kentucky Revised Statutes allows

eligibility for probation or conditional release to a person convicted

of certain crimes where “the commission of the offense involved the

use of a weapon from which a shot or projectile may be discharged”

where he or she “establishes that the person against whom the

weapon was used had previously or was then engaged in an act or

acts of domestic violence and abuse.”

185

In sum, the literal terms of these statutes restrict the benefits

of parole eligibility to a domestic violence victim who had used a

firearm or similar device. Nevertheless, the court holds that a do-

mestic violence victim who did not use a firearm, but rather

burned an abuser with gasoline she ignited, could benefit from the

exception.

186

The court notes, “It is elementary that each section of

a legislative act should be read in light of the act as a whole; with

a view to making it harmonize, if possible, with the entire act, and

with each section and provision thereof, as well as with the ex-

pressed legislative intent and policy.”

187

5. Application of These Interpretative Principles;

Interpretation in pari materia with Armored Car Industry

Reciprocity Act of 1993. The purposes of LEOSA are to allow active

and retired law enforcement officials to protect themselves from

retaliation (and to facilitate these persons’ acts insofar as they

would wish assist in law enforcement while not on-duty). That

these purposes are objectives is patent from the structure of the

act and is confirmed by the legislative history.

188

Realization of

those goals is eviscerated if LEOSA does not authorize possession

in wide swaths of the country; that would substantially impede the

183

. Holland v. Commonwealth, 192 S.W.3d 433 (Ky. Ct. App. 2005). See generally

WILLIAM D. POPKIN, THE JUDICIAL ROLE: STATUTORY INTERPRETATION & THE PRAGMATIC

JUDICIAL PARTNER 129 n.91 (2013) (discussing Holland).

184

. KY. REV. STAT. ANN. § 439.3401 (West, Westlaw through the end of the 2018 Reg.

Sess.).

185

. Id. § 533.060(1).

186

. Holland, 192 S.W.3d at 435, 437.

187

. Id. at 437.

188

. See supra notes 157–64 and infra note 283 and accompanying text.

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2018] RESPONSES TO FIREARMS LEGISLATION 41

ability to exercise the rights LEOSA creates.

Moreover, as noted above,

189

the Senate report on LEOSA

makes explicit reference to the Armored Car Industry Reciprocity

Act of 1993.

190

That act, like LEOSA, does not mention the Gun-

Free School Zones Act. It states qualified personnel having a li-

cense “in the State in which such member is primarily employed,”

subject to additional terms, “shall be entitled to lawfully carry any

weapon to which such license relates and function as an armored

car crew member in any State while such member is acting in the

service of such company.”

191

It has an express preemption provi-

sion, which states in full, “This chapter shall supersede any provi-

sion of State law (or the law of any political subdivision of a State)

that is inconsistent with this chapter.”

192

It makes no reference to

restricting application of federal law.

193

In terms of whether the federal authorization is sufficient to

authorize firearm possession in a school zone, it is difficult to dis-

tinguish between the statutory language in LEOSA and the Ar-

mored Car Industry Reciprocity Act.

194

If the language in LEOSA

is insufficient to authorize firearm possession in school zones, as

restricted by the Gun-Free School Zones Act, the Armored Car In-

dustry Reciprocity Act is likely also insufficient. And that would

necessarily produce absurd results. As so construed, the Armored

Car Industry Reciprocity Act would be ineffective in allowing ar-

mored car personnel’s possession of loaded weapons when visiting

a customer within 1000 feet of a school, and it would require re-

peated loading and unloading of weapons throughout the day if it

was to be effective in locations outside a school zone.

E. Additional Credentialing Issues.

Relevant credentials may be issued by state or local govern-

mental entities. This gives rise to substantial variation in the pro-

cess; some are very informal. Some of the details are discussed be-

low,

195

in connection with assessing whether a party had an

189

. See supra note 162 and accompanying text.

190

. Armored Car Industry Reciprocity Act of 1993, Pub. L. No. 103–55, 107 Stat. 276

(codified as amended at 15 U.S.C.A. §§ 5901–5904 (Westlaw through Pub. L. No. 115–223

(including Pub. L. No. 115–225 to 115–231))).

191

. 15 U.S.C.A. § 5902(a) (Westlaw).

192

. Id. § 5903.

193

. See id.

194

. See generally supra note 93 (discussing authority construing statutes in pari ma-

teria).

195

. See, e.g., infra note 250–52 and accompanying text (discussing assorted informal

procedures).

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42 HOUSTON LAW REVIEW [56:1

enforceable right to a credential.

Congress recognized that states and local governments were

frustrating exercise of the rights, by declining to issue certification

of firearms qualification (that, coupled with photographic identifi-

cation of former employment as a law enforcement officer, being

the credentials required to benefit). The statute was amended in

2010 to prevent denial of the credentialing by denying governmen-

tal certification of firearms training.

196

The statute was amended

to allow that component to be satisfied by testing by “a certified

firearms instructor that is qualified to conduct a firearms qualifi-

cation test for active duty officers within that State.”

197

Some lo-

cales, not content with preemption of their impairment of firearms

rights, have taken to denying the other component: photographic

identification certifying former employment as a law enforcement

officer.

198

LEOSA’s legislative history indicates that, in making the

2010 amendments, Congress had determined retired law enforce-

ment officers were entitled to “benefits and privileges” conveyed

by the statute. The legislative history further indicates the amend-

ment was intended to address the fact that “many retired officers

have experienced substantial difficulty in gaining the benefits the

law was intended to confer.”

199

The amendments were designed to

“ensure that law enforcement officers . . . who are now retired will

have flexibility in achieving the law’s benefits and privileges which

Congress determined they deserve.”

200

196

. Law Enforcement Officers Safety Act Improvements Act of 2010, Pub. L. No. 111–

272, § 2(c)(2)(B)(ii), 124 Stat. 2855 (amending 18 U.S.C.A. § 926C(d)(2)(B) (Westlaw

through Pub. L. No. 115–223 (including Pub. L. No. 115–225 to 115–231))).

197

. Id.

198

. E.g., Burban v. City of Neptune Beach, No. 3:17–CV–262–J–34JBT, 2018 WL

1493177, at *4–9 & nn. 3, 8 (M.D. Fla. Mar. 27, 2018) (discussing denial of credential alleg-

edly by virtue of the applicant’s not having served fifteen years, as required by the agency’s

policy, although LEOSA now requires only ten years of service, 18 U.S.C.A. § 926C(c)(3)(A);

referencing 2010 amendments to LEOSA but eliding discussion of the changes to the certi-

fication of firearms qualification); D’Aureli v. Harvey, No. 117CV00363MADDJS, 2018 WL

704733, at *2–6 (N.D.N.Y. Feb. 2, 2018) (discussing policy conditioning credential on

twenty-five years of service, subject to certain exceptions; referencing, inter alia, authority

predating the 2010 amendments to LEOSA and failing to grapple with the import of the

revisions made then).

199

. 156 Cong. Rec. 8248 (Statement of Sen. Leahy).

200

. Id. (emphasis added). See also 156 Cong. Rec. 17,097 (Statement of Rep. Poe)

(“Most importantly, this legislation provides additional current and retired officers the

means to defend themselves and their families from the hardened, often vengeful criminals

they have previously arrested somewhere in this country.”); 156 Cong. Rec. 17,097 (State-

ment of Rep. Forbes) (“The premise of that law was simple: allowing trained, active-duty,

and retired law enforcement officers to carry firearms to enhance public safety. . . . In pass-

ing this legislation, Congress acknowledges the need for retired officers to have the

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2018] RESPONSES TO FIREARMS LEGISLATION 43

The 2010 amendment is not efficacious if, for some trivial rea-

son, the governmental actors who theretofore could frustrate re-

ceipt of the benefits by denying access to firearms qualification

can, after the amendment, continue to frustrate receipt of the ben-

efits by failing adequately to certify former employment. Because

statutes are construed to be efficacious,

201

an interpretation that

allows exercise of the rights to continue to be curtailed is disfa-

vored.

Currently, non-governmental actors can provide retirees all

that is required to allow possession of complying credentials, other

than photographic identification of prior employment.

202

Simply

providing adequate evidence of prior employment is a perfunctory

task, in light of the fact that governmental units often confirm

prior employment

203

—and rely on others doing so in order to check

the employment history of officer candidates.

204

The Commonwealth of Massachusetts has taken a creative

approach to eviscerating the amendments made to LEOSA in

2010. It has adopted administrative rules stating the instructor

“shall . . . [r]equire, on the course date, the student to present a

valid license to carry issued pursuant to” state law.

205

Thus, alt-

hough the 2010 amendments were designed to prevent state frus-

tration of receipt of the relevant firearms qualification, the

opportunity to protect themselves and their families. The oath to serve and protect our

communities is not nullified when officers retire.”).

201

. E.g., Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (“When Congress amends legis-

lation, courts must ‘presume it intends [the change] to have real and substantial effect.’”

(quoting Stone v. INS, 514 U.S. 386, 397 (1995)); SCALIA & GARNER, supra note 5, at 63

(stating, “The presumption against ineffectiveness ensures that a text’s manifest purpose

is furthered not hindered.”); id. at 64 (quoting The Emily, 22 U.S. (9 Wheat.) 381, 389

(1824), stating in part, “To apply the construction contended for on the part of the claimant

. . . would be rendering the law in a great measure nugatory, and enable offenders to elude

its provisions in the most easy manner.”); 82 C.J.S. Statutes § 509, Westlaw (database up-

dated September 2018) (“It is presumed that an amendment is made to effect some purpose

. . . . It is also presumed that the legislature . . . does not intend to do a vain thing by doing

so.”).

202

. 18 U.S.C.A. § 926C(d) (Westlaw through Pub. L. No. 115–223 (including Pub. L.

No. 115–225 to 115–231)).

203

. E.g., Employment Eligibility Verification FAQs, CITY OF DETROIT, http://www.

detroitmi.gov/How-Do-I/Find/Employment-Eligibility-VerificationFAQs [https://perma.cc/

YD78-U9MN] (last visited May 20, 2018) (identifying, inter alia, last “Classification/Title”

and dates of employment as being provided); PSP Employment Verification, PA. STATE

POLICE, http://www.psp.pa.gov/employment/Pages/PSP-Employment-Verification.aspx

[https://perma.cc/42BB-YYK3] (last visited May 20, 2018) (noting treatment of, inter alia,

job name and years of service as public information).

204

. E.g., CAL. CODE REGS. tit. 11, § 1953(e)(6)(A) (West, Westlaw through Aug. 17,

2018) (“Every peace officer candidate shall be the subject of employment history checks

through contacts with all past and current employers over a period of at least ten years, as

listed on the candidate’s personal history statement.”).

205

. 515 MASS. CODE REGS. 6.03(5)(c) (West, Westlaw through Aug. 10, 2018).

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44 HOUSTON LAW REVIEW [56:1

Massachusetts rules purport to make the firearms qualification

testing subject to the ordinary firearms permitting process. There

is no apparent authority for the Commonwealth to restrict the ac-

tivities of persons acting outside the scope of state or local govern-

mental engagement, when LEOSA was amended to eliminate

state and local interferences with the credentialing process.

F. Conclusion.

This Part III collects some of the ways in which rights sought

to be preserved by LEOSA have been or may be fettered. We have

encountered rather patent violations—a clearly preempted prohi-

bition on carrying particular ammunition—and we have seen au-

thority stating that local restrictions on firearm features are not

preempted, though, for a variety of reasons, that is an unsustain-

able interpretation of LEOSA. We have encountered attempts to

limit the type of officer who may benefit from LEOSA. We have

seen governmental interpretations that would render ineffectual

the rights LEOSA endeavors to create, through unsupported con-

clusions one possessing a firearm under LEOSA remains subject

to the Gun-Free School Zones Act. And we have seen state actions

designed to continue to subject firearms qualification certification

to state control, notwithstanding that LEOSA was amended in

2010 to eliminate state and local frustration of the rights intended

to be created by inhibiting access to firearms qualification testing.

Part IV turns to the extent to which these rights may be af-

firmatively vindicated. This is of significant importance if the

rights are to be used as intended. If contumacious disregard of the

federal law cannot be remedied prospectively, there is a significant

likelihood the exercise will be chilled.

IV. PRIVATE RIGHTS

Litigation concerning the scope of LEOSA can arise in a num-

ber of contexts. An individual charged with violating state or local

law prohibiting firearms possession may assert rights under the

act as a defense. Alternatively, a private person may rely on the

act in seeking affirmative relief, whether monetary damages for a

violation or prospective relief for assistance in acquisition of the

necessary credentials, to prohibit a state or local government offi-

cial’s taking acts inconsistent with LEOSA or to require training

of state or local officials concerning LEOSA compliance.

LEOSA is not express concerning whether, or the extent to

which, a private person has a right to seek this type of affirmative

relief. Whether there is such a right implicates a number of theo-

ries: (i) the possible implication of a private right of action under

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2018] RESPONSES TO FIREARMS LEGISLATION 45

Cort v. Ash;

206

(ii) creation of a “right” enforceable under section

1983 of title 42; and (iii) claims seeking a declaratory judgment

under the Declaratory Judgment Act

207

or a state statute.

We shall cabin our discussion to the following theories of re-

lief: (a) state principles addressing a property right to a credential;

(b) implied rights of action under LEOSA; and (c) § 1983. This

choice reflects, simply, the primary theories that have been liti-

gated. As we shall see, where a federal statute’s language focuses

on providing rights to an identified group (as opposed to command-

ing governmental action), a right recognized under §1983 is often

found to exist,

208

which gives rise to a rebuttable presumption that

a remedy is available under § 1983.

209

But, with the exception of a

recent opinion of the U.S. Court of Appeals for the District of Co-

lumbia Circuit,

210

courts typically have been reluctant to allow

claims for relief under §1983.

A. Commandeering.

It is convenient to examine the extent to which federalism

concerns may operate to restrict rights under LEOSA before ex-

amining the existence of an ability to seek affirmative relief. Printz

v. United States

211

involves a statute requiring that, for handgun

sales by dealers in a state not having a background check, local

law enforcement “make a reasonable effort to ascertain within 5

business days whether receipt or possession would be in violation

of the law, including research in whatever State and local record-

keeping systems are available and in a national system designated

by the Attorney General.”

