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BLANK ROME LLP A Pennsylvania LLP STEPHEN M. ORLOFSKY, ESQ. NICHOLAS C. HARBIST, ESQ. New Jersey Resident Partners MICHAEL R. DARBEE, ESQ. BLAIR A. GEROLD, ESQ. 300 Carnegie Center, Suite 220 Princeton, New Jersey 08540 Tel.: 609-750-2646 Fax: 609-897-7286 [email protected] [email protected] [email protected] [email protected] Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION, et. al.,

Plaintiffs,

v.

GURBIR GREWAL, in his official capacity as Attorney General of the State of New Jersey, et al.,

Defendants.

Civil Action No.: 3:20-cv-05762-ZNQ-TJB

PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF MOTION FOR

SUMMARY JUDGMENT

-AND-

BRIEF IN OPPOSITION TO DEFENDANTS’ CROSS-MOTION

FOR SUMMARY JUDGMENT

*Oral Argument Requested*

126319694

Case 3:20-cv-05762-ZNQ-TJB Document 44 Filed 07/26/21 of 43 PageID: 620

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TABLE OF CONTENTS

Page

INTRODUCTION ..................................................................................................... 1 ARGUMENT ............................................................................................................. 3

I. THE STATE’S ELEVENTH-HOUR CHANGE TO ITS FAQS DOES NOT MOOT THE FEDERAL PLAINTIFFS’ CLAIMS .......................... 3 A. Plaintiffs’ Claims Are Not Moot Because the Unconstitutional State

Statutes Are Still in Effect ..................................................................... 4

B. The State’s Change to Its FAQs Does Not Moot the Federal Plaintiffs’ Claims Because the State Is Reasonably Likely to Revert to Its Previous Policy ...................................................................................... 6

II. NJFOP HAS ORGANIZATIONAL STANDING THROUGH ITS MEMBERS ............................................................................................... 10

III. PLAINTIFFS ARE ENTITLED TO JUDGMENT ON COUNT I

BECAUSE THE STATE HAS DEPRIVED THEM OF THEIR RIGHT TO CARRY UNDER SUBSECTION (a) OF LEOSA ............................ 16 A. The Right at Issue Is the Right to Carry a Concealed Firearm Under

Subsection (a) ...................................................................................... 16

B. Plaintiffs Can Enforce LEOSA Subsection (a) Under § 1983 ............ 19 i. Subsection (a) Focuses on an Individual’s Right to

Carry a Firearm ........................................................................ 20

ii. The Court Can Decide If an Individual Is “Qualified” and Has “Identification” to Exercise the Right to Carry Under Subsection (a) ............................................................................ 21

iii. The State Must Recognize the Federal Right to Carry in Subsection (a) ............................................................................ 23


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IV. PLAINTIFFS ARE ENTITLED TO JUDGMENT ON COUNT II BECAUSE SUBSECTION (a) EXPRESSLY PREEMPTS STATE AND LOCAL LAWS THAT RESTRICT “QUALIFIED” RETIRED OFFICERS WITH “IDENTIFICATION” FROM CARRYING A FIREARM ................................................................................................ 25

A. New Jersey Law Is Preempted Because It Allows the State to Arrest

Individuals Exercising Their Federal Right to Carry Under Subsection (a) ...................................................................................... 25

i. Plaintiffs Can Obtain a Declaratory Judgment That

New Jersey Law Is Preempted .................................................. 26 ii. Subsection (a)’s Notwithstanding Clause Expressly

Preempts State and Local Laws ................................................ 27 iii. LEOSA Preempts New Jersey Laws That Interfere

with the Right of a Qualified Individual with Identification to Carry a Firearm ............................................. 28

B. The Anticommandeering Doctrine Does Not Apply Because

LEOSA Merely Requires the State to Recognize the Right to Carry .................................................................................................... 34

CONCLUSION ........................................................................................................ 35


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TABLE OF AUTHORITIES

Page(s) Cases Alexander v. Sandoval,

532 U.S. 275 (2001)....................................................................................... 21 Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015)....................................................................................... 26 Behar v. Murphy,

No. 20-05206, 2020 WL 6375707 (D.N.J. Oct. 30, 2020) .......................... 5, 9 Blessing v. Freestone,

520 U.S. 329 (1997)................................................................................passim Blunt v. Lower Merion Sch. Dist.,

767 F.3d 247 (3rd Cir. 2014) ......................................................................... 11 Burban v. City of Neptune Beach, Fl.,

920 F.3d 1274 (11th Cir. 2019) ..............................................................passim Carey v. Throwe,

957 F.3d 468 (4th Cir. 2020) ..................................................................passim Chafin v. Chafin,

568 U.S. 165 (2013)......................................................................................... 4 Cole v. Monroe Cnty.,

359 F. Supp. 3d 526 (E.D. Mich. 2019) .................................................. 17, 18 Comité de Apoyo v. Perez,

148 F. Supp. 3d 361 (D.N.J. 2015) ................................................................ 13 D’Aureli v. Harvey,

No. 17-cv-363, 2018 WL 704733 (N.D.N.Y. Feb. 2, 2018) ......................... 19


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DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008) ........................................................................ 7, 8

DuBerry v. District of Columbia,

824 F.3d 1046 (D.C. Cir. 2016) ..............................................................passim Ex Parte Young,

209 U.S. 123 (1908)....................................................................................... 26 Fields v. Speaker of the Pa. House of Representatives,

936 F.3d 142 (3d Cir. 2019) ............................................................................ 9 Free Speech Coal., Inc. v. Atty. Gen. U.S.,

825 F. 3d 149 (3d Cir. 2016) ............................................................. 10, 15, 16 Friedman v. Las Vegas Metro. Police Dep’t,

14-cv-821, 2014 WL 5472604 (D. Nev. Oct. 24, 2014) ............................... 19 Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton,

841 F.3d 133 (2d Cir. 2016) .......................................................................... 26 Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc.,

528 U.S. 167 (2000)..................................................................................... 4, 6 Geier v. Am. Honda Motor Co.,

529 U.S. 861 (2000)....................................................................................... 27 Gonzaga Univ. v. Doe,

536 U.S. 273 (2002)................................................................................. 21, 23 Hartnett v. Pa. State Educ. Ass’n,

963 F.3d 301 (3d Cir. 2020) .................................................................... 4, 6, 7 Henrichs v. Ill. Law Enforcement Training & Standards Bd.,

306 F. Supp. 3d 1049 (N.D. Ill. 2018) ........................................................... 18 Hunt v. Wash. State Apple Advert. Comm’n,

432 U.S. 333 (1997)................................................................................. 10, 15


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Johnson v. N.Y. State Dep’t of Corr. Servs., 709 F. Supp. 2d 178 (N.D.N.Y. 2010) .......................................................... 19

Khodara Envtl., Inc. ex rel Eagle Envtl., L.P. v. Beckman,

237 F.3d 186 (3d Cir. 2001) ........................................................................ 5, 9 Knox v. Serv. Empl. Int’l Union,

567 U.S. 298 (2012)......................................................................................... 4 McCann v. Unum Provident,

921 F.2d 353 (D.N.J. 2013) ........................................................................... 14 Moore v. Trent,

No. 09-C-1712, 2010 WL 5232727 (N.D. Ill. Dec. 16, 2010) ................ 19, 22 Murphy v. NCAA,

138 S. Ct. 1461 (2018) ................................................................................... 23 N.J. Civil Justice Inst. v. Grewal,

No. 19-cv-17518, 2021 WL 1138144 (D.N.J. Mar. 25, 2021) ...................... 15 N.J. Physicians Inc. v. President of the United States,

653 F.3d 234 (3d Cir. 2011) .......................................................................... 15 Nat’l Fed. of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012)................................................................................. 34, 35 Negron v. Suffolk Cty. Police Dep’t,

