[00:00:01] Speaker 00:
Case number 18-7102, Ronald Eugene Newberry at out.

[00:00:06] Speaker 00:
District of Columbia appellate, Ms.

[00:00:08] Speaker 00:
Wilson for the appellate, Mr. Page for the appellate.

[00:01:32] Speaker 04:
Good morning, and if it pleases the court, I'm Mary Wilson, representing the District of Columbia.

[00:01:37] Speaker 04:
I'd like to reserve two minutes for rebuttal.

[00:01:40] Speaker 04:
The district is entitled to judgment in this case because the plaintiffs failed to establish entitlement to the right, actually at issue in this appeal, the right to concealed carry under the terms of Leosa.

[00:01:53] Speaker 05:
Section.

[00:01:53] Speaker 05:
Wait, wait, what do you mean by that?

[00:01:55] Speaker 05:
Because I'm not sure what this fight is about.

[00:02:01] Speaker 05:
I thought their claim was, and they make some explicit disclaimers, I thought their claim was they have a right entitlement.

[00:02:14] Speaker 05:
It was in dispute before because it was a fight over how you define law enforcement officers.

[00:02:22] Speaker 05:
Senate back, district court agreed.

[00:02:24] Speaker 05:
There was no contest.

[00:02:26] Speaker 05:
District court rendered no decision on

[00:02:29] Speaker 05:
whether and how you get an identification and you're challenging what?

[00:02:37] Speaker 04:
Du Barry once said that the plaintiffs have an enforceable cause of action here because they had been denied the ultimate right to carry under the law.

[00:02:47] Speaker 04:
The first sentence of the case says this case is about the right under Leosa to carry concealed weapons and the court concluded that they stated

[00:02:55] Speaker 04:
a cause of action that they had been denied the right to carry concealed weapons.

[00:03:01] Speaker 04:
Subsection A of the EOSA says to have a right to carry, the concealed carry right, you have to meet two criteria.

[00:03:08] Speaker 04:
You have to be a qualified retired law enforcement officer, as that is defined in the list statute, and you have to carry the identification required by subsection D. So let's be clear.

[00:03:18] Speaker 03:
Newbury 1, we took the allegations of the complaint as true.

[00:03:22] Speaker 03:
Yes, under 12P6.

[00:03:24] Speaker 03:
on remand, you're on summary judgment.

[00:03:27] Speaker 03:
Yes.

[00:03:28] Speaker 03:
So that is your argument.

[00:03:30] Speaker 03:
And the appellees have stepped back from each point, if I can put it that way, that you're making.

[00:03:39] Speaker 03:
And they point out that the district court has given them the relief they need.

[00:03:51] Speaker 04:
But it's not the relief they need to legally carry under LIOSA.

[00:03:56] Speaker 03:
Their argument is they think it is, and they make some representations in their brief, and they say that if they're wrong, as you argue, they are prepared to take the consequences.

[00:04:14] Speaker 04:
Yes, but to be entitled to judgment that the District of Columbia violated their statutory right to carry

[00:04:22] Speaker 04:
they have to establish that the district's action interfered with their ultimate right to carry.

[00:04:28] Speaker 04:
And they don't have the ultimate right to carry here because they never established and do not have the agency issued identification stating that- You look at their brief, you look at the district court's decision, you look at what they asserted to us, the ultimate right to carry is not being played out.

[00:04:47] Speaker 05:
The right to an identification is not, in fact, in their first brief to us,

[00:04:51] Speaker 05:
They said the statute allows states a limited measure of discretion over the OSHA eligibility in that the state agencies may choose or not to issue the identification cards necessary.

[00:05:04] Speaker 05:
District court said, I am not deciding the identification issue.

[00:05:07] Speaker 05:
The fight here is whether they meet the four criteria

[00:05:12] Speaker 05:
with respect to qualified retired law enforcement officer.

[00:05:15] Speaker 05:
And in footnote eight or nine there about this court makes it absolutely clear that is all that's being decided because there was a dispute over that going up to the circuit.

[00:05:26] Speaker 05:
It came back down.

[00:05:27] Speaker 05:
I'm confirming they now have the certification of what's required by certification.

[00:05:32] Speaker 05:
I am not deciding identification issue.

[00:05:35] Speaker 05:
The other side has said, we haven't made that claim.

[00:05:38] Speaker 05:
It's not an issue.

[00:05:40] Speaker 05:
And if we have to go to the DC courts and seek relief, that's the end of their brief.

[00:05:45] Speaker 05:
If we have to go to the DC courts and seek relief,

[00:05:48] Speaker 05:
for an agency's failure to follow the law will do that.

[00:05:52] Speaker 05:
But all this fight, I don't know why you're fighting this, all this fight is, as far as I can see, on what came to us initially, went back to the district court, and what the district court did is whether or not they satisfied the qualified retired law enforcement officer criteria.

[00:06:08] Speaker 05:
That's all.

[00:06:09] Speaker 05:
And they did.

[00:06:10] Speaker 04:
But in DuBerry 1, Your Honor, the court cited paragraph 84 of their complaint, which says,

[00:06:17] Speaker 04:
that in which they allege they have been deprived of their right to carry concealed weapons under the OSHA.

[00:06:23] Speaker 04:
They have not been, the district has not deprived them of that right because they don't have the requisite IDs.