212

In concluding the statute is infirm,

206

. Cort v. Ash, 422 U.S. 66, 68–69, 78, 85 (1975).

207

. 28 U.S.C.A. §§ 2201–2202 (Westlaw through Pub. L. No. 115–223 (including Pub.

L. No. 115–225 to 115–231)). The issue might also ultimately be presented by virtue of the

inherent equitable power of a court. See generally Armstrong v. Exceptional Child Ctr., Inc.,

135 S. Ct. 1378, 1384 (2015) (“[W]e have long held that federal courts may in some circum-

stances grant injunctive relief against state officers who are violating, or planning to vio-

late, federal law. But that has been true not only with respect to violations of federal law

by state officials, but also with respect to violations of federal law by federal officials. Thus,

the Supremacy Clause need not be (and in light of our textual analysis above, cannot be)

the explanation. What our cases demonstrate is that, ‘in a proper case, relief may be given

in a court of equity . . . to prevent an injurious act by a public officer.’” (citations omitted)

(quoting Carroll v. Safford, 44 U.S. (3 How.) 441, 463 (1845)).

208

. See infra notes 263–65 and accompanying text.

209

. See infra note 268 and accompanying text.

210

. DuBerry v. District of Columbia, 824 F.3d 1046, 1048, 1051–54 (D.C. Cir. 2016).

211

. Printz v. United States, 521 U.S. 898 (1997).

212

. Id. at 903. The statute excluded officers in states that developed an instant back-

ground check system or that issued handgun permits after a statutorily-described back-

ground check. Id.

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46 HOUSTON LAW REVIEW [56:1

the Supreme Court notes that the Constitution obligates the Pres-

ident to execute federal law.

213

It continues:

The Brady Act effectively transfers this responsibility to

thousands of CLEOs [chief law enforcement officers,] in the

50 States, who are left to implement the program without

meaningful Presidential control (if indeed meaningful Presi-

dential control is possible without the power to appoint and

remove). The insistence of the Framers upon unity in the

Federal Executive—to ensure both vigor and accountabil-

ity—is well known. That unity would be shattered, and the

power of the President would be subject to reduction, if Con-

gress could act as effectively without the President as with

him, by simply requiring state officers to execute its laws.

214

The Court concludes it does not make a difference whether the

federal statute directs the states themselves or their officers.

215

And it concludes balancing of burdens on the state, compared to

the benefits of the act, is improper where the object of the federal

statute is to “direct the functioning of the state executive, and

hence to compromise the structural framework of dual sover-

eignty,” as opposed to merely imposing an incidental burden on

it.

216

The restrictions on commandeering announced in Printz may

appear to prohibit all affirmative relief seeking assistance with ob-

taining the required credentials from state or local governments

(excluding, potentially, the District of Columbia).

217

In fact, a few

213

. See generally Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz

and Principle?, 111 HARV. L. REV. 2180 (1998) (discussing the historical support for, and

lack of support for, the holding in Printz); Ronald J. Krotoszynski, Jr., Cooperative Feder-

alism, The New Formalism, and the Separation of Powers Revisited: Free Enterprise Fund

and the Problem of Presidential Oversight of State-Government Officers Enforcing Federal

Law, 61 DUKE L.J. 1599, 1603–04 (2012) (discussing the possibility that vesting of executive

powers in States as “encroaching on the president’s duty to superintend the implementation

of federal law”).

214

. Printz v. United States, 521 U.S. at 922–23 (citations omitted). Gerken describes

the commandeering principles as follows: “The prohibition on commandeering may be fuzzy

at the edges, but it’s a workable rule that corresponds to a basic intuition: Congress can’t

take over states’ governing apparatuses and force them to do its bidding.” Heather K.

Gerken, Slipping the Bonds of Federalism, 128 HARV. L. REV. 85, 101 (2014).

215

. Printz, 521 U.S. at 930 (“The Brady Act, the dissent asserts, is different from the

“take title” provisions invalidated in New York because the former is addressed to individ-

uals—namely, CLEOs—while the latter were directed to the State itself. That is certainly

a difference, but it cannot be a constitutionally significant one.”).

216

. Id. at 931–32.

217

. DuBerry v. District of Columbia, 824 F.3d 1046, 1057 (D.C. Cir. 2016), summarily

rejects application of Printz to commandeering of the District of Columbia. Id. at 1057

(“[The District of Columbia’s] reliance on the anti-commandeering doctrine appears to be

misplaced; at least it cites no authority that the doctrine is applicable to it.” (citation

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2018] RESPONSES TO FIREARMS LEGISLATION 47

cases considering challenges to failure to provide credentials have

relied on this principle in concluding a remedy was not available.

However, a more thorough understanding of the Supreme Court

authority eliminates much of the concern.

We shall focus our discussion on a representative case, Zar-

relli v. Rabner,

218

although there is more recent analogous author-

ity.

219

Zarrelli involves a complainant who had passed the state’s

firearms requalification program, but to whom New Jersey de-

clined to issue a certification.

220

At that time, LEOSA required re-

tiree firearms testing and its certification “by the State” or the

agency from which he or she retired.

221

The statute was amended

a few years later to allow testing and certification “by a certified

firearms instructor that is qualified to conduct a firearms qualifi-

cation test for active duty officers within that State” as an alter-

native.

222

The state already had in effect a licensing program for

retirees, though the complainant evidently did not qualify for that

because, inter alia, he retired from an out-of-state position.

223

noted, what the complainant required in Zarrelli was merely com-

munication of information, not compulsion of the state’s testing

him.

The Zarrelli court summarily asserts the federal government

cannot commandeer the states and quotes a fragment from Printz

omitted)).

218

. Zarrelli v. Rabner, No. A–5511–05T2, 2007 WL 1284947 (N.J. Super. Ct. App.

Div. May 3, 2007).

219

. E.g., Henrichs v. Ill. Law Enf’t Training & Standards Bd., No. 15 C 10265, 2018

WL 572708, at *4 (N.D. Ill. Jan. 26, 2018) (not referencing the distinction; and not refer-

encing either Reno v. Condon, 528 U.S. 141 (2000), or South Carolina v. Baker, 485 U.S.

505 (1988)).

220

. Id. at *1.

221

. Law Enforcement Officers Safety Act of 2004, Pub. L. No. 108–277, 118 Stat. 865

(codified as amended at 18 U.S.C.A. §§ 926B, 926C (Westlaw through Pub. L. No. 115–223

(including Pub. L. No. 115–225 to 115–231))) (prior to 2010 and 2013 amendments).

222

. See Law Enforcement Officers Safety Act Improvements Act of 2010, Pub. L. No.

111–272, § 2(c)(2)(B)(ii), 124 Stat. 2855 (codified as amended at 18 U.S.C.A. §§ 926B(e)(2),

926C(e)(1)(a) (Westlaw through Pub. L. 115–223 (including Pub. L. No. 115–225 to 115–

231))).

223

. The applicant had been a New York court officer. Zarrelli, 2007 WL 1284947, at

*1. It appears the relevant statutory language restricted issuance of credentials to a retiree:

who was regularly employed as a full–time member of the State Police; a full–time

member of an interstate police force; a full–time member of a county or municipal

police department in this State; a full–time member of a State law enforcement

agency; a full–time sheriff, undersheriff or sheriff’s officer of a county of this State;

a full–time State or county corrections officer; a full–time county park police of-

ficer; a full–time county prosecutor’s detective or investigator; or a full–time fed-

eral law enforcement officer . . . .

2005 N.J. Sess. Law Serv. Ch. 372 § 14 (6–9) (Westlaw).

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48 HOUSTON LAW REVIEW [56:1

out of context. The court states, “It is immaterial, however, that a

federal enactment ‘places a minimal and only temporary burden

upon state officers.’”

224

Printz, however, restricts the conclusion

that the extent of the burden is immaterial to circumstances where

“it is the whole object of the law to direct the functioning of the

state executive, and hence to compromise the structural frame-

work of dual sovereignty,” only stating that in that case, “such a

‘balancing’ analysis is inappropriate.”

225

The precise meaning of this limitation in Printz is not self-

evident from the sentence itself. But some clarification may be pro-

vided by focusing on the rather peculiar nature of the duties im-

posed by the act addressed in Printz. The statute at issue did not

require the local chief law enforcement officer to communicate in-

formation to anyone.

226

So, Printz does not address a federal obli-

gation to disclose information, as the opinion itself expressly

notes.

227

(And some lower courts have concluded that the

224

. Zarrelli, 2007 WL 1284947, at *3 (quoting Printz v. United States, 521 U.S. 898,

932 (1997)). The court’s analysis, in full, is as follows:

It is settled that Congress cannot compel officers of one State to implement

federal programs. Printz v. United States is illustrative. In Printz, the Supreme

Court struck down certain portions of the Brady Act which required local law en-

forcement officials to investigate prospective handgun purchasers. The Court

ruled that Congress could not “force[ ] participation of the States’ executive in the

actual administration of a federal program.”

Plaintiff argues that in light of the fact that New Jersey already has its own

certification program for retired law enforcement officers under N.J.S.A. 2C:39–

6, it would not be at all burdensome for New Jersey to create a certification pro-

gram under the Act. It is immaterial, however, that a federal enactment “places a

minimal and only temporary burden upon state officers.” Rather, “[i]t is the very

principle of separate state sovereignty that such a law offends, and no compara-

tive assessment of the various interests can overcome that fundamental defect.”

That New Jersey may have the authority under the Act to issue such a certifica-

tion does not mean that it has the obligation to do so.

Zarrelli, 2007 WL 1284947, at *2–3 (citations omitted) (quoting Printz, 521 U.S. at 918,

932).

225

. Printz v. United States, 521 U.S. at 932.

226

. Id. at 900, 903.

227

. Id. at 918 (stating regulations “which require only the provision of information to

the Federal Government, do not involve the precise issue before us here, which is the forced

participation of the States’ executive in the actual administration of a federal program. We

of course do not address these or other currently operative enactments that are not before

us; it will be time enough to do so if and when their validity is challenged in a proper case.”).

See also id. at 936 (O’Connor, J., concurring) (“In addition, the Court appropriately refrains

from deciding whether other purely ministerial reporting requirements imposed by Con-

gress on state and local authorities pursuant to its Commerce Clause powers are similarly

invalid. See, e.g., 42 U.S.C.A. § 5779(a) (Westlaw through Pub. L. No. 115–223 (including

Pub. L. No. 115–225 to 115–231)) (requiring state and local law enforcement agencies to

report cases of missing children to the Department of Justice). The provisions invalidated

here, however, which directly compel state officials to administer a federal regulatory pro-

gram, utterly fail to adhere to the design and structure of our constitutional scheme.”).

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2018] RESPONSES TO FIREARMS LEGISLATION 49

proscription on commandeering does not extend to the provision of

information.

228

) Rather, the statute required officials in states not

having an existing background check to make a reasonable effort

to determine whether the transaction “would be in violation of the

law,” without imposing any obligation to do anything if so.

229

In sum, the act required local law enforcement officers to in-

vestigate (monitor) the potential illegality of a pending transac-

tion. One objective apparently implicit in that forced monitoring is

to influence law enforcement activities—to enforce prohibitions

against persons these searches identify.

228

. Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 214 (4th Cir. 2002) (stat-

ing, in validating a federal statute requiring information to be forwarded to the federal

government, “[H]ealth care providers are required to collect and report information to the

State Board of Medical Examiners. The State Board of Medical Examiners then forwards

that information to a federal data bank. But more is required than the expenditure of time

and effort on the part of state officials in order to offend the Tenth Amendment.”); see also

Freilich v. Bd. of Dirs. of Upper Chesapeake Health, Inc., 142 F. Supp. 2d 679, 695 (D. Md.

2001), aff’d, 313 F.3d 205 (stating the act “established a national reporting system which,

among other things, requires hospitals to provide information about adverse professional

review actions . . . .”); Pierson v. Orlando Reg’l Healthcare Sys., Inc., 619 F. Supp. 2d 1260,

1295 (M.D. Fla. 2009) (agreeing with the Fourth Circuit’s analysis in Freilich’s of applica-

tion of the Tenth Amendment), aff’d, 451 F. App’x 862 (11th Cir. 2012); United States v.

Brown, No. 07 CR 485(HB), 2007 WL 4372829, at *5–6 (S.D.N.Y. Dec. 12, 2007), aff’d, 328

F. App’x 57 (2d Cir. 2009) (stating, as to a federal act that “merely requires state officials

to provide information regarding sexual offenders-information that the state officials will

typically already have through their own state registries-to the federal government. . . . In

sum, because the individuals subject to the Act are already required to register pursuant

to state registration laws, and because the Act only requires states to provide information

rather than administer or enforce a federal program, the Act does not violate the Tenth

Amendment.”). See generally Robert A. Mikos, Can the States Keep Secrets from the Federal

Government, 161 U. PA. L. REV. 103, 139 (2012) (discussing Freilich and Brown and stating,

“Taking cues from the Printz dicta, several lower courts have dismissed the notion that

providing information in any way constitutes assisting the enforcement of a federal regula-

tory program.”).

229

. The Court summarizes as follows the act’s requirements for states that did not

have a background check process:

When a CLEO receives the required notice of a proposed transfer from the fire-

arms dealer, the CLEO must “make a reasonable effort to ascertain within 5 busi-

ness days whether receipt or possession would be in violation of the law, including

research in whatever State and local recordkeeping systems are available and in

a national system designated by the Attorney General.” § 922(s)(2). The Act does

not require the CLEO to take any particular action if he determines that a pending

transaction would be unlawful; he may notify the firearms dealer to that effect,

but is not required to do so. If, however, the CLEO notifies a gun dealer that a

prospective purchaser is ineligible to receive a handgun, he must, upon request,

provide the would-be purchaser with a written statement of the reasons for that

determination. § 922(s)(6)(C). Moreover, if the CLEO does not discover any basis

for objecting to the sale, he must destroy any records in his possession relating to

the transfer, including his copy of the Brady Form.

Printz, 521 U.S. at 903–04. Moreover, where no prohibiting circumstances were found, the

act required destruction of records relating to the transfer. Id. at 934.