18-cv-5426, 2020 WL 3506061 (E.D.N.Y. June 29, 2020) .......................... 18 New York State Rifle & Pistol Ass’n, Inc. v. City of New York,

140 S. Ct. 1525 (2020) ..................................................................................... 5 Nozewski Polish Style Meat Prods. v. Meskill,

376 F. Supp. 610 (D. Conn. 1974) .................................................................. 6 Paff v. Ocean Cnty. Prosecutor’s Office,

235 N.J. 1 (2018) ............................................................................................. 9


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Planned Parenthood of Central N.J. v. Farmer, 220 F.3d 127 (3d Cir. 2000) .................................................................... 11, 15

Powell v. McCormack,

395 U.S. 486 (1969)......................................................................................... 4 South Dakota v. Dole,

483 U.S. 203 (1987)....................................................................................... 23 Sprietsma v. Mercury Marine,

537 U.S. 51 (2002) ......................................................................................... 27 United States v. Gov’t of V.I.,

363 F.3d 276 (2004) ............................................................................ 6, 7, 8, 9 Statutes N.J.S.A. § 2C:39-5 ......................................................................................... 5, 11, 29 N.J.S.A. § 2C:39-3(f) ..................................................................................... 5, 11, 29 N.J.S.A. § 2C:39-6(l) ........................................................................................passim 18 U.S.C. § 926C(a) ..........................................................................................passim 18 U.S.C. § 926C(c) ..........................................................................................passim 18 U.S.C. § 926C(d)..........................................................................................passim Other Fed. R. Civ. P. 56(e)(2) ............................................................................................ 14 H.R. Rep. No. 108-560, 2004 WL 5702383 (2004) ................................................ 27 S. Rep. No. 108-29, 2003 WL 1609540 (2003) ....................................................... 27


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INTRODUCTION

When federal and state laws conflict, federal law is supreme. A federal law—

LEOSA—gives all “qualified” retired law enforcement officers with “identification”

the right to carry a firearm, including lawful ammunition, anywhere in the United

States. The right to carry applies “notwithstanding” any contrary state or local laws.

Yet New Jersey law does not recognize LEOSA’s right to carry. Instead, it says that

any LEOSA “qualified” retired law enforcement officer with “identification”

“domiciled” in New Jersey must obtain the State’s separate permit to carry a firearm

with different, more onerous, qualification standards. Otherwise, they can be

arrested for exercising their federal right. The Supremacy Clause dictates that

LEOSA’s qualification standards prevail.

The State’s first strategy is to try to avoid the merits of this unavoidable

conflict. So, in response to this litigation, it changed the “FAQs” on its website. The

new policy concedes that LEOSA creates a right to carry for retired federal law

enforcement officers. But it now claims that retired New Jersey state officers do not

have the same rights as federal officers. The problem is that LEOSA makes no

distinction between federal and state retired officers. Because LEOSA sets the

qualification standards for all retired officers with LEOSA “identification,” the

State’s implementation of its different, more restrictive standards for New Jersey

residents through its statutory scheme directly conflicts with federal law.


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Nonetheless, the State tries to leverage its eleventh-hour FAQ change on its

website into mootness (as to the federal Plaintiffs) and lack of standing (as to

NJFOP) arguments. But its newly minted FAQ change does not moot the federal

Plaintiffs’ claims, as it was done as part of a litigation strategy after years of the State

vigorously defending its previous policy and can be changed at the whim of State

officials.

Relatedly, NJFOP has standing because it has members who have suffered or

will suffer harm because of the State’s laws. Namely, the record shows, and the

State admits, that NJFOP has members who are “qualified” and have “identification”

under LEOSA, yet are subject to prosecution unless they comply with New Jersey’s

retired police officer (“RPO”) permit laws.1 Those members would have individual

standing. NJFOP, in turn, has associational standing.

In asserting that LEOSA does not create a right to carry and § 1983 provides

no remedy, the State argues the merits of the wrong issue. It repeatedly argues that

LEOSA does not create a right to compel it to issue identification. But that is an

issue Plaintiffs never raised. This case is about whether New Jersey must recognize

LEOSA’s right to carry for individuals who are LEOSA “qualified” and already have

“identification.” And, but-for its artificial distinction between federal and state

1 See ECF No. 41-3, Defendants’ Response to Plaintiffs’ Statement of Undisputed Material Facts at ¶¶ 34, 37.


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retirees, the State concedes that issue.2 Under Blessing v. Freestone, the LEOSA

right to carry is individual, concrete, and binding on the State. No case has said

otherwise, as the State’s so-called “emerging consensus” of cases addresses only the

right to compel state-issued identification, not the right to carry. Plaintiffs can thus

enforce the federal right to carry under § 1983.

And because LEOSA’s right to carry applies “notwithstanding” any contrary

state and local laws, Plaintiffs are entitled to a declaration and injunction that New

Jersey’s laws, which criminalize possession of a firearm under conditions where

federal law allows it, are preempted. The State’s attempt to corral all retired state

officers residing in New Jersey into its separate, more onerous, permit scheme is

exactly the type of parochial legislation LEOSA was intended to preempt.

Accordingly, Plaintiffs are entitled to summary judgment on Counts I and II of their

Complaint.

ARGUMENT

I. THE STATE’S ELEVENTH-HOUR CHANGE TO ITS FAQS DOES NOT MOOT THE FEDERAL PLAINTIFFS’ CLAIMS.

Attempting to avoid the substance of Plaintiffs’ request for injunctive relief,

the State argues that its voluntary change to the FAQs on its website moots Plaintiffs’

2 See Brief in Support of Defendants’ Opposition and Cross-Motion for Summary Judgment, ECF No. 41-1 at 1 (“Under LEOSA a retired officer who meets the federal qualifications and obtains the requisite identification from his former agency are allowed to carry, whatever state they are in.”).


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claims as to retired federal law enforcement officers. See Brief in Support of

Defendants’ Opposition and Cross-Motion for Summary Judgment, ECF No. 41-1

(“Db”) at 11-14. But because the State did not change its preempted law and its

unconstitutional conduct is likely to reoccur, Plaintiffs’ claims are not moot.

A. Plaintiffs’ Claims Are Not Moot Because the Unconstitutional State Statutes Are Still in Effect.

The party asserting mootness bears the “heavy burden of persuading the

court” that a case is moot. Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC),

Inc., 528 U.S. 167, 189 (2000) (internal quotation marks and modifications omitted);

see Hartnett v. Pa. State Educ. Ass’n, 963 F.3d 301, 305-06 (3d Cir. 2020). “A case

is moot when the issues presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496

(1969). For that to occur, it must be “impossible for a court to grant any effectual

relief whatever to the prevailing party.” Chafin v. Chafin, 568 U.S. 165, 172 (2013)

(internal quotation marks omitted). Conversely, a case is not moot “as long as the

parties have a concrete interest, however small, in the outcome of the litigation.”

Knox v. Serv. Empl. Int’l Union, 567 U.S. 298, 307-08 (2012) (internal quotation

marks omitted).

The State argues that a change to the FAQs on its website means “there is

nothing additional that the Court can provide by way of redress.” Db at 12. That is

wrong. The federal Plaintiffs are seeking a declaration of invalidity and an


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injunction against the enforcement of the State’s criminal law and RPO permit

scheme embodied in N.J.S.A. § 2C:39-5, N.J.S.A. § 2C:39-6(l), and N.J.S.A. §

2C:39-3(f), as to all “qualified” individuals with “identification” under LEOSA. The

State laws from which Plaintiffs seek relief are still in full force and effect. The

Court can, therefore, still provide relief to the federal Plaintiffs.

