Fed. Law Enf't Officers Ass'n v. Attorney Gen. N.J.

93 F.4th 122

FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION;New Jersey Fraternal Order of Police; Richard Bowen;Joseph Jakubiec; Christopher Martinez v. ATTORNEY GENERAL NEW JERSEY; Superintendent New Jersey State Police, Appellants

No. 22-2209

United States Court of Appeals, Third Circuit

Argued on March 30, 2023

Opinion filed: February 14, 2024

On Appeal from the United States District Court for the District of New Jersey

(D.C. Civil No. 3-20-cv-05762), District Judge: Honorable Zahid N. Quraishi

Angela Cai, David Chen [ARGUED], Timothy Sheehan, Office of Attorney General of New Jersey, Division of Law, 25 Market Street, Richard J. Hughes Justice Complex, Trenton, NJ 08625, Counsel for Appellants

Michael R. Darbee [ARGUED], Nicholas C. Harbist [ARGUED], Stephen M. Orlofsky, Blank Rome, 300 Carnegie Center, Suite 220, Princeton, NJ 08540, Counsel for Appellees

Before MATEY, FREEMAN, and FUENTES, Circuit Judges

OPINION OF THE COURT

FREEMAN, Circuit Judge.

Retired law enforcement officers from various agencies claim that a federal statute gives them the right to carry concealed firearms in their home state of New Jersey. New Jersey argues that the federal statute does not provide that enforceable right. And even if there were such an enforceable right, New Jersey argues that the federal statute would apply only to officers who retired from federal or out-of-state law enforcement agencies—not to officers who retired from New Jersey law enforcement agencies. We conclude that the federal statute does provide certain retired officers (those who meet all the statutory requirements) with an enforceable right, and that right extends equally to officers who retired from New Jersey agencies and those who retired from federal or out-of-state agencies. The federal statute also preempts contrary aspects of New Jersey law. So we will affirm the District Court's order granting declaratory and injunctive relief to the retired officers.

I

This case involves dueling firearm licensing statutes. One is the federal Law Enforcement Officers Safety Act of 2004, 18 U.S.C. § 926C ("LEOSA"). The other is New Jersey's retired police officer permitting law, N.J.S.A. § 2C:39-6l ("RPO Law"). While both delineate when and how retired law enforcement officers may carry firearms without being subject to criminal penalties, the New Jersey law is more restrictive.

LEOSA provides: "Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified retired law enforcement officer and who is carrying the identification required by [this statute] may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b)." 18 U.S.C. § 926C(a).¹ It defines "qualified retired law enforcement officer" ("QRLEO") as someone who satisfies seven enumerated criteria, including length of service in a law enforcement role, separation from the law enforcement agency in good standing, mental and physical fitness to carry, and a lack of other disqualifiers under federal law. § 926C(c). A QRLEO may carry a firearm only when he has in his possession identification confirming his status as a former officer and certifying that he has been qualified in firearms training within the past year. § 926C(d).

LEOSA's identification requirement can be satisfied in either of two ways, set forth in subsection (d) of the statute. Id. Both options contain two components: (i) "a photographic identification issued by the agency from which the individual separated from service as a law enforcement officer that identifies the person as having been employed as a police officer or law enforcement officer," and (ii) a statement that, within the last year, the retired officer satisfied the state's (or the law enforcement agency's) firearms training standards for the type of firearm being carried. § 926C(d)(1)-(d)(2). Under the first option ("(d)(1) identification"), both components appear in a single document issued by the law enforcement agency from which the officer retired, and the firearms training standards are "established by the agency." § 926C(d)(1). Under the second option ("(d)(2) identification"), the two components appear in two separate documents. § 926C(d)(2). The first (photographic identification and proof of previous law enforcement service) is issued by the retired officer's former employer. § 926C(d)(2)(A). The second (certification regarding firearms training) may be issued by the state or "by a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that State." § 926C(d)(2)(B). And the firearms training standards may be established by the state or, in the absence of state standards, by any law enforcement agency within the state. Id.