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50 HOUSTON LAW REVIEW [56:1

LEOSA cannot be categorized as having its “whole object” in-

fluencing state enforcement of existing criminal proscriptions, as

in requiring local officials inform themselves concerning the de-

tails of a particular set of ongoing activities by private persons.

Rather, LEOSA’s objectives include prohibiting states and locali-

ties from criminalizing certain interstate conduct (and, as part of

that, allowing individuals to have confirmation of factual infor-

mation, in the possession of states, that evidences the legality of

their freedom from state and local prosecution). So, the proscrip-

tion announced in Printz on imposing minimal burdens on states

is inapplicable to claims of right under LEOSA.

Johnson v. New York State Department of Correctional Ser-

vices

230

also relies on Printz,

231

and similarly elides these im-

portant distinctions. Although Printz indicates otherwise de mini-

mis burdens on states are not validated where the “whole object”

of the federal act is to direct the functioning of the state execu-

tive,

232

in applying the standard the Johnson court: (i) drops the

qualifier “whole;” and (ii) does not attempt to address the meaning

of “to direct the functioning of the state executive.”

233

Johnson’s

analysis without explanation extends the proscription on comman-

deering.

Reno v. Condon

234

identifies a second relevant restriction on

the scope of commandeering prohibited by Printz. Reno limits the

prohibition on commandeering to federal regulation that “re-

quire[s] the States in their sovereign capacity to regulate their own

citizens,” otherwise referenced as “requir[ing] state officials to as-

sist in the enforcement of federal statutes regulating private indi-

viduals.”

235

Reno involves a federal statute that “restricts the States’ abil-

ity to disclose a driver’s personal information without the driver’s

consent”

236

and that “requires disclosure of personal information

‘for use in connection with matters of motor vehicle or driver safety

and theft, motor vehicle emissions, motor vehicle product

230

. Johnson v. N.Y. State Dep’t of Corr. Serv., 709 F. Supp. 2d 178 (N.D.N.Y. 2010).

231

. Id. at 187.

232

. See supra note 225 and accompanying text.

233

. See Johnson, 709 F. Supp. 2d at 187 (stating, in a conclusory fashion, “Even if

plaintiffs were able to demonstrate that LEOSA established a federal mandate for state

officers to issue the identification described in subsection (d), the extent of the burden

placed upon the state officers would make no difference because the object of the law would

then be to ‘direct the functioning of the state executive.’”).

234

. Reno v. Condon, 528 U.S. 141 (2000).

235

. Id. at 151.

236

. Id. at 144.

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2018] RESPONSES TO FIREARMS LEGISLATION 51

alterations, recalls, [etc.] . . . .”

237

The Court, focusing on the re-

strictions on disclosure of information, finds that the federal act is

not invalid commandeering. The opinion for a unanimous court

states:

It does not require the South Carolina Legislature to enact

any laws or regulations, and it does not require state officials

to assist in the enforcement of federal statutes regulating

private individuals. We accordingly conclude that the DPPA

is consistent with the constitutional principles enunciated in

New York and Printz.

238

LEOSA may be similarly characterized as not concerning the

“regulat[ion of] private individuals” but, rather, restricting the ac-

tions of states in regulating interstate commerce, namely restrict-

ing the extent to which states and localities may regulate private

persons carrying firearms interstate. LEOSA is ultimately about

preempting state and local regulation. Insofar as a challenge in-

volves the information-providing portions of LEOSA credentialing,

a claim that requiring the disclosure would violate federalism

norms is inconsistent with two separate limits to the commandeer-

ing doctrine. The proscription on commandeering: (i) does not ex-

tend to the minor, ancillary, ministerial act of providing infor-

mation; and (ii) does not extend beyond attempts to regulate

private individuals.

Whether LEOSA could be construed as lawfully requiring

states to do firearms testing of individuals is less certain. One sup-

poses the issue of diminished importance as a result of changes

made to LEOSA in 2010.

239

Initially, the act required the firearms

testing, and certification of the testing, for a retiree be either by

the agency from which he or she retired or his or her state of resi-

dence.

240

As of 2010, the testing and certification can be from one

who is “a certified firearms instructor that is qualified to conduct

a firearms qualification test for active duty officers within that

State.”

241

But, if there is a challenge from a retiree who asserts he has

237

. Id. at 145 (emphasis added).

238

. Id. at 151 (referencing New York v. United States, 505 U.S. 144 (1992), and Printz

v. United States, 521 U.S. 898 (1997)).

239

. But cf. supra Part III.E.

240

. 18 U.S.C.A. § 926C(d)(1), (2)(B) (Westlaw through Pub. L. No. 115–223 (including

Pub. L. No. 115–225 to 115–231)).

241

. See Law Enforcement Officers Safety Act Improvements Act of 2010, Pub. L. No.

111–272, § 2(c)(2)(B)(ii), 124 Stat. 2855 (codified as amended at 18 U.S.C.A. §§ 926B(e)(2),

926C(e)(1)(a) (Westlaw through Pub. L. No. 115–223 (including Pub. L. No. 115–225 to 115–

231))).

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52 HOUSTON LAW REVIEW [56:1

a right to compel testing, the statute as so construed

242

would, one

supposes, not violate federalism norms on the limited basis that it

did not involve compelling the “regulat[ion of] private individuals.”

Most analogous would be South Carolina v. Baker,

243

where the

Supreme Court upholds a federal prohibition on state issuance of

securities in bearer form—a prohibition that necessarily imposes

on the states an obligation to perform the administrative tasks as-

sociated with maintaining registered ownership of bonds. That

would include maintaining, or requiring someone else maintain, a

244

which although apparently perfunctory can nevertheless be trou-

blesome to execute

245

and burdensome.

246

The Court indicates this

kind of regulation of state activity is not prohibited:

Such “commandeering” is, however, an inevitable conse-

quence of regulating a state activity. Any federal regulation

demands compliance. That a State wishing to engage in cer-

tain activity must take administrative and sometimes legis-

lative action to comply with federal standards regulating

that activity is a commonplace that presents no constitu-

tional defect.

247

Reno v. Condon harmonizes the Court’s authority concerning

commandeering by noting the statute at issue in South Carolina

v. Baker “‘regulate[d] state activities,’ rather than ‘seek[ing] to

control or influence the manner in which States regulate private

parties.’”

248

Thus, that creation of an affirmative right to a remedy

for denial of a LEOSA credential might involve administrative ac-

tion that would not otherwise be taken, then, does not compel the

conclusion that it involves unconstitutional commandeering.

LEOSA regulates—restricts—state activities; it does not

242

. This likelihood seems sufficiently remote not to warrant discussion of whether

such a construction is proper.

243

. South Carolina v. Baker, 485 U.S. 505 (1988).

244

. See generally WILLIAM CAMPBELL RIES, REGULATION OF INVESTMENT

MANAGEMENT AND FIDUCIARY SERVICES § 12:20, Westlaw (database updated June 2018).

245

. E.g., SEC Obtains Million Dollar Penalty and Cease and Desist Order Against the

Chase Manhattan Bank, SEC News Digest 2001–184, 2001 WL 1113149, at *1 (Sept. 24,

2001) (referencing $1 million fine arising from initial inaccuracies of $46.8 billion as trans-

fer agent for corporate and municipal bond issues identified in 1998, which were not recon-

ciled until June 2000, resulting in reserves of $45.8 million, with about $28.8 million re-

sulting from payment errors).

246

. Exceptions to the Report of the Special Master and Brief in Support, South Car-

olina v. Dole, 485 U.S. 505 (1988) (No. 94, Orig.), 1987 U.S. S. Ct. Briefs LEXIS 1315, at

*66 (citing evidence that, for issuances of $10 million or less, which are identified as repre-

senting “most” bond issuances, “registration raises ongoing administrative costs signifi-

cantly over the life of those issues”).

247

. Baker, 485 U.S. at 514–15.

248

. Reno, 528 U.S. at 150 (quoting Baker, 485 U.S. at 514–15).

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2018] RESPONSES TO FIREARMS LEGISLATION 53

affirmatively control or direct the manner in which states regulate

private persons. And the federal command approved by the Su-

preme Court in Baker necessarily involves individuals be delivered

information (a physical certificate representing ownership or other

confirmation of ownership upon transfer). So, Baker rejects the po-

sition that it is unlawful commandeering for a federal act to man-

date, as an ancillary component, the ministerial state act of deliv-

ering a document certifying information.

B. Private Right of Action.

LEOSA necessarily affords a defense to a qualifying, creden-

tialed person charged with violation of state or local law restricting

firearms possession that is preempted by LEOSA. But there are

broader potential uses of LEOSA. A person may seek to assert a

claim for failure to assist in the acquisition of credentials neces-

sary to benefit. A qualifying, credentialed person might seek to en-

join acts made unlawful by LEOSA (e.g., may seek to enjoin en-

forcement of a contumacious policy banning ammunition clearly

protected by LEOSA), or seek to require training for LEOSA com-

pliance, so that holders of required credentials would not be sub-

ject to arrest in the first instance. Or a person aggrieved by actions

in violation of LEOSA might seek damages.

Whether there is a cause of action that would allow these

types of remedies to be available is somewhat complex. They could

be available under either state or federal law. We can first turn to

state-law theories. As we shall see, state-law theories have gener-

ally focused on credentialing. In general, those claims have failed,

with a notable exception as to a person who was denied new cre-

dentials to replace previously issued ones that had been physically

broken.

After briefly discussing the state theories, we shall turn to the

federal theories of recovery that typically have been litigated. We

shall examine principles of implied rights of action (which have

been unsuccessful) and section 1983 of title 42, which provides for

a remedy for violation of federal rights by persons acting under

color of state law. A 2016 opinion from the U.S. Court of Appeals

for the District of Columbia holds LEOSA does create a right re-

mediable under section 1983, conflicting with, inter alia, earlier

authority from the U.S. District Court for the Southern District of

New York and some subsequent authority.

249

The better answer

would appear to be that LEOSA does give rise to a right enforcea-

ble under section 1983.

249

. See supra note 219; infra note 289 and accompanying text.

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54 HOUSTON LAW REVIEW [56:1

However, even if there is such a right, certain details of the

judicial gloss applied to section 1983 can operate to prevent vindi-

cation of rights. Although the focus of this Article is not provision

of a comprehensive sketch of these aspects of section 1983, we shall

briefly detail the implications of qualified immunity and the ne-

cessity that certain challenged acts be by policy or custom.

1. Causes of Action under State Law. It is impracticable to

provide a fifty-state survey of the potential theories under state

law that might provide a remedy. As to claims seeking credentials,

a comprehensive survey would depend on municipal law as well,

as it may be a local agency that would potentially issue the

relevant credential,

250

and any right to a credential could implicate

the much more numerous provisions of municipal law.

Restricting our focus to litigated disputes asserting state

causes of action, we can encounter assorted cases addressing cre-

dentials. The authority has typically found some reason why there

is not an entitlement to a credential. Some authority denies a right

to a credential because the procedures for issuing credentials are

informal and do not give rise to a protectable right,

251

even if it

allegedly has been an unofficial policy and uniform practice to is-

sue a credential.

252

Another case has denied recovery because the

permit denial was not arbitrary and capricious.

253

The frequency

250

. See generally In re Wheeler, 81 A.3d 728, 764 (N.J. Super. Ct. App. Div. 2013)

(stating credentials issued to a person retired from an “Arson Investigation Unit” by the

Newark Police Department, identifying him as a retired “police captain” and an “arson cap-

tain,” are inadequate for purposes of LEOSA, because Arson Investigation Units “are es-

tablished within a City’s fire department”).

251

. Mpras v. District of Columbia, 74 F. Supp. 3d 265, 271 (D.D.C. 2014) (inadequate

allegations of entitlement for due process purposes). See generally Morello v. District of

Columbia, 621 F. App’x 1, 2 (D.C. Cir. 2015) (finding the complainant failed to allege con-

stitutional inadequacies in the process available through the District of Columbia Superior

Court and, therefore, the complainant was not deprived of property without due process).

Cf. Bernard v. Metro. Gov’t of Nashville/Davidson Cty., No. M200900812COAR3CV, 2010

WL 3033798, at *4–5 (Tenn. Ct. App. Aug. 3, 2010) (holding municipal ordinance that “di-

rects the police department to ‘make a gift of a gun and a badge to all retiring officers who

have at least twenty-five years of service upon their retirement and also to police officers

who, regardless of years of service, receive a disability pension from the metropolitan gov-

ernment,’” is a “gift” and not a “retirement benefit,” for purposes of principles of construc-

tion).

252

. Rousseau v. Windsor Locks Police Comm’n, No. 3:10CV1312 MRK, 2012 WL

3113134, at *3 (D. Conn. July 31, 2012) (finding an applicant does not have a property

interest in the credential, because the defendants had unfettered discretion in deciding;

stating the applicant “has not pointed to any law or regulation that could have constrained

‘the opportunity of the [Commission] to deny issuance’ of his retirement credentials”).

253

. Kittle v. D’Amico, No. 4763–14, 2015 WL 12805146, at *3–4 (N.Y. Sup. Ct. 2015)

(applicant retired while under investigation for “failing to conduct a DWI test investigation

on a motorist after observing two bottles of vodka in the center console”).

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2018] RESPONSES TO FIREARMS LEGISLATION 55

with which the claims, whether under state or federal law, fail for

peculiar pleading deficiencies seems somewhat striking,

254

alt-

hough no effort is made here to endeavor to compare relative fre-

quencies. There is, however, authority prohibiting denial of a re-

placement credential, sought when an originally issued credential

had been damaged.

255

2. Implied Right of Action vs. Rights Remediable under

Section 1983. A court in 2014 could state, “Every court to have

considered the question has held that no private right of action

exists under LEOSA because Congress explicitly intended for

states to establish and enforce their own concealed firearm

certification standards.”

