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Duberry and Dunsmuir

The Law Enforcement Officer Safety Act, known as LEOSA, is a federal law that gives law enforcement officers and retired law enforcement officers the right to carry a concealed firearm regardless of state or local legislation.  Specifically, LEOSA or HR 218 preempts any state and local laws to the contrary.  LEOSA does not govern every single aspect of gun laws as the states are permitted to enforce laws such as transport laws.  The scope of LEOSA’s protections, however, is often contested, characterized by debate over the positions under the umbrella of “law enforcement officer.” Two cases, one brought by a retired correctional officer, the other by a retired Rutgers University Police Officer, demonstrate the difficulty in defining a “law enforcement officer,” at least for some government officials.

Roger Duberry, a retired correctional officer of the D.C. Department of Corrections, argued before the United States Court of Appeals for the District of Columbia for his ability to carry concealed weapons. Duberry worked for the D.C. Department of Corrections before retiring in good standing. As a correctional officer, he was trained and authorized to carry firearms, and had a photo-ID issued from the D.C. Department of Corrections stating that he had the authority to arrest and apprehend. However, the District Court for the District of Columbia found that he was unprotected by LEOSA because he lacked firearms certification, which was denied because he did not have law enforcement status and was not “trained to determine whether probable cause exists to make warrantless arrests.”

Duberry then appealed his case to the United States Court of Appeals for the District of Columbia, which overturned the previous ruling. The court ruled that the rights protected by LEOSA were not limited to former police officers but included authorities who “engaged in … the incarceration of any person for any violation of the law.” Furthermore, the Court of Appeals contradicted the District Court’s ruling that correctional officers lacked statuary powers of arrest, finding that Duberry’s ID card stated that he had the power of arrest. While the District Court found that a “qualified law enforcement officer” was too difficult and amorphous to define, the Court of Appeals ruled that the provisions set forth in LEOSA made it easy to determine who is a “qualified law enforcement officer.” Finally, the Court of Appeals found that the firearms certification requirement does not define the right itself but is rather a precondition to the exercise of that right, affording Duberry protections under LEOSA even when he lacked a firearms certificate. In general, the court found that the purpose of LEOSA was to afford retired law officers, in view of their past responsibilities, the present means of self-protection. Therefore, retired corrections officers, who occasionally encounter former inmates who may recognize them, qualify to carry concealed firearms under LEOSA.

Another case was brought before the Superior Court of New Jersey in 2016 by Robert Dunsmuir, a retired Rutgers University Police Officer appealing the denial of his application for a gun permit. Dunsmuir served on the Rutgers University Police Force for 21 years before retiring in good standing, where he performed the typical duties of a police officer and attended a certified range at least twice a year. However, he was not part of a State law enforcement agency. Dunsmuir argued that the Rutgers University Police Department qualifies as a state law enforcement agency, and therefore, he qualifies as a “retired law enforcement officer” under LEOSA. The Court of New Jersey, however, ruled that Rutgers University Police Department does not qualify as a state law enforcement agency because campus police department was not identified as a law enforcement agency under N.J.S.A 2C:39-6(1). Because campus police officers were identified in other sections, the court ruled that the 2C:39-6(1) was not intended to be expanded to include campus police officers. Additionally, the court found that LEOSA did not prevent New Jersey from taking away an officer’s permit to carry where that officer had failed to qualify for an exemption in New Jersey. Therefore, Dunsmuir’s application for a permit to carry a handgun was denied.

It is clear that the debate over LEOSA, particularly who qualifies for its protections, is far from over. While certain cases find that the scope of “law enforcement officers” should be interpreted broadly to encompass a wide range of officials, other cases determined that the protections granted under LEOSA must be interpreted to protect only departments explicitly defined. The future interpretations of LEOSA will play a major role in determining its implications.

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