Norris Carey, Jr. v. Joanne Throwe ( 2020 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1194
NORRIS PAUL CAREY, JR.,
Plaintiff – Appellant,
v.
DEPUTY SECRETARY JOANNE THROWE; CAPTAIN EDWARD JOHNSON;
CAPTAIN CHARLES VERNON; ROBERT K. ZIEGLER, Superintendent,
Defendants – Appellees,
and
MARYLAND NATURAL RESOURCES POLICE,
Defendant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
George L. Russell, III, District Judge. (1:18-cv-00162-GLR)
Submitted: March 17, 2020 Decided: April 30, 2020
Before WILKINSON and KEENAN, Circuit Judges, and Rossie D. ALSTON, Jr., United
States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge
Keenan and Judge Alston joined.
Robin R. Cockey, Ashley A. Bosché, COCKEY, BRENNAN & MALONEY, P.C.,
Salisbury, Maryland, for Appellant. Andrew M. Winick, HOFMEISTER & BREZA, Hunt
Valley, Maryland, for Appellee Captain Edward Johnson. Brian E. Frosh, Attorney
General, Roger L. Wolfe, Jr., Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Annapolis, Maryland, for Appellees.
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WILKINSON, Circuit Judge:
In December 2016 and January 2017, Norris Paul Carey, Jr., then an employee of
Maryland’s Department of Natural Resources (“DNR”), submitted to a local website two
anonymous blog posts about Edward Johnson, then Captain of the Internal Affairs Unit of
the Maryland Natural Resources Police (“MNRP”). To say the least, the posts were not
flattering. Among other things, they collected screenshots from Johnson’s private
Facebook page that showed photos of Johnson posing with scantily-clad women and
various comments that he had made about gun violence. In the months that followed,
though, it was Carey whose life took a turn. He was fired from the DNR, his Law
Enforcement Officer Safety Act (“LEOSA”) card to carry a concealed firearm was
rescinded, and he was disparaged on social media. As Carey tells it, these actions were all
part of a concerted and unlawful effort by persons at the DNR and MNRP to retaliate
against him for the blog posts. The district court disagreed, calling the whole business the
product of a personal spat and dismissing Carey’s suit for failure to state a claim upon
which relief may be granted. For the reasons that follow, we affirm.
I.
Carey served in the Maryland Natural Resources Police for twenty-six years. * For
most of his tenure, Carey worked in field enforcement, performing tasks like polygraph
examinations, before retiring on December 31, 2013. Three months before retiring, Carey
*
Because this case follows the grant of a motion to dismiss, we “accept as true all
of the factual allegations contained in the complaint.” Adams v. Ferguson, 884 F.3d 219,
222 (4th Cir. 2018) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
3
became involved in an internal MNRP investigation concerning a missing M16 patrol rifle.
During this probe, Captain Johnson interviewed Carey on the suspicion that Carey had
improperly talked to a key suspect in the investigation—the first chapter in what would
become a heated conflict between the two. Carey denied this, and the MNRP eventually
dropped the matter. According to Carey, he ultimately retired in good standing.
Carey joined the Maryland Department of Natural Resources in a civilian capacity
in August 2015. As one might suspect from their names, the MNRP and DNR are related;
the former is the law enforcement arm of the latter. Carey was hired by the DNR as an at-
will employee for their Boat Tax Enforcement Unit. While his contract was set to end on
August 8, 2017, Carey’s supervisor told him it would be renewed.
During his time with the DNR, Carey received a certification card that allowed him
to carry a concealed firearm. Maryland issued this card to Carey pursuant to the Law
Enforcement Officer Safety Act, a federal law that provides for retired law enforcement
officers to carry concealed firearms under certain conditions. 18 U.S.C. § 926C. Two of
these conditions are that the officer (i) retired in “good standing,” and (ii) currently holds
a certain form of state-issued identification (i.e., in Maryland, the “LEOSA card”).
But Carey’s tenure with the DNR ended abruptly. On May 25, 2017, Joanne
Throwe, the DNR Deputy Secretary, and Mike Lathrom, a Corporal within the MNRP,
pulled Carey aside and told him that his contract had been terminated. Carey asked for an
explanation but was never given one. It seems, though, he was not fired for cause.
To Carey, the reason for his termination became apparent: the defendants were
retaliating against him for two blog posts that he submitted anonymously to the Salisbury
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News Blog, a popular website among local first responders. In those posts, Carey went
after Captain Johnson. Carey submitted the first one in December 2016 (the “December
post”). There, he copied the MNRP’s Code of Conduct and Agency Values and placed it
alongside a series of screenshots from Johnson’s Facebook. Those screenshots included
photos of scantily-clad women (some with Johnson and some on their own) in provocative
poses and the back of a man wearing a jacket associated with a motorcycle club.
