PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 22-2209

___________

FEDERAL LAW ENFORCEMENT OFFICERS

ASSOCIATION;

NEW JERSEY FRATERNAL ORDER OF POLICE;

RICHARD BOWEN;

JOSEPH JAKUBIEC;

CHRISTOPHER MARTINEZ

ATTORNEY GENERAL NEW JERSEY;

SUPERINTENDENT NEW JERSEY STATE POLICE,

Appellants

_______________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 3-20-cv-05762)

District Judge: Honorable Zahid N. Quraishi

Argued on March 30, 2023

Before MATEY, FREEMAN, and FUENTES, Circuit Judges

(Opinion filed: February 14, 2024)

Angela Cai

David Chen [ARGUED]

Timothy Sheehan

Office of Attorney General of New Jersey

Division of Law

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Counsel for Appellants

Michael R. Darbee [ARGUED]

Nicholas C. Harbist [ARGUED]

Stephen M. Orlofsky

Blank Rome

300 Carnegie Center

Suite 220

Princeton, NJ 08540

Counsel for Appellees

___________

OPINION OF THE COURT

___________

FREEMAN, Circuit Judge.

Retired law enforcement officers from various agencies

claim that a federal statute gives them the right to carry

concealed firearms in their home state of New Jersey. New

Jersey argues that the federal statute does not provide that

enforceable right. And even if there were such an enforceable

right, New Jersey argues that the federal statute would apply

only to officers who retired from federal or out-of-state law

enforcement agencies—not to officers who retired from New

Jersey law enforcement agencies. We conclude that the federal

statute does provide certain retired officers (those who meet all

the statutory requirements) with an enforceable right, and that

right extends equally to officers who retired from New Jersey

agencies and those who retired from federal or out-of-state

agencies. The federal statute also preempts contrary aspects of

New Jersey law. So we will affirm the District Court’s order

granting declaratory and injunctive relief to the retired officers.

This case involves dueling firearm licensing statutes.

One is the federal Law Enforcement Officers Safety Act of

2004, 18 U.S.C. § 926C (“LEOSA”). The other is New

Jersey’s retired police officer permitting law, N.J.S.A.

§ 2C:39-6l (“RPO Law”). While both delineate when and how

retired law enforcement officers may carry firearms without

being subject to criminal penalties, the New Jersey law is more

restrictive.

LEOSA provides: “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 [this statute] may 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).

Subsection (b) provides:

It defines “qualified retired law enforcement officer”

(“QRLEO”) as someone who satisfies seven enumerated

criteria, including length of service in a law enforcement role,

separation from the law enforcement agency in good standing,

mental and physical fitness to carry, and a lack of other

disqualifiers under federal law. § 926C(c). A QRLEO may

carry a firearm only when he has in his possession

identification confirming his status as a former officer and

certifying that he has been qualified in firearms training within

the past year. § 926C(d).

LEOSA’s identification requirement can be satisfied in

either of two ways, set forth in subsection (d) of the statute. Id.

Both options contain two components: (i) “a photographic

identification issued by the agency from which the individual

separated from service as a law enforcement officer that

identifies the person as having been employed as a police

officer or law enforcement officer,” and (ii) a statement that,

within the last year, the retired officer satisfied the state’s (or

This section shall not be construed to supersede

or limit the laws of any State that—

(1) permit private persons or

entities to prohibit or restrict the

possession of concealed firearms

on their property; or

(2) prohibit or restrict the

possession of firearms on any State

or local government property,

installation, building, base, or

park.

18 U.S.C. § 926C(b).

the law enforcement agency’s) firearms training standards for

the type of firearm being carried. § 926C(d)(1)–(d)(2). Under

the first option (“(d)(1) identification”), both components

appear in a single document issued by the law enforcement

agency from which the officer retired, and the firearms training

standards are “established by the agency.” § 926C(d)(1).

Under the second option (“(d)(2) identification”), the two

components appear in two separate documents. § 926C(d)(2).

The first (photographic identification and proof of previous

law enforcement service) is issued by the retired officer’s

former employer. § 926C(d)(2)(A). The second (certification

regarding firearms training) may be issued by the state or “by

a certified firearms instructor that is qualified to conduct a

firearms qualification test for active duty officers within that

State.” § 926C(d)(2)(B). And the firearms training standards

may be established by the state or, in the absence of state

standards, by any law enforcement agency within the state. Id.

Like LEOSA, New Jersey’s RPO Law allows certain

retired law enforcement officers to carry a firearm if they meet

certain qualifications, but the RPO Law requires retired

officers to obtain a state-issued permit. N.J.S.A. § 2C:39-6l.

And there are other key differences between the two statutes.

One is the age limit: LEOSA imposes none, but the RPO Law

prevents retired officers over the age of 75 from obtaining a

permit to carry. Compare 18 U.S.C. § 926C(c), with N.J.S.A.