Tellingly, to support its argument, the State cites cases that stand for the

unremarkable proposition that a claim seeking relief from a law may become moot

if the law changes. Db at 13; New York State Rifle & Pistol Ass’n, Inc. v. City of

New York, 140 S. Ct. 1525, 1526 (2020) (vacating judgment as moot based on

change in city firearms ordinance during appeal); Khodara Envtl., Inc. ex rel Eagle

Envtl., L.P. v. Beckman, 237 F.3d 186, 193-94 (3d Cir. 2001) (concluding claims

related to old statute were moot in light of statutory amendment); Behar v. Murphy,

No. 20-05206, 2020 WL 6375707 at *9 (D.N.J. Oct. 30, 2020) (COVID-19

executive order rescinded). But here, unlike those cases, New Jersey’s preempted

criminal and RPO laws did not change during litigation. The State merely changed

its interpretation of those statues by its newly minted FAQs. It cites nothing for the

proposition that a change to FAQs on state website moots a claim to invalidate an

unconstitutional statute that is still in full force and effect. The Court can and should

grant the full relief Plaintiffs are seeking—a permanent injunction and a judicial

declaration against enforcement of New Jersey’s conflicting statutes. The State’s


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new FAQ policy does not provide that type of permanent relief. Cf. Nozewski Polish

Style Meat Prods. v. Meskill, 376 F. Supp. 610, 611 (D. Conn. 1974) (“Only through

the entering of a conclusive judgment can the issue of [a state statute] be rendered

res judicata and hence fully binding on future state officials.”).

B. The State’s Change to Its FAQs Does Not Moot the Federal Plaintiffs’ Claims Because the State Is Reasonably Likely to Revert to Its Previous Policy.

But even if the State’s policy change provides some relief (which Plaintiffs do

not concede), it is only a voluntary cessation of the unconstitutional conduct, which

is virtually guaranteed to reoccur. “[V]oluntary cessation does not automatically

render the case moot.” United States v. Gov’t of V.I., 363 F.3d 276, 285 (2004). To

determine if voluntary cessation of challenged conduct moots a claim, the test is

whether “it is absolutely clear that the allegedly wrongful behavior could not

reasonably be expected to recur.” Hartnett, 963 F.3d at 306 (internal quotation

marks omitted). The focus is “whether the defendant made that change unilaterally

and so may ‘return to [its] old ways’ later on.” Id. (quoting Friends of the Earth,

Inc., 528 U.S. at 189-90). The burden of proving that the conduct will not reoccur,

which the Supreme Court has described as a “heavy,” “formidable,” and “stringent”

one, rests with the State. See Friends of the Earth, Inc., 528 U.S. at 189-90; Gov’t

of V.I., 363 F.3d at 285.


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The Court must examine the circumstances surrounding the voluntary

cessation, including the timing, defense of past policies, and any stated reason for

the change. See Hartnett, 963 F.3d at 306; DeJohn v. Temple Univ., 537 F.3d 301,

309-11 (3d Cir. 2008); Gov’t of V.I., 363 F.3d at 285. In United States v. Gov’t of

V.I., for example, the court found that terminating a contract tainted by political

corruption did not moot a claim to enjoin performance of the contract. It reasoned

that the timing of the termination—five days after the Government moved to enjoin

the contract—suggested litigation was the impetus for the termination. It also

determined the Virgin Islands’ explanation—that termination was in its “best

interests”—was “extremely general” and failed to assure the court it would not

reenter into the contract when the case ended. Gov’t of V.I., 363 F.3d at 285-86.

Similarly, in DeJohn, the court held that a change in a university’s sexual

harassment policy did not moot claims challenging the constitutionality of the

policy. On timing, the court explained the university withdrew its policy over a year

into litigation, as discovery was ending, and as the dispositive motion deadline was

approaching. The court also explained that the university continued to defend the

constitutionality and need for its previous policy. The court was thus “left with no

assurance that Temple will not reimplement its [previous] policy, absent an

injunction, after this litigation has concluded.” DeJohn, 537 F.3d at 309.


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The same pattern occurred here. The State has failed to carry its “heavy”

burden to show its unconstitutional enforcement of its laws as to “qualified”

individuals with LEOSA “identification” is not reasonably expected to reoccur.

First, as in Gov’t of V.I. and DeJohn, the State’s policy change came nearly a year

into litigation, after the parties exchanged discovery, and only when it was clear

Plaintiffs intended to seek summary judgment. See ECF No. 1 (lawsuit filed May

11, 2020); ECF Nos. 32-33 (April 13, 2021 letters concerning discovery and

Plaintiffs’ intent to seek summary judgment); ECF No. 35, Harbist Decl., Exhibit L

(2021 FAQs dated April 22, 2021).

Second, as in DeJohn, the State vigorously defended its unconstitutional laws

and continues to do so even after the FAQ policy went into effect. After Plaintiffs

filed the Complaint, the State filed a motion to dismiss, arguing that LEOSA did not

preempt New Jersey law. See ECF No. 10. Hoping to avoid a bad decision, the

State then withdrew its motion just five days after the United States filed a Statement

of Interest in support of Plaintiffs’ position. See ECF Nos. 21, 22. The State then

defended the constitutionality of its statutes in its Answer. See ECF No. 24, Second

Affirmative Defense (“N.J. Stat. Ann. § 2C:39-6l is not preempted by LEOSA.”).

Even now, the State continues to argue that LEOSA does not preempt State law. See

Db at 28-33. The State has never conceded that its laws or previous enforcement

policy were preempted and infringed Plaintiffs’ rights under LEOSA.


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Third, the State provides no explanation—let alone one unrelated to

litigation—for its change in policy. See Gov’t of V.I., 363 F.3d at 285-86

(generalized explanation was insufficient); see also Fields v. Speaker of the Pa.

House of Representatives, 936 F.3d 142, 161 (3d Cir. 2019) (voluntary cessation in

response to litigation “weighs against mootness”). And the speed with which the

State changed its enforcement policy in response to this litigation makes it especially

pressing not to declare the federal Plaintiffs’ claims moot, as the State can revert to

its old policy just as quickly.3

These facts, which the State simply ignores, show it is far “more than

speculation,” Db at 13, that the State will revert to its old policy unless the Court

addresses the merits. The State’s cases are easily distinguishable because in those

cases there were concrete reasons to believe the unlawful conduct would not reoccur.

See Db at 13-14; Khodara, 237 F.3d at 193-94 (Congress amended underlying

statute); Behar, 2020 WL 6375707 at *9 (COVID-19 executive orders rescinded and

not likely to reoccur because of change in public health circumstances). Here, unlike

those cases, the State presented no evidence to carry its burden of persuasion on

3 The State’s argument that the FAQs have the force of law is unavailing. Db at 12 (quoting Paff v. Ocean Cnty. Prosecutor’s Office, 235 N.J. 1, 17-18 (2018)). It is not even clear the FAQs rise to the level of an official enforcement directive, because, unlike the cases in Paff, it is directed to the public, not state law enforcement agencies. And, as occurred here, the FAQs may be modified or abandoned quickly and without input from, or warning to, affected parties.


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mootness. The only rational conclusion is that the State amended its FAQs in

response to this litigation and will likely reenact its old FAQs if the Court does not

stop it from doing so. The federal Plaintiffs’ claims are not moot.

II. NJFOP HAS ORGANIZATIONAL STANDING THROUGH ITS MEMBERS.

Just as the State cannot avoid the merits as to retired federal officers, it also

cannot avoid the merits as to retired state officers by a last-minute attack on NJFOP’s

standing. See Db at 14-18. NJFOP, which represents the interests of active and

retired state law enforcement officers, has associational standing because it has

members that are “qualified” and have “identification,” such that New Jersey law

deprives them of their right to carry under LEOSA.

