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Liberty1
06-27-2009, 7:28 PM
Orange County Employees Assn., Inc. v. County of Orange (1993) 14 Cal.App.4th 575 , 17 Cal.Rptr.2d 695


1. [No. G012704. Fourth Dist., Div. Three. Mar. 23, 1993.]
ORANGE COUNTY EMPLOYEES ASSOCIATION, INC., Plaintiff and Appellant, v. COUNTY OF ORANGE et al.,

OPINION

CROSBY, J.
The Orange County Employees Association (OCEA) unsuccessfully sued in declaratory relief, seeking a ruling that the County of Orange and the county's municipal courts could not preclude certain special sheriff's officers, deputy coroners, and court service officers from carrying concealed firearms off duty. We reverse with directions to enter judgment for OCEA.

The three employee classifications OCEA represents in this action were established pursuant to Penal Code sections 830.33, subdivision (d) (airport law enforcement officer); 830.35, subdivision (c) (deputy coroner); and 830.36, subdivision (c) (court service officer). fn. 1 Our analysis requires examination of the interplay between these and various other sections of the Penal Code. The first is section 12025. It generally prohibits the carrying of handguns or concealable firearms concealed on the person or in vehicles without a permit.

Another is Penal Code section 12027. As pertinent here, it reads, "Section 12025 does not apply to, or affect, any of the following: [] (a)(1)(A) Any peace officer, listed in Section 830.1 or 830.2, whether active or honorably retired, other duly appointed peace officers, honorably retired peace officers listed in subdivision (c) of Section 830.5 ...." (Italics added.)

Penal Code sections 830.33, 830.35, and 830.36 all state that officers employed in those respective categories are peace officers. Each goes on to add, however, "Those peace officers may carry firearms only if authorized and under terms and conditions specified by their employing agency."

The parties agree this limiting language allows the agencies named in these sections to regulate the carrying of firearms, concealed or not, by on- duty personnel. They also agree the statutes cannot reasonably be read to take away from off-duty officers the same right to bear arms enjoyed by other citizens. fn. 2 For example, vacationing deputy coroners could not be required to seek permission from the county to visit a rifle range or go duck [14 Cal.App.4th 578] hunting. The question is, then, what is the effect of the limiting language of these specific sections on the grant of authority to carry concealed weapons "to other duly appointed peace officers" in Penal Code section 12027?

We will rely upon a series of five opinions issued by the Attorney General to help resolve this dispute. They are persuasive not only for their reasoning, but for the Legislature's reaction-or lack thereof-as well. [1] While not binding on us, the opinions of the Attorney General are entitled to great weight. (See Henderson v. Board of Education (1978) 78 Cal.App.3d 875, 883 [144 Cal.Rptr. 568]; Fremont Police Assn. v. City of Fremont (1975) 48 Cal.App.3d 801, 803 [122 Cal.Rptr. 92].)

In May of 1980, the Attorney General decided that "Department of Corrections peace officers are 'duly appointed peace officers' while they are on duty at work or while they are off duty." (63 Ops.Cal.Atty.Gen. 385, 388 (1980).) Those officers were peace officers per Penal Code section 830.5 and consequently enjoyed the exemption in section 12027 from the ban on concealed firearms. Section 830.5 did not then purport to regulate the carrying of firearms, however.

In apparent response, the Legislature added the following language effective in September of 1980: "Such peace officer may carry firearms only if authorized and under such terms and conditions as are specified by their employing agency ...." The Attorney General answered this question the year after the statutory change: "Is a Department of Corrections peace officer, as defined in Penal Code section 830.5, permitted to carry concealed a concealable firearm without the license required by Penal Code section 12025?" (64 Ops.Cal.Atty.Gen. 832 (1981).) He concluded as follows: "[T]he authority to carry firearms is ... qualified, i.e., such peace officer may carry firearms only if authorized and under such terms and conditions as are specified by the Department of Corrections." (Id. at p. 835, italics in original.)

