when he joined the majority in the dewberry opinion and what a delight it is to overrule the supreme court justice on occasion your honor as the court is well aware that is the only circuit court that's weighed in on this issue and we are in recognition that there are several lower court opinions against us including the one in this case but it's our submission that in fact every lower court decision is against you except that one that's correct your honor there are a bunch of them that's correct but it's our position that justice kavanagh had it right in that the weight of authority given who was on the panel and the fact it was an appellate court is what should be followed that said before discussing the specifics i know the courts generally aware the facts of the applicable law here there's one thing to remember and it's really what does this case about congress pass a statute qualified retired law enforcement officers like ms bourbon the right to carry firearms what do we really what are we fighting over here what we're fighting over is whether states can be forced to provide these cards to implement the federal program right and and talk commandeering decisions are pretty darn strong i understand that you are  but what we're talking about really is a piece of plastic from the from the department saying nothing other then she worked there we're not asking that no big deal mostly difficult for them to do what the right therefore no violation of any type commandeering you're right and they're already doing it florida law is law that same argument was made in prince and well prince what was required in princes a lot more to argument was made that is just minimum and the supreme court said minimal has nothing to do with it we're talking about federalism here and there's no such thing as a little bit of an injury to federal laws i understand that you know what i want to say is it's more than just is it minimal it's voluntary they're already doing it there's a florida statute on the books how it's not voluntary we would i mean you have a voluntary we would be here they've refused to do it well and you've sued them for not doing it and ask us among other things to allow you to have damages an injunction forcing them to do it and that's not voluntary that's correct but the point is they were giving these out before this act was put in the state of florida has passed a statute implementing this but not to your satisfaction the fifteen ten year for example right well that's that's the local agency that has one that can you know conflicts with what the federal statute i know but you want  declaration they can't do that well then they haven't been voluntarily doing this then all the defendants have been voluntarily doing what you're asking us to have them do that gets back to can can and agency or a state stand in the way of a federal program if you will or can the agency or state just simply say we don't have anything do with that federal program do it yourself well but here's the thing they've already been they've already been engaging in it your honor then there's no problem you got through life you mom there voluntarily providing it come on counsel you're asking us to use the power of the federal court federal branch of government to require them to do something right if you enter the market and you're providing this you've got to follow you've got to follow federal regulations and the federal regulations are don't violate people's privacy which is a national concern legitimate source of federal regulation don't violate people's privacy no matter who you are private individual and that hacker our bureau of motor vehicles i mean and that's the distinction between that case and this case well i think it's the same from the perspective what are they doing there there is a federal scheme in place and there's going to be some state action that has to help implement not really i mean the state action is that i shall not don't get this information out right and what you have what you have cards out in fact i mean this is outside the record but we've had discovery here they give these cards out to other officers that have engaged in and theft so they're not saying leo said we have a problem which is as it relates particularly to camille bourbon who we've alleged is qualified in the we're not going to give it to her and i think it's i think it's a far leap to say that this is like prince where you're requiring you know as a pallet as are states to undergo these extensive background checks and whatnot before you do that there is no background check here they know it's a store because they know if they work there or not and then you just issue the card she goes on and if you look at the other requirements of the statute such as the firearms requirement it says that the individual's expense it's not even asking that the state or the municipality pay for anything so when they're already involved in this and they're already implementing this legislation i don't use a lot of state well i don't use the state law if you say there's a law there was no need to sell required and in fact when congress sell there were a problem with local agencies they made specific provision alternative ways to get the firearm certification all we're doing is saying you met the fire of requirement we're not warranting that you're qualified for any other purpose other than you did that and that's what i'm saying here we're not asking for a car that says right neptune beach look at everything else say she's a qualified law complete and so forth as well why doesn't the federal government just do that so well i think because the expense is much more minimal if they go to the actually agency the other shift in the burden to the state that's had issued those cards i thought under the federal program they couldn't issue those cards if various things exist or at least didn't have to for example mental problems right how does that work the state but somebody else in another case not right norman comes and says i want to car and they know that person has had serious problems and they were happy to that makes that decision are the federal program is the state correct that's correct so isn't that a burden some people anger management problems and knows that that's men knows it's not but this will be a burden put it on the state to make a determination about whether somebody fits within that language about mental difficulties in a federal statute it isn't i have to i mean i have to reply please the court good morning members of the panel my name is rick plotkin and i have the pleasure of representing the city of neptune beach in this matter as i'm sure the court is aware and in fact it's been discussed in detail already this morning this is a case of first impression within this circuit but as the court has also pointed out this is not the first time that this issue has been addressed by the judiciary appellate correctly cites to the do very  what your honor did address