256

Although some courts have addressed

the availability of a remedy for failure to provide a credential

under principles governing whether there is an implied right of

action under LEOSA,

257

the more direct analysis involves whether

254

. E.g., Tesler v. Cacace, 607 F. App’x 87, 88 (2d Cir. 2015) (holding not ripe for

judicial consideration a request for declaratory judgment where the applicant had not taken

the necessary training), cert. denied, 136 S. Ct. 823 (2016), reh’g denied, 136 S. Ct. 1402

(2016); Morello, 621 F. App’x at 2 (finding the complainant failed to allege constitutional

inadequacies in the process available through the District of Columbia Superior Court and,

therefore, the complainant was not deprived of property without due process); Sonoma Cty.

Law Enf’t Ass’n v. County of Sonoma, 379 F. App’x 658, 660 (9th Cir. 2010) (finding a claim

not ripe because the claimants did not adequately allege “a concrete plan to carry a con-

cealed firearm outside California”); Pizzo v. City & Cty. of San Francisco, No. C 09–4493

CW, 2012 WL 6044837, at *16 n.8 (N.D. Cal. Dec. 5, 2012) (dismissal of Equal Protection

challenge to LEOSA for plaintiff’s failure to identify a proper defendant), appeal dismissed,

No. 13–15012, 9th Cir. (Mar. 8, 2013); Koren v. Noonan, No. CIV. A. No. 12–1586, 2013 WL

5508688, at *2–3 (E.D. Pa. Oct. 3, 2013) (holding claim alleging a property interest in an

honorable discharge, arising from federal and state rights of retirees to possess firearms,

was time barred), aff’d on other grounds, 586 F. App’x 885 (3d Cir. 2014); Foley v. Godinez,

62 N.E.3d 286, 294–95 (Ill. App. Ct. 2016) (holding writ of mandamus not available where

the determination is discretionary, and entitlement to the credential depends on the dis-

cretionary determination whether an applicant is a qualified law enforcement officer; deny-

ing applicant’s request to add a declaratory judgment count); Bernard, 2010 WL 3033798,

at *9 (delayed filing of an amended complaint precluded litigation of Equal Protection claim

arising from credential denial).

255

. Frawley v. Police Comm’r of Cambridge, 46 N.E.3d 504, 507, 518 (Mass. 2016)

(concluding the applicant being under investigation for a citizen complaint at the time he

retired was not a basis to deny a 2011 application for issuance of a replacement, although

“[h]ad the commissioner been evaluating [the] application in March, 2004, he would have

acted well within his discretion in refusing to issue an ID card given the ongoing investiga-

tion concerning the citizen complaint.”).

256

. Friedman v. Las Vegas Metro. Police Dep’t, No. 2:14–CV–0821–GMN–GWF, 2014

WL 5472604, at *4 (D. Nev. Oct. 24, 2014).

257

. For example, Moore v. Trent, No. 09 C 1712, 2010 WL 5232727 (N.D. Ill. Dec. 16,

2010), focuses on the existence of a remedy under LEOSA for failure to issue the credential,

eliding discussion of the availability of a remedy under section 1983 if there merely is found

to be a right under LEOSA:

Plaintiffs argue that LEOSA unquestionably creates the right to carry a

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56 HOUSTON LAW REVIEW [56:1

LEOSA creates a right remediable under section 1983. The trend

denying a remedy was interrupted by the 2016 decision in DuBerry

v. District of Columbia,

258

where the court allows a cause of action

to proceed under section 1983.

We shall first sketch the framework developed by the Su-

preme Court. Then we shall summarize conflicting implementa-

tions—one holding a claim could proceed under section 1983 and

another not.

The Supreme Court’s framework. The Supreme Court has

contrasted two theories for seeking a remedy (an implied right of

action and a cause of action under section 1983) in the following

way:

In implied right of action cases, we employ the four-factor

Cort [v. Ash] test to determine “whether Congress intended

to create the private remedy asserted” for the violation of

statutory rights. The test reflects a concern, grounded in

concealed firearm for qualified retired law enforcement officers. Plaintiffs’ argu-

ment is predicated on the assertion that once an applicant satisfies the criteria of

a “qualified retired law enforcement officer” as enumerated in § 926C(c), he is, as

of right, automatically entitled to the identification card. Defendants contend that

the statute confers a right solely to the holders of the identification card . . . .

The court’s duty at this stage is to determine whether Congress implied a

private remedy. After examining the plain language of the Act and its legislative

history, the court concludes that LEOSA does not reflect Congress’ intent to create

a federal private remedy.

Id. at *3. The plaintiffs in Moore make the incomprehensible assertion that the denial of

the permits violates 18 U.S.C. § 962, which prohibits the fitting-out of vessels to be em-

ployed against foreign states at peace with the United States. Class Action Complaint at 5,

Moore, 2010 WL 5232727 (No. 09 C 1712) (N.D. Ill. Dec. 16, 2010) (“Defendants, acting in

conjunction with each other and pursuant to a unified policy and practice, refuse to issue

conceal carry permits to Plaintiffs and the class they purport to represent. This policy and

practice violates 18 U.S.C. 962.”).

Friedman v. Las Vegas Metropolitan Police Department, 2014 WL 5472604, at *4,

a case removed from state court, merely asserts the absence of a private right of action, in

analysis that omits reference to section 1983 (as did the complaint) (stating, “Every court

to have considered the question has held that no private right of action exists under LEOSA

because Congress explicitly intended for states to establish and enforce their own concealed

firearm certification standards.”); see also Complaint at 4, Friedman, 2014 WL 5472604

(No. 2:14–CV–0821–GMN–GWF).

Johnson v. New York State Department of Correctional Services, 709 F. Supp. 2d

178, 183–184 (N.D.N.Y. 2010) (footnote omitted), focuses on the existence of an implied

cause of action under Cort v. Ash, 422 U.S. 66 (1975), without discussing the possible exist-

ence of a remedy under section 1983: “Nothing in the text or structure of the statute bestows

either an explicit right to obtain the identification required under § 926C(d) or a federal

remedy for a state agency’s failure to issue such identification. Therefore, Congress did not

expressly intend to create a private cause of action under LEOSA.”

A court, of course, may be constrained to address the theory presented by the

complainant.

258

. DuBerry v. District of Columbia, 824 F.3d 1046, 1048 (D.C. Cir. 2016).

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2018] RESPONSES TO FIREARMS LEGISLATION 57

separation of powers, that Congress rather than the courts

controls the availability of remedies for violations of statutes.

Because § 1983 provides an “alternative source of express

congressional authorization of private suits,” these separa-

tion-of-powers concerns are not present in a § 1983 case.

259

Two paragraphs in the Supreme Court’s opinion in Gonzaga

University v. Doe

260

detail a number of pertinent principles:

(i) Both (x) finding whether an implied right of action exists

and (y) determining whether an action is remediable under section

1983, involve a determination of whether “Congress intended to

create a federal right.”

261

(ii) Those two inquiries—whether Congress intended to create

a federal right in these two contexts—are comparable (“no differ-

ent,” in the Court’s language).

262

(iii) For a federal right to be found to have been intended, the

statute’s “text must be ‘phrased in terms of the persons bene-

fited,’”

263

suggesting the statutory language must literally have

“an unmistakable focus on the benefited class.”

264

The court cites

authority distinguishing statutory language that “focuses . . . on

the agencies that will do the regulating.”

265

So, there is an idiosyn-

cratic focus on the style of the language used for this particular

interpretative purpose.

(iv) Although a person alleging a federal statute creates a pri-

vate right of action “must show that the statute manifests an in-

tent ‘to create not just a private right but also a private rem-

edy,’”

266

a person asserting a remedy under section 1983 need not,

259

. Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 509, (1990) (quoting Middlesex Cty. Sew-

erage Auth. v. Nat. Sea Clammers Ass’n., 453 U.S. 1, 19 (1981) (citing Cort v. Ash, 422 U.S.

66 (1975))) (citations omitted). Ziglar v. Abbasi, No. 15–1358, 2017 WL 2621317, at *10

(U.S. June 19, 2017), suggests a retrenchment in the availability of a private right of action

has developed subsequent to Cort.

260

. Gonzaga University v. Doe, 536 U.S. 273 (2002).

261

. Id. at 283 (emphasis removed).

262

. Id. at 285 (“[T]he initial inquiry—determining whether a statute confers any right

at all—is no different from the initial inquiry in an implied right of action case, the express

purpose of which is to determine whether or not a statute ‘confer[s] rights on a particular

class of persons.’” (quoting California v. Sierra Club, 451 U.S. 287, 294 (1981)).

263

. Id. at 284 (quoting Cannon v. Univ. of Chi., 441 U.S. 677, 692, n.13 (1979)).

264

. Id. (stating such statutory language creates individual rights and quoting Can-

non, 441 U.S. at 691).

265

. Id. at 284 n.3 (parenthetically citing, inter alia, Alexander v. Sandoval, 532 U.S.

275, 288 (2001), for the proposition that “existence or absence of rights-creating language

is critical to the Court’s inquiry”); see also Alexander, 532 U.S. at 289 (finding no right where

the statutory language “focuses neither on the individuals protected nor even on the fund-

ing recipients being regulated, but on the agencies that will do the regulating”).

266

. Doe, 536 U.S. at 284 (quoting Sandoval, 532 U.S. at 286).

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58 HOUSTON LAW REVIEW [56:1

“because § 1983 generally supplies a remedy for the vindication of

rights secured by federal statutes.”

267

(v) “Once a plaintiff demonstrates that a statute confers an

individual right, the right is presumptively enforceable by

§ 1983.”

268

Because the inquiry at hand involves deprivations by state

actors,

269

we can begin our analysis with whether LEOSA creates

a right remediable under section 1983, as opposed to whether

LEOSA creates an implied right of action.

Blessing v. Freestone

270

identifies three factors traditionally

referenced in determining whether a federal statute creates a

right enforceable under section 1983:

First, Congress must have intended that the provision in

question benefit the plaintiff. Second, the plaintiff must

demonstrate that the right assertedly protected by the stat-

ute is not so “vague and amorphous” that its enforcement

would strain judicial competence. Third, the statute must

unambiguously impose a binding obligation on the States. In

other words, the provision giving rise to the asserted right

must be couched in mandatory, rather than precatory,

terms.

271

After a plaintiff shows there is an enforceable right, a rebut-

table presumption arises that the right is enforceable under sec-

tion 1983.

272

Further:

The defendant may defeat this presumption by demonstrat-

ing that Congress did not intend that remedy for a newly cre-

ated right. Our cases have explained that evidence of such

congressional intent may be found directly in the statute cre-

ating the right, or inferred from the statute’s creation of a

“comprehensive enforcement scheme that is incompatible

with individual enforcement under § 1983.” “The crucial con-

sideration is what Congress intended.”

273

Following this approach, Gonzaga University v. Doe

274

finds

no such rights created in a statute whose language was focused on

267

. Id.

268

. Id.

269

. Section 1983 is limited to claims against persons acting “under color of” state law.

42 U.S.C.A. § 1983 (Westlaw through Pub. L. No. 115–223).

270

. Blessing v. Freestone, 520 U.S. 329 (1997).

271

. Id. at 340–41 (citations omitted).

272

. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120 (2005).

273

. Id. (quoting Blessing, 520 U.S. at 341; Smith v. Robinson, 468 U.S. 992, 1012

(1984)).

274

. Gonzaga University v. Doe, 536 U.S. 273 (2002).

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2018] RESPONSES TO FIREARMS LEGISLATION 59

directing the activities of a government official, contrasting that

conclusion with prior authority finding rights where the statutory

language focuses on the alleged beneficiaries (“No person . . .

shall . . . be subjected to discrimination . . . .”).

275

The Court has recognized a statute as creating a right reme-

diable under section 1983 where implementing the right is not per-

functory or routine. In Wilder v. Virginia Hospital Association,

276

the Supreme Court recognized a right to a remedy under section

1983 for a state’s failure to adopt reasonable medical reimburse-

ment rates.

277

So, one may conclude the following: that implement-

ing the right is not perfunctory does not prevent the right’s being

enforceable under section 1983.

Allowing a section 1983 claim to proceed: DuBerry v. District

of Columbia. DuBerry v. District of Columbia,

278

a 2016 opinion,

holds LEOSA creates a right to carry a concealed firearm that is

275

. Id. at 287 (stating, “FERPA’s provisions speak only to the Secretary of Education,

directing that ‘[n]o funds shall be made available’ to any ‘educational agency or institution’

which has a prohibited ‘policy or practice.’” (citing 20 U.S.C. § 1232g(b)(1))). See also

Delancey v. City of Austin, 570 F.3d 590, 594 (5th Cir. 2009) (finding no right arising from

language directing certain activities be taken by specified agencies).

Courts are retrenching in concluding spending legislation gives rise to rights en-

forceable under section 1983. Gonzaga, 536 U.S. at 281 (“Our more recent decisions, how-

ever, have rejected attempts to infer enforceable rights from Spending Clause statutes.”);

compare Long v. D.C. Hous. Auth., 166 F. Supp. 3d 16, 29–31 (D.D.C. 2016) (collecting cases

with differing outcomes as to whether a right is created by the United States Housing Act

of 1937, Pub. L. No. 75–412, 50 Stat. 888 (1937) (codified as amended in scattered sections

of 42 U.S.C.)), with Cal. Ass’n of Rural Health Clinics v. Douglas, 738 F.3d 1007, 1013 (9th

Cir. 2013) (holding “Medicaid providers have a private right of action to bring a § 1983 claim

to enforce 42 U.S.C. § 1396a(bb)”), and Pee Dee Health Care, P.A. v. Sanford, 509 F.3d 204,

212 (4th Cir. 2007) (same).

276

. Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498 (1990).

277

. The Court states in Wilder:

Such an inquiry turns on whether “the provision in question was intend[ed] to

benefit the putative plaintiff.” If so, the provision creates an enforceable right un-

less it reflects merely a “congressional preference” for a certain kind of conduct

rather than a binding obligation on the governmental unit, or unless the interest

the plaintiff asserts is “‘too vague and amorphous’” such that it is “‘beyond the

competence of the judiciary to enforce.’” Under this test, we conclude that the Act

creates a right enforceable by health care providers under § 1983 to the adoption

of reimbursement rates that are reasonable and adequate to meet the costs of an

efficiently and economically operated facility that provides care to Medicaid pa-

tients. The right is not merely a procedural one that rates be accompanied by find-

ings and assurances (however perfunctory) of reasonableness and adequacy; ra-

ther the Act provides a substantive right to reasonable and adequate rates as well.