To establish associational standing, an organization must demonstrate:

(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”

Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1997).

The State argues NJFOP fails to satisfy the first element because it has not

identified any specific member that has suffered or would suffer harm. See Db at

15. But courts regularly find injury-in-fact to confer standing when a law requires a

plaintiff to change their daily practices and subjects them to sanctions for failing to

comply, “even where there is no pending prosecution.” Free Speech Coal., Inc. v.


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Atty. Gen. U.S., 825 F. 3d 149, 166 (3d Cir. 2016); see also Planned Parenthood of

Central N.J. v. Farmer, 220 F.3d 127, 147-148 (3d Cir. 2000) (finding standing

when the statute could “fairly easily” be read to prohibit plaintiffs protected conduct

and the statute threatened plaintiffs “with severe . . . penalties” and plaintiffs

“received no assurances that [the statute] would not be enforced against them”).

The State’s argument thus ignores the record and Plaintiffs’ theory of the

case.4 Plaintiffs showed, and the State admits, that NJFOP has members who are

“qualified,” and have “identification” that satisfy LEOSA. See Statement of

Undisputed Material Facts (“SOMF”) at ¶ 37; Defendants’ Response to Plaintiffs’

Statement of Undisputed Material Facts (“SOMF Response”) at ¶ 37. Those

members, in turn, are harmed because New Jersey law denies them of their right to

carry under LEOSA. Instead, the State threatens these members with prosecution

unless they obtain an RPO permit; and even then, they cannot carry hollow point

ammunition.5 See N.J.S.A. § 2C:39-5; id. § 2C:39-6(l); id. § 2C:39-3(f).

4 Although the State relies on Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 279 (3rd Cir. 2014), that case is distinguishable for several reasons. First, the organization ostensibly had no members, Blunt, 767 F.3d at 283, whereas here, the State concedes that NJFOP has retired state police officers as members. Second, the organization in Blunt attempted to manufacture organizational standing by having its members attend meetings intended to confer individual standing, id. at 288, whereas here, NJFOP’s has explained it has specific members who suffered concrete harm as a result of New Jersey law. 5 The State’s position is contradictory, as its recent FAQ change acknowledges that retired officers from federal and out-of-state agencies can carry hollow point


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Accordingly, every one of these members has individual standing, such that their

membership in NJFOP establishes NJFOP’s associational standing.

Should the Court require more evidence of NJFOP’s standing, Plaintiffs have

supplemented the record with evidence of specific NJFOP members who are

“qualified” and have “identification” under LEOSA such that they would have

individual standing.6 See generally Supplemental Declaration of Robert Fox (“Fox

Suppl. Decl.”)7; Declaration of George Lytwyn (“Lytwyn Decl.”). One of those

members is over seventy-five years old, is LEOSA “qualified” and has the requisite

photographic “identification”; he is thus being denied his right to carry under

LEOSA subsection (a), as he is currently subject to the State’s RPO law. See Lytwyn

Decl., at ¶ 15. The other members are younger than seventy-five and are also denied

ammunition, which is “not expressly prohibited by Federal law.” 18 U.S.C. § 926C(e)(1)(B); ECF No. 35, Harbist Decl., Exhibit L at ¶ 12. 6 Given the State’s last-minute standing challenge, fairness requires that the Plaintiffs be permitted to respond and provide further evidence to meet the State’s challenge. See Ala. Leg. Black Caucus v. Alabama, 575 U.S. 254, 271 (2015). 7 The Supplemental Declaration of Robert Fox confirms that NJFOP has specific members who meet LEOSA’s qualifications, have the requisite identification and certification, and have been forced to obtain RPO permits to avoid prosecution under New Jersey law. Mr. Fox himself meets the LEOSA qualification standards and holds a photographic identification card from his former agency, the Cherry Hill Police Department, but has not applied for an RPO permit or sought to obtain a firearms certification, due to the RPO law’s onerous requirements.


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their right to carry under LEOSA, as they are subject to prosecution unless they

obtain an RPO permit. See Fox Suppl. Decl., at ¶¶ 5-7.

The State also argues that NJFOP lacks standing because no NJFOP member

who qualifies under LEOSA has been denied an RPO permit. Db at 16. First, that

argument misconstrues Plaintiffs’ theory of the case. Plaintiffs are not suing to

obtain RPO permits; they are suing to enjoin the enforcement of New Jersey’s

criminal laws as to individuals who are “qualified” and have “identification” under

LEOSA. As explained, NJFOP’s LEOSA-qualified members have individual

standing because they are subject to prosecution under New Jersey law unless they

obtain an RPO permit.

Second, although it is legally irrelevant, the State’s argument is factually

wrong. NJFOP has members who have a right to carry under LEOSA but cannot

obtain an RPO permit because they are over seventy-five years old. See Lytwyn

Decl., at ¶ 15. This evidence is more than sufficient to show standing. See, e.g.,

Comité de Apoyo v. Perez, 148 F. Supp. 3d 361, 368 (D.N.J. 2015) (explaining that

“affidavits or other evidence” demonstrating standing “through specific facts” is

sufficient to defeat summary judgment).

Third, the State’s argument that there is no injury as no NJFOP member was

denied an RPO permit is pure sophistry. The State concedes that the RPO permit is

not the same as the right to carry under LEOSA. It concedes, for example, that no


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retired New Jersey state law enforcement officer over seventy-five can carry a

firearm; that such retired state law enforcement officers under seventy-five must

pass a firearms proficiency test two times per year; and that no New Jersey resident

holding an RPO permit may carry hollow point ammunition. Harbist Decl., Exhibit

L at ¶¶ 6-7, 12. The RPO law is also clear that the Superintendent of State Police

retains unfettered discretion to deny an RPO permit to a retired New Jersey officer

otherwise qualified under LEOSA. See N.J.S.A. § 2C:39-6(l) (referencing N.J.S.A.

§ 2C:58-3, which affords discretion to deny or revoke permit that is not “in the

interest of the public health, safety or welfare”); SOMF at ¶ 52 (Jakubiec denied

RPO permit for administrative reasons); SOMF at ¶ 53 (Martinez not granted RPO

permit for administrative reasons).

Finally, the State’s decision to challenge NJFOP’s standing for the first time

on a cross-motion for summary judgment is procedurally unavailing. First, the

statements in NJFOP’s declaration must be deemed admitted because the State has

no basis to question their credibility and presented no evidence to rebut those

statements. See Fed. R. Civ. P. 56(e)(2) (“If a party fails . . . to properly address

another party’s assertion of fact . . . the court may . . . consider the fact undisputed

for purposes of the motion.”); see also McCann v. Unum Provident, 921 F.2d 353,

359 (D.N.J. 2013) (“Failure to reference evidence of record demonstrates that there

is no reason to disbelieve the statements of fact . . . .”). Second, the State never


15

sought jurisdictional discovery to challenge NJFOP’s standing and never moved for

more discovery to explore the standing issue under Rule 56(d); so, it cannot be heard

to complain that it had no opportunity to explore standing.