is that the dewberry case stands alone in this presumption showing that congressional intent was not to make your honour's or any federal judges the arbiters of these types of decisions there is not a single other court throughout the fifty states which hold consistent with dewberry the northern district of illinois the southern district of new york the northern district of new york the district of why the eastern district of michigan and the district of maryland have all ruled consistently with the middle district of florida that leo said does not create a right under section  their rights you know in federal court under the law enforcement officer safety act you know you are that's not what i'm arguing what i'm arguing is that the courts are required to follow the law but it but you can give me an example somebody who could  people who could bring a claim are those under the statute which are qualified retired law enforcement officers and carry the identification required under section d and that's what the law says state prosecute them for having a firearm even though they got the card your honor i would i would agree that the only time that leos it would arguably come up is that that officer would have have to have been arrested in some other state  prison are worn correct correct yeah what about if somebody if the question came up you know the police department says well this person didn't retire in good standing in the in the police officer says you know yes i did can can that officer enforce their rights in federal court no your honor the law is clear that if they don't have the identification card together with meeting the definition under leo's of being a qualified retired law enforcement officer they couldn't enforce their rights in federal court as judge anderson you're actually part human is they don't have a right to the case rector honor that's exactly what i'm saying but as judge anderson correctly pointed out to address judge martin's concern their redress would be to bring an action in state court or an administrator proceeding determining that the agency's decision was invalid and that's what they should be assuming the state law recognizes a right to have the identification correct your honor but if it doesn't i would assume that there's an administrative proceeding that they could bring in order to address that in the extent you're saying that the federal law gives them a state law right to have that adin of occasion cardiff they've got a quarrel about it they go into state coercion you've just given away your case all right so they don't have a right under this statute federal statute to have the indemnification correct that's exactly what i'm saying i believe the question maybe i apologize if i misunderstood it but i believe judge martin was asking whether or not they could bring an action in federal court and it's the position as well as the position of all of these districts that they cannot and assume it's your position that they couldn't bring anything in state court to enforce this federal statute involving an end dinner for cation card correct your honor they could address whether or not the decision i assume in an administrative proceeding and i don't have that my rights so i'm sort of a redress your honor you're an op errantly have different views of the anti commandeering doctrine my view is and i thought you tell me if it's wrong  is that the federal government can't force the states state courts state it ministre to executive department to do its bidding for it to help it the federal government run a federal program can bribe them into doing it with saying these appropriations are conditioned on that they can for bid the states from doing certain things under the interstate commerce clause and other things but they can't say we've got this program you've got to allow in your state courts or you've got to allow federal courts to implement it o honor i stand corrected i believe ultimately in state court we would have a different argument similar to what your honor is bringing the state law provides for a den of fake cation current estate there is a statute that addresses the identification and that provides want to provide certain parameters within which they are entitled to an identification card the city of neptune beach has its own policies and proceed to identify them  former law enforcement act your honor our current yes former law enforcement officers at least is that enacted far and it ministered for the purpose of assisting the federal statute not to my knowledge and i can well other than perhaps getting out of speeding tickets what function does that card serve as i sit here today i would assume that that card has some bearing on some  non professional courtesy courtesy that's exactly the word i'm looking for you i would be my guess as a former assistant state attorney in this circuit i would know that that's what my former assistant state attorney that same professional courtesy that's what that card is and they just tell you that ends when you go on the federal bench i understand your honor it is a serious breach of ethics for a federal judge to show identification a last one is demanded for some other purpose i understand i tell them to work on the civil side of the bench tell people the difference between a prosecutor and federal judges the judge has to pay speeding ticket ok so this is interesting but  good standing in federal court they can clarify that in federal court can they do it in state court i mean and enforcing their rights u and i think the laws clear the discussion i was having with judge just judge carnes is addressing the state statute and he started well but i do i'm just talk i'm talking about you know the states  you're eating retiring good fan good standing so you don't meet the definition of a qualified law enforcement officer so your answer is the person who's trying to enforce their rights  to federal court to get a declaration on on his or her status and can't go to state court to clarify his or her status code if there is a state court if there's a state law giving him that identification card at all and appellant has cited no cases that addressed the fact that there is an entitlement to the identification card and that's the hobson's choice the issue in this case is in order for appellate to be in federal court they have to show that there is a federal right that is being violated and as we've discussed at length in the briefs the blessing analysis is what the  third factor the blessing case which is what the lower court relied on the third in the first factor states that in order for a federal right to be exhibited there must be an unequivocal obligation on the part of the states to act and there  no obligation on the part of the states to act in this situation and i don't i don't know that i disagree with you about that i do i'm just trying to figure out what rights do you say a qualified l retired law enforcement officer can enforce under the statute