Burban v. City of Neptune Beach, Case No. 3:17-cv-262-J-34JBT

CAMILLE BURBAN, Plaintiff, v. CITY OF NEPTUNE BEACH, FLORIDA, Defendant.

Case No. 3:17-cv-262-J-34JBT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

March 27, 2018

ORDER

THIS CAUSE is before the Court on Defendant City of Neptune Beach, Florida's Motion to Dismiss Plaintiff's Amended Complaint and Memorandum of Law (Doc. 11; Motion), filed on May 4, 2017. Plaintiff Camille Burban filed Plaintiff's Response to Defendant City of Neptune Beach, Florida's Motion to Dismiss Plaintiff's Amended Complaint (Doc. 21; Response) on May 30, 2017. Accordingly, this matter is ripe for review.¹

I. Background²

The factual allegations in the Amended Complaint (Doc. 9) relate to Burban's efforts to exercise her rights under the Federal Law Enforcement Officers Safety Act (LEOSA),18 U.S.C. §§ 926B, 926C. See generally Amended Complaint. Thus, before summarizing Burban's factual allegations, the Court will provide an overview of LEOSA.

A. Law Enforcement Officers Safety Act

Congress created LEOSA in 2003 "to protect officers and their families from vindictive criminals, and to allow thousands of equipped trained and certified law enforcement officers, whether on-duty, off-duty or retired, to carry concealed firearms in situations where they can respond immediately to a crime across state and other jurisdictional lines." S. Rep. No. 108-29, at 4 (2003), available at 2003 WL 1609540. LEOSA achieves this purpose by establishing "a mechanism by which law enforcement officers may travel interstate with a firearm." Id. at 4. As relevant to this action, LEOSA provides:

Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual [1] who is a qualified retired law enforcement officer and [2] who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce.

See 18 U.S.C. § 926C(a). Thus, in order to carry a concealed firearm across state lines, an officer must satisfy two conditions. Id. First, the officer must be a qualified retired law enforcement officer, and second, the retired officer must carry the identification required by the statute. Id.

With respect to the first condition, a qualified retired law enforcement is one who:

(1) separated from service in good standing from service with a public agency as a law enforcement officer;

(2) before such separation, was authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and had statutory powers of arrest or apprehension under section 807(b) of title10, United States Code (article 7(b) of the Uniform Code of Military Justice);

(3) (A) before such separation, served as a law enforcement officer for an aggregate of 10 years or more³; or

(B) separated from service with such agency, after completing any applicable probationary period of such service, due to a service-connected disability, as determined by such agency;

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

(5) (A) has not been officially found by a qualified medical professional employed by the agency to be unqualified for reasons relating to mental health and as a result of this finding will not be issued the photographic identification as described in subsection (d)(1); or

(B) has not entered into an agreement with the agency from which the individual is separating from service in which that individual acknowledges he or she is not qualified under this section for reasons relating to mental health and for those reasons will not receive or accept the photographic identification as described in subjection (d)(1);

(6) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and

(7) is not prohibited by Federal law from receiving a firearm.

See 18 U.S.C. § 926C(c).

As to the second condition, LEOSA provides two methods by which an officer can satisfy the identification requirement. Under the first option, the agency where the officer served issues a photographic identification indicating that the individual served "as a policeofficer or law enforcement officer," and that within the year, the individual has "been tested or otherwise found by the agency to meet the active duty standards for qualification in firearms training as established by the agency to carry a firearm of the same type as the concealed firearm." 18 U.S.C. § 926C(d)(1). Under the second option, the individual must carry two documents: (1) "a photographic identification issued by the agency from which the officer separated," 18 U.S.C. § 926C(d)(2)(A), and (2) a separate firearms certification "issued by the State in which the individual resides or by a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that State," 18 U.S.C. § 926C(d)(2)(B). The certification must indicate that within the last year, the individual met

(I) the active duty standards for qualification in firearms training, as established by the State, to carry a firearm of the same type as the concealed firearm; or

(II) if the State has not established such standards, standards set by any law enforcement agency within that State to carry a firearm of the same type as the concealed firearm.