Id. at 509–10 (first quoting Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106

(1989); then quoting Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 19 (1981);

and then quoting Golden State Transit Corp., 493 U.S. at 106 (citation omitted)).

278

. DuBerry v. District of Columbia, 824 F.3d 1046 (D.C. Cir. 2016).

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60 HOUSTON LAW REVIEW [56:1

enforceable under section 1983.

279

In the case, the court addresses

a challenge to the District’s failure to affirm the claimants had

statutory powers of arrest (which those providing the firearms cer-

tification required).

280

The language of LEOSA directly focuses on the alleged bene-

ficiaries of a right, stating “an individual who is a qualified law

enforcement officer . . . may carry a concealed firearm,”

281

and “an

individual who is a qualified retired law enforcement officer . . .

may carry a concealed firearm.”

282

A focus on the first Blessing fac-

tor, concerning an intent to benefit qualified personnel, would not

seem productive for one inclined to deny the existence of a right

under section 1983.

In its analysis, the DuBerry court introduces a recitation of

certain aspects of the legislative history by noting:

The legislative history demonstrates that Congress’s pur-

pose was to afford certain retired law enforcement officers,

in view of the nature of their past law enforcement responsi-

bilities, 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.

283

As to the second Blessing factor, DuBerry concludes the act is

not too vague to prevent the existence of a right to a remedy. It

describes LEOSA generally as “set[ting] specific requirements . . .

in historical and objective terms.”

284

As to the “existence and na-

ture of [the applicant’s] [] statutory power of arrest,” the court does

not suggest that determination is too “vague and amorphous” to

strain judicial competence—one supposes it is a non-starter to

279

. Id. at 1052, 1054.

280

. Id. at 1048, 1050.

The court rejects the claim that the right does not arise until a person obtains the

requisite firearms certification:

Consequently, the firearms certification requirement does not define the right it-

self 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 ap-

pellants allege Congress intended for them to have is remediable under Section

1983. Their further allegation that they have been deprived of their ability to ob-

tain and exercise that right because of the District of Columbia’s unlawful action

is sufficient to state a claim.

Id. at 1050, 1055.

281

. 18 U.S.C.A. § 926B(a) (Westlaw through Pub. L. No. 115–223 (including Pub. L.

No. 115–225 to 115–231)).

282

. Id. § 926C(a).

283

. DuBerry, 824 F.3d at 1054.

284

. Id. at 1053.

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2018] RESPONSES TO FIREARMS LEGISLATION 61

suggest that it is beyond judicial competence to determine whether

a person had statutory powers of arrest. The court merely refer-

ences it as involving a factual question. In light of Wilder v. Vir-

ginia Hospital Association,

285

this application of this factor seems

well within Supreme Court precedent.

As to the third factor (concerning creation of a binding obliga-

tion on the states), the court focuses on the “categorical preemp-

tion of state and local law” and “the nature of the ministerial in-

quiries” required of states and localities, as imposing mandatory

duties.

286

The court does note the existence of retained discretion

concerning a determination as to physical or mental incapacity,

but summarily discards that as a basis for not finding the third

factor as met, because the court states incapacity is not claimed

and is thus not before the court.

287

No enforceable right under section 1983: Ramirez v. Port Au-

thority of New York & New Jersey (PANYNJ). On the other hand,

Ramirez v. Port Authority of New York & New Jersey (PANYNJ),

288

among other cases,

289

holds LEOSA does not create a right enforce-

able under section 1983.

290

The relevant analysis in Ramirez

285

. Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498 (1990). See generally supra notes

276–77 and accompanying text for the circumstances of Wilder.

286

. DuBerry, 824 F.3d at 1053.

287

. Id. at 1054.

288

. Ramirez v. Port Auth. of N.Y. & N.J., No. 15–CV–3225 (DLC), 2015 WL 9463185

(S.D.N.Y. Dec. 28, 2015).

289

. E.g., Henrichs v. Ill. Law Enf’t Training & Standards Bd., No. 15 C 10265, 2018

WL 572708, at *5 (N.D. Ill. Jan. 26, 2018) (additionally distinguishing DuBerry on the basis

that the governmental unit was not a state or a state subdivision).

290

. A claim for false arrest was separately found wanting as follows:

Finally, even if LEOSA protected Ramirez from arrest for carrying a concealed

weapon and the DA’s office should have known of its provisions, Ramirez was not

charged with only that violation of the law. There was probable cause to prosecute

Ramirez on the child endangerment charge because the loaded gun was found in

the same area of the car as his two-year-old daughter’s car seat. Ramirez does not

dispute any of the material facts related to probable cause.

Ramirez, 2015 WL 9463185, at *5. The circumstances under which a mistake of law can be

a basis for probable cause for arrest are in some flux and are beyond our scope. See gener-

ally, e.g., State v. Stoll, 370 P.3d 1130, 1135 (Ariz. Ct. App. 2016) (“We agree with the Sev-

enth Circuit’s reasoning that ‘Heien does not support the proposition that a police officer

acts in an objectively reasonable manner by misinterpreting an unambiguous statute.’”

(quoting United States v. Stanbridge, 813 F.3d 1032, 1037 (7th Cir. 2016) (citing Heien v.

North Carolina, 135 S. Ct. 530 (2014)); Flint v. City of Milwaukee, 91 F. Supp. 3d 1032,

1057–58 (E.D. Wis. 2015) (stating, as to a city’s defense that an alleged mistake of law

undermining probable cause for arrest, “[T]the Court has qualms about even applying

Heien here, given that this is not a reasonable suspicion case. But see J Mack LLC. v. Leon-

ard, No. 13–CV–808, 2015 WL 519412, at *9 (S.D. Ohio Feb. 9, 2015) (stating that the court

‘has no reservation in extending Heien’s rational to the probable cause analysis, especially

given that the Supreme Court’s decision is based in part on nineteenth century precedent

that it characterized as establishing the proposition that a mistake of law can support a

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62 HOUSTON LAW REVIEW [56:1

comprises four paragraphs. The first mostly summarizes the

Blessing factors and provides a one-sentence quotation from Gon-

zaga University. The second paragraph mostly attempts to com-

pare the circumstances to the lower court opinion in Duberry

(which the appellate court subsequently reversed, in an analysis

summarized above). The third paragraph summarizes the applica-

tion of the Blessing factors in Torraco v. Port Authority of New

York & New Jersey,

291

which addresses whether a different federal

firearms statute gives rise to a right enforceable under section

1983. The fourth paragraph concludes Torraco controls the result,

stating in full:

LEOSA shares these features, indicating that Congress

did not intend to make its violation actionable under § 1983.

This is true even assuming that LEOSA creates an individ-

ual right for law enforcement officers to carry concealed

weapons under certain conditions. Like § 926A, enforcement

of LEOSA is “vague and amorphous,” indicating that Con-

gress did not intend for it to create a right whose violation

would be action able under § 1983. The warning in Torraco

that allowing actions for damages based on violations of

LEOSA could cause law enforcement to hesitate before en-

forcing gun control laws further indicates that Congress did

not intend to create a federal right. Because LEOSA

does not create an individual right actionable under § 1983,

Ramirez’s § 1983 claims based on violations of LEOSA are

dismissed.

292

Judge Cote’s Ramirez opinion is farcical, illustrative of the

dismissive treatment of firearm rights by some federal courts. As

an inferior court, it was bound to apply Torraco if it controlled the

disposition. But Torraco did not control the decision, and Torraco’s

own reasoning is unsupported and thus cannot provide a basis for

extension.

As to why Torraco did not control the decision in Ramirez:

Torraco involves a different statute—the Firearms Owners’ Pro-

tection Act.

293

That act allows interstate transport of firearms

where the possession is lawful in both the origin and the destina-

tion, if other requirements are met.

294

The Torraco court concludes

finding of probable cause.’”)).

291

. Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129 (2d Cir. 2010).

292

. Ramirez, 2015 WL 9463185, at *6 (citation and footnote omitted).

293

. Firearms Owners’ Protection Act, Pub. L. No. 99–308, 100 Stat. 449 (1986) (codi-

fied at 18 U.S.C.A. § 926A and other scattered sections of 18 U.S.C.A. (Westlaw through

Pub. L. No. 99–308)), amended by Pub. L. No. 99–360, 100 Stat. 766 (1986).

294

. The firearm has to be unloaded and not readily accessible. 18 U.S.C.A. § 926A

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2018] RESPONSES TO FIREARMS LEGISLATION 63

difficulties police officers would have in ascertaining the legality

of conduct in multiple other jurisdictions, on which the federal

preemption depends, fails the second Blessing factor.

295

The

Torraco opinion asserts assuring compliance is impracticable, be-

cause an officer cannot be expected to be able to know whether the

firearms possession will be lawful in both origin and destination

locations.

296

The issue before the court in Ramirez is not comparable. The

legality of the possession involved in Ramirez does not require

knowledge of the law governing firearms possession in multiple

other states. The officer merely needs to know the federal law and

confirm the existence of valid credentials.

A difficulty in ascertaining whether credentials are valid was

identified and resolved during debate on LEOSA. The Interna-

tional Association of Chiefs of Police, which opposed the legisla-

tion, “expressed concern that because of difficulty in verifying the

identity and eligibility of out-of-State law enforcement officers,

passage of the bill could lead to a tragic situation where officers

from other jurisdictions are wounded or killed by local police.”

297

Among a laundry list of objections expressed by Representative

Waters, who also opposed the legislation,

298

was difficulty in veri-

fication of the credentials.

299

The House Committee focused on the extent to which the cre-

dentials should allow a law enforcement official to ascertain

whether a person asserting rights under LEOSA was qualified.

Rep. Sensenbrenner described an approved amendment he offered

as “help[ing] officers clarify the good standing of individuals they

(Westlaw). In addition, courts have held that the poorly-written language requires the fire-

arm be in the course of being transported in a vehicle, so that the statute does not protect

transport of a firearm from a vehicle to an airline counter for check-in. Ass’n of N.J. Rifle

& Pistol Clubs Inc. v. Port Auth. of N.Y. & N.J., 730 F.3d 252, 255 (3d Cir. 2013). (“It is

plain . . . that the statute protects only transportation of a firearm in a vehicle . . . .”).

295

. Torraco, 615 F.3d at 136–39.

296

. Id. at 138 (“Thus, in Weasner’s case, a police officer’s liability could turn on the

correctness of his on-the-spot determination about whether Weasner’s hotel in New Jersey

constituted a residence, and whether his trip to Ohio constituted a move. In Torraco’s case,

a police officer would be obligated to speculate whether Torraco’s brief stop in New York

prior to proceeding to the airport was ‘reasonably necessary under the circumstances.’”).

297

. H.R. REP. NO. 108–560, at 4 (2004).

298

. Id. at 81–87 (dissenting views of Rep. Conyers et al.).

299

. Id. at 57 (statement of Rep. Waters) (“I am not impressed with the fact that some-

one representing themselves as a law enforcement officer has a picture and even a badge.

How do we know if they really are law enforcement officers, and how does the jurisdiction

in which this officer attempts to enter know and how are they able to verify, do they have

the means by which to do that, to ensure that this really is a law enforcement officer?”).

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64 HOUSTON LAW REVIEW [56:1

may encounter.”

300

In sum, the House considered the extent to which the contem-

plated credentials ought to be adequate from the perspective of law

enforcement officials encountering persons asserting rights under

LEOSA, and amended the bill in light of one such specific concern.

It did so after broader concerns with verification of credentials

were raised. The legislative history does not support the view that

the statute was designed to allow the right LEOSA crafts to be

fettered by law enforcement officers who quibble over the creden-

tials.

Moreover, any court should be cautious in extending Torraco,

because its analysis is suspect. The relevant Blessing factor in-

volves difficulties for the judiciary if a right is recognized,

301

whereas the difficulty Torraco references is one of a different gov-

ernmental branch. Torraco manufactures a sui generis concern

arising from absence of evidence of an intent that police officers

could be personally liable.

302

It is legitimate to question whether some obscure legal prin-

ciple obviates the legality of what otherwise would appear to be

lawful police officer conduct and thereby subjects a government

employee to crippling personal liability. The problem with the

Torraco/Ramriez approach is that it attempts to integrate the con-

cern in the wrong component of the analysis. Rather, this concern

is part of assessing the existence of qualified immunity that, if ap-

plicable, would eliminate personal liability.

303

By treating the is-

sue as a factor to the existence of a right at all improperly elimi-

nates, for example, the ability of a person deprived of the right to

compel training in a lawsuit seeking injunctive relief against a

300

. Id. at 27 (statement of Rep. Sensenbrenner) (“To help officers clarify the good

standing of individuals they may encounter during a traffic stop or other similar situations,

I have included in my amendment that the identification must show that the officer has

received training in the last 12 months or the officer must carry a separate certification

proving that he is current in his training. I believe that this amendment is an improvement

to the legislation, and I ask my colleagues to support it. You know, I would note that the

identification in the originally introduced legislation does not require that the identification

include that the officer or retired officer is current in training because the provisions of the

legislation are limited to those who are current in training. There ought to be something

that the officer carries, that he or she indeed qualifies under the legislation. My amendment

fixes it up, and I would urge support for the amendment.”); id. at 31 (statement of Rep.

Sensenbrenner) (announcing the amendment was agreed-to).

301

. See supra note 271 and accompanying text.

302

. E.g., Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 137 (2d Cir. 2010) (“We

find no evidence either in the text or structure of Section 926A that would indicate that

Congress intended that police officers tasked with enforcing state gun laws should be liable

for damages when they fail to correctly apply Section 926A.”).

303

. See infra notes 335–38 and accompanying text.

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2018] RESPONSES TO FIREARMS LEGISLATION 65

municipality. Concerns with personal liability of individual offic-

ers in individual cases need not and should not in the broad, gen-

eral case pretermit such a claim.

Enforceable Right Should Not Be Cabined to Possession.