§ 2C:39-6l. Another difference is the treatment of hollow-

point ammunition: the RPO Law prohibits retired officers from

carrying it, but LEOSA does not. Compare 18 U.S.C.

§ 926C(e),

with N.J.S.A. § 2C:39-3f. The laws also require

LEOSA defines “firearm” to include “ammunition not

expressly prohibited by Federal law or subject to the provisions

retired officers to complete firearm qualification training at

different frequencies: once a year under LEOSA, and twice a

year under the RPO Law. Compare 18 U.S.C. §§ 926C(c)(4),

(d), with N.J.S.A. § 2C:39-6l.

Additionally, LEOSA does not require the retired

officer’s former agency or state of residence to verify that the

officer is a QRLEO. See 18 U.S.C. § 926C(c). Indeed, the

statute is written such that advance verification is not possible.

(One criterion for a QRLEO is that an individual “is not under

the influence of alcohol or another intoxicating or

hallucinatory drug or substance . . . .” § 926C(c)(6). This

means a retired officer’s status could change in the course of

any given day—he could awake as a QRLEO and then

consume enough alcohol to lose his qualification to concealed-

carry a firearm.) In contrast, New Jersey will only issue an

RPO permit when the State determines in advance that the

applicant meets the RPO Law’s qualifications and passes

criminal and mental-health background checks. N.J.S.A.

§ 2C:39-6l(1)–(2); see also N.J. State Police Form SP-232,

“Initial Application For a Retired Law Enforcement Officer

Permit to Carry a Handgun,” https://perma.cc/H8JK-7KYF;

N.J. State Police Form SP-66, “Consent for Mental Health

Records Search,” https://perma.cc/8TUW-JMNV.

In October 2018, the New Jersey Attorney General’s

Office issued a document addressing certain “frequently asked

questions” about the interplay between the two laws. It wrote

that retired law enforcement officers who reside in New Jersey

(“NJ RLEOs”) “must meet each of the requirements of [the

of the National Firearms Act,” 18 U.S.C. § 926C(e)(1), which

hollow-point bullets are not, see Plaintiffs’ Supp. App. 10

(Statement of Interest of the United States of America).

RPO Law] in order to carry a firearm . . . .” App. 74. It

specified that “LEOSA . . . does not provide an alternate path

to eligibility to carry a firearm . . . .” App. 73–74. It stated that

LEOSA’s purpose “is to bar criminal prosecution of retired

[law enforcement officers] who carry concealed firearms in

interstate commerce,” App. 73 (emphasis added) (citing In re

Casaleggio, 18 A.3d 1082, 1086 (N.J. Super. 2011)), so

LEOSA: (1) does not apply to NJ RLEOs who carry within the

state—those persons must obtain an RPO permit under state

law and carry the permit at all times while carrying a firearm;

and (2) allows NJ RLEOs to carry a firearm outside of New

Jersey without an RPO permit. See also Casaleggio, 18 A.3d

at 1086 (construing New Jersey Legislature’s intent in

referencing LEOSA in the RPO Law as “to permit retired law

enforcement officers from other states . . . who are domiciled

in New Jersey to carry a firearm, provided they meet the same

training and qualification standards that New Jersey retirees

must meet under the law” which “corresponds [to] the limited

purpose of LEOSA”). The document also stated that LEOSA

does not allow retired officers residing in New Jersey to carry

hollow-point bullets because that would violate state law.

In May 2020, three individuals and two organizations—

the Federal Law Enforcement Officers Association and the

New Jersey Fraternal Order of Police—(together, “Plaintiffs”)

sued New Jersey officials (together, “New Jersey”) to

challenge the enforcement of the RPO Law. Plaintiffs alleged

that they (that is, the individual plaintiffs and some of the

organizations’ members) are QRLEOs under LEOSA. They

argued that LEOSA gives them a federal right to carry a

firearm (defined to include hollow-point ammunition)

anywhere in the United States—including within the State of

New Jersey—and that LEOSA preempts any more burdensome

state requirements. They brought claims under 18 U.S.C.

§ 1983 and the Declaratory Judgment Act. They sought

declaratory relief and an order enjoining New Jersey from (1)

requiring QRLEOs to obtain an RPO Law permit, (2) arresting

and prosecuting LEOSA-compliant QRLEOs under the RPO

Law, and (3) imposing any other conditions to carry a firearm

that are not required by LEOSA.

New Jersey initially moved to dismiss the complaint,

but it withdrew that motion after the United States filed a

statement of interest in the case. The United States stated that

“LEOSA means exactly what it says”: if Plaintiffs are (as they

allege) QRLEOs with the requisite identification under

LEOSA, they are entitled to carry a concealed firearm

notwithstanding any provision of New Jersey law. Plaintiffs’

Supp. App. 4, 9–10. It also stated that LEOSA’s definition of

“firearm” includes hollow-point bullets.