[00:06:28] Speaker 04:
They have only satisfied a portion, sorry.

[00:06:37] Speaker 04:
I mean there are certain elements of their claim that they have to prove in order to establish that they are entitled

[00:06:45] Speaker 04:
to the concealed carry rate under LEALS.

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There are two requirements, that they're qualified retired law enforcement officers and that they have the IDs.

[00:06:54] Speaker 04:
And that's what gives them the ultimate right and that's what gave them a cause of action under 1983.

[00:06:58] Speaker 05:
If they are correct in their assertion, which was their assertion last time around, that the states may or may not choose to give an identification

[00:07:10] Speaker 05:
We're not putting that in play.

[00:07:12] Speaker 05:
We understand.

[00:07:13] Speaker 04:
It wasn't in play because they said they had the IDs.

[00:07:16] Speaker 05:
No, they said they had an ID.

[00:07:18] Speaker 05:
But I'm reading what they said.

[00:07:20] Speaker 05:
The states have a limited measure to grant or not.

[00:07:24] Speaker 05:
whether what they have is good enough is a different question.

[00:07:27] Speaker 05:
The real fight, as far as I can read this record, is over qualified retired law enforcement officers because the city's initial position was they're not really law enforcement officers.

[00:07:37] Speaker 05:
Yes.

[00:07:38] Speaker 05:
And you lost it.

[00:07:39] Speaker 02:
Yes, we lost it.

[00:07:40] Speaker 05:
The court sent it back and said, get it straight.

[00:07:43] Speaker 05:
We did not decide the identification issue.

[00:07:46] Speaker 05:
And the district court was explicit.

[00:07:49] Speaker 05:
beyond the pale in saying, I am absolutely not deciding the identification issue.

[00:07:53] Speaker 05:
I don't have to decide it.

[00:07:54] Speaker 05:
This is only about whether they have an enforceable right.

[00:07:58] Speaker 05:
Now they can go and try and exercise that enforceable right, but that's all that I see before me.

[00:08:03] Speaker 05:
That's all the district court did.

[00:08:04] Speaker 05:
So let me make sure you understand what I'm saying.

[00:08:07] Speaker 05:
That's all the judgment of the district court was.

[00:08:09] Speaker 05:
The district court did not say they can now go and carry.

[00:08:14] Speaker 05:
The district court said, I'm not deciding their identification issue.

[00:08:16] Speaker 05:
And the district court knew you have to have an identification, as do they.

[00:08:20] Speaker 05:
That was not the issue resolved by the district court.

[00:08:23] Speaker 05:
So what is it that you lost in the district court you can now appeal?

[00:08:28] Speaker 04:
Well, we have a judgment against us that we violated their rights under LIOSA.

[00:08:32] Speaker 05:
To challenge their claim to qualified retired law enforcement officer status.

[00:08:38] Speaker 05:
That's all.

[00:08:38] Speaker 04:
But that's merely a status, Your Honor.

[00:08:40] Speaker 04:
Under blessing, a mere status or something less than a rank is not enforceable.

[00:08:46] Speaker 05:
They can't go to the D.C.

[00:08:48] Speaker 05:
courts and say they're withholding an identification.

[00:08:51] Speaker 05:
and it's unfair because they have no basis to, they can't do it without being able to say we are qualifying law enforcement officers under the OSHA and here's the judgment that proves it.

[00:09:03] Speaker 05:
And so we now have a right to ask for an identification.

[00:09:06] Speaker 03:
In other words, what I hear them saying in part is you may ultimately be right.

[00:09:11] Speaker 05:
Right.

[00:09:12] Speaker 03:
They are willing to take that chance.

[00:09:16] Speaker 05:
I don't know what you think you have to bring to us given the way this case has been litigated and given their concession that states may or may not issue.

[00:09:26] Speaker 05:
And they say at the end of their brief, because they understand the dilemma that they face having made that concession, we've got to find other ways.

[00:09:33] Speaker 05:
We understand on the identification which is separate from the four things you have to show to be a qualified

[00:09:40] Speaker 05:
a retired law enforcement officer.

[00:09:43] Speaker 05:
You lost that opinion.

[00:09:44] Speaker 04:
Yes, absolutely.

[00:09:45] Speaker 04:
We lost the argument as to whether they are qualified retired law enforcement officers.

[00:09:51] Speaker 05:
Now what else is there?

[00:09:52] Speaker 05:
Hear me out now.

[00:09:53] Speaker 05:
You conceded what you had to concede.

[00:09:55] Speaker 05:
What else do you think you lost

[00:09:58] Speaker 05:
that you can now appeal.

[00:10:00] Speaker 05:
What else did you lose in the district court?

[00:10:02] Speaker 04:
They have not been deprived of the right to conceal carry.

[00:10:06] Speaker 04:
That is the ultimate right that the Dewberry One found.

[00:10:10] Speaker 04:
Dewberry One says the case is about the right to carry.

[00:10:14] Speaker 06:
The case is not about... I think that part of the confusion, well there's lots of confusion here, but I think part of the confusion is that the statute that we're talking about

[00:10:25] Speaker 06:
is actually really a statute that provides a defense, that provides really an immunity.

[00:10:32] Speaker 06:
Yes.

