[00:00:01] Speaker 04:
case number fifteen to seventy sixty-two you gene do very and i don't know if this is the trick of columbia and l mr page for the opponent's miss wilson for the appellee mr page before you begin to make it we have the fan on because it's warm in here so if council would just

[00:00:20] Speaker 03:
speak up.

[00:00:20] Speaker 03:
We don't want to cut it off because it is warm.

[00:00:22] Speaker 03:
And then I also wanted to welcome from Bridgewater College, the Pre-Law Society and their professor, Professor Ferguson.

[00:00:32] Speaker 03:
So the pressure is really on counsel this morning, not only to wow us, but to wow those budding lawyers.

[00:00:40] Speaker 00:
I feel it, Your Honors.

[00:00:41] Speaker 00:
Thank you very much, Your Honors.

[00:00:43] Speaker 00:
May it please the Court, my name is Aaron Page, and I'm representing Appellants Ron Dewberry, Harold Bennett, Maurice Curtis, and Robert Smith on this appeal.

[00:00:53] Speaker 00:
Your Honor, Leosa was designed to intrude on state law.

[00:00:57] Speaker 00:
It was designed to intrude on a classic state prerogative, firearms regulation, and a lot of people didn't like that.

[00:01:03] Speaker 00:
It took a long time to get through Congress, and it only got through with a number of balances and compromises that I think are important to understanding the nature of the district's conduct in this case and the nature of the right and its enforceability, which is obviously the focus of the district court's opinion.

[00:01:18] Speaker 00:
Now, the right, I mean, it's always worth sort of emphasizing that this statute is about conferring this right.

[00:01:23] Speaker 00:
That's all it really does.

[00:01:24] Speaker 00:
There's no spending, there's no other sort of regulatory regime.

[00:01:29] Speaker 00:
This is designed to confer a right on individuals.

[00:01:32] Speaker 00:
And now it's a condition right, and clearly one of the conditions is that individuals who would exercise the right need to carry certain documents that have certain characteristics, and those are set forth in subsection D of the statute.

[00:01:44] Speaker 00:
And I think a lot of other cases that are in the briefing, you have people coming to the court and saying, well, there's a requirement for the state to issue those documents.

[00:01:53] Speaker 00:
We recognize what a lot of people, what other courts have said, which is that to issue or not those documents is a discretion.

[00:02:01] Speaker 00:
Is that the discretion of the state?

[00:02:03] Speaker 00:
And that is an important piece, but it's not the end of the story.

[00:02:05] Speaker 00:
There's a give and take, even in Section D, of different powers, okay?

[00:02:10] Speaker 00:
At no point does that

[00:02:12] Speaker 00:
issue or not power allow the state to to make other changes to the leosa framework to leosa eligibility set criteria and even even there it doesn't require necessarily an application to the state or the state's express permission it simply says that you have to carry these documents

[00:02:28] Speaker 01:
I guess I'm trying to figure out the relationship between the ID and this case, but you concede, or am I wrong, that a state could say simply, we refuse to issue IDs to any retired officers?

[00:02:46] Speaker 00:
We're recognizing that.

[00:02:50] Speaker 00:
I mean, we think it's a close question.

[00:02:51] Speaker 00:
It's not really at issue in this case.

[00:02:54] Speaker 01:
But it's very closely related to the issue in this case, because if they can do that,

[00:03:00] Speaker 01:
for any reason, doesn't that thwart the entire statute?

[00:03:04] Speaker 00:
So it doesn't.

[00:03:05] Speaker 00:
And this is sort of the point I'm trying to start off on.

[00:03:08] Speaker 00:
So D1 talks about a single ID that has both characteristics.

[00:03:12] Speaker 00:
And it seems it would have to be issued in a timely manner.

[00:03:14] Speaker 00:
And that's the kind of thing where it's the stake and issue that are not.

[00:03:17] Speaker 01:
Let me back up and say, if you're a retired officer, you're not going to have on your person as a retired officer the kind of ID that's necessary, correct?

[00:03:30] Speaker 01:
usually because it has to indicate that you separated.

[00:03:33] Speaker 00:
So you might or you might not.

[00:03:36] Speaker 00:
I mean, what happens in section D two of the statute is it starts to break it apart.

[00:03:40] Speaker 00:
Okay, it takes it takes part of it away from the state agency state.

[00:03:44] Speaker 00:
And there's a key role here that you may have.

[00:03:48] Speaker 01:
It could be your old ID.

[00:03:49] Speaker 01:
You can use your old ID.

[00:03:51] Speaker 00:
You know, potentially, I mean, basically by the time you're at the end of D2A, the statute is basically saying if you can find anything that will do the job, you can carry.

[00:04:02] Speaker 00:
So it's really self-executing in that sense, which is an important thing.

[00:04:05] Speaker 00:
If you can get these documents that meet these characteristics, you can carry under a Leosa, and you don't necessarily have to get a big Leosa stamp that says that from the state.

[00:04:14] Speaker 00:
Okay.

[00:04:15] Speaker 00:
And, you know, one of the things that I think is important here is the interest of the resident state.

[00:04:20] Speaker 00:
Okay.

[00:04:20] Speaker 00:
So you've got somebody who served in one state but is retiring in another state.

[00:04:24] Speaker 00:
Their safety is now actually the, it's now the responsibility of the resident state.

[00:04:27] Speaker 00:
So the resident state may have its own policy objectives, and it may want, you know, highly trained, responsible individuals who carry

[00:04:34] Speaker 00:
a weapon for decades on the job to be able to carry a weapon to protect themselves as part of its safety regime for those individuals.

[00:04:41] Speaker 00:
And to the extent that there is a purpose in the statute for preventing crime, which we don't think is the main purpose, the resident state may also want to further that, too.

[00:04:50] Speaker 00:
So there's actually an interest of the resident state here, too.

[00:04:53] Speaker 00:
This is not solely the prerogative of the state agency state.

[00:04:57] Speaker 00:
And I think what you see in the district's conduct here is it's leaping out beyond its whether or not to issue power.

[00:05:03] Speaker 00:
It's that discretion.

[00:05:04] Speaker 00:
And it's intentionally, it's crafted a legal opinion, it's a results-oriented opinion in order to block not only the rights of my clients, but also kind of the extent that that would implicate the prerogatives of the resident state as well.

[00:05:19] Speaker 00:
Why is Prince George's County reaching out to D.C.

[00:05:21] Speaker 00:
at all?

[00:05:22] Speaker 00:
You know, that's a good question.

[00:05:23] Speaker 00:
I see it almost.

[00:05:25] Speaker 00:
It's almost like a reference check in a sense, like in a bare bones when it's sort of saying, well, right, but under the statute, they don't have to do that, correct?

[00:05:33] Speaker 01:
No, they don't have to do it.

[00:05:34] Speaker 01:
Absolutely.