Carey submitted his second post in January 2017 (the “January post”). There, Carey
displayed not only some of the same provocative photos from Johnson’s Facebook, but
also added a series of screenshots where Johnson boasted about his gun collection and
seemed to make light of gun violence. For instance, one photo showed Johnson’s AR-15
with him commenting, “I don’t think the game warden can catch us . . . LOL,” J.A. 65, and
another showed a picture of a skull with a bullet hole through its forehead, with Johnson
remarking that it had a “45 caliber [headache],” id. at 61. The January post also featured
certain commentary by Carey. For instance, he wrote that Johnson was “denigrating law
enforcement and fanning the flames of an already hostile environment that needs healing”
and queried, “what is going on with Maryland Natural Resources Police??” J.A. 61, 66.
Although each of these posts was made anonymously, it seems that word got out
about their author. On January 21, 2017, an unknown person commented below the
January post: “Since you seem to be protected on this site Paul Carey your deeds will be
spread far and wide elsewhere including disparaging the very Department you’re still
employed by—for now . . . .” J.A. 110. According to Carey, things took a turn for the
worst once he was outed as the posts’ author. On top of getting fired, Carey alleges that
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certain DNR and MNRP employees retaliated against him for the posts over two other
episodes.
First, on April 28, 2017, MNRP Captain Charles Vernon called Carey to tell him
that he had not retired from the MNRP in good standing and needed to return his LEOSA
card (which was no longer valid). Confused by this, Carey reached out to the Maryland
Police and Correctional Training Commission to check his retirement status. According to
Carey, an official there confirmed that he had, in fact, retired in good standing. Carey
therefore refused to return his LEOSA card, but he did stop carrying his concealed firearm.
For the next few weeks, MNRP officials repeatedly contacted Carey’s DNR supervisors to
tell them Carey did not retire in good standing and was refusing to return his LEOSA card.
What is more, the tensions that erupted over Carey’s posts boiled over into other
aspects of his life. By way of background, while Carey was working for the DNR, he was
also running a private business where he would offer independent polygraph examinations.
As part of this, Carey was hired by the organizers of the White Marlin Open (“WMO”), a
local fishing tournament, to conduct polygraph exams of tournament winners to ensure
there was no foul play. For reasons not relevant here, the WMO soon descended into
litigation, and Carey was later called as a witness to discuss his post-tournament polygraph
exam. On May 8, 2017, about two weeks before Carey was fired by the DNR, Captain
Johnson emailed him to ask for the date and time of the White Marlin trial—an email Carey
understood as “threatening” because Johnson had no reason to contact him about his work
in this litigation “other than to try to intimidate him.” J.A. 114. The next day, an
anonymous post appeared on the Salisbury News Blog that read: “Consider the drama in
6
court when they learn one of the polygraph examiners has a less than stellar background
and lacks integrity.” Id. at 115. Finally, and most significant, one day after the WMO trial
ended, but about three weeks after Carey was fired, Johnson commented on the WMO’s
Facebook page: “Too bad one of the polygraphers—Paul Carey, has the integrity of a lifer
on death row.” Id. at 116.
In January 2018, Carey filed this lawsuit against the MNRP, Deputy Secretary
Throwe, Captain Johnson, and Captain Vernon. That May, Carey amended his complaint
to add as a defendant Robert Ziegler, the MNRP Superintendent responsible for overseeing
the LEOSA certification program, and to remove the MNRP as a defendant. Carey raised
three claims. First, Carey brought a First Amendment retaliation claim under 42 U.S.C
§ 1983 against Throwe, Johnson, and Vernon, arguing that he was unlawfully terminated
for exercising his free speech rights. Second, Carey brought a claim, also under § 1983,
against Ziegler and Vernon, alleging that they had interfered with his right to carry a
concealed firearm under LEOSA by improperly rescinding his LEOSA card. Third, Carey
brought a defamation per se claim against Johnson for the disparaging comment that he put
on the WMO’s Facebook page.
In the months that followed, the defendants filed motions to dismiss and/or for
summary judgment and, in January 2019, the district court granted their motion to dismiss
the entire lawsuit. Carey v. Throwe, No. GLR-18-162, 2019 WL 414873 (D. Md. Jan. 31,
2019). The court held that none of Carey’s three claims could get out of the starting gate
due to at least one fundamental defect. The court dismissed the First Amendment
retaliation claim on the ground that neither of the Salisbury News posts at issue involved a
7
“matter of public concern,” a prerequisite to bringing such a suit. Next, the court dismissed
Carey’s LEOSA claim, brought under § 1983, because LEOSA is not privately enforceable
under that statute. Lastly, the court dismissed Carey’s defamation per se claim, holding
that Johnson’s comment was nothing more than a hyperbolic opinion. This appeal
followed.
II.
We review the district court’s grant of a motion to dismiss de novo. Novell, Inc. v.