[00:10:34] Speaker 06:
And so it's not a statute that says if you meet certain, all of these elements, then some entity, the federal government or some entity has to give you a concealed carry license.

[00:10:49] Speaker 06:
It really is a statute that says if you meet these

[00:10:55] Speaker 06:
these requirements, you will have a defense or you have a right, which is really basically only important if you were ever challenged or arrested or something for carrying your weapon.

[00:11:09] Speaker 06:
So that's one thing here.

[00:11:11] Speaker 06:
But I think that what we said in DuBarry 1 in articulating the right was that

[00:11:21] Speaker 06:
The district can't interfere with their ability to obtain and exercise their right to concealed carry.

[00:11:32] Speaker 06:
And to the extent that the district was saying you're not a qualified law enforcement officer, they were saying that that part of their right, of their LIOSA right was being violated by the district.

[00:11:48] Speaker 06:
Correct.

[00:11:49] Speaker 06:
And the district court, the way I read the district court's opinion is that the district court is saying that it agrees, and so to the extent that it just has to adjudicate the issue of whether their qualified law enforcement officer sees adjudicating that in their favor.

[00:12:06] Speaker 06:
So my question to you is, what about that ruling was wrong that you want us to review?

[00:12:18] Speaker 04:
The plaintiffs were not entitled to summary judgment merely by establishing that they qualified under one of two elements necessary to have the ultimate right to carry.

[00:12:30] Speaker 04:
There are two elements.

[00:12:41] Speaker 04:
qualified retired law enforcement officer and that they have the IDs and those are both necessary for the ultimate right to carry and you do very one says by saying they had the IDs and say and establishing that they were qualified retired law enforcement officers they had stated a cause of action that they had the ultimate right to carry

[00:13:00] Speaker 04:
On remand, so the fact that they had IDs was essential to their claim.

[00:13:05] Speaker 05:
One does not say they have the ultimate right to carry.

[00:13:08] Speaker 05:
It absolutely does not.

[00:13:10] Speaker 03:
It says they have an enforceable... I just want to make this point.

[00:13:14] Speaker 03:
You were quoting their complaint.

[00:13:17] Speaker 03:
They have stepped back from their complaint.

[00:13:20] Speaker 03:
And that's why I think some of this is more confusing than it might be.

[00:13:26] Speaker 03:
So you're arguing don't try to use your DC law enforcement status as a basis for carrying this weapon, concealed, carrying a concealed weapon.

[00:13:46] Speaker 03:
And they're saying that's all we want.

[00:13:49] Speaker 03:
And I got it from their brief.

[00:13:52] Speaker 03:
That's OK with Maryland.

[00:13:55] Speaker 03:
So if they are found in the District of Columbia carrying this concealed weapon and charges are brought, they will make their argument.

[00:14:10] Speaker 03:
And you, the District of Columbia, will make its argument.

[00:14:15] Speaker 04:
But they have stepped back from their position in the prior appeal.

[00:14:23] Speaker 04:
But if they had come to the court in the prior appeal and said, it doesn't matter if we satisfy the other elements, it doesn't matter if we have IDs.

[00:14:34] Speaker 05:
Can I read again?

[00:14:35] Speaker 05:
This is my fourth time.

[00:14:37] Speaker 05:
In the brief to us, in the brief in the prior case, the statute allows states limited measure of discretion over Leosha eligibility in that state agencies may choose or not to issue the identification cards necessary to exercise Leosha right to carry right.

[00:14:56] Speaker 04:
Yes, they conceded that, but they said they had the IDs.

[00:14:58] Speaker 04:
That was irrelevant because they said they had the IDs.

[00:15:00] Speaker 05:
We did not determine that they had all of what they needed, and they conceded

[00:15:06] Speaker 05:
that we could not, or they were not asking us to compel the grant of identification courts.

[00:15:12] Speaker 04:
They conceded it.

[00:15:13] Speaker 04:
That issue was not before the court because they said they had the IDs.

[00:15:17] Speaker 04:
They did concede that we had no obligation to issue the IDs, but the court didn't have to reach that issue because they said they had the IDs.

[00:15:24] Speaker 05:
Where do you think we said in Dewberry 1 that what they were presenting as an ID, we were conclusively determining

[00:15:34] Speaker 05:
was satisfactory?

[00:15:36] Speaker 04:
No, in 1286 the court accepted their allegations.

[00:15:40] Speaker 04:
But if the fact that they had the ID was part of the court's reasoning that they had stated an actionable claim, that they came within the class of people that Riosso was entitled to benefit because they were qualified retired law enforcement officers and they had the ID.

[00:15:56] Speaker 04:
They were

[00:15:56] Speaker 04:
they had a cause of action under blessing because they came within the class.

[00:16:01] Speaker 05:
Then they went back on summary judgment and they made the same concession to the district court.

[00:16:06] Speaker 05:
We are not making a claim for an identification.

[00:16:10] Speaker 05:
Right.

[00:16:10] Speaker 05:
So, all right, let's assume you're right that we just looked at it as a 12b6 and facially they said something.

[00:16:17] Speaker 05:
We didn't decide the issue, we just noticed it facially.

[00:16:20] Speaker 05:
But when Bush came to shove on summary judgment back in the district court, they made the same concession.

[00:16:26] Speaker 05:
And the district court said, we're deciding nothing about identification.