In April 2021, while the suit was ongoing in the District

Court, the New Jersey Attorney General’s Office issued

another “frequently asked questions” document addressing

LEOSA and the RPO Law. It departed from its earlier position

about retired officers “who reside in New Jersey[] and who

separated from an out-of-state or federal law enforcement

agency . . . .” App. 189–90. It said those retired officers may

carry a firearm in New Jersey without an RPO permit if they

meet all LEOSA requirements. But it reiterated its view that

LEOSA does not “provide an alternate path for [retired law

enforcement officers] who separated from a New Jersey law

enforcement agency and who reside in New Jersey” to carry a

firearm in New Jersey without an RPO permit. App. 189. In

effect, it clarified that retired officers from New Jersey

agencies who live in New Jersey may be arrested and

prosecuted for carrying a firearm without an RPO permit,

notwithstanding their compliance with LEOSA. And again,

the document explained LEOSA’s purpose as “preempt[ing] a

state’s ability to preclude, or change the requirements for,

carrying the firearm interstate . . . .” Id. (quoting In re Carry

Permit of Andros, 958 A.2d 78, 84 (N.J. Super. 2008)

(emphasis added)); see also Andros, 958 A.2d at 85 (construing

Congress’s intent in enacting LEOSA as “authoriz[ing] a

[firearm] carrier when licensed in one state to possess [the

firearm] in another state”).

Both sides moved for summary judgment. In June

2022, the District Court granted Plaintiffs’ motion and denied

New Jersey’s. It found that the individual plaintiffs and some

of the plaintiff organizations’ members were QRLEOs with

LEOSA-compliant identification. It also concluded that

LEOSA grants those QRLEOs a right that is enforceable under

Section 1983.

The District Court issued a declaration that (1) LEOSA

preempts the RPO Law and the associated state statutes as

applied to any QRLEO with LEOSA-compliant identification,

regardless of their residence; and (2) any QRLEO with

LEOSA-compliant identification may carry a concealed

firearm and hollow-point ammunition without obtaining an

RPO permit regardless of their residence or the agency from

which they retired. It also issued a permanent injunction

prohibiting the State of New Jersey from “arresting and/or

prosecuting any QRLEO who has [LEOSA-compliant

identification] regardless of their residence or the agency from

which they retired.” App. 4. New Jersey timely appealed.

The District Court had subject-matter jurisdiction under

28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C.

§ 1291.

We give de novo review to the District Court’s

interpretation of federal law and its preemption ruling.

Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 687 (3d

Cir. 2016) (providing the standard for preemption rulings);

Delaware County, Pa. v. Fed. Hous. Fin. Agency, 747 F.3d

215, 220-21 (3d Cir. 2014) (providing the standard for

statutory interpretation).

III

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.

Whether a party has a valid cause of action under a federal

statute presents a federal question, so our inquiry into whether

the retired officers have a cause of action under Section 1983

is not jurisdictional. Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118, 128 n.4 (2014) (“[T]he

absence of a valid (as opposed to arguable) cause of action does

not implicate subject-matter jurisdiction, i.e., the court’s

statutory or constitutional power to adjudicate the case.”

(quotations omitted)).

“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) (quoting 42

U.S.C. § 1983). The Supreme Court has explained that “[i]n

order to seek redress through § 1983, . . . a plaintiff must assert

the violation of a federal right, not merely a violation of federal

law.” Id. And “[a]lthough federal statutes have the potential

to create § 1983-enforceable rights, they do not do so as a

matter of course.” Health & Hosp. Corp. of Marion Cnty. v.

Talevski, 599 U.S. 166, 183 (2023). Thus, courts must

ascertain whether Congress has “unambiguously conferred” an

individual right upon a class of beneficiaries. Id. (citing

Gonzaga University v. Doe, 536 U.S. 273, 283 (2002)).

The Supreme Court’s decision in Gonzaga sets forth the

“method for ascertaining unambiguous conferral.” Talevski,

599 U.S. at 183. That method requires courts to “employ

traditional tools of statutory construction.” Id. The Gonzaga

test is satisfied when the statute is “phrased in terms of the

persons benefited and contains rights-creating, individual-

centric language with an unmistakable focus on the benefitted

class.” Id. (internal quotation marks and citation omitted). We

must determine that Congress created a right for the persons

benefited, not merely that those persons fall “within the general

zone of interest that the statute is intended to protect.” Id.

(citation omitted). A statute will fail that test if it contains no

rights-creating language, has an aggregate rather than an

individual focus, and primarily serves to direct federal

government funds. Id. at 183–84.

Once we are satisfied that a federal statute creates an

individual right, the right-holder has a “rebuttable presumption

that the right is enforceable under § 1983.” Blessing, 520 U.S.

at 341; see also Talevski, 599 U.S. at 183, 186. “[T]he

presumption recognizes that, even where Congress has

unambiguously secured certain federal individual rights by

law, it may have simultaneously given good reason (detectable

with ordinary interpretive tools) to conclude that the § 1983

remedy is not available for those rights . . . .” Talevski, 599

U.S. at 186 n.13.