give me an example until they meet the parameters within the statute they can there is leo so was intended to benefit not all qualified retired law enforcement officer but you know that it's going to happen it's happened here where one person says i meet the definition of the statute and i want to enforce my rights and  state says no you don't where do they go to enforce the right they don't have a right under leo at that point if once the state determines that they haven't met the parameters it is the state's discretion under the tenth amendment under the prince case and its progeny that this is as the court has addressed the anti com darian by definition the states are not required to issue the identification card and i would that congress acted intentionally by not using let me ask you this so somebody is a qualified law enforcement officers all squared away they got there i did and there they are carrying a concealed weapon in virginia and they drive across the state line into to maryland they get stopped they get arrested for carrying a concealed weapon when they're not supposed to does that person have standing under to enforce their right person would that case the so the  to reasons are really bear me cooperate because they want their officers if they're in another state to be able to be armed with florida apparently does not want to cooperate and therefore doesn't have a jurisdiction i know of that reportedly more hostile to farm rights are to carrying firearms in d c and you have an officer moves up there retires and most be close to the kid he's of that age and he also wants to carry a firearm but florida doesn't want to accommodate him and doesn't have a system set up to provide it's all serves with the kind of  for cation cards that will allow them to do that and i don't that's not my image of the florida legislature for example from what i've read about some of the statutes th known as indifferent to law enforcement officers rights and interest where how did we get here i can't comment on the legislative in florida legislature and why they made the determination as to why they do what they do i can only address the federal intent and congressional intent in addressing that does it take legislation couldn't the city of neptune beach set up its own program to provide these id cards to the city of neptune beach does have its own program that's why we're here but it's not consistent with leo some book calls of the ten for example the ten fifteen year discrepancy the is clear that they don't have to subscribe to the federal system i'm not talking about that it seems to me on well that's policy i'm going to stay away from it but it's just odd that florida is here arguing this position understandings and you might arguably infer from my questions i think you're probably right on the law i just sometimes it's amusing to try to figure out wh we're here on this kind of thing and i assume that well also i'll stop my assumptions here anything else just in conclusion i think it's clear that it was not we've talked about some intent i think it's clear that it wasn't the congressional intent to flood the federal court system with these types of cases to become the arbiters of whether or not an identification card was properly denied especially in instances where that agency believed that the individual did not meet the mental qualifications or was did not retire in good standing thank your honour's i appreciate your time all right  mr dimaggio problems to five minutes if you need it can take you under the statute does not require the state or the municipality issuing the card saying somebody worked here to certify whether or not they were qualified how long they worked all that all it simply asked to say is that they work there there is a florida statute that provide provides for retired officers to receive an i after leo's it was passed the florida legislature enacted nine thirty four point one three two or the statutes which gave the commission on criminal standards the ability to promulgate there's nothing onerous about simply having an agency say that somebody works here they're not certifying and if you look at the qualified law enforcement officer parameters some of those traits and they're kind of mutable traits and i think you're right that probably the most common place this would come up if there weren't denials of just getting a photo id would be the arrest scenario the judge corns talked about but i submit to you that if she had the card and she had the firearms training and she got pulled over drunk guess what she doesn't meet the statute anymore  so what we're saying is for the time being she meets the requirements of the statute and she simply needs the card and what's being argued here is kind of what was argued by the defendants in dewberry which is this is some precondition to a and thereby enforcing this precondition getting in the way of the right and that's why i started that analogy about the voting rights cases last i just want to harp on this because i know there is a major concern about anti commandeering if you look at dewberry in the opinion for two reasons they know that but they also note that according to the complaint the district in the county voluntarily provide the training and have established a procedure to obtain the historical information about the appellants and they cite another case there from their circuit called versus a neal which because the state or the district in that was able to voluntarily engage in the program than they've already done it they've kind of in a way and asked what if the commandeering thing they're and that's what my major argument here they're voluntarily participating in this they are and it's not like passing this actually was any more of a burden on them because we know firearms training existed before the statute was passed and i think to roll any other that's all it has to say and this came up when they were passing this statute there were some concerns about what are its effects on federalism some people raised amendments you can opt in opt out things of that nature and this thing passed by overwhelming majority because it makes sense these people need to be protected they put their service in and they may be subject to criminals or somebody coming back on them and so or and i know i haven't even addressed whether or not it creates a right but this is clearly the court's concern i'd stand on do better and  i think the eleventh circuit's president we are versus i believe it's cox would show that there's a right in this statute but when congress passes a law that says notwithstanding any state law and there's clear requirements set out and it isn't mandatory terms the states need to follow it and in particular when there's not really anything the states have to do in the facts of this case other than issue a card saying somebody work there that's not anti commandeering it's not a tenth amendment violations for those reasons we've asked the district