Microsoft Corp., 505 F.3d 302, 307 (4th Cir. 2007). To survive a motion to dismiss, a
complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
omitted). We take all well-pled facts to be true, drawing all reasonable inferences in favor
of the plaintiff, but “we need not accept the legal conclusions drawn from the facts, and we
need not accept as true unwarranted inferences, unreasonable conclusions or arguments.”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (internal quotation omitted).
III.
We first consider Carey’s First Amendment claim for retaliatory discharge. Carey
alleges that his posts are protected by the First Amendment, and that it was therefore
unlawful for public officials at the DNR and MNRP to terminate him for publishing them.
A.
It is well settled that public employees may not “constitutionally be compelled to
relinquish the First Amendment rights they would otherwise enjoy as citizens to comment
on matters of public interest.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). At the
8
same time, though, public employees “must accept certain limitations on [their] freedom”
so that a government workplace can provide public services in an efficient and effective
manner. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); see also Connick v. Myers, 461
U.S. 138, 149 (1983) (emphasizing that the First Amendment “does not require a public
office to be run as a roundtable for employee complaints over internal office affairs”).
In light of this balance, when a public employee is punished by his employer (the
government) for his speech, we use a three-part test to assess the propriety of that adverse
action. First, at the outset, we consider “whether the public employee was speaking as a
citizen upon a matter of public concern or as an employee about a matter of personal
interest.” McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998). Second, if the former, “we
evaluate whether the employee’s interest in First Amendment expression outweighs the
employer’s interest in the efficient operation of the workplace.” Liverman v. City of
Petersburg, 844 F.3d 400, 409 (4th Cir. 2016). And finally, “we decide whether the
protected speech was a substantial factor in the employer’s decision to take adverse
employment action.” Ibid.This appeal concerns the threshold prong of this inquiry—whether the speech at
issue touches on a matter of public concern. “Speech involves a matter of public concern
when it involves an issue of social, political, or other interest to a community.” Urofsky v.
Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc). By contrast, if the speech at issue
merely implicates a “purely personal” topic, the First Amendment does not apply and our
analysis comes to an end. Liverman, 844 F.3d at 406. As such, “[p]ersonal grievances,
complaints about conditions of employment, or expressions about other matters of personal
9
interest do not constitute speech about matters of public concern,” and therefore cannot
sustain a First Amendment retaliation claim. Stroman v. Colleton Cnty. Sch. Dist., 981
F.2d 152, 156 (4th Cir. 1992). In deciding whether certain speech falls on the “public
concern” or “purely personal” side of the line, we naturally look to the “content, context,
and form of the speech at issue in light of the entire record.” Urofsky, 216 F.3d at 406.
B.
Carey submits that the December and January posts both involve matters of public
concern. To him, they expose misbehavior on the part of a Captain in the MNRP and, by
extension, the MNRP writ large. The district court disagreed, dismissing his claim on the
ground that the posts involved nothing more than the sort of personal grievance that does
not garner First Amendment protection in this context. Carey v. Throwe, No. GLR-18-
162, 2019 WL 414873, at *5 (D. Md. Jan. 31, 2019). The district court got it right. As set
out below, the touchstone for deciding if speech involves a matter of public concern is
whether its content implicates the public welfare. Neither one of Carey’s posts, however,
meets this standard. The posts show Johnson’s behavior to be boorish, tasteless, and
boastful. But neither post impeaches Johnson’s conduct of his professional duties or raises
a matter of public interest. Rather, at bottom, they simply add up to an airing of personal
grievances, and an expression of Carey’s (no doubt correct) belief that Johnson’s off-duty
conduct was unbecoming of an MNRP officer.
It is helpful to take each of Carey’s posts in turn. As noted, the December post
copied the MNRP Code of Conduct and Agency Values and placed it alongside a series of
sexist photos and offensive comments from Johnson’s Facebook page. See, e.g., J.A. 53
10
(screenshot of Johnson writing, “I tried to stay out of trouble in Vegas. Damn . . . but that
strip search!” next to image of him with scantily-clad women in police officer costumes).
The gist of Carey’s first post, as best we can tell, is that Johnson’s personal online presence
fell below the MNRP’s Code of Conduct. But while it may be a matter for departmental
discipline, this kind of grievance misses the constitutional mark. Under our precedents,
the private boorishness of a public employee, without more, does not rise to a
constitutionally cognizable matter of public concern. See Grutzmacher v. Howard Cnty.,
851 F.3d 332, 344 (4th Cir. 2017) (finding former firefighter’s “‘like’ [on Facebook] of
[an] image depicting an elderly woman raising her middle finger and entitled ‘for you
Chief’” was not speech on matter of public concern). And while Carey asserts his
workplace speech rights under Connick, it bears note that Johnson has an expressive right
of his own—namely, the right to speak freely in an off-duty role, even in egregious taste.