It is New Jersey’s burden to rebut the presumption. Id.;

Gonzaga, 536 U.S. at 284. It can do so by demonstrating that

“Congress has either expressly or impliedly foreclosed the

section 1983 remedy for that particular right.” Ass’n of N.J.

Rifle & Pistol Clubs Inc. v. Port Auth. of N.Y. & N.J., 730 F.3d

252, 254 (3d Cir. 2013) (citing Blessing, 520 U.S. at 341). If

Congress has not foreclosed the Section 1983 remedy, then

right-holders have a private cause of action under Section 1983

to enforce their right. Gonzaga, 536 U.S. at 284.

See Wright

v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423–24

(1987) (“We do not lightly conclude that Congress intended to

preclude reliance on § 1983 as a remedy for the deprivation of

a federally secured right.” (internal quotation and citation

omitted)).

Applying the Gonzaga test, we conclude that LEOSA

reflects Congress’s clear and unambiguous intent to confer a

right upon individual QRLEOs who comply with the statute’s

identification requirements to carry a concealed firearm.

LEOSA’s text demonstrates that Congress’s “unmistakable

focus” was on the individual right-holder. Talevski, 599 U.S.

at 183 (quotation marks omitted). Congress used “individual-

centric language,” id., when it conferred a benefit upon “an

individual who is a qualified retired law enforcement officer

and who is carrying the identification required by [this

statute],” 18 U.S.C. § 926C(a) (emphasis added). And when it

wrote that any such individual “may carry a concealed firearm

that has been shipped or transported in interstate or foreign

commerce,” id, it phrased the right in terms of the persons

benefited, Talevski, 599 U.S. at 183. LEOSA binds state actors

by enabling the right-holder to carry a firearm

“[n]otwithstanding any other provision of the law of any State

or any political subdivision.” 18 U.S.C. § 926C(a). This

means that individuals acting on behalf of a given state or

political subdivision may not enforce firearms regulations that

burden the right-holder’s ability to carry under LEOSA.

The Gonzaga test seeks to distinguish rights-granting

statutes from those “that focus on the person regulated rather

than the individuals protected . . . .” Gonzaga, 536 U.S. at 287

(citation omitted); see also id. at 284 (rights-creating language

is “phrased with an unmistakable focus on the benefited class”

(quotation marks omitted)). No particular language must be

present in a statute to confer rights. See, e.g., Talevski, 599

U.S. at 184 (holding that the Federal Nursing Home Reform

Act, which requires nursing homes to “protect and

promote . . . [t]he right to be free from . . . any physical or

chemical restraints . . . not required to treat the resident’s

medical symptoms” is rights-creating); Gonzaga, 536 U.S. at

284, 287 (recognizing that Title VI of the Civil Rights Act of

1964 and Title IX of the Education Amendments of 1972

“create individual rights” by providing that “[n]o person . . .

shall . . . be subjected to discrimination”).

Guided by Title VI of the Civil Rights Act of 1964 and

Title IX of the Education Amendments of 1972 “as exemplars

of rights-creating language,” we have recognized that statutes

phrased in terms of what a state must do for a specified class

of persons create enforceable rights. Sabree ex rel. Sabree v.

Richman, 367 F.3d 180, 189–90 (3d Cir. 2004). In Sabree, we

evaluated three statutory provisions in the Medicaid Act, which

provide:

“A State plan for medical assistance must . . .

provide that all individuals wishing to make

application for medical assistance under the plan

shall have opportunity to do so, and that such

assistance shall be furnished with reasonable

promptness to all eligible individuals,” 42 U.S.C.

§ 1396a(a)(8);

“[a] State plan for medical assistance must . . .

provide . . . for making medical assistance

available, . . . to . . . all [eligible] individuals,” 42

U.S.C. § 1396a(a)(10); and

“[t]he term ‘medical assistance’ means payment

of part or all of the cost of the following care and

services . . . for individuals . . . who are [eligible:]

. . . services in an intermediate care facility for

the mentally retarded . . . .” 42 U.S.C.

§ 1396d(a)(15).

Id. at 182 nn. 4, 5, 6 (emphases omitted). We held that these

provisions grant eligible individuals a right to a medical

assistance plan covering “medical services from an

intermediate care facility for persons with mental retardation”

with “reasonable promptness.” Id. at 181–82, 190. Combined,

these statutory texts showed that “Congress conferred specific

entitlements on individuals in terms that could not be clearer,”

id. at 190 (cleaned up), even absent phrases like “right” or

“entitlement.” See also Colon-Marrero v. Velez, 813 F.3d 1,

18 (1st Cir. 2016) (holding that a statutory provision that “no

registrant may be removed [from the official list of eligible

voters] solely by reason of a failure to vote,” 52 U.S.C.

§ 21083(a)(4)(A), “confers a right on every registrant not to be

removed from a state’s active registry for failure to participate

in one general election” (cleaned up)).