[00:16:33] Speaker 04:
On appeal, they said they had the IDs.

[00:16:35] Speaker 04:
On remand, they chose not to establish that they had the IDs.

[00:16:40] Speaker 04:
Without those IDs, they have no right to carry under Leosa and no right to a judgment that says we violated their right to carry under Leosa.

[00:16:48] Speaker 06:
But there's also a requirement under the statute that they have had the requisite training in the last 12 months.

[00:16:58] Speaker 06:
The district court said that it wasn't making any findings with that respect.

[00:17:03] Speaker 06:
Do very one, we said that those requirements weren't before us and we weren't dealing with them.

[00:17:13] Speaker 06:
And I guess what you seem to be arguing is that the only way that they can prevail for Section 1983 purposes, and I guess it's because you don't want to have to pay their attorney's fees, is if they can establish every single requirement

[00:17:33] Speaker 06:
under the statute that shows that they meet the LIOSO requirements.

[00:17:40] Speaker 06:
But that's not what we held in Dewberry 1.

[00:17:44] Speaker 06:
And I'm not understanding

[00:17:49] Speaker 06:
your argument as to why we have to hold that in order for them to get a limited summary judgment relief that they have received.

[00:18:08] Speaker 04:
under Dewberry 1, they had stated a cause of action that they had been deprived of the right to carry under Leosa because they said they had IDs and the court deemed them to be qualified.

[00:18:19] Speaker 04:
So the only barrier, the sole barrier there to their exercising their right, was the district's interference with their right to get the firearms.

[00:18:28] Speaker 04:
The district was saying they're not qualified officers eligible to get.

[00:18:31] Speaker 04:
So the court said,

[00:18:32] Speaker 04:
No, you cannot deny that they're qualified retired law enforcement officers and that they stay the cause of action under blessing because they are within the class of people that Congress intended to benefit because they have IDs assumed under 12b6 analysis and the court deemed them to be qualified retired law enforcement officers.

[00:18:55] Speaker 04:
Then on remand, they say, well, no, that part of the case that the court deemed important on appeal that they had satisfied the identification element, regardless of whether we had a legal duty to issue the IDs, they just decided not to establish that element of their case.

[00:19:15] Speaker 06:
Isn't it relevant that the court issued a declaratory judgment here as opposed to an injunction or any kind of monetary damages?

[00:19:24] Speaker 06:
Let's suppose

[00:19:25] Speaker 06:
that in their complaint, they said, they alleged, we're retired Department of Corrections officers.

[00:19:35] Speaker 06:
And the district has told us that before they will give us any sort of identification or certification, that we will have to do double the training of active officers.

[00:19:55] Speaker 06:
in firearms, that if it's a 20-hour training for active officers, that we have to do 40 hours of training annually before they'll give us the certification.

[00:20:07] Speaker 06:
And they said that that violates the statute because the statute says that we only have to fulfill the same requirements of active officers.

[00:20:17] Speaker 06:
And we want declaratory relief under Section 1983

[00:20:24] Speaker 06:
saying that we only have to do 20 hours the same as active duty.

[00:20:30] Speaker 06:
Are you saying that that's not a valid Section 1983 claim?

[00:20:38] Speaker 04:
That might be if the court said that the district's refusal to acknowledge them as was interfering, the district's refusal to acknowledge them as qualified officers was interfering with their right

[00:20:52] Speaker 04:
to take the 10 hours.

[00:20:54] Speaker 04:
But let me focus the court's attention on their motion to amend.

[00:20:59] Speaker 06:
So why, if focusing in on one aspect where the district is not complying with the statute is sufficient to state a claim or entitle them to judgment, then why has the district court erred here?

[00:21:22] Speaker 04:
Well, the court's hypothetical, as I read it, was whether or not they could meet the requirements for qualified retired law enforcement officer.

[00:21:30] Speaker 04:
And the court said in due very one, they qualify and the court cannot interfere with them.

[00:21:36] Speaker 04:
The district cannot say they're not qualified, so as to interfere with them getting the firearms training.

[00:21:44] Speaker 04:
But if you look at what they're asking for in the motion to amend that was recently filed in the district court, the district is issuing letters saying, yes, D.C.

[00:21:51] Speaker 04:
correctional officers are qualified retired law enforcement officers, but we don't give them the IDs they need under the EOSA, and therefore, we don't think they're qualified under the EOSA.

[00:22:02] Speaker 04:
plaintiffs have moved to say that that violates the court's judgment.

[00:22:06] Speaker 04:
They think the court's judgment gives them an entitlement to carry under LIOSA.

[00:22:12] Speaker 04:
It does not.

[00:22:14] Speaker 03:
Well, it might be that they don't like everything after the first sentence in your letters, statements, whatever.

[00:22:22] Speaker 03:
We don't know what that's all about.

[00:22:24] Speaker 04:
Right.

[00:22:24] Speaker 04:
Well, the district has a right to say they are not entitled to carry under Leosa because... It's not this case.

[00:22:29] Speaker 05:
All we're trying to figure out is why you think you have anything to bring to us.

[00:22:33] Speaker 04:
They have not established a violation of the right that... They have not established that the district deprived them of a right to carry because they don't have the requisite IDs.

[00:22:43] Speaker 04:
So this is just like a sub-level element.