[00:05:34] Speaker 01:
So isn't your beef with Prince George's County?

[00:05:36] Speaker 00:
You know, it could be, but the point is

[00:05:38] Speaker 00:
The point is that there was conduct here.

[00:05:40] Speaker 00:
It's a Section 1983 case.

[00:05:41] Speaker 00:
There was conduct here that was intentionally aimed at depriving this right.

[00:05:45] Speaker 00:
So there's a ton of different facts that this could play out on.

[00:05:49] Speaker 01:
The fact that three of my clients live in Prince George's County, and Prince George's County is basically saying... Shouldn't your complaint, maybe not exclusively be, but isn't your complaint that Prince George's County is asking DC questions that are irrelevant?

[00:06:05] Speaker 01:
for Prince George's County to certify them as being firearms trained.

[00:06:11] Speaker 00:
Well, potentially.

[00:06:13] Speaker 00:
But how would Prince George's County really know otherwise?

[00:06:15] Speaker 00:
I mean, I see these questions as not asking for a conclusion of law.

[00:06:20] Speaker 00:
But they're really asking for, I mean, it's a mixed question of law, in fact.

[00:06:24] Speaker 00:
But to say, did they exercise statutory powers of arrest, it's asking, you know, that's a basic question.

[00:06:29] Speaker 00:
It's not asking for DC's legal opinion in that sense.

[00:06:33] Speaker 00:
Or, you know, they need to check and make sure these guys did work at the Department of Corrections, that they were corrections officers, they weren't janitors at the department.

[00:06:40] Speaker 00:
Why do they need to check that?

[00:06:43] Speaker 00:
I mean, I suppose it's a basic matter of checking the accuracy of an application or to make sure that the quality.

[00:06:53] Speaker 00:
I mean, I guess why is a firearms qualification process limited to those individuals is another sort of a good question.

[00:07:02] Speaker 01:
But there's a lot of ways that- Because you can go to private under the statute.

[00:07:05] Speaker 01:
You can go to a private certified firearms instructor.

[00:07:09] Speaker 01:
Yeah, yeah, I'm gonna need to be.

[00:07:13] Speaker 01:
I guess I just don't know how this works, but do they usually then ask for?

[00:07:19] Speaker 01:
Prior employment check.

[00:07:21] Speaker 01:
Where they just certify people who come in to say yes, you're certified in firearms.

[00:07:26] Speaker 00:
So I think they usually do.

[00:07:28] Speaker 00:
I mean, it's actually, I should know this because one of our clients actually performs the firearm certification for other officers in Maryland.

[00:07:34] Speaker 01:
There might be liability reasons why they do it.

[00:07:37] Speaker 00:
Yeah, there might be any number of reasons.

[00:07:38] Speaker 01:
Under this statute, it seems, I guess I'm still stuck on trying to figure out how this case worked and why Prince George's was asking DC.

[00:07:46] Speaker 01:
And maybe I thought, I kept thinking I must be missing something.

[00:07:50] Speaker 00:
So they don't necessarily need to.

[00:07:53] Speaker 00:
A framework has was set up, you know, I think, and to be honest, as Leo's is progressing, the procedures are changing and so forth, but the framework was set up.

[00:08:01] Speaker 00:
This is basically the way that they, the only way that residents of Prince George's County can get this done.

[00:08:07] Speaker 00:
Okay.

[00:08:08] Speaker 00:
into that process was inserted that DC said, we have a legal opinion.

[00:08:13] Speaker 00:
And the documents that were submitted below clearly show that this is an opinion that was designed to achieve an effect, which is designed to try to block these individuals from exercising their LIOSA rights.

[00:08:23] Speaker 00:
And again, what's being asked of them is really are these basic questions that reference the federal law.

[00:08:31] Speaker 00:
So there is this question, and I appreciate the cases that Your Honor sort of provided to us by the order.

[00:08:37] Speaker 00:
This is really, while there is a question to some degree about the compatibility of what a power of arrest means in the D.C.

[00:08:46] Speaker 00:
Code, at the end of the day, the requirements are set forth in federal law, and we're really talking about the substance of, the content of federal law here.

[00:08:54] Speaker 00:
So the federal law says, a statutory power of arrest.

[00:08:57] Speaker 00:
As long as we've got a statutory power of arrest, we're fine.

[00:09:00] Speaker 00:
And the legal opinion, I mean, first of all, the district started with a much broader attempt to shut this down.

[00:09:07] Speaker 00:
And if you look at Mr. Dewberry's application, it said, Mr. Dewberry was not a law enforcement officer.

[00:09:11] Speaker 00:
It's written in all caps on it.

[00:09:13] Speaker 00:
And they eventually moved away from that, because he clearly is a law enforcement officer under this statute, which includes, in its definition, references incarceration officers.

[00:09:22] Speaker 03:
And what do you think statutory powers of arrest refers to?

[00:09:27] Speaker 03:
So again, it's any statutory... State or federal, how do you read that?

[00:09:32] Speaker 03:
Where do you find the statutory powers of arrest to make sure that this retired law enforcement officer has them?

[00:09:39] Speaker 00:
So it would just be basically any statutory power of arrest, and we have, there is a... But doesn't have to be DCs?

[00:09:45] Speaker 00:
Absolutely.

[00:09:46] Speaker 00:
And there is one in the DC code, right?

[00:09:48] Speaker 00:
So there's a very clear statutory power of arrest in the DC code applies to officers when they were on the job.

[00:09:53] Speaker 00:
They carried cards that literally said, we are entitled, you know, this individual is entitled to make arrest, and it's cited in the DC code.

[00:09:59] Speaker 00:
that was on the identification cards they carried at the time.

[00:10:04] Speaker 00:
Now, so the only way the district is sort of getting around this is by saying, well, they didn't exercise this particular statutory power of arrest, which involved the arrest for commission of a crime and probable cause, and there's just no support for that at all in the text of Leosa.

[00:10:19] Speaker 00:
And in fact, it's contradicted by the inclusion of incarceration officers in the definition, because

[00:10:24] Speaker 00:
Why would you, if that was a limiting principle, why would you include incarceration in the definition anyway?

[00:10:30] Speaker 03:
Can I ask you further under C2, authorized by law is a reference to state law.

[00:10:37] Speaker 03:
Authorized by law to supervise the incarceration of any person.

[00:10:41] Speaker 00:
I think it would be any law.

[00:10:42] Speaker 00:
I mean, I think it would certainly, like I'm thinking federal officers and federal, and actually our officers were federal officers, pretty much their entire career, because the Department of Corrections used to be an agency of the

[00:10:55] Speaker 00:
of the Federal Bureau of Prisons.

[00:10:57] Speaker 00:
I mean, they actually exist in kind of this interesting lacunae because they were federal officers their entire career.

[00:11:04] Speaker 00:
They retired.

[00:11:06] Speaker 00:
Today, corrections officers for DC, right?