Put simply, the December post fails to discuss any issue that the public is objectively
“likely to be truly concerned with.” Arvinger v. Mayor of Baltimore, 862 F.2d 75, 79 (4th
Cir. 1988) (citation and internal quotation marks omitted). Of course, Johnson’s Facebook
speech is not insulated automatically from Connick challenge simply because it appeared
on Facebook. Social media, as its name implies, has a dual private/public character. It
may be someone’s private page, but its postings often travel far and wide. Some will
doubtless raise matters of public concern. But controversial and tasteless speech, even by
prominent public figures and employers, abound on social media, and to have such
comments invariably seed a lawsuit would simultaneously compromise our most precious
values of both privacy and speech.
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Here, nothing in Carey’s December post suggests that Johnson was not performing
his professional duties in an adequate manner, or that he otherwise had adversely impacted
the public welfare. Rather, the post simply boils down to “a disagreement about the
propriety of posting controversial photos on Facebook.” Carey, 2019 WL 414873, at *5.
Put another way, it concerns a “quintessential interpersonal dispute,” with no immediate
connection to the public well-being. Id. at *4; see also Brooks v. Arthur, 685 F.3d 367,
374-75 (4th Cir. 2012) (plaintiff’s “personal displeasure with his supervisors” was not
speech on matter of public concern because it “was not expressed in terms of a breakdown
in effective prison management”).
The January post has similar problems. Recall that this post had similar material
regarding Johnson with scantily-clad women, but it also highlighted content where Johnson
bragged about his gun collection or made light of gun control. See J.A. 61, 63-65. To be
sure, the post captures a tone from Johnson that falls short of the sobriety owed such a
topic. However, as with the December post, Johnson’s churlish taste, on its own, does not
rise to the level of professional misconduct—let alone a matter of public concern. See,
e.g., Campbell v. Galloway, 483 F.3d 258, 268 (4th Cir. 2007) (recognizing that not every
issue of professional misconduct is inherently a matter of public concern).
Carey argues otherwise, noting that certain comments made by Johnson online
might indicate a threat to the public safety. See J.A. 65 (screenshot of Johnson writing, “I
don’t think the game warden can catch us . . . LOL,” next to photo of his AR-15). Though
a closer question, we think such statements do not rise to a level of public concern. Taken
in context, Johnson’s remarks amount to empty bombast, or “bar stool braggadocio.” See
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United States v. Alvarez, 567 U.S. 709, 737 (2012) (Breyer, J., concurring in the judgment).
There is nothing in the post to convey that Johnson posed any genuine threat to the public
safety, or that his conduct might predictably affect the public in some way. Indeed, as the
district court recognized, nowhere does the January post suggest that “Johnson failed to
comply with agency protocol for gun safety or that he in any way endangered the public’s
safety.” Carey, 2019 WL 414873, at *5; see also Goldstein v. Chestnut Ridge Vol. Fire
Co., 218 F.3d 337, 353 (4th Cir. 2000) (holding a firefighter’s complaint listing twelve
specific claims that “safety regulations were being violated” was matter of public concern).
Our holding on this point is, however, quite narrow. Posts involving firearms could
well implicate matters of public safety or portend a proclivity to lawless violence. It is
axiomatic that employee speech exposing such impending dangers would clear Connick’s
bar of public concern. That is not this case, however. All in all, both of Carey’s posts
concern nothing more than purely personal speech, as they are devoid of any content that
rises to a level of public concern. Of course, in a colloquial sense, the public very well
may be interested in the lewd or boorish private behavior of a prominent public employer
(or anyone else, for that matter). But this sort of curiosity is hardly a matter of “public
concern” for First Amendment purposes. See Connick, 461 U.S. at 149 (stressing “every
criticism directed at a public official . . . [does not] plant the seed of a constitutional case”).
Rather, for speech to concern an issue of constitutional dimension, it must affect the public
welfare in some cognizable way. See Brooks, 685 F.3d at 373 (warning against “elevat[ing]
the infinitude of worker dissatisfactions” “to a constitutional plane”). As we have made
plain, Carey’s posts fall short of making this necessary connection.
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Carey tries to avoid this conclusion by collapsing any distinction between Johnson
and the MNRP. In essence, he maintains that Johnson’s conduct is innately part-and-parcel
of the MNRP’s conduct, and that his unseemly Facebook page must necessarily bear on
the agency as a whole. Not so. We have never held that a public employee’s behavior,
whether on-the-job or off, automatically imputes to his employer; otherwise, virtually
anything involving a public employee would, by definition, be a matter of public concern.
See Brooks, 685 F.3d at 374-76. Instead, before attributing a single employee’s conduct
to the governmental agency where he works, we look for concrete indicators that the
employee’s behavior is actually emblematic of a larger problem within the agency (and, as
such, is a matter of public concern). E.g., Campbell, 483 F.3d at 268-70 (detailing specific
ways that private sexual harassment complaint related to department-wide policies toward
women); Cromer v. Brown, 88 F.3d 1315, 1325-26 (4th Cir. 1996) (identifying five cases
of systemic discrimination to buttress racial bias complaint). But here, Carey offers no
specifics. He does not provide a single concrete example of how Johnson’s social media
presence has affected the MNRP. In fact, he does not seem to offer any concrete indication
of any particular cultural or systemic problem within the department.