[00:22:45] Speaker 04:
This is like a negligence case where they establish duty of care, but not injury or causation.

[00:22:50] Speaker 03:
They don't have all the elements of their case.

[00:22:54] Speaker 03:
The district court is merely parroting what we held initially.

[00:23:02] Speaker 03:
And it didn't go any further.

[00:23:03] Speaker 05:
That's all.

[00:23:05] Speaker 05:
As the fight was over, you're refusing to acknowledge that correctional offices were law enforcement.

[00:23:11] Speaker 04:
It's the difference between 12b6 and summary judgment, Your Honor.

[00:23:16] Speaker 03:
What I think you're not happy about, and it may be for the reason Judge Wilkins said, although happiness is not the issue, is that the plaintiffs may have anticipated that you would prevail on some of these other points.

[00:23:39] Speaker 03:
But once they had the opinion from this court, all they had to do on remand was

[00:23:46] Speaker 03:
meet their burden for summary judgment under this court's interpretation of the statute.

[00:23:52] Speaker 03:
They didn't have to go further.

[00:23:54] Speaker 03:
And your argument, as far as what can occur within the District of Columbia, remains to be decided.

[00:24:03] Speaker 05:
not before us.

[00:24:04] Speaker 04:
But if it remains to be decided whether they're entitled to carry under Leosa, they have not established a violation of the law.

[00:24:10] Speaker 05:
They've established that they have a legally enforceable right.

[00:24:13] Speaker 05:
There are a couple of other – there are many other things they can and cannot do that may come into play later on, but they're not before us.

[00:24:22] Speaker 04:
I'll just finish by reiterating, the legally enforceable right is the right to carry.

[00:24:27] Speaker 04:
It is not the right to be qualified to be labeled a qualified retired law enforcement officer under one of two criteria under the law.

[00:24:35] Speaker 04:
The right to carry requires both being a qualified officer and the IDs, and they just simply fail to establish that element of their case.

[00:24:44] Speaker 06:
Well, I think at some point the district needs to

[00:24:55] Speaker 06:
reevaluate the reasonableness of the positions that it's taking with respect to these firearms, statutes, and regulations.

[00:25:08] Speaker 06:
Some of the positions that you've taken in the briefing in this case with respect to the power of arrest, et cetera, and border, in my line, on frivolous.

[00:25:22] Speaker 06:
That's just one judge's opinion.

[00:25:24] Speaker 04:
We cite five or six district court cases from around the country, including Heinrich's in the Illinois district that says states have no obligation to issue the IDs there.

[00:25:35] Speaker 04:
They didn't issue them to sheriffs whose duties were guarding prisoners in courts.

[00:25:42] Speaker 04:
to the extent that at least five or six district courts have agreed with us that there's no duty to issue the ID and that states have the discretion and prerogative about who to issue them to and that that is not synonymous with being a qualified retired law enforcement officer.

[00:26:09] Speaker 01:
Good morning, Your Honors.

[00:26:10] Speaker 01:
Aaron Page representing Mr. Stuberi, Curtis, and Smith in this matter.

[00:26:15] Speaker 01:
Let's see, we've had a good discussion here.

[00:26:17] Speaker 01:
I'm sort of processing and digesting how I can be most helpful at this point.

[00:26:21] Speaker 01:
I did want to follow up on this point about the stepped back notion that we sort of stepped back and the claim that the district is still making, which is unfortunate that we said we had these IDs specifically.

[00:26:37] Speaker 01:
what we said earlier about the ideas that we had.

[00:26:40] Speaker 01:
And I think we were, I just want to make sure that it's pretty clear that we have been consistent on this and that the portion of the- We have been consistent, but the brief you filed in this court steps back from where you started with your complaint.

[00:26:58] Speaker 03:
That's all I meant by step back.

[00:26:59] Speaker 03:
It's your language, not mine.

[00:27:01] Speaker 01:
Well, so the language from Dewberry 1, and I certainly am humble here acknowledging that I'm talking to the author of that opinion.

[00:27:08] Speaker 03:
Well, remember, we took the allegations of the complaint as true.

[00:27:12] Speaker 03:
We had to at that stage of the proceedings.

[00:27:14] Speaker 01:
OK, so the relevant paragraph that they're citing, each appellant has a photo identification card issued by the DC Department of Corrections stating that he is a retired employee.

[00:27:25] Speaker 01:
Okay, so the new reason why we're here three years later is because they're saying there aren't the right magic words on the ID, right?

[00:27:31] Speaker 01:
It doesn't say the right thing.

[00:27:33] Speaker 03:
And I keep focusing on the different procedural posture of the case.

[00:27:39] Speaker 01:
Right.

[00:27:40] Speaker 01:
Let's see.

[00:27:41] Speaker 03:
In other words, in Dewberry 1, we had to take the allegations of the complaint as true.

[00:27:46] Speaker 03:
You said you had these cards that said what you needed to get.

[00:27:49] Speaker 01:
Right.

[00:27:50] Speaker 03:
We had the cards.

[00:27:51] Speaker 03:
Now, you had to go back to the district court to respond to the District of Columbia's motion for summary judgment.

[00:28:00] Speaker 03:
And you made decisions in the district court as to what you were going to pursue.

[00:28:06] Speaker 01:
Absolutely, absolutely.