In short, New Jersey has proclaimed that it will enforce its criminal firearms

laws against retired state officers residing in New Jersey unless they comply with its

onerous RPO permit law. These facts are sufficient to “demonstrate a realistic

danger of sustaining a direct injury.” N.J. Physicians Inc. v. President of the United

States, 653 F.3d 234, 238 (3d Cir. 2011) (quoting Babbit v. United Farm Workers

Nat’l Union, 442 U.S. 289, 298 (1979)); N.J. Civil Justice Inst. v. Grewal, No. 19-

cv-17518, 2021 WL 1138144, at *4 (D.N.J. Mar. 25, 2021). That is because there

is no standing requirement mandating officers to subject themselves to arrest in order

to challenge the constitutionality of the RPO permit law. See Free Speech Coal.,

825 F.3d at 166 (finding standing “even where there is no pending prosecution”);

Planned Parenthood of Central N.J., 220 F.3d at 148 (finding standing when

Plaintiffs “receive no assurances that [the statute] would not be enforced against

them”). Accordingly, on this record, NJFOP’s standing is established.8

8 The State does not contest the other elements of associational standing. Nonetheless, the record shows that NJFOP represents the interests of retired New Jersey state law enforcement officers in legal and legislative matters. ECF No. 34-6, Declaration of Robert Fox (“Fox Decl.”), ¶ 2. Thus, the NJFOP seeks to protect the interests of its LEOSA qualified members to carry a firearm in New Jersey, an issue “germane to the organization[’s] purpose.” See Hunt, 432 U.S. at 343. Finally, the constitutional and statutory claims asserted do not require participation of the


16

III. PLAINTIFFS ARE ENTITLED TO JUDGMENT ON COUNT I BECAUSE THE STATE HAS DEPRIVED THEM OF THEIR RIGHT TO CARRY UNDER SUBSECTION (a) OF LEOSA.

On the merits, the State’s approach is to argue about a different right than the

one Plaintiffs seek to enforce and hope no one will notice. Plaintiffs seek to enforce

an individual’s right to carry in 18 U.S.C. § 926C(a) (“subsection (a)”) upon meeting

the “qualifications” in 18 U.S.C. § 926C(c) (“subsection (c)”) and possessing the

“identification” required by 18 U.S.C. § 926C(d) (“subsection (d)”) in LEOSA.

They do not seek to compel the State to issue subsection (d) “identification” in the

first instance, as the State contends. Because every one of the State’s arguments

rests on this erroneous premise, its arguments must be rejected.

A. The Right at Issue Is the Right to Carry a Concealed Firearm Under Subsection (a).

When deciding if a federal right is enforceable under § 1983, the Court must

“determine exactly what rights . . . respondents are asserting.” Blessing v. Freestone,

520 U.S. 329, 346 (1997). The reason is that some parts of a statute may be

enforceable under § 1983, while others may not be. See Burban v. City of Neptune

Beach, Fl., 920 F.3d 1274, 1282 (11th Cir. 2019) (distinguishing DuBerry v. District

of Columbia, 824 F.3d 1046 (D.C. Cir. 2016) because the plaintiff “asserted a

individual members of the organization in this lawsuit, as Plaintiffs seek declaratory and injunctive relief and no fact intensive individual inquiries are required. See Free Speech Coal., 974 F.3d at 421.


17

different right”); DuBerry, 824 F.3d at 1057 (explaining there is “no occasion to

consider” whether LEOSA requires states to issue subsection (d) identification).

Here, Plaintiffs seek to vindicate the right to carry under subsection (a), while

the State contends there is no right to compel the State to issue identification under

subsection (d). Those are different issues, however. As one court explained:

[I]f a state issues subsection (d) identification to a qualified retired law enforcement officer, that officer has the right to carry a concealed weapon in any state. But no state is required to issue subsection (d) identification.

Cole v. Monroe Cnty., 359 F. Supp. 3d 526, 533 (E.D. Mich. 2019).

The plain language of subsection (a) grants retired officers a right to carry a

concealed firearm if they are “qualified” and have “identification.” That is what the

statute says and no case has held otherwise. See 18 U.S.C. § 926C(a); see also Carey

v. Throwe, 957 F.3d 468, 478 (4th Cir. 2020) (“[F]or a retired law enforcement

officer to fall within LEOSA’s ambit, he must satisfy two conditions. First, he must

be “qualified,” under the Act. . . . Second, he must carry certain identification.”

(internal citations omitted)); Burban, 920 F.3d at 1280 (“[A] retired officer may only

carry a concealed weapon pursuant to LEOSA if he or she is also ‘carrying the

identification required by subsection (d).’”); Duberry, 824 F.3d at 1053-54. The

Department of Justice agrees. See ECF No. 21, Statement of Interest of the United

States of America, at 1.


18

In line with this authority, Plaintiffs are “qualified” and have “identification.”

SOMF at ¶¶ 1-33. Yet, New Jersey law subjects them to prosecution unless they

obtain an RPO permit, which is not the same as LEOSA “identification” and is not

required to exercise the right to carry in subsection (a). See Section IV(A)(iii), infra.

The State agrees, at least as to retired federal officers residing here. Accordingly,

Plaintiffs must prevail on their § 1983 claim.9

While the State relies on a so-called “consensus” of cases holding that LEOSA

does not compel states to issue subsection (d) identification, Db at 20, those cases

are irrelevant to Plaintiffs’ right to carry theory under subsection (a). Their holdings

and dicta all rest on an asserted right to subsection (d) identification. They are not

controlling. See Db at 19-20, 22, 24-26; Carey, 957 F.3d at 478-79 (“Carey’s claim

is that . . . defendants . . . have improperly rescinded his state-issued identification

out of retaliation.”); Burban, 920 F.3d at 1278 (“She said the City’s refusal to supply

her with LEOSA-compliant identification deprived her of federal rights conferred

upon her by LEOSA.”); Negron v. Suffolk Cty. Police Dep’t, 18-cv-5426, 2020 WL

3506061, at *7 (E.D.N.Y. June 29, 2020) (case involving revoked pistol license);

Cole, 359 F. Supp. 3d at 533 (“[T]he Court concludes that Cole has no enforceable

right to subsection (d) identification . . . .”); Henrichs v. Ill. Law Enforcement

9 The only time the State mentions Plaintiffs’ right to carry theory of the case in its 40-page brief is in a one sentence footnote with no analysis. See Db at 20 n.3.


19

Training & Standards Bd., 306 F. Supp. 3d 1049, 1055 (N.D. Ill. 2018) (“[T]he court

. . . has found nothing, obligating States to issue subsection (d) identifications to

anybody . . . .”); Friedman v. Las Vegas Metro. Police Dep’t, 14-cv-821, 2014 WL

5472604, at *4 (D. Nev. Oct. 24, 2014) (referencing LEOSA only by analogy;

“Plaintiff claims that the refusal to issue retirement credentials violated [state

law].”); Johnson v. N.Y. State Dep’t of Corr. Servs., 709 F. Supp. 2d 178, 181

(N.D.N.Y. 2010) (seeking a declaration that the state “must certify retired law

enforcement officers who have met New York's standards to carry a firearm . . . .”);

D’Aureli v. Harvey, No. 17-cv-363, 2018 WL 704733, at *2 (N.D.N.Y. Feb. 2, 2018)

(describing the plaintiff’s problem as “he would not be issued a retired-law-

enforcement identification card”); Moore v. Trent, No. 09-C-1712, 2010 WL

5232727, at *1 (N.D. Ill. Dec. 16, 2010) (allegation was “that the . . . failure to issue

photographic identification cards and permits violated 18 U.S.C. § 926C . . . .”).

B. Plaintiffs Can Enforce LEOSA Subsection (a) Under § 1983.

Properly stated, the issue is whether the right to carry in subsection (a) is

enforceable under § 1983. Subsection (a) creates an individual right to carry for

individuals who are “qualified” and have “identification.” See 18 U.S.C. § 926C(a);

ECF No. 21, Statement of Interest of the United States of America, at 1-2. As

Plaintiffs explained, the Blessing factors dictate this result. See ECF No. 34-1,

Plaintiffs’ Brief in Support of Motion for Summary Judgment (“Pb”) at 28-29.


20

i. Subsection (a) Focuses on an Individual’s Right to Carry a Firearm.