And as Title VI of the Civil Rights Act of 1964 and Title

IX of the Education Amendments of 1972 show, statutes that

provide specified individuals with defined freedoms from

certain state conduct are rights-creating. Gonzaga, 536 U.S. at

284, 287. We have determined that LEOSA’s neighboring

statute, 18 U.S.C. § 926A, “establish[ed] a clear positive

entitlement” to “transport firearms in certain circumstances”

because the statute stated that qualified persons “shall be

entitled” to do so. N.J. Rifle & Pistol Clubs Inc., 730 F.3d at

254. We see no meaningful difference between the phrase

“shall be entitled to” carry “[n]otwithstanding” contrary state

laws, 18 U.S.C. § 926A, and the phrase “may” carry

“[n]otwithstanding” contrary state laws, § 926C(a). Niz-

Chavez v. Garland, 593 U.S. 155, 160 (2021) (requiring courts

“to afford the law’s terms their ordinary meaning” using

“textual and structural clues”) (internal quotations and citations

omitted)). Both phrases permit, but do not mandate, an

individual to engage in conduct without government

interference. This is the nature of an individual right.

In prior cases, we applied the three-part Blessing test to

determine whether Congress created a right in a federal statute.

See N.J. Rifle & Pistol Clubs Inc., 730 F.3d at 254–57. Under

Blessing, a statute confers a right if the text meets each of three

factors:

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.

Blessing, 520 U.S. at 340–41 (internal citations omitted). But

recent Supreme Court authority casts doubt upon the continued

applicability of the Blessing factors. In its June 2023 Talevski

opinion, the Supreme Court evaluated whether a statute created

a right by using the Gonzaga test, without reference to the

Blessing factors. Talevski, 599 U.S. at 183–84, 186. Still, the

Supreme Court has not expressly held that the Blessing factors

are no longer relevant. See, e.g., Sabree, 367 F.3d at 184

(“Gonzaga . . . carefully avoided disturbing, much less

overruling, Wright [479 U.S. 418] and Wilder [v. Va. Hosp.

Ass’n, 496 U.S. 498 (1990)],” the precedent “the Blessing

Court drew on” to “formulate[] [the] three-prong test”). And,

applying the Blessing factors, we reach the same result.

First, as noted above, the language of LEOSA shows that

“Congress . . . intended [] the provision” to benefit qualifying

retired law enforcement officers who are carrying subsection

(d) identification, which include some of the plaintiffs here (at

the times when they meet both the historical and the dynamic

LEOSA conditions). Blessing, 520 U.S. at 340. Second, “the

right assertedly protected by” LEOSA is a right to carry

We join the D.C. Circuit in holding that LEOSA confers

an individual right upon QRLEOs with compliant

identification. In DuBerry v. District of Columbia, that court

reasoned that the “notwithstanding” clause of LEOSA’s

subsection (a) contains “categorical language” reflecting

Congress’s intent to “preempt state and local law [by]

grant[ing] qualified law enforcement officers the right to carry

a concealed weapon.” 824 F.3d 1046, 1052 (D.C. Cir. 2016).

And that clause shows that Congress enacted LEOSA for the

direct benefit of qualified individuals. Id. The court also

observed that LEOSA’s text imposes “a mandatory duty on the

states to recognize” such officers’ right to carry. Id. at 1053;

see also id. at 1053–54 (“Its plain text, then, confers upon a

specific group of individuals a concrete right the deprivation of

which is presumptively remediable under Section 1983.”).

We agree.

notwithstanding contrary local laws, so it “is not so ‘vague and

amorphous’ that its enforcement would strain judicial

competence.” Id. at 340–41. Third, the “notwithstanding”

clause “unambiguously impose[s] a binding obligation on the

States” to refrain from enforcing local laws that interfere with

the right to carry, and it does so “in mandatory, rather than

precatory, terms.” Id. at 341.

The D.C. Circuit explained that the three Blessing factors

support its conclusion that “the text of the LEOSA creates the

type of right remediable under Section 1983.” DuBerry, 824

F.3d at 1052–54.

The Fourth Circuit held otherwise in Carey v. Throwe,

957 F.3d 468 (4th Cir. 2020).

First, it stated that LEOSA

“lacks any express rights-creating language.” Id. at 479. The

court noted that the statute “states that certain qualified officers

‘may’ carry concealed firearms under certain circumstances,”

and it reasoned that this is “precatory rather than mandatory

language.” Id. Second, the court stated that LEOSA lacks an

express remedial provision. Id. (“This omission . . . 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.”). Third,

the court reasoned that LEOSA does not unambiguously bind

the states because it provides them discretion over whether to

issue LEOSA identification and what to require of individuals

seeking that identification. Id. at 479–80. It stated, therefore,

that the statute merely “prevent[s] states from prosecuting out-

of-state officers who choose to carry under a LEOSA-

compliant permit already issued.” Id. at 480 (emphasis

omitted).