[00:28:07] Speaker 03:
And I don't think your brief suggests that you're trying to get more out of the district court than the district court gave you.

[00:28:15] Speaker 01:
Well, I think there's a misunderstanding, Your Honor, because it's complicated because there's two IDs, right?

[00:28:19] Speaker 01:
There's a historical ID, this Title 22 card, and then there's the current ID.

[00:28:23] Speaker 03:
So this is why the District of Columbia is arguing with us now.

[00:28:26] Speaker 01:
Right.

[00:28:28] Speaker 03:
Because we're a moving target here.

[00:28:31] Speaker 01:
So it's a complicated target.

[00:28:34] Speaker 01:
I don't think it's moving.

[00:28:34] Speaker 01:
And can I just explain?

[00:28:36] Speaker 01:
Because I do think one of the things I focus on is the quotation that they use from Dewberry 1 has paragraph citations to our complaint.

[00:28:44] Speaker 01:
So the court went back and looked at our complaint and pulled up particular things.

[00:28:47] Speaker 01:
And it says they have a photo identification card saying is a retired employee citation to paragraph 56.

[00:28:56] Speaker 01:
And that's what paragraph 56 of our complaint says.

[00:28:58] Speaker 01:
employee.

[00:28:59] Speaker 01:
It doesn't say we have cards that say the magic word officer on it.

[00:29:02] Speaker 01:
It says employee.

[00:29:03] Speaker 01:
And then it says had the authority to make, to arrest and apprehend and act in law enforcement custody.

[00:29:08] Speaker 01:
That's the Title 22 cards.

[00:29:10] Speaker 01:
And then there's citations to the relevant paragraphs of the complaint that talk about those.

[00:29:14] Speaker 01:
So the language

[00:29:16] Speaker 01:
As far as I can tell, Dewberry 1 got this fairly complicated nuance point, got it right.

[00:29:20] Speaker 01:
There's the current ID that says employee, there's the old ID that said powers of arrest.

[00:29:26] Speaker 01:
And we've never said that we had anything other than the current ID that says employee.

[00:29:31] Speaker 01:
Now, do we say that we have ID that's sufficient for

[00:29:34] Speaker 01:
subsection D to A of the statute.

[00:29:36] Speaker 01:
Yes, that's our current position.

[00:29:37] Speaker 01:
It is, and I'd like to, you know, I'd be happy to put some more.

[00:29:40] Speaker 05:
But am I, it's very clear to me that in the case before us, in Dewberry one, that wasn't in play because you conceded it.

[00:29:47] Speaker 05:
You said, you essentially said we understand, we'd love for you to accept what we have as an idea as being good enough,

[00:29:54] Speaker 05:
But we understand that's within the discretion of the state to grant it or not.

[00:29:58] Speaker 05:
That's the way I've understood your position.

[00:30:00] Speaker 05:
I don't see the complaining consistent with that.

[00:30:02] Speaker 05:
You're being cued in the complaint in that you're saying we have an ID and it says we're an employee, but that's not the question.

[00:30:09] Speaker 05:
So you never really, and when you push came to shove and do very one, you said to the court, states have the discretion.

[00:30:16] Speaker 05:
In this case, because I was trying to figure out what you're looking for, in this case, at the end of your brief, you make it very clear, sure, we'd love it if you say what we have as an idea is good enough.

[00:30:27] Speaker 05:
We understand that may not be the case, because it doesn't use the magic words, but we just want

[00:30:33] Speaker 05:
the affirmance so that we have a declaration that we have enforceable rights, and if we have to take the D.C.

[00:30:38] Speaker 05:
courts, we'll do it.

[00:30:40] Speaker 01:
I agree with 100 percent with that.

[00:30:42] Speaker 01:
That's absolutely correct.

[00:30:44] Speaker 01:
To some degree, this is the issue that the statute does not put in place some sort of overarching federal authority that issues these types of IDs.

[00:30:53] Speaker 01:
You know, we are dealing with the context where it falls to the individual to carry the ID as they see fit.

[00:30:59] Speaker 01:
And we sketch out, and I'd be happy to add a little bit more to this, why their current IDs, you know, we do think are sufficient.

[00:31:05] Speaker 01:
And that's a decision for the individual, for Mr. Dewberry and for the other plaintiffs.

[00:31:09] Speaker 01:
You know, but there are many good reasons why their current ID is perfectly satisfactory.

[00:31:15] Speaker 06:
The point of it is that... But to make sure that we're all clear here and to follow up on Judge Edwards' question, you are not asking the district court to issue an order compelling the district to

[00:31:35] Speaker 06:
give your clients an ID that meets the requirements of subsection B of the statute?

[00:31:46] Speaker 01:
Absolutely not.

[00:31:47] Speaker 01:
No, and the injunctive relief that was mentioned, and again this is not before this course, not part of the case, but the injunctive relief, the very limited injunctive relief that is being sought right now below, has, it actually targets parts of the communication

[00:31:59] Speaker 01:
at which we think they are resisting the conclusion of the court on the eligibility question.

[00:32:04] Speaker 01:
It's not saying that they need to issue IDs.

[00:32:06] Speaker 01:
It's not saying that they can't state the truth of what, you know, they can't state what they were stating otherwise.

