AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies
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Firearms/Weapons - Other Issues
Monthly Law Journal Article: Interagency Memorandums of Agreement for Officer-Involved Shooting Investigations, 2011 (1) AELE Mo. L. J. 501.
Three former correctional officers who had separated from service in good standing filed a federal civil rights lawsuit against the District of Columbia asserting claims under the Law Enforcement Officers Safety Act (LEOSA). They sought declaratory and injunctive relief requiring D.C. to recognize them as "qualified retired law enforcement officers" for purposes of the Act so that they could be able to carry concealed firearms. A federal appeals court previously ruled that the Act’s plain text, purpose, and context show that Congress intended to create a concrete, individual right to benefit individuals like the plaintiffs and that is judicially enforceable. Subsequently, on remand, a federal trial court granted summary judgment for the plaintiffs, finding that each of them met the three requirements of the Act--that in their prior position, they possessed “statutory powers of arrest,” served as a “law enforcement officer” for an aggregate of at least 10 years, and was separated from service in good standing. The appeals court upheld this result on appeal. The Act creates an individual right to carry that is enforceable under section 1983, and there was no merit to the District’s argument that the plaintiffs were not entitled to conceal carry rights because they had not previously obtained the proper identification documents to do so. DuBerry v. District of Columbia, #18-7102, 2019 U.S. App. Lexis 14961, 2019 WL 2180337 (D.C. Cir.).
The plaintiff was issued a medical
marijuana registry card under state law. Based on this, and relying on a letter
issued by the federal ATF, a firearms dealer refused to sell her a firearm. She
claimed that federal statutes, regulations, and guidance that prevented her
from buying a gun because of her medical marijuana use violated her Second
Amendment rights. Intermediate scrutiny was applied, and the court properly
held that 18 U.S.C. 922(d)(3), 27 C.F.R. 478.11, and the ATF's Open Letter at
issue did not place a severe burden on the plaintiff's Second Amendment rights.
The degree of fit between the laws and guidance and the goal of preventing gun
violence was reasonable and survived intermediate scrutiny. The appeals court
also rejected First Amendment and Fifth Amendment due process claims. There was
no constitutionally protected liberty interest in holding a medical marijuana
registry card at the same time as buying a firearm. Wilson v. Lynch, #14-15700,
2016 U.S. App. Lexis 16108 (9th Cir.).
In 18 U.S.C. Sec.
922(g)(9), Congress extended the federal prohibition on firearms possession by
convicted felons to persons convicted of misdemeanant crimes of domestic
violence under federal, state, or tribal law, committed against a domestic
relation that necessarily involves the use of "physical force." In a
previous decision, the U.S. Supreme Court held that a knowing or intentional
assault qualifies under Sec. 922(g)(9), but failed to address reckless
assaults. Two individuals pled guilty under a Maine law making it a misdemeanor
to “intentionally, knowingly or recklessly cause[ ] bodily injury” to another.
The U.S. Supreme Court held that a reckless domestic assault qualifies as a
misdemeanor crime of domestic violence, barring them from owning or possessing
firearms. Reckless conduct, which requires the conscious disregard of a known
risk, the Court stated, is not an accident: It involves a deliberate decision
to endanger another. Voisine v. United States, #14-10154, 2016 U.S. Lexis 4061,
84 U.S.L.W. 4525.
Four retired correctional officers claimed that
the District of Columbia improperly deprived them of their federal right to
carry a concealed weapon under the Law Enforcement Officers Safety Act (LEOSA),
18 U.S.C. 926C. They claimed that they met the statutory requirements but that
they were unable to obtain firearms training because the District refused to certify
that, as corrections officers, they had the power to arrest, specifically to
arrest parole violators. The federal appeals court found that the complaint
sufficiently alleged that they had been unlawfully deprived of a concrete
individual right designed to benefit them, which could be remedied under 42
U.S.C. Sec. 1983. Duberry v. District of Columbia, #15-7062, 2016 U.S. App.
Lexis 10096 (D.C. Cir.).
A police officer was shot in the back with his
service revolver by his three-year-old son. His injuries rendered him a
paraplegic. He sued the manufacturers and sellers of his gun and holster,
asserted products liability claims. He argued that the gun was defective
because it lacked a safety mechanism to prevent accidental firing and had a
light trigger pull. The appeals court ruled that summary judgment for the
defendant gun manufacturer and retailer was improper on a design defect claim.
The defendants failed to show that the plaintiff had no evidence that the
alleged design defect caused his injuries. An expert witness for the plaintiff
stated the opinion that a small child's hand would not have the leverage or
size to depress a grip safety had the gun had one, and at the same time extend
his finger far enough out to pull the trigger. The court upheld summary
judgment on claims related to the holster, and against the gun's manufacturer
and retailer for failure to warn the plaintiff that the gun should only be used
with specific holsters, since the plaintiff was a sophisticated user. Chavez v.
Glock, Inc., #B230346, 2012 Cal. App. Lexis 832 (Cal. App.).