We decline to follow the Fourth Circuit’s path. By

treating the word “may” in Section 926C(a) as “precatory

rather than mandatory language,” id. at 479, the court construes

Although the Eleventh Circuit has addressed LEOSA, it has

not considered whether it creates an individual right for certain

persons to concealed-carry. In Burban v. City of Neptune

Beach, it held that LEOSA does not grant retired law

enforcement officers a right to compel governments or law

enforcement agencies to issue LEOSA-compliant

identification. 920 F.3d 1274, 1277–79 (11th Cir. 2019). It

remained silent as to “what other rights LEOSA might confer.”

Id. at 1282.

the word divorced from its neighboring words. See Freeman

v. Quicken Loans, Inc., 566 U.S. 624, 634–35 (2012) (“[A]

word is given more precise content by the neighboring words

with which it is associated.”). Although “‘may’ . . . usually

implies some degree of discretion,” Carey, 957 F.3d at 479

(quoting United States v. Rodgers, 461 U.S. 677, 706 (1983)),

when used in LEOSA the word “may” grants discretion to the

QRLEO who may choose whether to carry a firearm. It does

not grant states discretion about whether to allow a QRLEO

with compliant identification to concealed-carry a firearm. To

the contrary, the statute’s text unambiguously allows QRLEOs

with compliant identification to concealed-carry

“notwithstanding” contrary state law. 18 U.S.C. § 926C(a).

Moreover, there is no requirement that Congress

include an express remedial provision in a rights-creating

statute. As the Supreme Court held in Gonzaga, “where a

statute is phrased in . . . explicit rights-creating terms,”

plaintiffs suing under Section 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.” Gonzaga, 536 U.S. at 284.

While LEOSA may not require states to issue LEOSA

New Jersey notes that LEOSA’s neighboring statute, 18

U.S.C. § 925A, provides a limited remedy for individuals

erroneously denied a firearm. But Section 925A is not an

appropriate comparator. New Jersey does not argue that

Section 925A contains any rights-creating language, and no

such language is apparent from that statute’s text. In the

absence of a right, the presence of a remedy in a statute is

irrelevant to our analysis.

identification or adopt firearms qualification training

standards, it does require states to recognize existing LEOSA-

compliant identification that a retired officer has obtained from

his former agency—whether that agency is within the retired

officer’s state of residence or elsewhere.

Because we hold that LEOSA confers upon certain

retired law enforcement officers a right to concealed-carry a

firearm, we next must consider whether the right can be

enforced via 42 U.S.C. § 1983. Talevski, 599 U.S. at 186.

LEOSA’s text shows that Congress has not foreclosed a

Section 1983 remedy for this right.

LEOSA “lacks any indicia of congressional intent to

preclude § 1983 enforcement . . . .” Talevski, 599 U.S. at 188.

Congress did not include any language expressly foreclosing a

Section 1983 remedy. Id. at 183. Nor did it create a remedial

We are not persuaded by New Jersey’s arguments to the

contrary. New Jersey argues that it may choose to recognize

only (d)(1) identification—it need not also recognize (d)(2)

identification. That argument is belied by the statutory text.

LEOSA applies to a QRLEO who is carrying (d)(1)

identification “or” (d)(2) identification. 18 U.S.C.

§ 926C(d)(1)–(2) (emphasis added). Without any evidence or

arguments to the contrary, we assume Congress’s use of the

word “or” has its “ordinary disjunctive meaning.” Encino

Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018). So

states must recognize the right of a QRLEO who is carrying

either (d)(1) identification or (d)(2) identification, regardless

of the identification a state may choose to issue to its own law

enforcement officers.

scheme within LEOSA itself that that is incompatible with

Section 1983 enforcement. City of Rancho Palos Verdes v.

Abrams, 544 U.S. 113, 121 (2005) (quotation and citation

omitted); Talevski, 599 U.S. at 187 (“[T]he sine qua non of a

finding that Congress implicitly intended to preclude a private

right of action under § 1983 is incompatibility between

enforcement under § 1983 and the enforcement scheme that

Congress has enacted.” (citation omitted)).

New Jersey argues that LEOSA’s placement within the

criminal code implies that Congress intended LEOSA to

function as an immunity from prosecution rather than as a right

remediable via Section 1983. But Congress did not foreclose

a cause of action here, as it has done with rights it created

elsewhere in the criminal code. E.g., 18 U.S.C. §§ 3771(a),

(d)(6) (providing “[a] crime victim” with certain “rights” but

stating “[n]othing in this chapter shall be construed to authorize

a cause of action for damages or to create, to enlarge, or to

imply any duty or obligation to any victim or other person for

the breach of which the United States or any of its officers or

employees could be held liable in damages.”). And, of course,

Section 1983 by its terms provides a cause of action for “the

deprivation of any rights, privileges, or immunities secured by

the Constitution and laws.” 42 U.S.C. § 1983 (emphasis

added); see also, e.g., Playboy Enters., Inc. v. Pub. Serv.