[00:32:13] Speaker 01:
It's going to the fact that we think that there were communications that were made that were resisting the factual conclusions made by the district court.

[00:32:20] Speaker 05:
You're not asking for anything more.

[00:32:22] Speaker 05:
This court said in that footnote eight that I referenced,

[00:32:26] Speaker 05:
Instead, this court only concludes that plaintiff meets the requirements stated in subsection C, one to three.

[00:32:34] Speaker 01:
That's it.

[00:32:35] Speaker 05:
Nothing about D. We're not talking about identification.

[00:32:38] Speaker 05:
We're not talking about training.

[00:32:39] Speaker 05:
We're not talking about whether you're under the influence of alcohol or anything else.

[00:32:43] Speaker 05:
You're talking about – that's what the district court assumed.

[00:32:47] Speaker 05:
Your argument to us in the first case said the same thing.

[00:32:50] Speaker 05:
We're not saying – we're not making a request for identification.

[00:32:54] Speaker 05:
I just – I'm really perplexed as to where this other argument is coming from.

[00:32:59] Speaker 05:
I just want to make sure that I'm reading your position correctly.

[00:33:02] Speaker 01:
That's 100% correct.

[00:33:03] Speaker 01:
And that is meaningful relief.

[00:33:06] Speaker 01:
It opens up a panoply of options right now.

[00:33:08] Speaker 01:
Again, actual carry right now, potential future stuff.

[00:33:12] Speaker 01:
And we discussed this in the brief, but you have it exactly right.

[00:33:15] Speaker 01:
That's the scope.

[00:33:16] Speaker 01:
That's what we're asking for.

[00:33:17] Speaker 01:
So let's see.

[00:33:23] Speaker 01:
If the court doesn't have any further questions, I may.

[00:33:28] Speaker 03:
Do you disagree with the District of Columbia that you have to have if your clients are stopped and charged that they have to have a card that I'm going to say the District of Columbia at this point argues you have to have if a court agrees with that?

[00:33:53] Speaker 01:
Right, so we disagree.

[00:33:55] Speaker 01:
It's outside of the scope here, but we disagree.

[00:33:57] Speaker 01:
We think, listen, the point of that ID provision of the statute is to identify them as law enforcement officers.

[00:34:02] Speaker 03:
Not again you disagree, but you acknowledge that this circumstance could arise.

[00:34:10] Speaker 01:
Oh, sure.

[00:34:11] Speaker 01:
Yeah, yeah.

[00:34:12] Speaker 01:
No, and that's the thing is that this is going to go, you know, the reality is some other courts in the US have noted that there's a fair number of frontline enforcement problems, I think, as one court said, you know, and having the magic words on this idea does not solve any of these enforcement problems, by the way, because it doesn't, that wouldn't answer the question of whether or not there's a federal bar to having a firearm or whether or not the person even worked for five years or ten years or anything like that.

[00:34:33] Speaker 01:
IT doesn't solve these problems.

[00:34:35] Speaker 01:
There are these problems, and to some degree, the reason why all these states, DC included, I believe, has started issuing Leosa-specific cards is trying to address all of these problems.

[00:34:45] Speaker 01:
But there's always going to be some measure of

[00:34:49] Speaker 01:
concern about, yeah, a traffic stop where, you know, where a retired officer says, listen, I'm carrying under LIOSA.

[00:34:56] Speaker 01:
And suddenly, you know, what is the responding officer is looking at this statute being like, okay, do you have this or you have this?

[00:35:05] Speaker 01:
Did you do the five years?

[00:35:06] Speaker 01:
And it's a complicated situation.

[00:35:07] Speaker 01:
And so they are seeking, to some degree, they're seeking the assurance of, hey, we want to be able to apply for these LIOSA cards, the district issues, because it would give us that extra assurance against the misunderstanding.

[00:35:18] Speaker 03:
So your brief has that footnote 6 that says the District of Columbia is among the jurisdiction that issues such a Leosup permit.

[00:35:26] Speaker 01:
It's our understanding, yeah, which is not even a creature of statute.

[00:35:30] Speaker 01:
This appears to be a creature that was invented by the states to address the frontline enforcement problem.

[00:35:35] Speaker 03:
So when you say it's your understanding, are you telling me you don't know if that's true?

[00:35:41] Speaker 01:
I've seen the applications for these cards, and I've heard about them.

[00:35:44] Speaker 01:
I mean, it's outside of the scope of what we were asking for at the district court.

[00:35:48] Speaker 03:
No, but in your brief, and you say CEG 14-1258, docket 71-6.

[00:35:55] Speaker 01:
Yeah, so we've seen applications for this, right?

[00:35:58] Speaker 01:
There's an application procedure for a LEOSA permit.

[00:36:00] Speaker 03:
All right, I'll draw my question.

[00:36:02] Speaker 01:
And we've tried to apply for it.

[00:36:04] Speaker 01:
And anyway, among the relief that we would get is if the DC is already issuing,

[00:36:10] Speaker 01:
These permits is part of the scheme and is suddenly deciding that contrary to the eligibility requirement of the EOSA, they're going to just exclude one group of eligible officers.

[00:36:20] Speaker 05:
That might give us some relief somewhere else.

[00:36:22] Speaker 05:
Sorry?

[00:36:22] Speaker 05:
You mean exclude by failing to give IDs?

