Court of Appeals Affirms FLEOA, NFOP Victory in LEOSA Lawsuit

This week, the Third Circuit Court of Appeals ruled in favor of the Federal Law Enforcement Officers Association (FLEOA) and the New Jersey Lodge of the Fraternal Order of Police (NJ FOP) in a case surrounding the Law Enforcement Officers Safety Act (LEOSA).

As relevant here, LEOSA allows qualified retired law enforcement officers (QRLEOs) to concealed carry across the United States and its territories. The law is aimed to improve public safety by allowing retired law enforcement officers to serve as a force multiplier in the public.

The law passed unanimously through both the House and Senate in 2004. 

Federal agencies have long found that “Although LEOSA preempts most state and local laws, it does not supersede or limit state laws that ‘permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property,’ such as bars, private clubs, amusement parks, etc., or ‘prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.’”

Still, some states have taken a more restrictive approach to regulating LEOSA covered officers. In a lawsuit initiated in 2020 by FLEOA and the NJ FOP, the law enforcement organizations claim that “the State of New Jersey [is] violating qualified active and retired law enforcement officer’s rights under the Law Enforcement Officers Safety Act… [by] establishing a state patchwork of laws that ignore the clear language and rights outline in LEOSA.”

Specifically, New Jersey required certain retired law enforcement officers to obtain a state issued permit, limited the type of ammunition retired officers could carry, required retired officers’ complete regular firearms qualification training, required the officer’s former agency or state of residence verify the officer's qualifications, and required both criminal and mental-health background checks. These requirements varied greatly from the original LEOSA requirements.

FLEOA and NJ FOP argued that LEOSA preempts state law under the Supremacy Clause of the Constitution. Therefore, the additional burdens imposed by the state of New Jersey on retired law enforcement officers were improper to the extent that they conflicted with the federal requirements.

In June 2022, a district court ruled in FLEOA and NJ FOP’s favor; however, the state appealed the decision to the appellate court.

In a decision released Wednesday, February 14, the appellate court affirmed the lower court’s ruling.

First, the court found that “LEOSA confers an enforceable right upon QRLEOs who are carrying LEOSA-compliant identification to carry a concealed firearm (subject to subsection (b)’s exceptions). And LEOSA expressly preempts New Jersey law to the extent that it imposes additional conditions or restrictions upon such QRLEOs who are in possession of compliant identification.”

Next, the court decided that QRLEOs, having an enforceable right under LEOSA, may enforce their right to concealed carry though Section 1983’s private right of action.

Finally, the court concluded “when Congress enacted LEOSA, it expressly preempted contrary state law. So New Jersey may not limit the LEOSA right or burden that right by imposing additional requirements upon right-holders.”

The court found Congress’s desire to preempt state law “express and unmistakable.” In its final words, the court explained that it “may not ignore Congress’s unambiguous conferral of an individual right or its clear intent to preempt state law. In LEOSA, Congress granted certain retired law enforcement officers a right to carry a concealed firearm. And LEOSA expressly preempts contrary provisions of state law.”

In a statement, FLEOA and the NJ FOP hailed the decision as a victory for law enforcement and public safety alike.

“In enacting LEOSA, Congress sought to provide a force multiplied in states to ensure qualified personnel with public safety training are prepared and able to respond to public safety threats whenever they arise. New Jersey and various other states have disregarded these public safety benefits and disregarded their constitutional responsibility to defer to federal law. Today, the Court of Appeals made clear that will not stand,” FLEOA President Mat Silverman said.

“Like the district court’s decision, this opinion is based on the text of the law, its history, and the facts of New Jersey’s actions. Had New Jersey cooperated with law enforcement entities, this case could have come out differently. But because of the state’s consistent work to undermine LEOSA rights, we were forced to take our case to court for resolution. As a result, justice has been served for our members and the entire law enforcement community in New Jersey,” said NJ FOP President Robert Fox.


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