[00:11:10] Speaker 00:
DC is only holding misdemeanors.

[00:11:14] Speaker 00:
So to some degree, there might be more of a policy reason to restrict current officers from

[00:11:21] Speaker 00:
from exercising under LEOSA.

[00:11:23] Speaker 00:
And again, that might happen under, if the district is acting under its discretion to award or not, to grant or not this ID, that might be the case.

[00:11:33] Speaker 00:
But to go out of their way, our officers, and the Federal Bureau of Prisons does provide necessary certifications and does take the position that its officers are LEOSA, are able to exercise under LEOSA.

[00:11:46] Speaker 03:
Well, are you saying that these retired officers, we look to something other than the D.C.

[00:11:53] Speaker 03:
code?

[00:11:53] Speaker 00:
No, we definitely look to the D.C.

[00:11:54] Speaker 00:
code, and especially in our room.

[00:11:57] Speaker 03:
What I'm getting to is, would you put on the record, please, your position about Shoshone Mining?

[00:12:03] Speaker 00:
Yes, absolutely.

[00:12:04] Speaker 00:
So Shoshone Mining is, you know, they're what you've got, and it's the discussion of it in later cases, because I don't think it actually applies in the later cases.

[00:12:16] Speaker 00:
But the discussion of it is where you've got a fundamental state law, cause of action, state law, substantive action.

[00:12:23] Speaker 03:
Well, I read it in Justice Ginsburg's opinion that follows it.

[00:12:29] Speaker 03:
And I think it was Mims, that footnote.

[00:12:33] Speaker 03:
Let me get it here.

[00:12:36] Speaker 00:
Yeah.

[00:12:36] Speaker 00:
No, and I have that here.

[00:12:37] Speaker 00:
First of all, it's a rare exception.

[00:12:41] Speaker 03:
The difference between the case and MIMS where they did find the federal question existed and Shoshone and possibly in your case is that

[00:12:53] Speaker 03:
It not only created, in memes, not only created the claim for relief, the remedy, but it also supplied the governing substantive law.

[00:13:02] Speaker 03:
And that's why I've been asking you about D.C., because it seems to me that we look to D.C.

[00:13:07] Speaker 03:
Code to see if they have the powers of arrest.

[00:13:09] Speaker 03:
We look to D.C.

[00:13:10] Speaker 03:
Code to see if they're authorized by law to supervise the incarceration.

[00:13:15] Speaker 03:
And that sounds to me like a Shoshone mining.

[00:13:17] Speaker 00:
So I tried to answer that earlier.

[00:13:18] Speaker 00:
So the substantive law is federal law.

[00:13:21] Speaker 00:
The substance law is that there's a statutory power of arrest and then you just look for any any power of arrest in D.C.

[00:13:28] Speaker 00:
So it's not again what we're looking for.

[00:13:30] Speaker 00:
And again, to some degree, what Shoshone Mining asked for was that there be that it is a controversy which really and substantially involves a dispute or controversy as to a right which depends upon the construction or effect of federal law.

[00:13:45] Speaker 00:
So it's not just that there might be a state law issue or state law might determine how it goes.

[00:13:49] Speaker 00:
As long as there's a federal law issue, we don't have a Shoshone mining issue.

[00:13:53] Speaker 00:
And the Shoshone mining case was really fundamentally a state law case, right?

[00:13:57] Speaker 00:
I mean, not only was it state law, it's talking about the local customs of miners.

[00:14:01] Speaker 00:
So it's something that really belongs at the local level.

[00:14:04] Speaker 00:
And there was a threat that it would be pulled up to the federal level sort of counterintuitively to the nature of the case.

[00:14:11] Speaker 00:
And basically all the other cases are like that, too.

[00:14:15] Speaker 00:
I mean, all the other cases involve things where you have, you know, where you have a cause of action that is expressly provides for state law, you know, where there's some sort of reference that this should be done at state law, whereas here we have a federal cause of action.

[00:14:29] Speaker 00:
We have a federal substantive law.

[00:14:31] Speaker 00:
We have a federal cause of action with Section 1983.

[00:14:34] Speaker 00:
And the fact that there is a state law issue, that you're going to look to state law to determine the content of federal law, to determine, to sort of check the box about whether or not they had a substantive power of arrest, does not make it such a fundamental state law case for Shoshone, as was sort of talked about in Shoshone Mining, or is talked about in the other cases.

[00:14:58] Speaker 03:
Let me ask you this, what is the right that you say this statute gives you?

[00:15:03] Speaker 03:
Is it the right, and it's conditional, I understand that first, it's a conditional right, is it the right to carry concealed or is it the right to get this certification?

[00:15:15] Speaker 00:
It is a right to carry a concealed weapon.

[00:15:18] Speaker 00:
I see I'm out of time.

[00:15:20] Speaker 00:
Can I elaborate on that answer?

[00:15:20] Speaker 00:
Go ahead.

[00:15:20] Speaker 00:
Go ahead.

[00:15:21] Speaker 00:
You can answer all our questions.

[00:15:22] Speaker 00:
So yeah, it is the first right that's set forth in the statute, a right to carry a concealed weapon.

[00:15:28] Speaker 00:
And the question simply becomes whether or not the conduct that we're talking about affects the deprivation.

[00:15:34] Speaker 00:
And obviously, you can't go too far out there and say, well, x cause y cause z.

[00:15:40] Speaker 00:
caused the deprivation, but where there is, where the conduct is intentionally designed to lead to a deprivation and does cause a deprivation, the sorts of issues with respect to the attachment and defining the right that the government, that the district court relied on, you know, again, using cases like Blessing and Gonzaga that are all spending clause cases, that are all saying you don't want to use Section 1983 litigation in the context of

[00:16:06] Speaker 00:
in order to force yourself in and become an administrator of complex federal law, none of that really should apply here.

[00:16:14] Speaker 00:
We basically have a federal right.

[00:16:16] Speaker 00:
We should simply look to whether or not there is a deprivation based on the nature of the conduct.

[00:16:23] Speaker 03:
All right.

[00:16:24] Speaker 03:
Thank you.

[00:16:24] Speaker 01:
One other question.

[00:16:26] Speaker 01:
This might be repetitive.

[00:16:29] Speaker 01:
You concede that a state could refuse to issue an identification saying that you had worked at the State Corrections Agency.

[00:16:40] Speaker 01:
Why can't the state do the lesser step of simply refusing to answer questions that come from another state about your prior employment?

[00:16:53] Speaker 00:
I think it comes down to looking at the scope of discretion that was accorded to the state.

[00:16:59] Speaker 00:
And sort of my opening point about the fact that that's there in the statute, but it's not all encompassing.

[00:17:04] Speaker 00:
And basically, at the end of the day, this is governed by the federal eligibility criteria, federal law.

[00:17:15] Speaker 00:
And these are questions you simply have to satisfy federal law.