The first Blessing factor asks if subsection (a) creates an individual right that

benefits Plaintiffs. It does. Subsection (a) “grants retired law enforcement officers

a right to carry a concealed firearm ‘[n]otwithstanding any other provision of the law

of any State or any political subdivision thereof.’” DuBerry, 824 F.3d at 1053. It

allows a retired officer to “carry” certain firearms, 18 U.S.C. § 926C(a); it details

the necessary “qualifications” to exercise that right, id. at § 926C(c); and it requires

individual “identification” as a prerequisite to that right, id. at § 926C(d). In fact,

the State even acknowledges that LEOSA qualified officers with identification may

carry in “whatever state they are in.” Db at 1.

Ignoring all this, the State argues that Congress’s use of the phrase “may

carry”, rather than “shall be allowed to carry”, means subsection (a) is not

enforceable under § 1983 because it implies the State has discretion to ignore the

right. See Db at pp. 20-21. That is wrong because precatory language only matters

when the asserted statutory right requires the state to take an affirmative action. See,

e.g., Blessing, 520 U.S. at 343-44 (statute requiring state to “substantially comply”

with federal requirements or lose funding); Carey, 957 F.3d at 479 (case addressing

whether subsection (d) compels a state to issue identification); Burban, 920 F.3d at

1279 (same). That is not the case here, as the phrase “may carry” means that

individual officers—not the State—have discretion to invoke the right to carry in


21

subsection (a). See “May,” BLACK’S LAW DICTIONARY, 11th Ed. 2019 (“To be

permitted to”). It does not belie an individual right under subsection (a).

The State also argues that the absence of an “express remedial provision”

means that subsection (a) fails the first Blessing factor. See Db at 21. That argument

is demonstrably wrong. Whether a statute has an implied right of action is a different

question from whether it is enforceable under § 1983. See Gonzaga Univ. v. Doe,

536 U.S. 273, 283 (2002); Db at 21 (citing Alexander v. Sandoval, 532 U.S. 275

(2001), an implied right of action case). Here, Plaintiffs do not have the burden to

show a private statutory remedy in subsection (a)—that is exactly what § 1983 is

for. See id. at 284 (“Plaintiffs suing under § 1983 do not have the burden of showing

an intent to create a private remedy because § 1983 generally supplies a remedy for

the vindication of rights secured by federal statutes.”). Once the Court concludes

subsection (a) confers an individual right, “the right is presumptively enforceable by

§ 1983.” Id. at 284. That result must occur here.

ii. The Court Can Decide If an Individual Is “Qualified” and Has “Identification” to Exercise the Right to Carry Under Subsection (a).

The second Blessing factor asks if the right is sufficiently specific for a court

to enforce. The right to carry in subsection (a) meets this test. An individual may

carry if they are: (1) “qualified” under subsection (c), and (2) have “identification”

under subsection (d). The subsection (c) qualifications are “found in the officer's

personnel records and the statutes in effect before the officer retired.” Duberry, 824


22

F.3d at 1053. The subsection (d) identification (which includes a photo

identification and firearms certification) is a binary issue—either an individual has

it, or not. The judiciary can undoubtedly decide if those criteria have been met. The

State does not even argue otherwise. See id.

Instead, the State argues Plaintiffs failed to meet this Blessing factor because

Congress did not set standards under which states must issue identification under

subsection (d). See Db at pp. 22-23. Again, the State’s argument and its cited cases

miss the point. No doubt, subsection (d) preserves a state’s “reservoir of power”

concerning the form of LEOSA “identification.” See Moore, 2010 WL 5232727, at

*4. A state may decide whether and in what form to issue photographic

identification. See, e.g., Carey, 957 F.3d at 480. It can likewise set firearms

proficiency standards for its active duty officers, which “standards” (not certification

frequency) must be met under subsection (d)(2)(B). These are political decisions

subject to the will of the voters, and not at issue here. This case is all about the right

to carry in subsection (a); not the right to compel photographic identification or set

specific firearms proficiency standards under subsection (d). Plaintiffs are LEOSA

“qualified” and already have “identification.” SOMF at ¶¶ 1-33. They are entitled

to exercise the right to carry under subsection (a), but cannot do so because of New

Jersey law. See Pb at 30-31.


23

iii. The State Must Recognize the Federal Right to Carry in Subsection (a).

The third Blessing factor asks if the federal statute creates an unambiguously

binding obligation on the states. Subsection (a) passes this test because states must

obey a federal law with express preemptive effect. See Pb at 29.

The State again engages in misdirection, arguing Plaintiffs’ § 1983 claim fails

because the State has no binding obligation to issue subsection (d) identification. Db

at 23-25. While the State may have discretion to issue identification and to set

firearms proficiency standards, its duty to recognize the right to carry established by

federal law is not discretionary. See Murphy v. NCAA, 138 S. Ct. 1461, 1480 (2018)

(explaining when a federal law “confers rights on private actors” and state law

“imposes restrictions that conflict with federal law . . . the federal law takes

precedence and the state law is preempted”).

Contrary to the State’s argument, Gonzaga University v. Doe does not say

otherwise, as that case involved a statute enacted under Congress’s spending power.

Db at 25; see also Gonzaga Univ., 536 U.S. at 279 (statute requiring the Secretary

of Education to withhold federal funds to schools that failed to adhere to federal

student record disclosure standards). It is settled law that states have discretion to

disregard federal standards if they are willing to forego federal funding contingent

on meeting those standards. See, e.g., South Dakota v. Dole, 483 U.S. 203, 206-07

(1987). Here, unlike the statute in Gonzaga University, subsection (a) creates a


24

federal right and was not enacted under Congress’s spending power. States do not

have discretion to “opt out” of the obligation to recognize the national right to carry

in LEOSA.

Nor is the D.C. Circuit’s decision in DuBerry an “outlier” in holding

LEOSA’s right to carry is enforceable under § 1983. Db at 25. DuBerry addressed

a different right than Carey, Burban, and all the district court decisions the State

cites. See Burban, 920 F.3d at 1282 (distinguishing DuBerry because the plaintiff

there did not assert a right to identification); DuBerry, 824 F.3d at 1057 (finding “no

occasion to consider” whether LEOSA requires states to issue identification). It says

that any reservoir of power does not include the power to revise LEOSA’s statutory

qualifications under subsection (c) in a way that deprives a retired officer of the right

to carry under subsection (a). See DuBerry, 824 F.3d at 1057. And even if the facts

in DuBerry are not identical, both DuBerry and this case seek to vindicate the right

to carry in subsection (a). In fact, Plaintiffs’ case here is even stronger than the facts

in DuBerry because here Plaintiffs are “qualified” and have “identification,” and

thus have the right to carry under LEOSA.10 “[T]here is no textual indication that

10 The State even acknowledges that the issue in DuBerry—an employer’s obligation to confirm the retired officer’s power of arrest under subsection (c)(2)—“is an area where LEOSA grants less discretion to the states.” Db at 26. It follows that the State must accept the stronger argument presented here.


25

Congress contemplated the concealed-carry right to be other than as defined in the

straightforward text.” Id. at 1055.

Understandably, the State cannot find any meaningful case distinctions

because the State’s own conduct shows LEOSA is more than a “congressional

preference” that states comply with LEOSA. Db at 25. First, the State concedes

that LEOSA allows a qualified officer to carry in “whatever state they are in.” Db

at 1. Second, the State specifically recognized that retired federal and out-of-state

officers may carry anywhere if they satisfy LEOSA. Id. Taken together, these

concessions are fatal to the State’s argument that LEOSA creates no enforceable

right to carry.

IV. PLAINTIFFS ARE ENTITLED TO JUDGMENT ON COUNT II BECAUSE SUBSECTION (a) EXPRESSLY PREEMPTS STATE AND LOCAL LAWS THAT RESTRICT “QUALIFIED” RETIRED OFFICERS WITH “IDENTIFICATION” FROM CARRYING A FIREARM.

