Norris Paul Carey, Jr. v. Joanne Throwe, et al.

In a reported opinion, the Fourth Circuit affirmed the district court’s dismissal of claims brought by Norris Paul Carey, Jr., a retired twenty-six-year veteran with the Maryland Natural Resources Police (“MNRP”). Mr. Carey filed suit against state officials to vindicate his rights to carry a concealed weapon as a qualified retired law enforcement officer pursuant the Law Enforcement Officer’s Safety Act, 18 U.S.C. § 926C (“LEOSA”), and to free speech on First Amendment grounds. The Fourth Circuit’s holding on Mr. Carey’s LEOSA claim directly conflicts with DuBerry v. District of Columbia, 824 F.3d 1046 (D.C. Cir. 2016), a decision joined by then Judge Brett M. Kavanaugh, and effectively denies Mr. Carey his statutorily granted right to carry a concealed weapon. The appellate court’s decision on Mr. Carey’s First Amendment claim runs contrary to established precedent that a public employee who uses social media to comment on a fellow police officer’s character inconsistent with public service is a matter of public concern. Two questions are presented:

1. Does a qualified retired law enforcement officer who meets the statutory requirements to carry a weapon under LEOSA have an enforceable right under Section 1983?

2. Do social media posts “outing” a police officer’s misogynistic behavior and his making light of gun violence and gun control, raise an issue of public concern as a matter of law?