Cole v. Monroe County, Civil Action No. 17-CV-12928

359 F.Supp.3d 526

Ronald COLE, Plaintiff,

v.MONROE COUNTY and Monroe County Sheriff Dale Malone, Defendants.

Vince Burkey, Dallas Rod, and Gerald Johnson, Plaintiffs,

v.Monroe County and Monroe County Sheriff Dale Malone, Defendants.

Civil Action No. 17-CV-12928

Civil Action No. 18-CV-10410

United States District Court, E.D. Michigan, Southern Division.

Signed January 9, 2019

Steven M. Hyder, Whitmore Lake, MI, for Plaintiff.

S. Randall Field, Victoria L. Convertino, Rosati, Schultz, Joppich & Amtsbuechler, Lansing, MI, for Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

BERNARD A. FRIEDMAN, SENIOR UNITED STATES DISTRICT JUDGE

This matter is presently before the Court on defendants' motion for summary judgment [docket entry 34]. Plaintiffs have responded and defendants have replied. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion without a hearing.

Plaintiffs in these consolidated actions are four retired Monroe County sheriff's deputies. They wish to carry concealed firearms pursuant to the Law Enforcement Officers Safety Act ("LEOSA"), 18 U.S.C. § 926C. Subsection (a) of this statute permits "an individual who is a qualified retired law enforcement officer and who is carrying the identification required by subsection (d)" to carry a concealed firearm. As defined in subsection (c),¹ a "qualified retired law enforcement officer" must, among other things, have "separated from service in good standing" and "during the most recent 12-month period, ha[ve] met, at the expense of the individual, the standards for qualification in firearms training for active law enforcement officers" and not be medically unqualified for reasons of mental health. Section 926C(c)(1), (4), (5). As set forth in subsection (d),² the identification a qualified retired law enforcement officer must carry consists of photographic identification issued by the employing agency indicating that the person is a former law enforcement officer. In addition, either this photographic identification or a separate certification (issued by the State or a certified firearms instructor) must indicate that the person has met active duty firearms standards within the past year.

In 17-12928, plaintiff Cole alleges that defendant Malone, who has been the Monroe County Sheriff since 2013, "refuses to issue the Plaintiff his retirement credentials including the photographic identification" and that this "deprive[s] Plaintiff of his right to carry concealed firearms under LEOSA." Compl. ¶¶ 29, 47. Plaintiff further alleges that in the last election he supported Malone's opponent, and that Malone's failure "to issue the Plaintiff his retirement credentials was in direct retaliation to the Plaintiff exercising his First Amendment Constitutional Rights." Id. ¶¶ 54, 57. In Count I, brought under LEOSA and 42 U.S.C. § 1983, Cole seeks an order requiring Malone to give plaintiff his "retirement credentials including a photographic identification." Id. at 9. In Count II, also brought under § 1983, Cole alleges that Malone retaliated against him in violation of his First Amendment rights. On this claim, he seeks the same relief as in Count I, plus damages.

In 18-10410, plaintiffs Burkey, Rod, and Johnson allege that in April or May 2017 defendant Malone "decided to no longer allow the Plaintiffs to qualify at the range." Am. Compl. ¶ 1. These plaintiffs allege that "[w]hen Malone decided to not allow them to qualify on the range he violated the Plaintiffs['] rights to carry pursuant to LEOSA. You must qualify on the range in order to carry your weapon pursuant to LEOSA." Id. ¶ 26. Like Cole, these plaintiffs allege that Malone has taken this action in retaliation for their support of his challenger in the last election. Id. ¶ 31. In Count I, brought under LEOSA and § 1983, these plaintiffs seek an order requiring Malone "to allow the Plaintiffs access to the range in order to qualify using their weapon[s]." Id. at 9. In Count II, also brought under § 1983, they allege that Malone retaliated against them in violation of their First Amendment rights. On this claim, they seek the same relief as in Count I, plus damages.