Indeed, rather than the sort of specifics we ordinarily require, Carey offers only
attenuated links between Johnson’s private conduct and the MNRP. For one, Carey avers
that because Johnson was Facebook “friends” with a high-ranking MNRP officer, the
MNRP must have known about (and approved of) his conduct online. This misses the
mark. Johnson never posted anything in an official capacity or held himself out as speaking
for the MNRP. Further, public officials are under no duty to actively monitor the social
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media accounts of their innumerable employees in order to guard against suits like this one.
Therefore, before ascribing Johnson’s private conduct to the MNRP, we need more than
some speculative possibility that MRNP officials in some way approved of what he posted.
It may be that Carey sincerely objects to how Captain Johnson has chosen to behave
on social media. But “whether someone’s sense of fair play is offended is not the
constitutional inquiry.” Brooks, 685 F.3d at 375. Nor does that inquiry turn, as the district
court recognized, on whatever bad blood existed between Carey and Johnson. Instead, for
speech to rise to the level of public concern, it generally must involve at least some
objective nexus to the public welfare, beyond the simple fact that its subject happens to be
a public employee. See Campbell, 483 F.3d at 268. The posts here do no such thing. We
thus affirm the district court’s dismissal of Carey’s First Amendment retaliation claim.
IV.
Carey next argues that the defendants violated his right to carry a concealed firearm
under the Law Enforcement Officer Safety Act, and that he is accordingly entitled to relief
under 42 U.S.C. § 1983. The district court rejected this claim, reasoning that LEOSA was
not privately enforceable under § 1983. We agree. The plain text of LEOSA forecloses
Carey’s argument. To boot, basic principles of federalism compel the same conclusion.
A.
LEOSA permits retired law enforcement officers, under certain conditions, to carry
a concealed firearm notwithstanding most state or local laws. Specifically, LEOSA says:
Notwithstanding any other provision of the law of any State or any political
subdivision thereof, an individual who is a qualified retired law enforcement
officer and who is carrying the identification required by subsection (d) may
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carry a concealed firearm that has been shipped or transported in interstate or
foreign commerce, subject to subsection (b).
18 U.S.C. § 926C(a). In other words, for a retired law enforcement officer to fall within
LEOSA’s ambit, he must satisfy two conditions. First, he must be “qualified,” under the
Act. Id. at § 926C(c). Second, he must carry certain identification. Id. at § 926C(d).
LEOSA’s identification requirement can be satisfied in one of two ways. Under the first
option, a person must have a single state-issued credential that (i) includes a photographic
identification affirming he has worked as a law enforcement officer, and (ii) indicates he
has passed the requisite firearms training and testing. LEOSA’s second option essentially
covers the same information over two documents. Maryland has decided to go with option
one, and provides its qualified retired law enforcement officers a single “LEOSA card.”
Carey’s claim is that he is objectively a “qualified” retired law enforcement officer
under LEOSA, satisfying the Act’s first condition, but that defendants Vernon and Ziegler
have improperly rescinded his state-issued identification out of retaliation, preventing him
from satisfying its second. He seeks relief under § 1983 to get his LEOSA card reinstated
and vindicate what he says is his right under the Act to carry a concealed firearm. J.A.
119.
Carey’s claim must fail because § 1983 is not an available remedy for purported
violations of LEOSA. “Section 1983 imposes liability on anyone who, under color of state
law, deprives a person of any rights, privileges, or immunities secured by the Constitution
and laws.” Blessing v. Freestone, 520 U.S. 329, 340 (1997) (internal quotation marks
omitted). “In order to seek redress through § 1983,” though, “a plaintiff must assert the
16
violation of a federal right, not merely a violation of federal law.” Ibid. Whether a statute
creates such a right enforceable under § 1983 turns on three factors identified by the
Supreme Court in Blessing:
First, Congress must have intended that the provision in question benefit the
plaintiff. Second, the plaintiff must demonstrate that the right assertedly
protected by the statute is not so “vague and amorphous” that its enforcement
would strain judicial competence. Third, the statute must unambiguously impose
a binding obligation on the States. In other words, the provision giving rise to
the asserted right must be couched in mandatory, rather than precatory, terms.
Id. at 340-41 (internal citations omitted). The Supreme Court has also clarified that the
Blessing factors collectively amount to a high bar, and that “anything short of an
unambiguously conferred right” cannot sustain a private remedy under § 1983. Gonzaga
Univ. v. Doe, 536 U.S. 273, 283 (2002). After all, when Congress wants to create a private
cause of action, it knows how to do so expressly. See Alexander v. Sandoval, 532 U.S.
275, 286-87 (2001) (“Raising up causes of action where a statute has not created them may
be a proper function for common-law courts, but not for federal tribunals.”) (citation and
internal quotation marks omitted).