[00:17:18] Speaker 00:
And so you're looking to that.

[00:17:22] Speaker 00:
The way the state needs to achieve its policy objectives is through issuing or not the ID, not to basically craft a legal opinion and then give basically a completely counterintuitive answer to what is basically a factual question.

[00:17:35] Speaker 01:
But you're conceding that a state could say, you know what, we don't like this federal act.

[00:17:40] Speaker 01:
And so for any federal retired officer who didn't keep his or her ID, we're just going to refuse to issue a new ID to them and thwart the statute as best we can because we don't like it.

[00:17:51] Speaker 01:
We view it as an intrusion on federalism.

[00:17:53] Speaker 00:
Using that power, using that discretion to issue or not, yes, but to sort of take these additional steps to throw it out.

[00:17:59] Speaker 01:
I'm surprised that you read the statute.

[00:18:03] Speaker 01:
I mean, they concede that and then try to draw this line, but maybe my question's more for your counterpart on that.

[00:18:10] Speaker 00:
Well, I

[00:18:12] Speaker 00:
Yeah, I mean, I think we're also looking, and we're looking at the other cases that have sort of held that.

[00:18:17] Speaker 00:
So that's not, I mean, I think that at the end of the day, we don't feel like we need to reach that issue because we're not here at- I understand.

[00:18:24] Speaker 01:
I'm just trying to see the linkage, but I won't take up more of your time or more of our time.

[00:18:27] Speaker 00:
I can see, we can certainly argue with the other way.

[00:18:28] Speaker 00:
We just haven't presented that argument because we don't really want to have that particular fight.

[00:18:33] Speaker 00:
We think this can be decided based on the fact that they're going beyond the bounds of their accorded discretion of the statute.

[00:18:38] Speaker 03:
Thank you.

[00:18:39] Speaker 03:
Roger, did you?

[00:18:40] Speaker 03:
No, I'm OK.

[00:18:42] Speaker 03:
Ms.

[00:18:42] Speaker 03:
Wilson, good morning.

[00:18:54] Speaker 03:
Would you address the Shoshone mining cases first?

[00:19:00] Speaker 04:
Yes.

[00:19:01] Speaker 04:
The district did raise the issue of jurisdiction below, but did not renew it on appeal based on the district court's analysis that despite the underlying state law issue of whether correctional officers have statutory

[00:19:18] Speaker 04:
right of arrest, that there is a preliminary federal question here about, does this create any right enforceable under 1983 as the district court found?

[00:19:29] Speaker 04:
It does have a sort of chicken and egg feeling to it.

[00:19:32] Speaker 04:
You look at whether there's an enforceable right under 1983 or whether there's an underlying local law right.

[00:19:38] Speaker 04:
But I think as the district court found, you don't get to whether they have the local law right of statutory power arrest until you find

[00:19:48] Speaker 04:
the court first makes the determination whether Leosa creates a right.

[00:19:55] Speaker 04:
But the court certainly has the duty to decide the jurisdiction.

[00:20:07] Speaker 04:
The key issue here is the nature of the right under Leosa and the right that the plaintiffs seek to enforce.

[00:20:14] Speaker 04:
LIOSA creates a right to carry the firearms if the other conditions are met, if the officers meet the definition of a qualified law enforcement officer, if they get the ID, and if they meet the firearms training.

[00:20:29] Speaker 04:
And plaintiffs concede essentially that they are not entitled to the ID, and the right that they do seek to enforce is indistinguishable.

[00:20:40] Speaker 04:
They seek a right to have the district certify that they meet

[00:20:45] Speaker 04:
the definition of qualified law enforcement officer under Leosa to facilitate them getting the ID and engaging in firearms training.

[00:20:55] Speaker 01:
So standard that the questions are asked by other states to the former agency.

[00:21:03] Speaker 04:
Um, I have no information on that, not in the record.

[00:21:05] Speaker 04:
I mean, the way Prince George's did here in D. C. Um, I mean, I agree, it would make sense to

[00:21:12] Speaker 04:
to check the person's credentials.

[00:21:14] Speaker 04:
And different states can have different rules for correctional officers.

[00:21:18] Speaker 04:
In some states, they may carry guns.

[00:21:20] Speaker 04:
In other states, they may not.

[00:21:24] Speaker 04:
So I think to follow up and establish whether a particular state.

[00:21:29] Speaker 02:
But as I understand the appellant's argument, it's that if a statute gives a right of arrest

[00:21:39] Speaker 02:
There is no discretion left to the state.

[00:21:43] Speaker 02:
So following up on Judge Kavanaugh's question, PG County could simply read the DC statute and see if there is power of arrest that correctional officers have.

[00:22:00] Speaker 04:
Well, in that case,

[00:22:05] Speaker 04:
their claim should be against PG County.

[00:22:07] Speaker 02:
No, I understand.

[00:22:08] Speaker 02:
I understand.

[00:22:08] Speaker 02:
But I'm just trying to understand what this district's position is.

[00:22:13] Speaker 02:
In other words, suppose the plaintiffs had worked for the D.C.

[00:22:18] Speaker 02:
Department of Corrections.

[00:22:21] Speaker 02:
If D.C.

[00:22:21] Speaker 02:
were to advise PG County that they did not work for the D.C.

[00:22:29] Speaker 02:
Department of Corrections,

[00:22:33] Speaker 02:
Does your view of the district's discretion encompass that type of discretion?

[00:22:48] Speaker 04:
Yes.

[00:22:48] Speaker 04:
Teaching County's application says to the district, did they work for the Department of Corrections and did they meet the definition

[00:22:56] Speaker 04:
of qualified law enforcement officers.

[00:22:59] Speaker 02:
So following up on Judge Henderson's questions, if DC were to respond to PG County that in fact they were not correctional officers, then the argument that they want to bring into the federal court is basically a DC claim.

[00:23:23] Speaker 02:
I mean, that's what we're trying to figure out here.

[00:23:28] Speaker 02:
Both subject matter jurisdiction and 12b6.

[00:23:38] Speaker 02:
As I understand it, they say that basically after the federal statute was passed, the only discretion DC has is basically to check yes

[00:23:54] Speaker 02:
on this form that PG County said.

[00:23:56] Speaker 02:
Were they correctional officers?

[00:23:58] Speaker 02:
Did they retire in good standing?

[00:24:02] Speaker 02:
And then PG can decide whether they have the training or not.

[00:24:07] Speaker 02:
So their position, as I understand it, is that by the district saying there is no statutory power of arrest, DC has gone way beyond any discretion

[00:24:24] Speaker 02:
that the statute could give it.

[00:24:28] Speaker 02:
And this is ignoring for the moment that DC is not a state, but in any event.

[00:24:33] Speaker 04:
Congress left it to the states to implement this program and to decide whether the law enforcement officers are qualified, whether they're entitled to the ID.