A. New Jersey Law Is Preempted Because It Allows the State to Arrest Individuals Exercising Their Federal Right to Carry Under Subsection (a).

Plaintiffs’ theory under subsection (a) is also dispositive on their preemption

claim because subsection (a) preempts state and local laws, while subsection (d) does

not. The issue is whether the State can arrest an individual for carrying a firearm

under subsection (a) if that individual is “qualified” under subsection (c) and

carrying the “identification” under subsection (d). It cannot, and Plaintiffs are


26

entitled to a declaratory judgment and injunction against any further enforcement of

New Jersey’s preempted laws.

i. Plaintiffs Can Obtain a Declaratory Judgment That New Jersey Law Is Preempted.

The State argues that Count II fails if Count I fails because there is no

standalone cause of action under the Supremacy Clause. Db at 27. The Court can,

however, decide whether LEOSA preempts New Jersey law regardless of the

outcome of Plaintiffs’ § 1983 claim. Federal courts have jurisdiction to enjoin state

officials threatening to commit unlawful acts. Armstrong v. Exceptional Child Ctr.,

Inc., 575 U.S. 320, 327 (2015) (“[F]ederal courts may in some circumstances grant

injunctive relief against state officers who are violating, or planning to violate,

federal law.” (citing Ex Parte Young, 209 U.S. 123, 150-51 (1908)).11 That includes

acts that are unlawful because they are preempted by federal law. Id. at 326. A

plaintiff does not have to incur criminal liability just to challenge a state statute that

violates federal law. See Friends of the E. Hampton Airport, Inc. v. Town of E.

11 The State’s reference to Armstrong as support for its position is misplaced, as Armstrong reiterated the long-recognized power of a court in equity to enjoin illegal official action to effectuate the Supremacy Clause. See 575 U.S. at 326-27 (citing Ex Parte Young, 209 U.S. at 150-51, 55-56). The decision in Armstrong, in which the Court declined to issue an injunction, rested on Congress expressly foreclosing a right of action in the Medicaid Act—a statute enacted under Congress’s spending power. LEOSA is not Spending Clause legislation, does not foreclose the relief Plaintiffs are seeking, and Plaintiffs’ claims do not rely on an implied right of action under the Supremacy Clause. Instead, they rely on the Court’s power to enjoin unconstitutional conduct before it inevitably occurs.


27

Hampton, 841 F.3d 133, 144 (2d Cir. 2016). Here, the State can arrest and prosecute

Plaintiffs for exercising their federal right to carry unless they comply with its

preempted laws mandating more onerous qualification standards to obtain on RPO

permit. The Court thus has jurisdiction to determine the scope of LEOSA subsection

(a)’s preemption.

ii. Subsection (a)’s Notwithstanding Clause Expressly Preempts State and Local Laws.

The right to carry in subsection (a) applies “notwithstanding” any contrary

State or local law. This means, as the Fourth, Eleventh, and D.C. Circuit Courts of

Appeal have explained, that LEOSA preempts state and local laws concerning the

right to carry a concealed firearm. See Pb at 17 (citing Carey, 957 F.3d at 478;

Burban, 920 F.3d at 1277; DuBerry, 824 F.3d at 1052). LEOSA also has a savings

clause, 18 U.S.C. § 926C(b), which is further evidence of express preemption. See

Sprietsma v. Mercury Marine, 537 U.S. 51, 63 (2002); Geier v. Am. Honda Motor

Co., 529 U.S. 861, 868 (2000). And LEOSA’s legislative history points towards

preemption, as Congress intended to “override State laws” and establish “national

uniformity.” See H.R. Rep. No. 108-560, 2004 WL 5702383, at *3 (2004); S. Rep.

No. 108-29, 2003 WL 1609540, at *4 (2003).

But the State argues the “presumption against preemption” forecloses any

inquiry into the scope of LEOSA’s preemption. Db at 28-31. This argument fails

to acknowledge—much less refute—that Congress’s preemptive intention is


28

“unmistakably clear” from the evidence above, as required to overcome the

presumption. See Duberry, 824 F.3d at 1052 (“Congress used categorical language

in the ‘notwithstanding’ clause of subsection (a), to preempt state and local law to

grant qualified law enforcement officers the right to carry a concealed weapon.”).

The State also ignores that LEOSA preserves some “reservoir of power” for the State

concerning subsection (d), so not to offend the State sovereignty. See Db at 29-30.

In sum, Congress intended to preempt state and local laws consistent with principles

of federalism.

iii. LEOSA Preempts New Jersey Laws That Interfere with the Right of a Qualified Individual with Identification to Carry a Firearm.

The State’s real issue is with the scope of subsection (a)’s preemption. At its

core, subsection (a) says that a “qualified” individual with “identification” may

“carry” a firearm “notwithstanding” contrary state or local law. See 18 U.S.C. §

926(C)(a). The subsection (a) right applies to any “qualified” individual with

“identification,” anywhere in the United States, with no residence limit. And it does

not distinguish between retired federal and state officers. Subsection (a)’s

preemption thus applies to any state or local law that interferes with the right of any

“qualified” individual with “identification” to carry a firearm. See, e.g., Burban, 920

F.3d at 1277 (explaining the right to carry applies “even if State or local law would

ordinarily prohibit it”).


29

New Jersey law falls within the scope of this preemption. It says that even

“qualified” individuals with “identification” cannot carry a firearm without its RPO

permit. See N.J.S.A. § 2C:39-5; id. § 2C:39-6(l); id. § 2C:39-3(f). As New Jersey

law allows the State to arrest and prosecute LEOSA “qualified” officers with

“identification” simply because they lack an RPO permit, it is preempted.

In response, the State reiterates its irrelevant argument that subsection (d) does

not preempt the State’s discretion to issue identification or set firearms proficiency

standards. Db at 30-31 (arguing “[LEOSA] does not speak to . . . when a state must

issue such an identification.”). But, as explained, it does not matter if the State has

some discretion under subsection (d). Because Plaintiffs are LEOSA “qualified”

and already have the requisite “identification,” they are entitled to exercise their right

to carry in New Jersey.

The State then argues that its RPO statute and permit process is its version of

a LEOSA identification, which it retains discretion to issue any way it wants. Db at

31-33. But this argument does not defeat Plaintiffs’ preemption claim.

First, the State’s argument ignores the issue for which Plaintiffs seek

summary judgment. The State cannot arrest and prosecute individuals who are

LEOSA qualified and already have identification, such as the individual Plaintiffs

and members of the associational Plaintiffs. SOMF at ¶ 1-33; Fox Decl., at ¶ 3; Fox

Suppl. Decl., at ¶ 5; Lytwyn Decl., at ¶¶ 1-15. Laws that allow the State to arrest


30

and prosecute individuals for exercising the federal right to carry under subsection

(a) are preempted—regardless of the RPO permit scheme.

Second, contrary to the State’s suggestion (which again attacks the wrong

issue), an RPO permit is not even a substitute for LEOSA identification under

subsection (d). Db at 31-34.

LEOSA contemplates that the retired officer’s “agency” should issue

photographic identification. See 18 U.S.C. § 926C(d)(2)(A). This makes

sense because a retired officer’s former employer is more familiar with the

retired officer than the State is.