Id. Notably, critics of LEOSA feared that this scheme, in which States set their own certification standards, would "create a dangerous environment for out-of-State officers and citizens." H.R. Rep. 107-560, at 23 (2004), available at 2004 WL 5702383.

B. Factual Allegations

Burban served as a member of the Neptune Beach Police Department (NBPD) from May 9, 2003, until May 31, 2013. See Amended Complaint ¶¶8, 22. Defendant City of Neptune Beach, Florida (the City) is "responsible for the supervision, training, instruction, discipline, control and conduct of officers at the [NBPD], and further makes policy for the NPBD with respect to issuances of identification cards for retired law enforcement officers."Id. ¶5.

Based on her service with the NBPD, Burban asserts that she is a qualified retired law enforcement officer under LEOSA. Id. ¶¶21-30. With respect to the first criterion, Burban separated from service with the NBPD in good standing. Id. ¶23. Indeed, Burban "has email communications evidencing her good standing as of February 8, 2013," and "there are no further communications or documentation that her standing ever changed prior to her separation from NBPD." Id. Additionally, although the NBPD placed Burban on light duty status due to an arm injury in January 2013, by her retirement date, Burban had been "authorized by law to engage in or supervise the prevention, detection, investigation, prosecution, or the incarceration of any person in violation of the law," and "had statutory powers of arrest and/or apprehension under the Uniform Code of Military Justice." Id. ¶¶24-25. Further, Burban has completed over ten years of service. Id. ¶22. In addition, on April 14, 2017, Burban met, at her own expense, Florida's standards for qualification in firearms training for active law enforcement officers. Id. ¶29. Moreover, Burban has neither "been officially found, by a qualified medical professional employed by NBPD, to be unqualified for reasons relating to mental health, to be issued photographic identification," nor "entered into an agreement with NBPD in which [she] acknowledges that she is not qualified" for such identification due to her mental health. Id. ¶¶26-27. Finally, Burban "is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance," and "is not prohibited by federal law from possessing a firearm." Id. ¶¶28, 30.

"On October 18, 2016, [Burban] requested NBPD issue her a photographic identification card, pursuant to LEOSA, so that [she] could receive certification to carry aconcealed firearm." Id. ¶13. However, the NBPD declined to issue her the requested identification. Id. Burban "sought clarification from the Lieutenant Key⁴ and Richard Pike, Chief of Police for NBPD, regarding their denial of her request for an identification card." Id. ¶31. Burban asserts that Lieutenant Key and Chief Pike "were the final policymakers for the City, as their decisions "were not immediately or effectively reviewable." Id. ¶46.

Lieutenant Key provided Burban a written response stating that Burban failed to satisfy the NBPD's Standing Operating Procedures (SOP). Id. ¶32. Specifically, Burban failed to satisfy SOP 4.02(G)(1)d, which requires that officers serve for a minimum of fifteen years, and SOP 4.02(G)(2)(a), which mandates that officers qualify with an NBPD Certified Firearms Instructor. Id. ¶¶14, 18. Additionally, Lieutenant Key implied that Burban did not retire in good standing in violation of SOP 4.02(G)(1)b. Id. ¶¶16-17. Lieutenant Key told Burban that "he would have no further communication regarding the matter," and "has not acknowledged Plaintiff's last communications asking for clarification on their denial." Id. ¶¶32-33. As such, Burban retained legal counsel, who sent letters to Elaine Brown, Mayor of Neptune Beach, Andrew Hyatt, City Manager of Neptune Beach, and Chief Pike, requesting that they issue Burban an identification card. Id. ¶¶34-35. Counsel has not received a response. Id. ¶36. As of April 20, 2017, the City has not recognized Burban as a retired law enforcement...