[00:24:42] Speaker 04:
Here, how do you divide that authority between PG County and the district, whether PG County makes an independent decision or the district makes the decision.

[00:24:50] Speaker 04:
It is still the state's prerogative

[00:24:54] Speaker 02:
to decide whether someone qualifies as a law enforcement officer under... All right, but suppose, I'm trying to press you on this, because suppose a person worked for the D.C.

[00:25:03] Speaker 02:
Department of Corrections for a number of years but was a lousy officer.

[00:25:10] Speaker 02:
And no one in their right mind would want this officer to continue to carry a gun after he retired.

[00:25:18] Speaker 02:
Could D.C.

[00:25:19] Speaker 02:
simply say he was not?

[00:25:22] Speaker 02:
A correctional officer?

[00:25:30] Speaker 04:
Leosa does not create a right enforceable under 1983 to compel the district to answer the question in any such manner.

[00:25:39] Speaker 02:
So they have to go to the Superior Court?

[00:25:42] Speaker 04:
Yes.

[00:25:46] Speaker 04:
Yes, under the presumption that agency action is

[00:25:49] Speaker 04:
revealable in Superior Court if it's not a contested case.

[00:25:53] Speaker 02:
So as I read the District Court's opinion, and I may be wrong, the District Court thought that if in fact the plaintiffs were correct that D.C.

[00:26:03] Speaker 02:
has no discretion, then they do have a claim that's properly in federal court.

[00:26:13] Speaker 02:
that if D.C.

[00:26:14] Speaker 02:
has no discretion, you check the boxes, and that's the end of it.

[00:26:17] Speaker 02:
There's a statute that says they had certain powers of arrest, they were correctional officers, they retired in good standing.

[00:26:25] Speaker 04:
Yes, I think that's what the district court, that there is an underlying federal question of what is the right created by Leosa.

[00:26:34] Speaker 02:
But, you know, I. Well, what is the right created

[00:26:40] Speaker 02:
in the sense of what is the role of the state, the resident state, or the employing state.

[00:26:51] Speaker 04:
What is the role?

[00:26:51] Speaker 02:
Well, in other words, as I understand the plans, they're saying, look, this was a controversial matter, but Congress finally came down on the side of the retired officers and said, look, you can carry a gun.

[00:27:04] Speaker 02:
And if you meet the criteria, if the state, there's a statutory power of arrest.

[00:27:11] Speaker 02:
So you wouldn't be here, I assume, if the DC code clearly said a retired DC correctional officer has the power of arrest.

[00:27:23] Speaker 04:
presumably we would not have gotten here, but it's still not a federal question.

[00:27:29] Speaker 04:
Sorry, there's still no right under LIOSA to compel the district to answer these questions in any particular way.

[00:27:38] Speaker 01:
But what good is LIOSA then if the states can

[00:27:42] Speaker 01:
under your theory, refuse to issue an ID that says you work there, or refuse, when the reference questions come in on the firearms qualification, refuse to answer those correctly, or at all.

[00:27:57] Speaker 01:
the way Congress designed the program, that states don't, I mean, if someone has a liaison credential in Texas comes to... I thought the point of the statute was to give individual officers an entitlement to carry firearms regardless of what individual states might think about that policy choice, to nationalize the question of whether individual officers can carry.

[00:28:21] Speaker 04:
Well, that's not the way the statute was written.

[00:28:23] Speaker 04:
The statute is written to provide a defense and criminal prosecution

[00:28:26] Speaker 01:
But Congress did leave it to the states to issue the IDs, to certify the firearms training, and there's simply no... Defense to conviction, the first sentence of the statute, notwithstanding any other provision of the law of any state, an individual who is a qualified, retired law enforcement officer and who is carrying an identification may carry a concealed firearm.

[00:28:54] Speaker 04:
Yes, well, there are those two conditions.

[00:28:56] Speaker 04:
And here, it's indistinguishable.

[00:28:58] Speaker 04:
I mean, it's not an absolute right to carry.

[00:29:02] Speaker 04:
It's a right to carry if you have received the identification, if you have been certified to fire a strain.

[00:29:09] Speaker 01:
I don't think Congress thought, or maybe this is a question, so I don't think it makes sense to read the statute to think that Congress thought that the states could just resist.

[00:29:24] Speaker 01:
the policy choice, and they can resist the policy choice by refusing to issue the IDs or refusing to answer the questions of whether you ever worked.

[00:29:33] Speaker 01:
Judge Rodgers' question really goes to the heart of it, to me, which is, could they deny that they've ever even worked at the Department of Corrections?

[00:29:40] Speaker 01:
Can they just lie on the form with impunity under this statute?

[00:29:45] Speaker 04:
There's no right under LIOSA to force a state to answer correctly.

[00:29:50] Speaker 04:
That would have to be enforced in state court.

[00:29:53] Speaker 04:
LIOSA simply there's... And what good is this right?

[00:29:59] Speaker 01:
Say every state or say many states said, you know what, we disagree with Congress's policy choice here.

[00:30:08] Speaker 01:
And we are going to express our disagreement by refusing to issue IDs to the retired law enforcement officers who no longer have an ID and thereby thwart the statute.

[00:30:21] Speaker 01:
And you're saying that's perfectly consistent with the design of the statute.

[00:30:24] Speaker 04:
And I think plaintiffs have conceded that, but I mean, but put aside the concession.

[00:30:28] Speaker 01:
Yes, that make sense.

[00:30:32] Speaker 04:
Yes, I mean it's like if Texas issues the Iliosa credential, the district has to honor that.

[00:30:37] Speaker 01:
Your reading is a state's rights statute and I'm questioning whether it's really an individual rights statute because the whole point was that this Congress thought the states were not adequately protecting the individual right that they deem important, namely the individual right of retired law enforcement officers to carry.

[00:30:56] Speaker 04:
Well, I mean there were two purposes to the law.

[00:31:00] Speaker 04:
One, to allow officers to protect themselves, and two, to promote the safety of the community to allow them to make arrests wherever they are.

[00:31:17] Speaker 01:
And maybe you're right, which is those states, Texas decides we're going to certify our officers, then those Texas certified officers are good to go throughout the United States.

[00:31:27] Speaker 01:
But Maryland says we're not going to certify any retired officers, then Maryland retired officers are out of luck.

[00:31:34] Speaker 04:
Right.

[00:31:34] Speaker 04:
I think that's the way this statute's written.

[00:31:36] Speaker 01:
But that's very, it's not written that way, that's for sure.

[00:31:40] Speaker 01:
Now whether it's, it's not necessarily written the other way either, that's the problem in this case.

[00:31:45] Speaker 04:
Well, and if it's not clear, I mean, Blessing and Gonzaga make it absolutely clear the right has to be unambiguous.

[00:31:54] Speaker 04:
Congress knows how to confer the right that plaintiff sees.

[00:31:57] Speaker 01:
Doesn't that first sentence of the whole thing certainly suggest it's an individual right?