LEOSA does not satisfy this purposefully demanding inquiry. For starters, the Act
lacks any express rights-creating language. Gonzaga, 536 U.S. at 287 (recognizing “the
provisions [at issue] entirely lack the sort of ‘rights-creating’ language critical to showing
the requisite congressional intent to create new rights”). As noted, LEOSA states that
certain qualified officers “may” carry concealed firearms under certain circumstances. 18
U.S.C. § 926C(a). This use of precatory rather than mandatory language is important. See
United States v. Rodgers, 461 U.S. 677, 706 (1983) (“The word ‘may,’ when used in a
17
statute, usually implies some degree of discretion.”). Indeed, when Congress intends to
create private rights, it often speaks in clearer and more compulsory terms. See, e.g., 20
U.S.C. § 1415(i)(2)(A) (stating that the relevant party “shall have the right” to bring a civil
action under the statute). Moreover, LEOSA lacks any express remedial provision, either
directly under the statute or indirectly by cross-reference to § 1983. This omission too is
telling because Congress passed LEOSA after the Blessing and Gonzaga Courts made
apparent that a statute would need to be unambiguous for it to be enforceable under § 1983.
See generally Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 330 n.* (2015).
With regard to the three factors laid out in Blessing, therefore, LEOSA most directly
falters on its third requirement because the Act does not “unambiguously impose a binding
obligation on the States.” 520 U.S. at 341. As noted, LEOSA places two burdens before
retired law enforcement officers seeking concealed carry privileges: they must be
“qualified,” as defined by the Act, and they must be carrying certain identification.
Critically, however, LEOSA contains no language—none—obligating states to issue any
identification at all.
In fact, the plain text of LEOSA conveys the exact opposite, committing entirely to
the discretion of the states the decision of whether to issue identification and, should they
choose to do so, what they may require of individuals seeking such a credential. For one,
LEOSA makes clear that the photographic identification described above must be “issued
by the agency from which the individual separated from service as a law enforcement
officer.” 18 U.S.C. §§ 926C(d)(1) (emphasis added); 926C(d)(2)(A) (same); see also id.
at § 926C(c)(5) (noting identification may be contingent on state or agency mental health
18
determination). Yet the Act says nothing as to whether, when, or how an agency must
issue such a credential—rather, these decisions remain entirely with the state.
Further, LEOSA lays bare that states have total discretion over setting the standards
and procedures, if they wish, for qualifying to carry a concealed firearm under the Act. See
id. at § 926C(d)(1) (requiring identification indicating officer has met “the active duty
standards for qualification in firearms training as established by the agency”) (emphasis
added); § 926C(d)(2)(B) (requiring same for either “the active duty standards for
qualification in firearms training[] as established by the State” or “if the State has not
established such standards, standards set by any law enforcement agency within that State
to carry [the same sort of] firearm”) (emphases added). Nowhere does LEOSA have any
language requiring states to set standards in a particular way or to certify officers under
certain conditions. Rather, LEOSA’s text imposes no limit on states’ extant regulatory
authority over local firearms.
Carey intimates that we should infer such a binding limit from the Act’s preemption
provision. See Appellant’s Op. Br. at 27-28 (citing DuBerry v. District of Columbia, 824
F.3d 1046 (D.C. Cir. 2016)). It makes little sense, the argument goes, for Congress to
preempt state and local law if states are nonetheless still free to prevent “qualified” officers
from carrying concealed firearms by withholding the requisite identification. But we think
this reads the preemption provision for more than it is worth, and gives LEOSA a sweeping
scope that Congress never intended. LEOSA is instead best read as accomplishing a far
simpler object. As it stands today, and as it stood when Congress passed LEOSA, states
do not have to recognize concealed carry permits issued by other states. Henrichs v. Ill.
19
Law Enforcement Training & Standards Bd., 306 F. Supp. 3d 1049, 1058 (N.D. Ill. 2018).
LEOSA carves out a small exception to that norm. Specifically, the Act preempts most
state and local laws that could be used to criminally prosecute a LEOSA-qualified officer
for carrying a concealed firearm across state lines. See id. at 1057-58 (collecting cases for
this proposition). In other words, under no circumstances does LEOSA obligate any state
to issue its own concealed carry permit; but it does generally prevent states from
prosecuting out-of-state officers who choose to carry under a LEOSA-compliant permit
already issued.
All told, LEOSA cannot be read as “unambiguously impos[ing] a binding obligation
on the States” to issue concealed carry permits, Blessing, 520 U.S. at 341, and thus cannot
sustain a private remedy here under § 1983. By our count, the Eleventh Circuit and every
district court to address the question have reached the same conclusion. See Burban v. City
of Neptune Beach, 920 F.3d 1274 (11th Cir. 2019); Burban v. City of Neptune Beach, No.
3:17–cv–262–J–34JBT, 2018 WL 1493177, at *6 (M.D. Fla. Mar. 27, 2018) (collecting
cases). But see DuBerry, 824 F.3d at 1055. In light of LEOSA’s plain language, we readily
join this emerging consensus.