Comm’n of P.R., 906 F.2d 25, 32 (1st Cir. 1990) (“We have no

doubt the protection from liability provided cable operators by

[47 U.S.C.] § 558 . . . is an ‘immunity’ created by federal law

and enforceable by the courts” through Section 1983).

New Jersey has not carried its burden to rebut the

presumption that a LEOSA right-holder may enforce his right

under Section 1983. Therefore, QRLEOs with LEOSA-

compliant identification may enforce their right to concealed-

carry through Section 1983’s private right of action.

As discussed above, LEOSA gives QRLEOs with the

requisite identification a right to concealed-carry a firearm.

And 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.

Under the Supremacy Clause, the laws of the United

States are “the supreme Law of the Land; . . . any Thing in the

Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const. art. VI, cl. 2. When “Congress

enacts a law that imposes restrictions or confers rights on

private actors [and] a state law confers rights or imposes

restrictions that conflict with the federal law[,] . . . the federal

law takes precedence and the state law is preempted.” Murphy

v. Nat’l Coll. Athletic Ass’n, 584 U.S. 453, 477 (2018). “Put

simply, federal law preempts contrary state law.” Hughes v.

Talen Energy Mktg., LLC, 578 U.S. 150, 162 (2016).

Nonetheless, our preemption analysis must be “rooted

in the respect for states as independent sovereigns in our

Because we conclude that the plaintiffs may enforce their

rights under Section 1983, they may seek declaratory relief

under the Declaratory Judgment Act. 28 U.S.C. § 2201

(enabling a party to bring a civil action to “declare the rights

and other legal relations of any interested party seeking such

declaration” when the case is “within [the court’s]

jurisdiction”).

federal system.” In re Fed.-Mogul Glob. Inc., 684 F.3d 355,

365 (3d Cir. 2012). So we are “guided by two principles.”

Pennsylvania v. Navient Corp., 967 F.3d 273, 288 (3d Cir.

2020). First, we rely on “traditional tools of statutory

interpretation” to discern Congress’s intent in enacting the

federal law at issue. Va. Uranium, Inc. v. Warren, 139 S. Ct.

1894, 1901 (2019). The statute must reflect that preemption is

“the clear and manifest purpose of Congress.” Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525, 542 (2001) (citation

omitted). And second, we presume that Congress did not

intend to preempt state law, especially “when the state is

exercising its police power.” Navient Corp., 967 F.3d at 288.

“State law may be preempted ‘by express language in a

congressional enactment . . . .’” Fed.-Mogul Glob., 684 F.3d

at 364 (quoting Lorillard Tobacco, 533 U.S. at 541). But even

then, we must address “the scope of the preemption provision.”

Farina v. Nokia Inc., 625 F.3d 97, 118 (3d Cir. 2010). We

construe the preempted domain narrowly in deference to state

sovereignty. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485

(1996).

In LEOSA, Congress’s intent to preempt contrary state

law is express and unmistakable.

The statute opens by

stating: “Notwithstanding any other provision of the law of any

State or any political subdivision thereof” a QRLEO carrying

the requisite identification may concealed-carry a firearm that

has traveled in interstate commerce. 18 U.S.C. § 926C(a). It

“is difficult to imagine” a clearer statement of preemption.

Because LEOSA expressly preempts contrary state and local

law, we need not address conflict preemption or field

preemption. See Navient Corp., 967 F.3d at 287–88

(summarizing the “three classes of preemption”).

Fed.-Mogul Glob., 684 F.3d at 369; see also id. (concluding

that “[t]he plain language of [11 U.S.C.] § 1123(a) evinces

Congress’s clear intent to preempt state law” because the

statute’s “‘notwithstanding’ clause clearly signals the drafter’s

intention that the provisions of the ‘notwithstanding’ section

override conflicting provisions” (cleaned up)); DuBerry, 824

F.3d at 1053 (discussing the “categorical preemption of state

and local law standing in the way of the LEOSA right to

carry”).

LEOSA’s text also clarifies the scope of the preemption

provision. Subsection (b) includes a list of laws that are not

preempted: state laws that prohibit or restrict firearm

possession on state or local government property, and state

laws that allow private parties to prohibit or restrict concealed-

carry on their property. 18 U.S.C. § 926C(b)(1)–(2). By

implication, all other state or local laws that conflict with

LEOSA are inapplicable to LEOSA right-holders. N.L.R.B. v.

SW Gen., Inc., 580 U.S. 288, 302 (2017) (under the interpretive

canon expressio unius est exclusio alterius, “expressing one

item of an associated group or series excludes another left

unmentioned” (cleaned up)).

New Jersey urges us to adopt the Fourth Circuit’s view

that LEOSA’s “notwithstanding” clause preempts only those

laws “that could be used to criminally prosecute a LEOSA-

qualified officer for carrying a concealed firearm across state

lines.” Carey, 957 F.3d at 480 (emphasis added). But that

would impose an atextual limitation on the scope of LEOSA’s

preemption of state and local law.