LEOSA clearly creates mandatory governmental duties concern-

ing treatment of certain current and former law enforcement offic-

ers. Qualifying personnel with credentials are not subject to cer-

tain state and local laws. One might assert LEOSA creates a right,

enforceable under section 1983, of a credentialed person to possess

a firearm in the authorized manner, but it does not create a right

to the necessary credential. This section examines that issue.

As noted in Part III.E, Congress recognized that states and

local governments were frustrating exercise of the rights, by de-

clining to issue certification of firearms qualification (that, coupled

with photographic identification of former employment as a law

enforcement officer, being the credentials required to benefit).

304

The statute was amended in 2010 to prevent denial of the creden-

tialing through denial of governmental certification of firearms

training.

305

The amendment allowed that component to be satis-

fied with testing by “a certified firearms instructor that is qualified

to conduct a firearms qualification test for active duty officers

within that State.”

306

Some locales deny the other component: pho-

tographic identification certifying former employment as a law en-

forcement officer.

307

As more fully detailed above,

308

LEOSA’s legislative history

indicates that, in making the 2010 amendments, Congress deter-

mined retired law enforcement officers were entitled to “benefits

304

. Law Enforcement Officers Safety Act of 2004, Pub. L. No. 108–277, § 3, 118 Stat.

865 (codified as amended at 18 U.S.C.A. §§ 926B–926C (Westlaw through Pub. L. No. 115–

140 and Pub. L. No. 115–158 to 115–170 and, in part, Pub. L. No. 115–141).

305

. See Law Enforcement Officers Safety Act Improvements Act of 2010, Pub. L. No.

111–272, § 2(c)(2)(B)(ii), 124 Stat. 2855 (codified as amended at 18 U.S.C.A. §§ 926B(e)(2),

926C(e)(1)(a)) (Westlaw through Pub. L. No. 115–223 (including Pub. L. No. 115–225 to

115–231)).

306

. Id.

307

. E.g., Burban v. City of Neptune Beach, No. 3:17–CV–262–J–34JBT, 2018 WL

1493177, at *4–9 & nn. 3, 8 (M.D. Fla. Mar. 27, 2018) (discussing denial of credential alleg-

edly by virtue of the applicant’s not having served fifteen years, as required by the agency’s

policy, although LEOSA now requires only ten years of service, 18 U.S.C.A. § 926C(c)(3)(A)

(Westlaw); referencing 2010 amendments to LEOSA but eliding discussion of the changes

to the certification of firearms qualification); D’Aureli v. Harvey, No.

117CV00363MADDJS, 2018 WL 704733, at *2–6 (N.D.N.Y. Feb. 2, 2018) (discussing policy

conditioning credential on twenty-five years of service, subject to certain exceptions; refer-

encing, inter alia, authority predating the 2010 amendments to LEOSA and failing to grap-

ple with the import of the revisions made then).

308

. See supra notes 196–200 and accompanying text.

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66 HOUSTON LAW REVIEW [56:1

and privileges” conveyed by the statute. Currently, non-govern-

mental actors can provide retirees all that is required to allow pos-

session of complying credentials, other than photographic identifi-

cation of prior employment.

309

Simply providing adequate evidence

of prior employment is a perfunctory task, in light of the fact that

governmental units often confirm prior employment

310

—and rely

on others doing so in order to check the employment history of of-

ficer candidates.

311

That LEOSA requires the certification be accompanied by a

picture

312

is a de minimis additional imposition. So, one might

frame the question as whether a state or local governmental unit

that generally provides adequate evidence of confirmation of em-

ployment can decline to do so where it is to be used to exercise

firearms rights that unit would prefer to curtail. The answer

would appear to be that the state or local government cannot.

For an analogy, one can turn to California State Foster Parent

Ass’n v. Wagner.

313

There the court examines whether a federal

statute creates a right enforceable under section 1983 to funding

for foster parents.

314

The relevant statute did not provide detailed

guidance in computing the monetary figures.

315

Those claiming

benefit asserted in briefing:

The State’s argument would frustrate Congress’s purposes

underlying the [federal act] because it would permit a

recalcitrant state essentially to nullify [certain individuals’]

rights . . . by paying de minimis amounts . . . and leave the

in tended beneficiaries of those reimbursements without re-

course.”

316

The court concludes the absence of metrics prescribing the

309

. 18 U.S.C.A. § 922C(d)(2)(A) (Westlaw).

310

. E.g., Employment Eligibility Verification FAQs, CITY OF DETROIT, http://www.de-

troitmi.gov/How-Do-I/Find/Employment-Eligibility-Verification-FAQs [https://perma.cc/

TXK3-UH6T] (last visited May 20, 2018) (identifying, inter alia, last “Classification/Title”

and dates of employment as being provided); PSP Employment Verification, PA. STATE

POLICE, http://www.psp.pa.gov/employment/Pages/PSP-Employment-Verification.aspx

[https://perma.cc/42BB-YYK3] (last visited May 20, 2018) (noting treatment of, inter alia,

job name and years of service as public information).

311

. E.g., CAL. CODE REGS. tit. 11, § 1953(e)(6)(A) (West, Westlaw through May 4,

2018) (“Every peace officer candidate shall be the subject of employment history checks

through contacts with all past and current employers over a period of at least ten years, as

listed on the candidate’s personal history statement.”).

312

. 18 U.S.C.A. § 926C(d)(2)(A) (Westlaw).

313

. Cal. State Foster Parent Ass’n v. Wagner, 624 F.3d 974 (9th Cir. 2010).

314

. Id. at 976–77.

315

. Id. at 981.

316

. Appellees’ Answering Brief at 19, Cal. State Foster Parent Ass’n, 624 F.3d 974

(No. 09–15025), 2009 WL 7325523.

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2018] RESPONSES TO FIREARMS LEGISLATION 67

amounts to be paid does not imply a right enforceable under sec-

tion 1983 has not been created.

317

From this we can conclude the following: A federal statute

may not explicitly detail mechanisms that prohibit state or local

acts thwarting the benefits sought to be secured. Yet that omission

does not prevent creation of a right enforceable under section 1983.

Buckley v. City of Redding,

318

a case predating Blessing but

applying comparable principles,

319

similarly rejects an interpreta-

tion that would allow an express right to be fettered by a plodding

statutory interpretation. The case involves federal funding of fa-

cilities that could accommodate powered watercraft.

320

The local

government argued the federal statute merely required construc-

tion of facilities that could accommodate certain powered water-

craft, but the locale was permitted nevertheless to ban the use of

the covered watercraft at the location.

321

The court rejects that ap-

proach: “Such a reading would frustrate the purpose of the legis-

lative enactment.”

322

317

. Wagner, 624 F.3d at 981–82.

318

. Buckley v. City of Redding, 66 F.3d 188 (9th Cir. 1995), as amended on denial of

reh’g (Nov. 30, 1995).

319

. The opinion states:

Several factors are relevant to determining whether a statute creates an en-

forceable right: (1) whether the statutory provision at issue was intended to ben-

efit the putative plaintiff; (2) whether the provision creates a binding obligation

on the state rather than a mere congressional preference; and (3) whether the

asserted interest is not so amorphous as to be “beyond the competence of the judi-

ciary to enforce.”

Buckley, 66 F.3d at 190.

320

. Id. at 189.

321

. Id. at 193.

322

. In particular, the opinion recites:

The City argues that even if the Act permits enforcement via section 1983,

Buckley and the PWIA have failed to state a claim because they cannot show that

the City is not in compliance. The City argues that 50 C.F.R. § 80.24 merely re-

quires that facilities built with funds disbursed under the Act be physically capa-

ble of accommodating boats of common horsepower ratings. Because the South

Bonnyview boat launch facility can physically accommodate personal watercraft,

the City argues it has complied with the Act, regardless of the fact that the water-

way in question is restricted and offers no practical accommodation to these ves-

sels. We reject such a hypertechnical reading of the Act. The language of the reg-

ulation can just as easily be read to require both the facility and the waterway in

question to meet the Act’s requirements. Considered in the context of the Act’s

language as a whole, it is abundantly clear that Congress intended to have facili-

ties such as the South Bonnyview boat launch facility accommodate motorboats of

common horsepower in an effort to increase access to recreational waterways. The

City’s reading of the Act would allow it to receive the benefit of its bargain with

Congress, i.e., receiving funding to subsidize construction of a boat launch facility,

while avoiding its obligations under the Act. Such a reading would frustrate the

purpose of the legislative enactment. The state would have another boat launch

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68 HOUSTON LAW REVIEW [56:1

Congress sought to provide benefits to these law enforcement

officials and retirees. Evasions by state and local governmental ac-

tors fettered realization of the benefits. In response, Congress

amended LEOSA to allow a perfunctory governmental task, which

had been the stumbling block, to instead be fulfilled by private

parties. A statute is to be construed in light of the purpose its lan-

guage evidences.

323

Allowing state and local governments to con-

tinue to frustrate the realization of the benefits intended to be cre-

ated, by concluding they may discriminatorily decline to perform

a rudimentary, common task of certifying prior employment, can-

not be harmonized with the purposes the statutory language, and

its history of amendment, evidence.

3. Limits of Section 1983 Remedial Provisions.

Even if a court holds that LEOSA creates a right enforceable

under section 1983, the detailed principles governing immunities

under section 1983 might operate to prevent a claim in a particular

case. The intricacy of the immunity principles prevents a

comprehensive assessment of their application in the myriad

circumstances where a claim of right under LEOSA could be

asserted. However, there are a few specific issues that merit

identification and some brief commentary:

(i) The individual liability of an officer who deprives a person

of rights under LEOSA may depend on whether the circumstances

fit within the “extraordinary circumstances” exception;

324

(ii) Municipal liability depends on the activity being by virtue

of a custom or policy; and

(iii) Municipal liability for wrongful denial of a credential may

depend on somewhat complex issues of whether the actor is

treated as one who can, by virtue of his office, make “policy.”

We will sketch the basic landscape and illuminate some of the

relevant applications.

The scope of the limits depends on whether the claims are

against a state and its officials or a municipality and its officials.

facility, but a class of intended beneficiaries under the Act would be deprived of

its use.

Buckley, 66 F.3d at 193.

323

. Abramski v. United States, 134 S. Ct. 2259, 2267 (2014) (“In answering that in-

quiry, we must (as usual) interpret the relevant words not in a vacuum, but with reference

to the statutory context, ‘structure, history, and purpose.’”); Haggar Co. v. Helvering, 308

U.S. 389, 394 (1940) (“All statutes must be construed in the light of their purpose.”).

324

. See, e.g., MARTIN A. SCHWARTZ, SECTION 1983 LITIGATION CLAIMS AND DEFENSES

§ 9A.05 (4th ed.), Westlaw (database updated through 2018–2 Supp.); 15 AM. JUR. 2D Civil

Rights § 116, Westlaw (database updated Aug. 2018).

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2018] RESPONSES TO FIREARMS LEGISLATION 69

A state cannot be sued under section 1983.

325

State officials cannot

be sued under section 1983 in their official capacities for dam-

ages,

326

although they can be so sued for damages in their individ-

ual capacities.

327

And they can be sued for injunctive relief in their

official capacities

328

(but not in their personal capacities

329

) alt-

hough in such a lawsuit, “the entity’s ‘policy or custom’ must have

played a part in the violation of federal law.”

330

On the other hand:

Monell v. Department of Social Services held that local gov-

ernmental bodies are persons under § 1983 and, hence, di-

rectly suable for compensatory damages and declaratory and

injunctive relief. . . . The Court also concluded in Monell that

local governmental officials may be sued in their official ca-

pacity for damages and retrospective declaratory and injunc-

tive relief even though the local governmental body itself

pays.

331

Persons suing a municipality, whether for damages or pro-

spective relief (“such as an injunction or a declaratory judg-

ment”)

332

under section 1983 “must show that their injury was

caused by a municipal policy or custom.”

333

This requirement for a

“municipal policy or custom” has been applied by lower courts to

claims for injunctive relief against municipal officials sued in their

325

. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989) (“[A] State is not a person

within the meaning of § 1983.”); cf. 42 U.S.C.A. § 1983 (Westlaw) (stating “[e]very person

. . . shall be liable . . . .”) (emphasis added).

326

. Hafer v. Melo, 502 U.S. 21, 26 (1991).

327

. Id. at 23.

328

. Will, 491 U.S. at 71 n.10 (1989) (“Of course a state official in his or her official

capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-

capacity actions for prospective relief are not treated as actions against the State.’”).

329

. Barrish v. Cappy, No. CIV.A. 06–837, 2006 WL 999974, at *4 (E.D. Pa. Apr. 17,

2006) (concerning Pennsylvania Supreme Court Justice). The same holds true for an at-

tempt to seek injunctive relief against a municipal official acting in his or her personal

capacity. Evans v. Bayer, 684 F. Supp. 2d 1365, 1369 (S.D. Fla. 2010) (stating, as to a rem-

edy sought against a school principal, “An issue remains, however, concerning whether in-

junctive relief can be sought against a defendant in his individual capacity if the act must

be in his official capacity to have official consequences. The Court finds the answer to be

no.”).

330

. Moreno v. Ryan, No. CV1508312PCTSRBJZB, 2017 WL 2214703, at *4–5 (D.

Ariz. May 19, 2017) (citation omitted); Aleto v. State of California, No.

EDCV150842RGKJEM, 2015 WL 9305626, at *4 (C.D. Cal. Dec. 21, 2015) (same).

331

. SHELDON H. NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW

OF SECTION 1983 § 6:5, Westlaw (database updated August 2017) (footnotes omitted) (citing

Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658 (1978)).

332

. Los Angeles County v. Humphries, 562 U.S. 29, 31 (2010).

333

. Id. at 30–31.

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70 HOUSTON LAW REVIEW [56:1

official capacities.

334

Extraordinary circumstances. Under what are sometimes ref-

erenced as “extraordinary circumstances,”

335

an employee can nev-

ertheless avoid personal liability for infringement of a right se-

cured by section 1983. For example:

[O]fficers can still prevail if they claim “extraordinary cir-

cumstances and can prove that [they] neither knew nor

should have known of the relevant legal standard. But . . .

the defense would turn primarily on objective factors.”