B.
Basic federalism principles confirm what the text and structure of LEOSA compel.
It is a cardinal rule of statutory interpretation that Congress does not ordinarily intend to
upset the Constitution’s “healthy balance of power between the States and the Federal
Government.” Gregory v. Ashcroft, 501 U.S. 452, 458 (1991). But Carey’s proffered
20
interpretation of LEOSA would have Congress contravening this balance at least twice
over, which only reinforces our conclusion that LEOSA should be given its natural reading.
First, to put it plainly, Carey’s interpretation of LEOSA presents an inescapable and
fatal anticommandeering problem. As he would have it—indeed, as he must have it in
order to proceed under § 1983—LEOSA would obligate states to create and issue the sort
of identification required under the Act. But Congress can do no such thing. It is well
settled that the Constitution contains “a fundamental structural decision . . . to withhold
from Congress the power to issue orders directly to the States.” Murphy v. Nat’l Collegiate
Athletic Ass’n, 138 S. Ct. 1461, 1475 (2018). In other words, because the Constitution only
“confers upon Congress the power to regulate individuals, not States,” New York v. United
States, 505 U.S. 144, 166 (1992), Congress lacks the power to “command the States’
officers, or those of their political subdivisions, to administer or enforce a federal
regulatory program,” Printz v. United States, 521 U.S. 898, 935 (1997). For this reason,
the Supreme Court struck down a federal statute that attempted to force state law
enforcement officers to conduct background checks as part of a federal firearm regulatory
program. Printz, 521 U.S. at 933-35.
Likewise here. On Carey’s reading, LEOSA would force state law enforcement
agencies to issue certain identification as part of a federal concealed carry scheme. But
this is the exact sort of dragooning that the anticommandeering doctrine forbids. See Hodel
v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 288 (1981). Curiously,
Carey argues that his reading of LEOSA harbors no constitutional infirmities on these facts
because Maryland has voluntarily decided to issue the sort of identification required under
21
the Act. This misses the point. The anticommandeering doctrine turns on the nature of the
federal ask, not the existence vel non of state acquiescence. See Printz, 521 U.S. at 929-
30. Put otherwise, the doctrine is about the limits of federal power—limits that are fixed
by the Constitution. Murphy, 138 S. Ct. at 1476. It is thus immaterial whether states
voluntarily choose to be part of a federal program, if Congress lacked the power to create
such a program in the first place. Cf. INS v. Chadha, 462 U.S. 919, 944 (1983).
In short, Carey would have us turn the doctrine of constitutional avoidance on its
head, and strain to adopt a reading of LEOSA that would render the Act unconstitutional,
even though giving the statute its most natural interpretation would not. We, of course,
decline to do so. See Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 448-49 (1830) (Story, J.)
(“No court ought, unless the terms of an act rendered it unavoidable, to give a construction
to it which should involve a violation, however unintentional, of the [C]onstitution.”).
Second, even if we were to put the anticommandeering problem to the side, Carey’s
interpretation of LEOSA would run aground for a separate reason. At bottom, Carey’s
preferred reading of the Act would bring about a stark intrusion by the federal government
into the traditional police power of the states over firearms regulation. Worse, Carey
presses this reading even though the Act lacks any clear indication that Congress intended
such a result—something we ordinarily require when a statute would alter the usual balance
of state and federal power. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65
(1989).
The regulation of firearms has been at the heart of the states’ police power since the
Founding. See United States v. Cruikshank, 92 U.S. 542, 553 (1875); see also Aymette v.
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State, 21 Tenn. (2 Hum.) 154, 159 (1840) (upholding state concealed weapon ban on police
power grounds); Robert H. Churchill, Gun Regulation, the Police Power, and the Right to
Keep Arms in Early America, 25 L. & Hist. Rev. 139, 155-65 (2007) (detailing early history
of state regulations). In fact, there is perhaps “no better example of the police power, which
the Founders denied the National Government and reposed in the States, than the
suppression of violent crime and the vindication of its victims.” United States v. Morrison,
529 U.S. 598, 618 (2000); see also United States v. Bass, 404 U.S. 336, 349-50 (1971).
Carey’s interpretation of the Act would amount to a marked assault on the traditional
authority of the states over firearm regulations. Most directly, as noted, Carey would have
the Act require all states, regardless of whether they permit concealed carry in general, to
issue concealed carry permits to certain individuals based upon criteria set solely by the
federal government. But that is not all. If LEOSA was privately enforceable, individual
citizens would be able to litigate innumerable gun policy issues in the federal courts, rather
than through the local political process. As one example, consider how the Act defines
“law enforcement officer” capaciously, including those who “supervise the
prosecution . . . of any person[] for any violation of law” and “engage in . . . the
incarceration of any person” for the same. 18 U.S.C. § 926C(c)(2). Read naturally,
LEOSA leaves it to states to decide who meets these definitions. But on Carey’s view,
every retired district attorney or corrections officer may petition a federal judge for the
right to have a concealed firearm, no matter what the state legislature prefers. And in light
of LEOSA’s sparse text, that judge will have little to make his decision besides his own
policy preference.