LEOSA preempts any state

Likewise, New Jersey’s interpretation of LEOSA’s interstate

commerce provision is inconsistent with the statute’s plain

text. See Appellant Br. at 4 (contending that LEOSA’s purpose

law that directly conflicts with its provisions such that “the two

cannot be reconciled or consistently stand together.” 18 U.S.C.

§ 927.

We will be specific about the preemption arguments in

this case. We hold that—subject to the exceptions in LEOSA’s

subsection (b)—LEOSA preempts the following provisions of

New Jersey law, as applied to QRLEOs who are carrying

subsection (d)(1) or (d)(2) identification:

(1) LEOSA’s definition of “firearm,” 18 U.S.C.

§ 926C(e)(1), preempts New Jersey law that bars

the carrying of hollow-point ammunition,

N.J.S.A. § 2C:39-3f;

(2) LEOSA’s definition of “qualified retired law

enforcement officer,” § 926C(c), preempts New

Jersey law limiting an individual’s ability to

concealed-carry a firearm on the basis of age,

state of residence, or jurisdiction of former law

enforcement service, § 2C:39-6l; and

(3) LEOSA’s definition of required identification,

§ 926C(d), preempts New Jersey law that

requires individuals to obtain additional

identification and/or more frequent firearms

is to “allow[] interstate concealed carry by retired officers

already approved to carry by their home States”). LEOSA

requires that the firearm at issue has travelled in interstate

commerce—not that the QRLEO has personally carried the

firearm over state lines. 18 U.S.C. § 926C(a) (certain

individuals “may carry a concealed firearm that has been

shipped or transported in interstate or foreign commerce”).

certification training before carrying a firearm,

§ 2C:39-6l.

New Jersey argues that construing LEOSA to preempt

the RPO Law will burden active law enforcement officers in

the field.

We understand and appreciate that concern. But

implementation challenges cannot override Congress’s

New Jersey does not challenge the scope of the District

Court’s injunction. (It only argues that the District Court

misinterpreted LEOSA such that the injunction must be

vacated.) We note, however, that the injunction does not

appear to be limited to the plaintiffs in this case. App. 4

(granting injunctive relief to “any QRLEO who has

identification required by 18 U.S.C. § 926C(d)”). See Ameron,

Inc. v. U.S. Army Corps of Eng’rs, 787 F.2d 875, 888 (3d Cir.),

aff’d on reh’g, 809 F.2d 979 (3d Cir. 1986) (holding that, in a

non-class-action, the plaintiff is only entitled to obtain

injunctive relief for itself). Further, the injunction appears to

bar New Jersey from arresting or prosecuting a QRLEO who

has subsection (d) identification for any reason. See App. 4

(“[T]he State of New Jersey is enjoined from arresting and/or

prosecuting any QRLEO who has identification required by 18

U.S.C. § 926C(d) regardless of their residence or the agency

from which they retired . . . .”). But presumably QRLEOs

remain subject to arrest or prosecution for violating laws

unrelated to their LEOSA-compliant concealed-carry.

Nevertheless, because this appeal is devoid of any overbreadth

arguments, we make no rulings on the scope of the injunction.

See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993)

(declining to reach an issue appellants failed to raise on

appeal).

unmistakable intent to preempt contrary state law. And active

law enforcement officers in New Jersey are already faced with

determining whether retirees from federal or out-of-state law

enforcement agencies are qualified to carry under LEOSA.

App. 189–90 (New Jersey Attorney General’s Office’s

statement that QRLEOs who meet all the requirements of

LEOSA, who reside in New Jersey, and who separated from an

out-of-state or federal law enforcement agency may carry a

firearm without applying for an RPO Law permit).

Determining LEOSA qualifications for retirees from New

Jersey law enforcement agencies is unlikely to be more

burdensome.

The District Court found that certain plaintiffs are QRLEOs

who possess compliant subsection (d) identification. New

Jersey does not contest this finding, and we do not disturb it.

But we note (and Plaintiffs acknowledge) that an individual’s

compliance with LEOSA’s requirements must be assessed at

the time of his concealed-carry. See 18 U.S.C. § 926C(a) (a

QRLEO must be carrying subsection (d) identification while

carrying a concealed firearm); § 926C(c)(6)-(7) (a QRLEO

must not be under the influence of alcohol or certain other

substances and must not be prohibited by Federal law from

receiving a firearm); § 926C(d) (compliant identification must

indicate that the QRLEO has completed firearms training “to

carry a firearm of the same type as the concealed firearm” no

more than one year before the concealed-carry); see also

Appellees’ Br. at 34 (acknowledging that some LEOSA

qualifications “must be determined in real-time, such as

whether a retired officer is intoxicated or otherwise

disqualified from carrying a firearm under federal law”).

* * *

We 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.

We will affirm the District Court’s order.