Cole's Count I - LEOSA Identification

Cole's first claim – that defendants have violated his rights under LEOSA by declining to give him the photographic identification described in § 926C(d) – fails because the statute does not require them to do so. As the Supreme Court explained in Blessing v. Freestone , 520 U.S. 329, 340-41, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (emphasis in original),

[i]n order to seek redress through § 1983, ... a plaintiff must assert the violation of a federal right , not merely a violation of federal law. Golden State Transit Corp. v. Los Angeles , 493 U.S. 103, 106, 110 S.Ct. 444, 448–449, 107 L.Ed.2d 420 (1989). We have traditionally looked at three factors when determining whether a particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the plaintiff. Wright [v. City of Roanoke Redevelopment and Housing Authority] , 479 U.S. [418] at 430, 107 S.Ct. [766] at 773–774 [93 L.Ed.2d 781 (1987) ]. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so "vague and amorphous" that its enforcement would strain judicial competence. Id. , at 431–432, 107 S.Ct. at 774–775. 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. Wilder [v. Virginia Hosp. Ass'n], supra , [496 U.S. 498] at 510–511, 110 S.Ct. [2510] at 2517–2518 [110 L.Ed.2d 455 (1990) ] ; see also Pennhurst State School and Hospital v. Halderman , 451 U.S. 1, 17, 101 S.Ct. 1531, 1539–1540, 67 L.Ed.2d 694 (1981) (discussing whether Congress created obligations giving rise to an implied cause of action).

The Supreme Court later emphasized that it "reject[ed] the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983." Gonzaga Univ. v. Doe , 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (emphasis added).

The right LEOSA confers upon qualified retired law enforcement officers is to "carry a concealed firearm that has been shipped or transported in interstate or foreign commerce." Section 926C(a). To exercise this right a plaintiff must, in addition to meeting the criteria for being a qualified retired law enforcement officer, "carry[ ] the identification required by subsection (d)." Under subsection (d), the photographic identification is "issued by the agency from which the individual separated from service." Critically, however, no provision of the statute requires the agency to issue this identification. Cole has no right to this identification that is enforceable under § 1983 because LEOSA imposes no "binding obligation on the States" to provide it.

This precise issue arose recently in Burban v. City of Neptune Beach, Fla. , No. 3:17-CV-262-J-34JBT, 2018 WL 1493177 (M.D. Fla. Mar. 27, 2018). The plaintiff in that case was a qualified retired law enforcement officer who, like Cole, sued under § 1983 and "allege[d] that the City ha[d] deprived her of the right to carry a concealed firearm under LEOSA by failing to issue her an identification card." Id. at *4. The court dismissed the complaint because LEOSA creates no right to the identification card. The court explained:

Notably, nothing in the text of LEOSA directs a state to issue the identification required by subsection (d). Mpras [v. District of Columbia] , 74 F.Supp.3d [265] at 270 [ (D.D.C. 2014) ]. To the contrary, LEOSA leaves in place a state's own standards for "deciding to whom subsection (d) identifications will be issued." Henrichs [v. Illinois Law Enforcement Training and Standards Board, 306 F.Supp.3d 1049, 1056], 2018 WL 572708 at *4 (N.D.Ill.2018) ]. As the Mpras court persuasively observed:

Subsection (d) contains numerous references to actions that must be performed and qualifications that must be determined "by the agency from which the individual retired" or "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 the State" or "by any law enforcement agency within that State."

Mpras , 74 F.Supp.3d at 270. "These repeated references to actions taken by the state suggest that Congress intended to leave the standards and procedures for issuing the required photographic identification required by subsection (d) to the states." D'Aureli [v. Harvey] , 2018 WL 704733 at *4 [ (N.D.N.Y. Feb. 2, 2018) ]. As such, the Court finds that LEOSA does not require the City's standards for issuing identification cards to mirror the standards set forth in the statute for being a qualified retired law enforcement officer. Accordingly, Burban's allegation that the City has deprived her of the federal right to carry a concealed firearm by setting the standards for acquiring an identification card higher than those enumerated in LEOSA is insufficient. Burban has failed to allege that she has been deprived of a federal right, and as a result she has failed to state a claim for relief under Section 1983. See D'Aureli , 2018 WL 704733, at **4-6 (dismissing a claim under Section 1983 because LEOSA does not confer the right to carry a concealed firearm upon those who lack identification cards); Henrichs , 2018 WL 572708 at **3-4 (same); Mpras , 74 F.Supp.3d at 270 (same).

Id. at *8.

The court in Burban went on to note that other courts have likewise determined that LEOSA creates no enforceable right to the issuance of subsection (d) identification:

Notably, outside the context of Section 1983 claims, several federal and state courts have determined that States are under no obligation to issue identification cards to

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