[00:32:04] Speaker 01:
may carry an individual who's a qualified retired law enforcement officer and who's caring.

[00:32:09] Speaker 01:
It doesn't say anything about state's rights there.

[00:32:12] Speaker 04:
That's like Gonzaga.

[00:32:13] Speaker 01:
I mean in Gonzaga there was full faith and credit kind of theory that you have with the statute, whereas the statute is written really in terms of the individual officers.

[00:32:22] Speaker 04:
Well, in Gonzaga, Congress created a right that individual students' records would not be released, but found that Congress had not created an enforceable right there, that there was no unambiguous language showing that individuals have an enforceable right under 1983.

[00:32:38] Speaker 04:
I mean, if you look right at the beginning of the same chapter, 925A,

[00:32:43] Speaker 04:
If a state creates an error in a background check, Congress authorized action to correct that information.

[00:32:50] Speaker 01:
The statute under your theory should say something like, no state may deny the right to carry an officer who is certified by another state.

[00:33:01] Speaker 01:
I mean, that's the full faith and credit kind of theory you have.

[00:33:04] Speaker 01:
It doesn't read at all like that though.

[00:33:10] Speaker 01:
As I see it.

[00:33:11] Speaker 01:
And I agree, it's a little bit confused.

[00:33:13] Speaker 04:
Right.

[00:33:13] Speaker 04:
And it's plaintiff's burden to show that the rate they seek to enforce under 1983 that Congress intended to create an enforceable rate.

[00:33:22] Speaker 04:
And there's no that.

[00:33:25] Speaker 04:
I mean, here, you can carry, if you meet these two subdivisions, if you

[00:33:33] Speaker 04:
meet that definition of qualified retired law enforcement officer, it has that narrow scope, and it leads it to the states to decide whether you're a qualified retired law enforcement officer, that just the language of the statute as a whole, especially compared to 925A, which specifically says if a state makes a mistake, you can sue to correct that mistake.

[00:33:56] Speaker 04:
There's nothing like that in LIOSA.

[00:33:59] Speaker 04:
The right, they claim, is simply not unambiguously created by the statute.

[00:34:06] Speaker 04:
I mean, blessing is clear.

[00:34:08] Speaker 04:
It has to be clearly set forth in the statute.

[00:34:13] Speaker 04:
And there's no language or congressional intent to create a right enforceable in 1983.

[00:34:18] Speaker 04:
I mean, if the district makes a factual mistake, go to Superior Court and have that factual mistake right there.

[00:34:25] Speaker 01:
And what will you all say?

[00:34:25] Speaker 01:
Suppose they go to Superior Court.

[00:34:27] Speaker 01:
What will you all say?

[00:34:28] Speaker 04:
We will say that correctional officers in the district don't carry guns on the job.

[00:34:32] Speaker 04:
They don't carry guns to and from their houses, and they have only a limited right to take and retake parolees on a parole warrant, and that is not a general power of arrest, and it is not akin to the... So you would not contest their case in Superior Court on any ground other than the merits?

[00:35:01] Speaker 04:
I think, I mean, there might be an exhaustion issue up through the police department.

[00:35:04] Speaker 01:
I just want to make sure you're not promising something that's an empty promise.

[00:35:11] Speaker 04:
I understand the court's concern.

[00:35:12] Speaker 04:
But short of some kind of exhaustion requirement up through the Department of Corrections, I think the presumption is that the agency action is reviewable in Superior Court.

[00:35:23] Speaker 01:
In what?

[00:35:24] Speaker 01:
I guess?

[00:35:25] Speaker 04:
If there's law to apply.

[00:35:26] Speaker 04:
I mean, you know, you can't.

[00:35:29] Speaker 01:
I just think it's odd to read the statute and come away thinking, actually, it's up to each individual state to decide whether we're going to give these IDs and we can forward the whole thing.

[00:35:41] Speaker 04:
But if the court were to find a federal right here, then, you know, if there's a telephone call between PG County and the district, is the

[00:35:52] Speaker 04:
is someone qualified officer or not.

[00:35:54] Speaker 04:
You can then enforce that in federal court.

[00:35:56] Speaker 04:
If the application gets lost in the mail, is that a right that we also intended to create to enforce in federal court under 1983?

[00:36:04] Speaker 02:
So is the argument here that while normally or typically it might be that state law is clear on its face that a correctional officer has

[00:36:22] Speaker 02:
the power of arrest.

[00:36:26] Speaker 02:
Where it is unclear whether a retired correctional officer has the power of arrest as contemplated under the federal statute, then it is a matter on which the states have the final say.

[00:36:52] Speaker 02:
In other words, DC may not afford to its officers this power of arrest, whereas Virginia may.

[00:37:05] Speaker 02:
It depends.

[00:37:08] Speaker 02:
And that's a question for the states to answer.

[00:37:13] Speaker 02:
And Congress wasn't predetermining the answer to that question absent

[00:37:23] Speaker 02:
state statute that's on its books at the time the officers are seeking these certifications.

[00:37:30] Speaker 04:
I think that's precisely right, that Congress left it to the states to administer the program and decide which of their officers qualify under

[00:37:41] Speaker 04:
the state has to qualify under the definition of statutory powers of arrest.

[00:37:46] Speaker 04:
The state has to decide if that state gives which officers have statutory power of arrest.

[00:37:52] Speaker 01:
But if you, the problem I have, and this is more a comment and you can respond, the problem I have is if you came in here and just said,

[00:38:00] Speaker 01:
folks did not have statutory power arrest, we can decide that yes or no, whether we agree with you.

[00:38:06] Speaker 01:
And maybe there's some deference.

[00:38:07] Speaker 01:
I'm not sure that they see in determining how, whether they had statutory powers to arrest.

[00:38:12] Speaker 01:
But you're coming in with a much broader legal theory that actually renders the statute, would give the states, individual states, the ability to thwart the statute by refusing to issue IDs or to answer questions accurately that come from other states about prior employment.

[00:38:30] Speaker 01:
And that strikes me as a pretty significant step for us to take.

[00:38:35] Speaker 01:
And maybe that's right under the statute.

[00:38:38] Speaker 01:
But this thing was a right without a remedy, which would be the upshot of this.

[00:38:45] Speaker 04:
Well, it would be a right without a federal remedy.

[00:38:49] Speaker 04:
It would be a right.

[00:38:50] Speaker 01:
Or a state remedy, under your theory, in some states.

[00:38:55] Speaker 01:
If you're saying the state, they can just say, you know what?

[00:38:59] Speaker 01:
We hate this statute.

[00:39:01] Speaker 01:
And we're just going to refuse to issue IDs.

[00:39:04] Speaker 01:
And you're saying they can do that.

[00:39:06] Speaker 01:
That may be wrong, quote unquote, but it's totally unenforceable in federal court for when a state does that.