336

An older statement of the principle is:

Ordinarily, a qualified immunity defense will fail if, as

here, the law was clearly established at the time the action

occurred, “since a reasonably competent public official should

know the law governing his conduct.” However, if the official

claims that extraordinary circumstances existed and can

prove, based on objective factors, that he neither knew nor

should have known the relevant legal standard, the defense

should be applied. “[I]t is inevitable that law enforcement of-

ficials will in some cases reasonably but mistakenly conclude

that probable cause is present, and * * * in such cases those

officials * * * should not be held personally liable.”

337

This principle allows for recognition of the type of flexibility

in curtailing individual liability—of the type of concern in Ramirez

v. Port Authority of New York & New Jersey (PANYNJ)

338

—and

nevertheless allow for vindication of rights where non-monetary

relief is sought or where the concerns for limiting liability are less

compelling, as would be the case where a municipality contuma-

ciously adopts a policy flouting LEOSA.

“Policy or custom” requirement. The “policy or custom” re-

quirement

339

may materially curtail the availability of a remedy

against a municipality. Although a unilateral action by an inferior

employee would not be included, a single decision can constitute a

334

. Jewell v. Miller County, 489 F. App’x 993, 994 (8th Cir. 2012); Cain v. City of New

Orleans, No. CV 15–4479, 2017 WL 467685, at *15 (E.D. La. Feb. 3, 2017).

335

. See supra note 324 and accompanying text.

336

. Wesby v. District of Columbia, 841 F. Supp. 2d 20, 38 (D.D.C. 2012) (quoting Har-

low v. Fitzgerald, 457 U.S. 800, 819 (1982)) (citation omitted), aff’d, 765 F.3d 13 (D.C. Cir.

2014); reh’g den’d, 816 F.3d 96 (D.C. Cir. 2016); rev’d on other grounds, 138 S. Ct. 577 (2018).

337

. E-Z Mart Stores, Inc. v. Kirksey, 885 F.2d 476, 478 (8th Cir. 1989) (quoting Har-

low, 457 U.S. at 818–19; and Anderson v. Creighton, 483 U.S. 635, 641 (1987)) (citation

omitted).

338

. Ramirez v. Port Auth. of N.Y. & N.J., No. 15–CV–3225 (DLC), 2015 WL 9463185,

at *1– 2, *6 (S.D.N.Y. Dec. 28, 2015).

339

. Los Angeles County v. Humphries, 562 U.S. 29, 39 (2010) (quoting Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 694 (1978)).

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2018] RESPONSES TO FIREARMS LEGISLATION 71

“policy” for these purposes,

340

where made by one “whose acts or

edicts may fairly be said to represent official policy.”

341

For exam-

ple, a court has noted as to a sheriff’s decisions not to maintain

records required under state law of prisoner work:

We note that even “a single decision may create munic-

ipal liability if that decision were made by a final policy-

maker responsible for that activity.” Sheriffs in Mississippi

are final policymakers with respect to all law enforcement

decisions made within their counties. Sheriff Howell admit-

ted on the record that the department kept none of the re-

quired records detailing the locations and number of days

prisoners worked. The jury could infer from this statement

that the county had a policy of not keeping such records.

342

Because the classification as to who has final policymaking

authority is a question of state law,

343

the unilateral acts of a sher-

iff or police chief might or might not constitute a “policy.” Even in

the absence of a “policy,” an action allegedly inconsistent with

LEOSA might be treated as custom, sufficient to give rise to a rem-

edy:

Proof of random acts or isolated events is insufficient to

establish custom. But a plaintiff may prove “the existence of

a custom or informal policy with evidence of repeated consti-

tutional violations for which the errant municipal officials

were not discharged or reprimanded.” Once such a showing

is made, a municipality may be liable for its custom “irre-

spective of whether official policy-makers had actual

knowledge of the practice at issue.”

344

340

. Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).

341

. Id. (quoting Monell, 436 U.S. at 694).

342

. Brooks v. George County, 84 F.3d 157, 165 (5th Cir. 1996) (quoting Brown v.

Bryan County, 67 F.3d 1174, 1183 (5th Cir. 1995) (emphasis in Brown)) (citations omitted).

343

. See Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (quoting City of St.

Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality opinion)) (“[W]hether a particular

official has ‘final policymaking authority’ is a question of state law.”). See generally, e.g.,

Kelley v. LaForce, 288 F.3d 1, 10 (1st Cir. 2002) (granting summary judgment on basis that

complaint asserts the town administrator ordered an individual’s ejection of a pub manager,

negating the claim the police chief had final policy-making authority); Gros v. City of Grand

Prairie, 181 F.3d 613, 617 (5th Cir. 1999) (remanding for a determination of whether city

chief of police had final policymaking authority in connection with claims for abusive traffic

stop); Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996) (quoting Turner v. Upton County,

915 F.2d 133, 136 (5th Cir. 1990)) (stating, as to claims arising from an alleged rape by a

sheriff in the course of an investigation, “In this circuit, ‘[i]t has long been recognized that,

in Texas, the county sheriff is the county’s final policymaker in the area of law enforcement,

not by virtue of the delegation by the county’s governing body but, rather, by virtue of the

office to which the sheriff has been elected.’”).

344

. Navarro v. Block, 72 F.3d 712, 714–15 (9th Cir. 1995) (quoting Gillette v. Del-

more, 979 F.2d 1342, 1349 (9th Cir.1992); Thompson v. City of Los Angeles, 885 F.2d 1439,

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72 HOUSTON LAW REVIEW [56:1

The clearly established right requirement; illustrations. State

and local officials benefit from qualified immunity in damages ac-

tions,

345

but not in claims for injunctive relief or declaratory judg-

ments.

346

The Supreme Court has recently noted the following con-

cerning qualified immunity:

A government official sued under § 1983 is entitled to

qualified immunity unless the official violated a statutory or

constitutional right that was clearly established at the time

of the challenged conduct. A right is clearly established only

if its contours are sufficiently clear that “a reasonable official

would understand that what he is doing violates that right.”

In other words, “existing precedent must have placed the

statutory or constitutional question beyond debate.” This

1444 (9th Cir. 1989)). Another statement is provided in Mitchell v. City & County of Denver:

A custom is a “persistent and widespread” practice which “constitutes the

standard operating procedure of the local governmental entity.” It may also be a

series of decisions by a subordinate official of which the supervisor must have been

aware. Liability attaches in such a case, because “the supervisor could realistically

be deemed to have adopted a policy that happened to have been formulated or

initiated by a lower-ranking official.” “But the mere failure to investigate the basis

of a subordinate’s discretionary decisions does not amount to a delegation of poli-

cymaking authority.”

112 F. App’x 662, 672 (10th Cir. 2004) (quoting Jett, 491 U.S. at 737; Praprotnik, 485 U.S.

at 130 (plurality opinion)) (footnote omitted) (citations omitted); George M. Weaver, Ratifi-

cation as an Exception to the § 1983 Causation Requirement: Plaintiff’s Opportunity or Il-

lusion?, 89 NEB. L. REV. 358, 373–77 (2010) (collecting cases addressing the number of in-

cidents sufficient or insufficient to find a custom).

A review of model jury instructions reveals the following vague standard as to

what might be a custom:

A “policy or custom” includes a . . . practice or course of conduct that is so

widespread that it has acquired the force of law—even if the practice has not been

formally approved. You may find that a “policy or custom” existed if there was a

practice that was so persistent, widespread, or repetitious that [name of city]’s

policymaker[s] either knew of it, or should have known of it.

3B KEVIN F. O’MALLEY ET AL., FEDERAL JURY PRACTICE AND INSTRUCTIONS § 168:180 (6th

ed.), Westlaw (database updated Aug. 2018). Another illustration: “Official [policy/custom]”

means: [insert one of the following:] . . . [A custom that is a permanent, widespread, or well-

settled practice of the [city/county] . . . .” JUDICIAL COUNCIL OF CAL. ADVISORY COMM. ON

CIVIL JURY INSTRUCTIONS, JUDICIAL COUNCIL OF CAL. CIVIL JURY INSTRUCTION 3002,

Westlaw (database updated Feb. 2018). See generally Matthew J. Cron et al., Municipal

Liability: Strategies, Critiques, and a Pathway Toward Effective Enforcement of Civil

Rights, 91 DENV. U.L. REV. 583, 593–94 (2014) (discussing the use of statistical evidence to

prove a custom).

345

. E.g., Carroll v. Carman, 135 S. Ct. 348, 350 (2014) (addressing state police offic-

ers); SHELDON H. NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF

SECTION 1983 § 8:98, Westlaw (database updated Aug. 2017) (“The decisions of the Supreme

Court and the circuits demonstrate that the qualified immunity test covers all state and

local government officials at all levels of responsibility, with the exception of those who

have absolute immunity.”).

346

. DAVID W. LEE, HANDBOOK OF SECTION 1983 LITIGATION § 9.03 (2017) (“Qualified

immunity does not apply to § 1983 suits for injunctive or declaratory relief.”).

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2018] RESPONSES TO FIREARMS LEGISLATION 73

doctrine “gives government officials breathing room to make

reasonable but mistaken judgments,” and “protects ‘all but

the plainly incompetent or those who knowingly violate the

law.’”

347

These limits on rights to recover under section 1983 create an

intricate mosaic that may operate to prevent vindication of rights

under LEOSA in a particular context. A few ways in which that

may play-out can be sketched.

As noted, a person seeking injunctive relief must demonstrate

a violation of a policy or custom.

348

The credential might be sought,

for example, from a sheriff or chief of police, whose acts might not

constitute a “policy.”

349

And there might not be enough denials to

evidence a persistent and widespread practice,

350

as “random acts

or isolated incidents” are normally insufficient.

351

(Of course, ar-

rests in violation of LEOSA are particularly likely not to be pursu-

ant to a policy and subject to the normal limits on frequency so as

not to constitute a custom.)

Thus, a claim for injunctive relief under section 1983 as to

failure to assist with obtaining credentials may fail because there

is not a state or municipal “policy” or adequately widespread cus-

tom

352

that is inconsistent with LEOSA, and the persons involved

347

. Carman, 135 S. Ct. at 350 (citation omitted) (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987); Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); id. at 743; id. (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986))) (addressing state police officers). Justice

Thomas has recently criticized the landscape of the current jurisprudence, stating, “Be-

cause our analysis is no longer grounded in the common-law backdrop against which Con-

gress enacted the 1871 Act, we are no longer engaged in ‘interpret[ing] the intent of Con-

gress in enacting’ the Act.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1871 (2017) (Thomas, J.,

concurring in part and concurring in the judgment) (quoting Malley, 475 U.S. at 342).

348

. See supra notes 330–33 and accompanying text.

349

. See supra notes 342–43 and accompanying text.

350

. See supra note 344 and accompanying text.

351

. Daniel v. Hancock Cty. Sch. Dist., 626 F. App’x 825, 832 (11th Cir. 2015).

It bears mention that this context may be somewhat different than the norm, in

ways not typically captured in litigation but that a court could well find important. If a

private person is denied prospective relief as to a credential, that is inherently an ongoing

denial. The need for repeated occurrences is sometimes referenced in the context of assuring

the decision-maker is aware of the actions. E.g., id. (“Indeed, the practice must be extensive

enough to allow actual or constructive knowledge of such customs or policies to be at-

tributed to the governing body of the municipality.”) A court could take the position that

denials of firearms permits that result in requests for prospective relief are necessarily go-

ing to involve decision-makers becoming aware of the circumstances and, therefore, those

denials are necessarily products of policies.

352

. An illustration of adequate allegations of a custom is provided by Perros v. County

of Nassau, 238 F. Supp. 3d 395, 404 (E.D.N.Y. 2017) (finding adequate allegations of a cus-

tom in equal protection challenge to denial of documentation [so-called “good-guy letters”]

allegedly on the basis of retirement on account of disability). See Plaintiffs’ Memorandum

of Law in Opposition to Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. Pro. 12(b)

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74 HOUSTON LAW REVIEW [56:1

in the denial were not final policymakers under state law.

In such a case, a claim against the person who failed to issue

the credential in his or her individual capacity might fail because

the right to a credential is not “clearly established” (giving the in-

dividual qualified immunity), unless the denial was treated as a

non-discretionary, ministerial act (litigated in a court recognizing

that exception).

353

Under current doctrine,

354

a court determining

there is not a clearly established right need not in that case (and

often does not) in that opinion address whether the right exists.

355

So, the availability of a remedy might require a sufficient passage

of time so that there are sufficient denials to constitute a custom.

If the credentialing entity is local, that might not happen quickly.

And even if a state entity does the credentialing, that might not

happen quickly if denials are inconsistent.

However, some authority holds that qualified immunity does

not apply to non-discretionary, ministerial acts.

356

at 33, Perros, 238 F. Supp. 3d 395 (No. CV 15–5598), 2016 WL 9244099, at *18–19 (arguing

that six named plaintiffs were denied their “good guy letters” on account of retirement for

disability); First Amended Complaint at 24, Perros, 238 F. Supp. 3d 395 (No. CV 15–5598),

2015 WL 5693546, at *4 (“Defendant[’s] . . . sole reason for his denial was the fact that

Plaintiffs were injured and/or was disabled for medical reasons at the time of their applica-

tion for retirement.”).

353

. See infra note 283 and accompanying text.

354

. In 2009, the Supreme Court held, “The judges of the district courts and the courts

of appeals should be permitted to exercise their sound discretion in deciding which of the

two prongs of the qualified immunity analysis should be addressed first in light of the cir-

cumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

This reversed the approach the Court dictated only a few years before in Saucier v. Katz,

533 U.S. 194, 201 (2001) (addressing constitutional rights).

355

. E.g., Chesney v. City of Jackson, 171 F. Supp. 3d 605, 609, 619–22 (E.D. Mich.

2016) (finding, as to one who carried a firearm in a government building and also defended

on First Amendment grounds, the right under the Second Amendment to carry a firearm

outside the home was not clearly established, eliding a determination of whether such a

right exists). To provide another illustration, Schaefer v. Whitted, 121 F. Supp. 3d 701, 707

(W.D. Tex. 2015), involves allegations that, immediately upon a person’s exiting his house

with a holstered firearm, “Without identifying himself, and without warning, [an officer,

one Whitted,] immediately grabbed [the occupant’s] left arm in an attempt to physically

remove the gun from its holster,” quickly leading to the homeowner being shot to death.