Consistent with this view, some New Jersey law enforcement agencies

already issue photographic identification that satisfies LEOSA. The record

shows that “qualified” individuals under subsection (c) (even those who

retired from a state or local agency) can satisfy subsection (d) without an

RPO permit by obtaining photographic identification directly from their

former agency.12 See Fox Suppl. Decl., Exhibit A; Lytwyn Decl., Exhibit

A; 18 U.S.C. § 926C(d)(2)(A). Thus, an RPO permit is not necessary to

12 Proper “identification” requires two components: (a) a photographic identification, and (b) a firearms proficiency certification. See 18 U.S.C. § 926C(d). Under subsection (d)(1), these components can be found on a single document. Or, under subsection (d)(2), these components can be found on two separate documents. See 18 U.S.C. § 926C(d)(2)(A) (photographic identification from former “agency”); id. § 926C(d)(2)(B) (firearms certification within the past year); Pb at 3.


31

satisfy subsection (d). The problem is that the State refuses to recognize

these other forms of identification as satisfying subsection (d) because they

are not its State Police issued RPO permit. It has no right to do so.

The RPO permit is also not the same as identification under subsection (d)

because the State conditions its receipt on different subsection (c)

qualifications, which it cannot do. Under LEOSA, determining if an

individual is LEOSA “qualified” is a ministerial decision; whereas New

Jersey’s RPO law gives the Superintendent of State Police unfettered

discretion to make that decision. Compare 18 U.S.C. § 926C(c) (stating,

without qualification, that a “qualified retired law enforcement officer

means an individual who . . .”), with N.J.S.A. § 2C:39-6(l)(2)(d) (stating

that the RPO verification from the former employer shall include a

statement that the applicant is not disqualified under N.J.S.A. § 2C:58-3,

which includes determining that the “issuance would not be in the interests

of the public health, safety or welfare”). Likewise, an individual cannot

obtain an RPO permit unless they are under seventy-five and have

qualified in active duty firearms training twice per year; whereas the

LEOSA subsection (c) qualifications do not impose an age limit and only

requires annual firearms certification. And even with an RPO permit, an


32

individual cannot carry different firearms or hollow point ammunition;

whereas LEOSA’s right to carry allows them to do so. See Pb at 19-20.

The State adds the makeweight argument that it can impose a seventy-five-

year age limit and require biannual firearms certification as part of its discretion to

determine active duty officer firearm standards. Db at 33-34. However, the State

firearm standards, broadly defined, relate to firearms proficiency—i.e., how well an

officer can hit a target—which retired officers can do regardless of their age.13

LEOSA only requires retired officers to match those active duty proficiency

requirements. Moreover, LEOSA, not the State, definitively sets the temporal

requirement for those proficiency tests. See 18 U.S.C. § 926C(c)(4) (a “qualified”

individual means someone who “during the most recent 12-month period, has met .

. . the “standards for qualification in firearms training for active law enforcement

officers” (emphasis added)). In short, the age limit and biannual certification have

nothing to do with a retired officer’s ability to shoot straight.

The State’s effort to amend its FAQs to show it is complying with LEOSA is

misguided. First, the State’s FAQs concede that every class of retired officer—

except for officers that retired from a New Jersey agency and “reside” in New

Jersey—may carry pursuant to LEOSA subsection (a). See Harbist Decl., Exhibit L

at ¶ 20(A)-(B). LEOSA does not make these distinctions (federal/local agencies, in-

13 See https://www.state.nj.us/lps/dcj/agguide/firearms_2003final.pdf.


33

state/out-of-state agencies, or in-state/out-of-state residence), so neither can the

State. See 18 U.S.C. § 926C(a).

Second, the distinctions in the new FAQs yield absurd results that cannot be

correct. See Pb at 24. As explained, the text of LEOSA does not distinguish between

federal/local agencies, in-state/out-of-state agencies, or in-state/out-of-state

residence. Yet, on its face New Jersey’s new FAQ’s policy makes these distinctions.

These distinctions, in turn, give New Jersey prosecutors (but not prosecutors

anywhere else in the country) discretion to arrest retired officers exercising their

rights under LEOSA based on the amorphous concept of New Jersey “residence,”

which is non-existent under LEOSA. Thus, a retired QRLEO from a New Jersey

agency residing in Florida during the winter, but residing in New Jersey during the

summer, is subject to arrest based upon the local prosecutor’s interpretation of the

policy that he is “residing” in New Jersey. This is the type of parochial nonsense

LEOSA sought to avoid.

Finally, the laws of other states cannot justify New Jersey’s unconstitutional

statutes, as the State claims. Db at 34-36. Those laws are not being litigated here.

But even by analogy, their substance misses the point. Recall, the issue is whether

New Jersey can deny the right to carry in subsection (a) to “qualified” individuals

with “identification” by subjecting them to arrest unless they obtain an RPO permit.

The cited laws merely demonstrate the “reservoir of power” states have when


34

deciding to issue subsection (d) identification. See Db at 35 and n.8. New Jersey

law goes one step further: it redefines LEOSA’s qualification standards and will

arrest and prosecute otherwise LEOSA “qualified” individuals with “identification”

unless they abide by its RPO statute. These laws are preempted.

B. The Anticommandeering Doctrine Does Not Apply Because LEOSA Merely Requires the State to Recognize the Right to Carry.

In their opening brief, Plaintiffs’ went out of their way to explain that they are

not seeking to compel subsection (d) identification and that subsection (a) does not

violate the anticommandeering doctrine. The right to carry in subsection (a) is a

federal right that the State must recognize; and requiring the State to recognize a

federal right is not unconstitutional commandeering. See Pb at 25-27. Yet despite

Plaintiffs’ best efforts to dispel any confusion, the State continues to argue that

compelling the State to issue subsection (d) identification would violate the

anticommandeering doctrine. Db at 37-40. This argument is misplaced, as this case

is about the right to carry in subsection (a); not identification in subsection (d).

This distinction means the State’s arguments under the anticommandeering

doctrine also fail. First, under Plaintiffs’ theory of the right to carry in subsection

(a), there is no problem with political accountability or cost shifting—two concerns

animating the anticommandeering doctrine—because recognizing the right to carry

in subsection (a) does not require the State to issue identification or bear any costs

for the federal Government. See Db at 37-38. Second, the State’s citation to Nat’l


35

Fed. of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) for a so-called state

“prerogative” to disregard federal law is a made-up statement of law, as the language

quoted from that case was discussing legislation under Congress’s spending power.

See Db at 38 (quoting Sebelius, 567 U.S. at 581). Third, there is no administrative

burden on the State, as it must simply recognize the right to carry in subsection (a),

not affirmatively issue subsection (d) identifications. See Db at 39. Finally,

although the State can decide whether and how to issue subsection (d) identification,

the right to carry in subsection (a) is a federal right, not a federal program the State

can “opt out” of. Db at 39-40.

CONCLUSION

In sum, the Supremacy Clause does not permit the State to rewrite the federal

qualification standards in LEOSA’s national right to carry a concealed firearm.

While the State may have some residual power to determine the form of

photographic identification issued by the retired officer’s agency and its active duty

firearms proficiency standards (and thus may track those retired state officers

residing in New Jersey), it cannot rewrite LEOSA’s qualification standards for the

right to carry to suit its own parochial view of who should be eligible to carry a

firearm. LEOSA, not the State, provides this national standard.

Accordingly, for the reasons set forth in Plaintiffs opening brief and above,

Plaintiffs respectfully request summary judgment on Counts I and II of their


36

Complaint and request that the State’s cross-motion for summary judgment be

denied.

Dated: July 26, 2021 /s Nicholas C. Harbist

BLANK ROME LLP A Pennsylvania LLP STEPHEN M. ORLOFSKY, ESQ. NICHOLAS C. HARBIST, ESQ. New Jersey Resident Partners MICHAEL R. DARBEE, ESQ. BLAIR A. GEROLD, ESQ. 300 Carnegie Center, Suite 220 Princeton, New Jersey 08540 Tel.: 609-750-2646 Fax: 609-897-7286 [email protected] [email protected] [email protected] [email protected] Attorneys for Plaintiffs


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