A training officer entered the area where a
training exercise simulating an arrest was being enacted. He was supposed to
fire his weapon into a sandbox, but failed to do that. When he pointed his gun
at a prone officer playing the role of the arrestee, the weapon discharged,
killing him. His surviving family filed a federal civil rights lawsuit
asserting Fourth, Eighth, and Fourteenth Amendment claims. A federal appeals
court found that the plaintiffs had not adequately alleged a Fourth Amendment
excessive force claim, merely mentioning the Fourth Amendment without stating
how it was violated. The Eighth Amendment claim was also inapplicable as there
was no criminal prosecution or "adjudication of guilt" against the
dead officer. The court did find that the failure to follow necessary safety
precautions could be found to "shock the conscience" in violation of
substantive due process. There was no basis for liability claims against the
mayor or municipality, however, since the mayor was not involved and there was
no showing that the death was caused by an official policy or custom. Due
process claims against defendant officers present at the incident, including a
supervisor, could proceed, as well as claims against some police defendants not
present that day, but who had direct responsibility for the training exercise.
Marrero-Rodriguez v. Municipality of San Juan, #11-1195, 677 F.3d 497
(1st Cir. 2012).
The Wyoming Supreme Court overturned the termination
of a deputy who had been accused of not performing his duties relating to
report writing and firearms security. His conduct did not violate the
department's written policies. There was undisputed evidence that the deputy's
shotgun had been secured in a gun locker at his brother's house, which complied
with the department's policy for securing a weapon with a lock when it was
outside of a deputy's immediate control. Cook v. Laramie County Sheriff's
Dept., #S-11-0152, 2012 WY 47, 2012 Wyo. Lexis 50.
Declining to issue a former deputy sheriff
a retirement badge and a firearm authorization card is not a stigmatizing event
giving rise to an enforceable liberty interest. Palka v. Shelton, #08-4245,
2010 U.S. App. Lexis 20708 (7th Cir.).
Appellate court sustains the termination of a
sheriff's officer who repeatedly failed to qualify with her duty weapon.
Moreover, "if a shooter is permitted to continue to shoot a failing
qualification course without intervention to correct their improper habits and/or
techniques, this will actually reinforce their improper habits and techniques
which continually lead to the same negative results." In the Matter of
Joan Ivan, #A-1070-07T2, 2009 WL 1118735 (Unpub. N.J. App. Div.).
Tenth Circuit holds that an Oklahoma law holding
employers criminally liable for prohibiting employees from storing firearms in
locked vehicles on the employer’s property is not preempted by the federal
Occupational Health and Safety Act. Ramsey Winch v. Henry, #07-5166, 2009 U.S.
App. Lexis 3034 (10th Cir.).
Federal Labor Relations
Board affirms an arbitrator's award that upheld a bargaining agreement
provision requiring management to provide ammunition to officers for use in
firearms qualification practice. U.S. Dept. of Homeland Security and AFGE
L-1917, #0-AR-3935, 61 FLRA No. 13, 2005 FLRA Lexis 100 (2005). {N/R}
Illinois Police Training Act is amended to
authorize the state Training Board to conduct annual firearm certification
courses for retired law enforcement officers that are qualified under federal
law to carry a concealed weapon. The amendments provide that retired officers
must authorize a criminal background investigation. S.B. 0189. {N/R}
Federal Labor Relations Authority upholds a
management directive that customs officers should take their weapons home and
secure them when off-duty, and not leave them at the workplace. NTEU and
U.S.D.H.S., Customs and Border Protection, #0-NG-2627, 60 FLRA No. 77, 2004
FLRA Lexis 171 (FLRA 2004). [2005 FP Mar]
Utah Supreme Court allows a private employer to
discipline workers who violate its policies and have a firearm in their
vehicles while in employer-provided parking lots. Hansen v. America Online,
#20020288, 96 P.3d 950, 2004 UT 62, 2004 Utah Lexis 136 (2004). [2004 FP Oct]
Two Federal appellate courts uphold fed.
gun laws banning possession of machine guns. U.S. v. Kenney, 59 CrL (BNA) 1447
(7th Cir. 1996); U.S. v. Beukelaere, 59 CrL (BNA) 1462 (6th Cir. 1996) {N/R}
Appellate court upholds a pay reduction for
police officers who failed to score in upper 50% at the firearms range. Johnson
v. Civil Serv. Bd., 627 So.2d 950 (Ala.Civ.App. 1993). [1995 FP 24]
IACP bans the NRA from exhibiting at the Annual
Conference and advertising in the IACP monthly magazine, The Police Chief,
after an NRA officer called federal agents "jackbooted thugs." Crime
Control Digest, 5/19/95 p. 10. {N/R}
Duty to bargain: management does not have to
bargain over the types of guns, other weapons, and quantities of ammunition to
be provided. Twp. of So. Brunswick and P.B.A. L-166, N.J. PERC #86-115 (1986),
12 NJPER (LRP) ¶ 17,138 [Lexis]. {N/R}
Class action filed by police officers against
city, challenging restrictive deadly force policies, fails in trial court. Darrah
v. Prease, Chief of Police, Civil #CV 81 9 2615, Summit Co. Common Pls. Ct.
(Oct. 1981). (#86 FP 4).
Appellate court holds that a police dept's
firearms use and deadly force policy is not a negotiable issue in California.
San Jose POA v. City of San Jose, 144 Cal.Rptr. 638, 78 Cal.3rd 935 (Cal.App.
1978). [1979-1 FP 4]
Also see: Firearms -
Restrictions on Wearing