[00:36:27] Speaker 01:
What do you mean, exclude?

[00:36:29] Speaker 05:
Well, I think we're – again, we're exercising – You have to have an ID in order to be able to exercise this right, right?

[00:36:33] Speaker 01:
Uh-huh.

[00:36:34] Speaker 01:
Yeah, exactly.

[00:36:34] Speaker 01:
Right.

[00:36:34] Speaker 01:
Yeah.

[00:36:35] Speaker 01:
So if they have this – if they have a regime in place that's issuing this supplemental ID that is designed to just assure against misunderstandings, okay, and then they're issuing it to, like, most officers, but then they're going to say, oh, we're not going to issue it to this class of officers that is otherwise eligible under LIOSA, that might give us a claim for relief.

[00:36:53] Speaker 01:
in a separate proceeding, okay, because that might be arbitrary and capricious, sort of decision-making, it might be, there might be other, you know, it might be in contrary to LIOSA under a much narrower Section 1983 theory potentially.

[00:37:03] Speaker 06:
But it's not asking for any such relief.

[00:37:06] Speaker 01:
We are not, that is not part of this case, 100 percent not.

[00:37:08] Speaker 05:
Let me ask you one last question, just to throw a monkey wrench into it.

[00:37:12] Speaker 05:
DC has not raised this, curiously.

[00:37:15] Speaker 05:
Okay.

[00:37:16] Speaker 05:
Do you satisfy Article 3's standing?

[00:37:18] Speaker 05:
Is there any redress at the end of the day?

[00:37:22] Speaker 05:
When you leave with what you have, they're not raising the claim.

[00:37:26] Speaker 05:
When you leave with the end of the day, has the court given you the relief which you want, which is the ability to get the right to carry?

[00:37:38] Speaker 01:
Yeah, absolutely.

[00:37:39] Speaker 01:
And I think we have this status, which is an important status, and I think I heard in some of your comments earlier, Judge Edwards,

[00:37:46] Speaker 01:
It does open up other options.

[00:37:48] Speaker 01:
But actually, as of now, it also provides, I mean, if you look at what happened in Maryland, and our position here is that the IDs that they have, by identifying them as employees, are sufficient because in any case where you're presenting an ID, it's not necessarily the end of the matter.

[00:38:03] Speaker 01:
There's going to be some, like if you get pulled over and you provide your driver's license to an arresting officer, they don't just look at it and give it back to you.

[00:38:09] Speaker 01:
They take it back to the patrol car and they run some checks on it.

[00:38:13] Speaker 03:
We're getting beyond the point, right?

[00:38:14] Speaker 01:
Okay, I'm sorry.

[00:38:18] Speaker 01:
It gives us a lot more tools right now both to carry right now under our current ID.

[00:38:23] Speaker 01:
It gives us options in the future potentially to get an improved ID or to get one of these supplemental assurance kind of Leosa cards in the future.

[00:38:33] Speaker 01:
So we have, it does provide a lot of concrete relief.

[00:38:36] Speaker 01:
And frankly, it's already provided a lot of concrete relief.

[00:38:41] Speaker 03:
All right, anything further?

[00:38:43] Speaker 01:
No, no, we'll get your honor.

[00:38:44] Speaker 03:
Thank you very much.

[00:38:53] Speaker 04:
First, paragraph 61 of their complaint, they did allege that they have identification cards that state they are law enforcement officers.

[00:39:01] Speaker 04:
They did state that they had IDs that had those magic words, and that was part of the court's

[00:39:08] Speaker 04:
reasoning under 12b6 that they had stated a claim that they had been denied the right to carry under LEOSA.

[00:39:16] Speaker 04:
And the plaintiffs don't get, well, whether you see this case as redressability or causation, they have not established the violation of a federal right.

[00:39:28] Speaker 04:
They don't have a right

[00:39:30] Speaker 04:
to carry under Leo, so without the IDs.

[00:39:32] Speaker 04:
They don't have the IDs.

[00:39:34] Speaker 04:
And they don't get to define what the right is by saying one thing when they were before this court.

[00:39:39] Speaker 05:
They're not claiming they have a right to carry without the ID.

[00:39:43] Speaker 04:
While they're claiming that they've established a violation of the OSOT, they are claiming that the district denied them the right to carry under the OSOT.

[00:39:49] Speaker 05:
I don't want to go in circles again.

[00:39:50] Speaker 05:
But they're not claiming that they can carry without an ID, and they can only claim what they can claim about the IDs that they have.

[00:39:57] Speaker 05:
That's it.

[00:39:58] Speaker 04:
But again, that's an element of proving a violation of the law.

[00:40:02] Speaker 05:
Cases change as they litigate.

[00:40:04] Speaker 04:
Yes, they do change.

[00:40:05] Speaker 05:
And so you can't keep harkening back.

[00:40:09] Speaker 05:
to what was at the motion to dismiss stage and not move from it, and understand the case's character has completely changed, at least from the perspective that you're raising.

[00:40:19] Speaker 05:
You can't keep going back there.

[00:40:21] Speaker 04:
We'll just submit they have not proved the elements of a violation of the OSOT.

[00:40:27] Speaker 04:
Thank you.

[00:40:27] Speaker 04:
Thank you.

[00:40:28] Speaker 03:
We will take the case under advisement.