The court concludes, “[T]here is no clearly established rules putting Officer Whitted on no-

tice his actions even implicated the Second Amendment.” Id. at 711 (emphasis added). The

case elides addressing the scope of the right, although it does nevertheless allow to proceed

claims seeking increased training for use of deadly force, interaction with persons legally

armed and the Second Amendment. Id. at 711, 719. Certain claims asserting Fourth

Amendment violations were allowed to proceed. Id. at 715.

356

. Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001) (stating as to an alleged

failure to provide the complainant with proper application materials for reciprocal real es-

tate licensure, “These ministerial acts are unshielded by qualified immunity, which protects

‘only actions taken pursuant to discretionary functions.’”) (quoting F.E. Trotter, Inc. v. Wat-

kins, 869 F.2d 1312, 1314 (9th Cir. 1989)); Brooks v. George County, 84 F.3d 157, 165 (5th

Cir. 1996) (addressing failure to maintain records of a trusty’s work, “Mississippi law, as

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2018] RESPONSES TO FIREARMS LEGISLATION 75

V. CONCLUSION

The purposes supporting adoption of LEOSA are to allow the

covered individuals, certain current and retired qualified law en-

forcement personnel, to protect themselves, in light of circum-

stances that may have arisen from their work in that capacity; and

to allow these persons potentially to supplement local law enforce-

ment efforts.

357

The act is one of a number that preempt state fire-

arms regulation, including the Armored Car Industry Reciprocity

Act of 1993,

358

and the Firearms Owners’ Protection Act.

359

Some

of the state responses to LEOSA seem contumacious. For example,

we have a state that publicly purports to prohibit certain ammu-

nition be carried by qualifying personnel,

360

when that position is

directly contradicted by LEOSA’s text. Such a response is, of

course, manifestly unsatisfactory.

Although LEOSA was initially adopted in 2004,

361

there re-

main basic questions concerning its scope. A primary issue not yet

answered by the courts is whether the act preempts state and local

restrictions on possession of firearms having particular features

(other than bans on fully automatic firearms and sound suppres-

sors). This is an important question for those who would wish to

rely on LEOSA. In the view of some, state restrictions that ban

magazines, owned by private persons in the tens of millions or

more, would remain applicable.

362

It would allow to subsist appli-

cation to qualifying personnel of other obscure local restrictions,

such as those in Chicago prohibiting laser sights on handguns.

There is a substantial impediment to realization of the act’s

goals—allowing qualifying personnel to travel nation-wide and be

able to protect themselves, and potentially assist local law enforce-

ment—if the preemption is incomplete, requiring the qualifying

quoted above, imposes on Sheriff Howell a non-discretionary duty to keep records of work

performed by pretrial detainees and to transmit those records to the board of supervisors

so that pretrial detainees can be paid. Sheriff Howell thus is not entitled to qualified im-

munity from individual liability on this due process claim[ ]”).

357

. See supra note 104 and accompanying text.

358

. See supra notes 194–96 (referencing the Armored Car Industry Reciprocity Act of

1993, Pub. L. No. 103–55, 107 Stat. 276 (codified as amended at 15 U.S.C.A. §§ 5901–5904

(Westlaw through Pub. L. No. 115–223 (including Pub. L. No. 115–225 to 115–231))).

359

. Firearms Owners’ Protection Act, Pub. L. No. 99–308, 100 Stat. 449 (1986) (codi-

fied at 18 U.S.C.A. § 926A and other scattered sections of 18 U.S.C.A.), amended by Pub. L.

No. 99–360, 100 Stat. 766 (1986).

360

. See supra note 105–07 and accompanying text.

361

. Law Enforcement Officers Safety Act of 2004, Pub. L. No. 108–277, 118 Stat. 865

(codified as amended at 18 U.S.C.A. §§ 926B, 926C (Westlaw through Pub. L. No. 115–223

(including Pub. L. No. 115–225 to 115–231))).

362

. See supra note 67 and accompanying text.

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76 HOUSTON LAW REVIEW [56:1

persons ascertain whether the particular firearms features are

banned in every locality they transit. Although it is clear why a

jurisdiction that did not wish to have its laws preempted would

wish for a maze of local regulations to make use of the right im-

practicable, the question for students of the law is whether the

statute admits of this interpretation that would frustrate its evi-

dent purposes.

The argument that these restrictions on firearms features are

not preempted is rather laughable. It involves what purports to be

a literal interpretation of the statutory language but, ironically,

does not actually reflect an understanding of what is meant by a

literal interpretation.

363

The view that one might encounter is that the statute does

not make express reference to “magazines” and, thus, a literal in-

terpretation compels the conclusion that the statute does not

preempt restrictions on magazine limits. To assert a literal inter-

pretation requires a particular conclusion, one necessarily must

apply the actual statutory language. The statute states, “Notwith-

standing any other provision of the law of any State or any political

subdivision thereof, an individual . . . may carry a concealed fire-

arm . . . .”

364

It then defines “firearm.” An ordinary semi-automatic

pistol having inserted in it, for example, an original equipment

manufacturer’s 17-round magazine is literally within that defini-

tion of firearm.

365

So, the statute literally states that, as to this

firearm having this particular component, a qualifying person can

carry it in a state, notwithstanding “any other provision of” state

law.

A focused state or local ban on firearm features, e.g., one ref-

erencing magazine size, is literally included in “any other provi-

sion of” state law. Thus, the statute literally provides the illustra-

tive firearm can be carried notwithstanding such a ban. The

interpretative approach restricting the preemption is not literal at

all. It requires that “any” does not mean “any;” that statutory ref-

erence to “notwithstanding any other provision of the law of any

State” does not mean what it says but, rather, “notwithstanding

some other provision[s] of the law of any state.” Because “any” does

not mean “only some,” an assertion that restrictions on firearm

features—such as the capacity of its integral component, a maga-

zine—is outside restrictions on “any other provision of” state law

363

. See supra notes 76–81 and accompanying text.

364

. 18 U.S.C.A. §§ 926B(a) (Westlaw through Pub. L. No. 115–223); see also id.

§ 926C(a).

365

. See supra note 69 and accompanying text.

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2018] RESPONSES TO FIREARMS LEGISLATION 77

is not a literal reading of the statute.

To conclude LEOSA does not preempt state and local re-

strictions on firearms features:

(i) One would need to find the facially unambiguous statutory

language is ambiguous.

366

(ii) One would need to avoid application of the “cardinal” prin-

ciple of construction that rejects an interpretation that makes lan-

guage surplusage.

367

(iii) One would need to distinguish construction of similar lan-

guage in another section of the Gun Control Act of 1968, FOPA,

which should be construed in pari materia, that has been con-

strued as preempting state or local restrictions on firearm fea-

tures.

368

To conclude that authority is incorrect would substan-

tially eviscerate the efficacy of that other section and be

inconsistent with its prior judicial construction.

(iv) One would need to ignore the legislative history, which

indicates LEOSA was intended to allow qualified persons to pos-

sess “any gun,” other than those whose features by express provi-

sion are not subject to preemption.

369

(v) One would need to reject a position expressly taken by the

United States in litigation, that LEOSA preempts restrictions on

firearms because the arms have particular features (there, a semi-

automatic sporting rifle).

370

(vi) One would need to reject application of the rule of len-

ity.

371

There is nothing in the statute or its context that would sup-

port those conclusions, so as to make the carrying of a firearm au-

thorized by LEOSA impracticable for qualifying persons.

The argument that one encounters that LEOSA does not al-

low qualifying persons to possess firearms within 1000 feet of an

elementary or secondary school

372

is also unsound. It suasion is

confined to those who misunderstand the principle of statutory

construction as involving assembly of the parsing of sentence frag-

ments and stopping there—those eliding judicial conclusions that,

for example: (i) principles of statutory construction may cause a

category comprising “tangible object[s]” not to include, as

366

. See supra notes 78–81 and accompanying text.

367

. See supra notes 82–90 and accompanying text.

368

. See supra notes 91–94 and accompanying text.

369

. See supra note 95 and accompanying text.

370

. See supra notes 97–98 and accompanying text.

371

. See supra notes 99–100 and accompanying text.

372

. See supra notes 138–40 and accompanying text.

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78 HOUSTON LAW REVIEW [56:1

inconsistent with statutory objectives, fish;

373

and (ii) from the con-

text, statutory reference to something “established by the state”

might, under some principles of construction, involve something

the state in fact declined to establish.

374

Finding that persons ben-

efitting from LEOSA are not prohibited to carry firearms within

1000 feet of a school is a much more straight-forward process than

those conclusions that the Supreme Court has reached.

A conclusion that licensure under LEOSA does not satisfy the

licensure requirements under the Gun-Free School Zones Act

would necessitate a conclusion, by construing sections in pari ma-

teria, that persons authorized to carry firearms out-of-state under

the Armored Car Industry Reciprocity Act of 1993

375

cannot do so

within 1000 feet of a school. That, of course, would effectively dis-

arm these personnel out-of-state and is a result that can be re-

jected as inherently absurd.

The legislative history is clear that the act was intended to

allow qualifying personnel to carry concealed firearms “anywhere

within the United States,” subject to the express limitations in the

statute as to private property and state and local property. The

five-sentence summary of the House report states that.

376

Assorted

Representatives stated that. All the references in the legislative

history to “schools” indicate the act was understood as not result-

ing in qualifying personnel being effectively prohibited from car-

rying a firearm within 1000 feet of a school.

377

Otherwise, there

would not have been a proposal to amend the statute so as to not

preempt state restrictions of firearms on schools—but there was

such an amendment (albeit one that was rejected).

378

After King v. Burwell,

379

the conclusion that the Gun-Free

School Zones Act does not apply to persons carrying firearms un-

der LEOSA follows a fortiori.

The better view is that LEOSA creates a right enforceable un-

der section 1983. The contrary view, expressed in Ramirez v. Port

Authority of New York & New Jersey (PANYNJ),

380

is poorly

373

. See supra notes 175–81 and accompanying text.

374

. See supra notes 167–74 and accompanying text.

375

. See supra notes 189–94 and accompanying text (referencing the Armored Car In-

dustry Reciprocity Act of 1993, Pub. L. No. 103–55, 107 Stat. 276 (codified as amended at

15 U.S.C.A. §§ 5901–5904 (Westlaw through Pub. L. No. 115–223) (including Pub L. No.

115–225 to 115–231))).

376

. H.R. REP. NO. 108–560, at 3 (2004).

377

. See supra notes 159–64 and accompanying text.

378

. See supra note 164 and accompanying text.

379

. King v. Burwell, 135 S. Ct. 2480, 2496 (2015).

380

. Ramirez v. Port Auth. of N.Y. & N.J., No. 15–CV–3225 (DLC), 2015 WL 9463185,

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2018] RESPONSES TO FIREARMS LEGISLATION 79

reasoned. Ramirez inexplicably takes the position that some other

statute is too burdensome to subject local law enforcement officials

to financial liability for non-compliance, so LEOSA should not give

rise to a right under section 1983.

381

To state the analysis is to

reject it. Moreover, the authority on which Ramirez relies, Torraco

v. Port Authority of New York & New Jersey,

382

is doctrinally de-

fective.

383

It in fact admittedly fails to apply the terms of a Su-

preme Court analysis that it recites as applicable.

384

Objections that LEOSA would give rise to a right that would

be invalid under principles prohibiting commandeering

385

reflect a

misunderstanding of Supreme Court precedent. The Court has, in

fact, validated federal regulation that requires a state to engage in

activity that it finds burdensome, and that actually requires a

state to provide information (evidence of ownership, in that case)

to the public.

386

An argument that the federal government cannot

force a state to provide information (in the case at hand, confirma-

tion of a person’s prior employment) is inconsistent with Supreme

Court precedent. One error of courts that have found a comman-

deering problem is their failure to recognize,

387

as the cases make

patent, that the proscription on commandeering is limited to fed-

eral impositions “requir[ing] state officials to assist in the enforce-

ment of federal statutes regulating private individuals.”

388

LEOSA

does not do this. Rather, it involves federal impositions arising

from preventing states and localities from criminalizing particular

conduct.

The remedial limits that have been developed for claims un-

der section 1983, as Justice Thomas has recently noted, are not

actually tethered to “the common-law backdrop against which

Congress enacted the 1871 Act.”

389

Insofar as a court finds a need

at *1–2, *6 (S.D.N.Y. Dec. 28, 2015); see supra note 288 and accompanying text.

381

. See supra note 292 and accompanying text.

382

. Ramirez, 2015 WL 9463185, at *5–6 (relying on Torraco v. Port Auth. of N.Y. &

N.J., 615 F.3d 129, 136–39 (2d Cir. 2010)).

383

. See supra notes 301–02 and accompanying text.

384

. See Torraco, 615 F.3d at 137 (“Appellants are correct that the language of the

second factor focuses on whether the rights conferred would be difficult for the judiciary,

as opposed to law enforcement officials, to identify and enforce.”).

385

. E.g., Henrichs v. Ill. Law Enf’t Training & Standards Bd., No. 15 C 10265, 2018

WL 572708, at *4 (N.D. Ill. Jan. 26, 2018).

386

. See supra note 243–47 and accompanying text.

387

. E.g., Henrichs, 2018 WL 572708, at *4 (failing to reference the distinction and

failing to reference either Reno v. Condon, 528 U.S. 141 (2000) or South Carolina v. Baker,

485 U.S. 505 (1988)).

388

. Condon, 528 U.S. at 151 (emphasis added).

389

. Ziglar v. Abbasi, 137 S. Ct. 1843, 1871 (2017) (Thomas, J., concurring in part and

concurring in the judgment).

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80 HOUSTON LAW REVIEW [56:1

not to allow a damages remedy to the careless but not contuma-

cious police officer that fails to recognize the scope of LEOSA and

arrests a person for acts protected by LEOSA, the Supreme Court

can either amplify extant exceptional circumstances exceptions or

create another sui generis component to this sui generis remedial

scheme. It need not simply conclude that the sui generis remedial

scheme is now so frozen that no right whatsoever can be recog-

nized to have been created under LEOSA, even for injunctive re-

lief.