[00:39:12] Speaker 04:
But the situation here is it's undisputed that the district does have a LEOSA program and does certified officers.

[00:39:18] Speaker 01:
I understand that.

[00:39:18] Speaker 01:
I understand that.

[00:39:19] Speaker 01:
But you're legal.

[00:39:20] Speaker 01:
This is the problem.

[00:39:22] Speaker 01:
Your legal theory.

[00:39:24] Speaker 01:
Our legal theory... Those are the facts, but your legal theory would say, you know what, they could just resist, and that would be totally unenforceable in federal court.

[00:39:33] Speaker 01:
They could resist by refusing to issue IDs.

[00:39:37] Speaker 01:
And again, some of these retired officers, I'm not quite sure how this works, and this is one of the problems I have in this case, but some of these officers, and I think in this case, they all do have their old IDs.

[00:39:46] Speaker 01:
But some may not and would need a new ID from the State Department, police corrections, whatever.

[00:39:53] Speaker 01:
And a state could even refuse to give the IDs to its police officers, under your theory, because they don't like this statute.

[00:40:04] Speaker 04:
I think that's right.

[00:40:05] Speaker 04:
And one of the cases we say New York, I think it was didn't participate in the program that it's the state's prerogative not to participate in the program for its officers.

[00:40:15] Speaker 04:
They do have to recognize the Leo's credentials of officers from other states.

[00:40:20] Speaker 04:
Um, but that's the way Congress wrote the law and there's no indication here that Congress intended

[00:40:28] Speaker 04:
to have a right enforceable in federal court to have the district check the box on an application certifying that they qualify that they have statutory powers of arrest.

[00:40:40] Speaker 04:
There's just simply no ambiguous right here that was meant to be enforced in 1983.

[00:40:46] Speaker 04:
And to the extent plaintiffs think the district checked the wrong box, they can pursue that question under local law in local court.

[00:40:56] Speaker 03:
Can I ask you one question just to be clear?

[00:40:58] Speaker 03:
Why are you emphasizing whether they can carry firearms when they are law enforcement officers?

[00:41:06] Speaker 03:
Well, is that part of

[00:41:12] Speaker 03:
What makes, under DC law, what makes somebody a law enforcement officer, the power of arrest is tied to the power to carry a weapon?

[00:41:22] Speaker 03:
I didn't see that.

[00:41:23] Speaker 04:
No, I made that comment because counsel in his argument said they carry guns, which I don't think they do.

[00:41:27] Speaker 04:
It does come down to statutory powers of arrest.

[00:41:31] Speaker 04:
And it may be that one reason the district doesn't give its officers statutory powers of arrest is because they don't carry guns.

[00:41:38] Speaker 03:
OK, but that isn't.

[00:41:39] Speaker 03:
part of your, or DC's decision.

[00:41:42] Speaker 03:
In other words, you didn't carry firearms when you were active.

[00:41:46] Speaker 03:
We're not going to certify that you can carry them now.

[00:41:49] Speaker 04:
No, it's that they don't meet the definition of statutory fireworks.

[00:41:54] Speaker 04:
So if there are no other questions, we ask the court to refer.

[00:41:57] Speaker 03:
Thank you.

[00:41:59] Speaker 03:
Does Mr. Page have any time?

[00:42:02] Speaker 03:
Why don't you take a couple minutes?

[00:42:05] Speaker 00:
OK, thank you, Your Honors.

[00:42:06] Speaker 00:
Let me first return to my concession and just make sure exactly I've got what I conceded or didn't.

[00:42:12] Speaker 00:
What I conceded was at the beginning that it's complicated, that there's a give and take in the statute.

[00:42:20] Speaker 00:
There's a give and take even in that section.

[00:42:23] Speaker 00:
And there isn't something in the statute that clearly mandates that the state issue that ID.

[00:42:30] Speaker 00:
Now, the argument that by not issuing the ID, you're frustrating the purpose of the entire statute is certainly a good argument.

[00:42:37] Speaker 00:
Now, because there are these other cases that are out there, we did not feel like we needed to address that issue.

[00:42:43] Speaker 00:
But at the same time, this case would be an adequate vehicle to address that issue if, as you said, the district's legal position is that they can frustrate the statute by simply refusing to issue IDs.

[00:42:56] Speaker 00:
And it may be that there needs to be a split.

[00:43:00] Speaker 02:
I agree, you need to clarify your concession, but the problem is that the district court, I mean, that's a new theory of the case, as it were, and the district court was concerned that it wasn't clear exactly what relief you were seeking.

[00:43:17] Speaker 02:
And it came up with these theories, neither of which you endorse, but I'm a little troubled by that.

[00:43:25] Speaker 02:
As I understood it, for us to reverse the district court on the theory you raised, assuming subject matter jurisdiction, we would have to say that the district had no discretion.

[00:43:40] Speaker 02:
Isn't that correct?

[00:43:43] Speaker 00:
Well, I think what you would have to say is that the conduct that was alleged below, or the conduct that's at issue here, is clearly not part of any discretion that the district has.

[00:43:57] Speaker 02:
So the answer to my question is yes, isn't it?

[00:44:01] Speaker 00:
Yes, absolutely.

[00:44:02] Speaker 00:
The particular conduct that we're focusing on, that there was no discretion for that, yes.

[00:44:11] Speaker 00:
So I think some of this goes to... What about the individual right?

[00:44:16] Speaker 00:
I don't mean to interrupt.

[00:44:17] Speaker 01:
Go ahead.

[00:44:18] Speaker 01:
But I was going to ask about the individual right versus state right theory of the statute.

[00:44:23] Speaker 01:
So their theory of the statute is that it gives, say, Texas a right to certify its own officers, and then they're good retired officers, and they're good to go throughout the United States.

[00:44:33] Speaker 01:
But if Minnesota doesn't want to certify its officers, retired officers, then they don't have a right to carry throughout the United States.

[00:44:40] Speaker 01:
So each state can make a decision to kind of get its officers covered throughout the United States.

[00:44:47] Speaker 01:
What about that?

[00:44:48] Speaker 00:
Right, and we disagree with that.

[00:44:49] Speaker 00:
I think your description of it as providing an individual right to sort of provide a national policy choice on this issue is absolutely accurate.

[00:44:58] Speaker 00:
I mean, even the way Ms.

[00:45:00] Speaker 00:
Wilson was describing it as far as this is a program that was left to the states,

[00:45:04] Speaker 00:
You know, there is, states can act under this and they can implement programs, but it's conferring an individual right.

[00:45:09] Speaker 00:
And the day it went into law, there were individuals who may have had identification that met the criteria and immediately were eligible to carry under LEOSA.

[00:45:18] Speaker 00:
So it really, it provides, there's an interplay here that you don't see in a lot of different statutes, but it's not just a program that the state is implementing.

[00:45:27] Speaker 01:
This is a problem with the factual record, but do you know how many retired officers have their old photo ID?