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Ordinarily, when a statute is presented as containing a federal coup of this
dimension, we take added steps to ensure that Congress intended such a result. See Bond
v. United States, 572 U.S. 844, 856-60 (2014). Indeed, the Supreme Court has emphasized
time and again that a statute should not be read as fundamentally altering the traditional
balance of state and federal power without a clear statement or indication to the contrary.
Gregory, 501 U.S. at 460 (requiring “unmistakably clear” text) (internal quotation
omitted); Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 785 (1991); Atascadero State
Hospital v. Scanlon, 473 U.S. 234, 243 (1985); Rice v. Sante Fe Elevator Corp., 331 U.S.
218, 230 (1947); see also Cort v. Ash, 422 U.S. 66, 78 (1975) (asking whether “the cause
of action [is] one traditionally relegated to state law, in an area basically the concern of the
States, so that it would be inappropriate to infer a cause of action based solely on federal
law”). After all, the touchstone for statutory interpretation is congressional intent, and we
do not readily presume that Congress intended to materially undercut the Constitution’s
federalist design.
The same interpretive principles should inform our analysis when assessing whether
a statute is privately enforceable under § 1983. See Chapman v. Houston Welfare Rights
Org., 441 U.S. 600, 645-46 (1979) (Powell, J., concurring). Recall that the Supreme Court
has made clear that nothing “short of an unambiguously conferred right [may] support a
cause of action brought under § 1983.” Gonzaga, 536 U.S. at 283. To the extent this
standard permits a gradation, we think it sound to apply its most exacting lens when
inferring a private remedy would upset the usual balance of state and federal power. Said
otherwise, to borrow from the Gregory Court, if finding a remedy under § 1983 would
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intrude on a historic state prerogative, it must be “unmistakably clear” that Congress
intended for the statute at issue to be privately enforceable in such a manner. And it should
go without saying at this point that LEOSA contains no such indication—indeed, as
explained above, everything about its text and structure conveys the opposite.
“[W]here the text and structure of a statute provide no indication that Congress
intend[ed] to create new individual rights, there is no basis for a private suit” under § 1983.
Gonzaga, 536 U.S. at 286. So goes LEOSA. In short, the text, structure, and constitutional
context of the Act all reveal that LEOSA does not give rise to a right privately enforceable
under § 1983. We therefore affirm the district court’s dismissal of Carey’s LEOSA claim.
V.
Finally, we take up Carey’s defamation per se claim. This count is based solely on
the comment that Johnson posted on the White Marlin Open’s Facebook page, which read:
“Too bad one of the polygraphers—Paul Carey, has the integrity of a lifer on death row.”
J.A. 116.
As common sense would dictate, this is a far cry from what is necessary to haul
someone into court, and is rather just another installment in some longstanding feud
between Carey and Johnson. See J.A. 83-84, 92-94 (detailing the two’s fraught history).
For a statement to be actionable as defamation under Maryland law, it must “tend[] to
expose a person to public scorn, hatred, contempt[,] or ridicule.” Seley-Radtke v. Hosmane,
149 A.3d 573, 581 (Md. 2016) (citation and internal quotation marks omitted). Moreover,
as a general matter under the First Amendment, a defamatory statement must also be
something “susceptible of being proved true or false.” Milkovich v. Lorain Journal Co.,
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497 U.S. 1, 21 (1990). Naturally, statements of opinion do not usually meet this definition.
But not always. In some cases, an expression of opinion may be defamatory if it clearly
implies “an assertion of objective fact.” Id. at 18.
That does not describe Johnson’s comment. To the contrary, his remark on
Facebook makes use of precisely the “sort of loose, figurative, or hyperbolic language”
that is the stuff of everyday life in a free society, and which may not support a defamation
claim. Milkovich, 497 U.S. at 21. Johnson’s opinion does not contain any assertion of
objective fact; it would strain even the most creative mind to figure how it could be proven
true or false. Perhaps anticipating these problems, Carey urges us to take a broader lens
and place the Facebook comment in context. See Appellant’s Op. Br. at 30-31 (suggesting
that the statement, in context, implies that Carey lied in holding himself out as a qualified
polygraph expert in the White Marlin litigation). But this just makes a bad claim worse.
Carey has decided to lodge a defamation per se claim, which means that we are to look
only to the words of the immediate statement—not surrounding circumstances. Indep.
Newspapers, Inc. v. Brodie, 966 A.2d 432, 448 (Md. 2009). Not that it would make a
difference either way, but we are bound here to stay within the four corners of Johnson’s
Facebook post. As such, we affirm the district court’s dismissal of this claim.
VI.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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