Like LEOSA, New Jersey's RPO Law allows certain retired law enforcement officers to carry a firearm if they meet certain qualifications, but the RPO Law requires retired officers to obtain a state-issued permit. N.J.S.A. § 2C:39-6l. And there are other key differences between the two statutes. One is the age limit: LEOSA imposes none, but the RPO Law prevents retired officers over the age of 75 from obtaining a permit to carry. Compare 18 U.S.C. § 926C(c), with N.J.S.A. § 2C:39-6l. Another difference is the treatment of hollow-point ammunition: the RPO Law prohibits retired officers from carrying it, but LEOSA does not. Compare 18 U.S.C. § 926C(e),² with N.J.S.A. § 2C:39-3f. The laws also require retired officers to complete firearm qualification training at different frequencies: once a year under LEOSA, and twice a year under the RPO Law. Compare 18 U.S.C. §§ 926C(c)(4), (d), with N.J.S.A. § 2C:39-6l.

Additionally, LEOSA does not require the retired officer's former agency or state of residence to verify that the officer is a QRLEO. See 18 U.S.C. § 926C(c). Indeed, the statute is written such that advance verification is not possible. (One criterion for a QRLEO is that an individual "is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance . . . ." § 926C(c)(6). This means a retired officer's status could change in the course of any given day—he could awake as a QRLEO and then consume enough alcohol to lose his qualification to concealed-carry a firearm.) In contrast, New Jersey will only issue an RPO permit when the State determines in advance that the applicant meets the RPO Law's qualifications and passes criminal and mental-health background checks. N.J.S.A. § 2C:39-6l(1)-(2); see also N.J. State Police Form SP-232, "Initial Application For a Retired Law Enforcement Officer Permit to Carry a Handgun," https://perma.cc/H8JK-7KYF>; N.J. State Police Form SP-66, "Consent for Mental Health Records Search," https://perma.cc/8TUW-JMNV

In October 2018, the New Jersey Attorney General's Office issued a document addressing certain "frequently asked questions" about the interplay between the two laws. It wrote that retired law enforcement officers who reside in New Jersey ("NJ RLEOs") "must meet each of the requirements of [the RPO Law] in order to carry a firearm . . . ." App. 74. It specified that "LEOSA . . . does not provide an alternate path to eligibility to carry a firearm . . . ." App. 73-74. It stated that LEOSA's purpose "is to bar criminal prosecution of retired [law enforcement officers] who carry concealed firearms in interstate commerce," App. 73 (emphasis added) (citing In re Casaleggio, 420 N.J.Super. 121, 18 A.3d 1082, 1086 (N.J.Super.A.D.2011)), so LEOSA: (1) does not apply to NJ RLEOs who carry within the state—those persons must obtain an RPO permit under state law and carry the permit at all times while carrying a firearm; and (2) allows NJ RLEOs to carry a firearm outside of New Jersey without an RPO permit. See also Casaleggio, 18 A.3d at 1086 (construing New Jersey Legislature's intent in referencing LEOSA in the RPO Law as "to permit retired law enforcement officers from other states . . . who are domiciled in New Jersey to carry a firearm, provided they meet the same training and qualification standards that New Jersey retirees must meet under the law" which "corresponds [to] the limited purpose of LEOSA"). The document also stated that LEOSA does not allow retired officers residing in New Jersey to carry hollow-point bullets because that would violate state law.

In May 2020, three individuals and two organizations—the Federal Law Enforcement Officers Association and the New Jersey Fraternal Order of Police—(together, "Plaintiffs") sued New Jersey officials (together, "New Jersey") to challenge the enforcement of the RPO Law. Plaintiffs alleged that they (that is, the individual plaintiffs and some of the organizations' members) are QRLEOs under LEOSA. They argued that LEOSA gives them a federal right to carry a firearm (defined to include hollow-point ammunition) anywhere in the United States—including within the State of New Jersey—and that LEOSA preempts any more burdensome state requirements. They brought claims under 18 U.S.C. § 1983 and the Declaratory Judgment Act. They sought declaratory relief and an order enjoining New Jersey from (1) requiring QRLEOs to obtain an RPO Law permit, (2) arresting and prosecuting LEOSA-compliant QRLEOs under the RPO Law, and (3) imposing any other conditions to carry a firearm that are not required by LEOSA.

New Jersey initially moved to dismiss the complaint, but it withdrew that motion after the United States filed a statement of interest in the case. The United States stated that "LEOSA means exactly what it says": if Plaintiffs are (as they allege) QRLEOs with the requisite identification under LEOSA, they are entitled to carry a concealed firearm notwithstanding any provision of New Jersey law. Plaintiffs' Supp. App. 4, 9-10. It also stated that LEOSA's definition of "firearm" includes hollow-point bullets.

In April 2021, while the suit was ongoing in the...