[00:45:34] Speaker 00:
I don't, and we would like to be able to, there's a couple of issues even that have popped up here that I think we, you know, we're entitled to litigate below.

[00:45:42] Speaker 00:
I mean, even this issue about carrying guns on the job, I mean, from my discussions with my clients, I know

[00:45:48] Speaker 00:
I'm not sure if they carried them in.

[00:45:49] Speaker 00:
I know they definitely were issued firearms during.

[00:45:52] Speaker 00:
And again, there's a whole, there's different issues here potentially with the fact that they were.

[00:45:56] Speaker 02:
And there are different types of correctional officers too.

[00:45:59] Speaker 00:
The different types, absolutely.

[00:46:00] Speaker 02:
Some carry guns, some may, and some may not.

[00:46:03] Speaker 00:
Yeah.

[00:46:03] Speaker 00:
And so I think we can, that's the kind of thing that we should be able to litigate.

[00:46:08] Speaker 00:
And this actually goes back to the question about, well, what was the scope of it?

[00:46:12] Speaker 00:
What if they just lied?

[00:46:13] Speaker 00:
What if the district just said they weren't even corrections officers?

[00:46:16] Speaker 00:
Again, that's the kind of thing, because we have Section 1983, and if that lie basically had the effect of depriving a federal right, a very clear federal right, if it was aimed at depriving a federal right, that's what allows us to use Section 1983 and that's why we're not necessarily going to

[00:46:37] Speaker 00:
to superior court.

[00:46:39] Speaker 00:
I mean, again, the very purpose of Section 1983 was to interpose the federal courts between the states and the people as guardians of the people's federal rights.

[00:46:47] Speaker 00:
So we're not taking Section 1983 out of context here.

[00:46:50] Speaker 00:
And that's very important.

[00:46:51] Speaker 00:
Through all the discussion with respect to Blessing and Gonzaga, all of those cases are saying don't bring Section 1983 litigation into

[00:46:59] Speaker 00:
very different type of statute.

[00:47:01] Speaker 00:
This is a rights-protecting statute.

[00:47:03] Speaker 00:
That's the only thing that it does.

[00:47:05] Speaker 00:
So bringing Section 1983 to bear here is really serving the core purpose of Section 1983.

[00:47:13] Speaker 02:
So in your reply brief, you say that the plaintiffs have identification that's sufficient for D2A.

[00:47:30] Speaker 02:
and you say, this is a case about city officials acting out of bounds of any conferred discretion.

[00:47:40] Speaker 02:
Yet here you are saying that they do, states retain a measure of discretion.

[00:47:49] Speaker 02:
And that's where I'm just trying to understand.

[00:47:53] Speaker 02:
If a DC statute said all correctional officers have the power of arrest, period, as counsel for the district argued, the case wouldn't even be here.

[00:48:08] Speaker 02:
But if there's some uncertainty under DC law or

[00:48:16] Speaker 02:
even some uncertainty as to the individual plaintiffs, if there is a measure of discretion, then isn't that a matter to be worked out under DC law?

[00:48:34] Speaker 02:
I mean, the federal question would be does, arguably, does DC retain any discretion?

[00:48:41] Speaker 02:
And you've conceded it does if you had

[00:48:46] Speaker 02:
taken a different tack, it seemed to me that all we would be saying is that DC's misread its own statute because it's plain that all correctional officers had powers of arrest, even if not powers of arrest identical to members of the Metropolitan Police Department.

[00:49:11] Speaker 00:
Right.

[00:49:11] Speaker 00:
You know, this comes down to the concession.

[00:49:14] Speaker 00:
The concession at MOA is that the maximum amount of discretion that the district can claim to exercise is whether or not it's going to issue little plastic cards or not.

[00:49:25] Speaker 00:
And again, there's a good argument to be made that if they purposely do so to shut down the rights in the statute, that that's frustrating the statute.

[00:49:35] Speaker 00:
That could be challenged.

[00:49:37] Speaker 00:
But the reason why we didn't engage that here is that's not what we're asking.

[00:49:43] Speaker 00:
This is basically there are, certainly for our three Maryland plaintiffs, they don't need that from the district.

[00:49:52] Speaker 00:
What the district is doing is is not within is clearly not within that measure of discretion.

[00:49:58] Speaker 00:
So we don't kind of need to challenge that necessarily in this case.

[00:50:01] Speaker 01:
But if you did not have the statutory power to arrest with your clients,

[00:50:10] Speaker 01:
then you lose.

[00:50:12] Speaker 01:
And that is a question of, um, arguably of DC law.

[00:50:20] Speaker 01:
Could we certify that question of the DC Court of Appeals?

[00:50:24] Speaker 00:
Well, it's a question, so it's not even that nuanced of a question, because it turns on a reading of the federal statute.

[00:50:32] Speaker 00:
Like, what does the federal statute require exactly?

[00:50:35] Speaker 00:
It says, a statutory power of arrest.

[00:50:37] Speaker 00:
They're not arguing that there isn't a statutory power of arrest.

[00:50:40] Speaker 00:
They're arguing, oh, they don't have the particular, the right statutory power of arrest.

[00:50:44] Speaker 00:
They've got to provide some support in the statute that that's there.

[00:50:49] Speaker 00:
All eyes are eventually going back to the requirements of federal law.

[00:50:52] Speaker 01:
So in your theory, the D.C.

[00:50:54] Speaker 01:
law is actually pretty clear.

[00:50:55] Speaker 01:
The question is whether the federal law covers if you have any power of arrest versus all the powers of arrest.

[00:51:01] Speaker 00:
Absolutely.

[00:51:01] Speaker 00:
Yeah, yeah.

[00:51:01] Speaker 00:
At most we've got a state law issue that's popping into a fully federal case.

[00:51:05] Speaker 00:
But the state law issue, you think, is not really disputed.

[00:51:09] Speaker 00:
So how do we interpret the federal statute?

[00:51:12] Speaker 00:
Well, we certainly, yeah, we think it's an incredibly strange reading of the statute that's sort of designed.

[00:51:18] Speaker 00:
I mean, we address it fully in the reply breach in particular, and there's a number of reasons.

[00:51:22] Speaker 00:
I mean, even the statutory power of arrest that they're pointing to is not as clear as the statutory power of arrest that my client has.

[00:51:28] Speaker 00:
So there's a number of reasons why that's the case, but in any event, if we're

[00:51:33] Speaker 00:
With respect to Shoshone mining, it's still the center of gravity is definitely on federal law.

[00:51:40] Speaker 00:
And we're simply looking to some degree about compatibility.

[00:51:44] Speaker 00:
Well, there's a federal law, state law is compatible with that.

[00:51:47] Speaker 03:
All right.

[00:51:48] Speaker 03:
We have your argument.

[00:51:49] Speaker 00:
Thank you.

[00:51:49] Speaker 00:
Thank you very much.