The Attorney General's opinion also noted, "The firearms provision of section 830.5 does not distinguish between firearms carried concealed or openly, or between firearms which are concealable or otherwise. Consequently, the act of carrying concealed a concealable firearm is within the purview of the statute." (64 Ops. Cal. Atty. Gen., supra, at pp. 835-836.)

The author added a problematic phrase, however; and it proved to be the understated key to the opinion: "[T]he exemption in section 12027 is now [14 Cal.App.4th 579] qualified by the authority of the Department of Corrections, under section 830.5, to allow or disallow the concealed carrying of concealable firearms or to set the terms and conditions of such carrying by its officers without a license while acting as peace officers." (64 Ops. Cal. Atty. Gen., supra, at p. 837, italics added.) We say "problematic" because off-duty officers sometimes must act as peace officers, as we consider more fully anon, and in that sense are never off duty. Taken literally, the emphasized language would imply that at the very moment an off-duty officer might need it most, i.e., when thrust into the role of a peace officer, it would become unlawful to carry a firearm contrary to the employer's rules. fn. 3

The Attorney General was next asked, "Does the Chief of the California State Police Division have the authority to prohibit or allow Security Officers of the California State Police Division to carry concealed firearms while off duty?" (65 Ops.Cal.Atty.Gen. 527 (1982).) Penal Code section 830.4, the applicable statute, provided, "Such peace officers may carry firearms only if authorized by and under such terms and conditions as are specified by their employing agency ...." fn. 4 [14 Cal.App.4th 580]

The Attorney General answered the question in the negative, reasoning "the Legislature did not intend to grant the employing agency any such control over the nonemployment related conduct of its security officers." (65 Ops.Cal.Atty.Gen., supra, at p. 533.) The opinion also persuasively pointed out peace officers have general obligations that go beyond their duties to a particular agency. For example, Penal Code section 142 requires any officer to receive custody of any person who has been arrested by a citizen. Every peace officer is obliged to enforce the Alcoholic Beverage Control Act and report every violator, and failure to do so is a misdemeanor. (Bus. & Prof. Code, 25619.) The Attorney General referred to other examples of extraneous duties as well. (65 Ops.Cal.Atty.Gen., supra, at p. 534; Health & Saf. Code, 4477 ["Every state fish and game warden, police officers of cities, sheriffs and their deputies and other peace officers of the State of California, within their respective jurisdictions, shall enforce the provisions of this article."]; Fish & G. Code, 10508 [similar].) Finally, the opinion recognized that peace officers have the right to make arrests for offenses committed in their presence for violations unrelated to their particular employment. (Pen. Code, 836.)

The next opinion in the series addressed this question: "Does a district attorney have the authority to prohibit or allow the carrying of firearms by welfare fraud investigators employed in his office while such persons are off duty?" (70 Ops.Cal.Atty.Gen. 20 (1987).) Based on similar statutory language, fn. 5 the Attorney General concluded that a district attorney has no such power. He provided additional reasons: "Although a peace officer is not required to have a license as set forth in section 12027, this exemption means only that he may carry concealed a concealable weapon without committing the crime specified in section 12025. It does not mean, of course, that he may carry a weapon while on duty if prohibited by his employer. Employers normally control the (lawful) activities of their employees in employment situations. Different considerations are present when determining whether a weapon should be carried while performing employment-related duties. In noting that a city may place more restrictive standards upon the conduct of its police officers in the use of firearms than [those] applicable to private citizens, the court in Long Beach Police Officers Assn. v. City of Long Beach (1976) 61 Cal.App.3d 364, 375-376 [132 Cal.Rptr. 348], stated: [] '[T]he city, as employer of the officer and a potential codefendant in a suit for wrongful death or injury, has an interest in [14 Cal.App.4th 581] the officer's conduct which it lacks toward a private citizen. ... Police officers are constitutionally subject to many burdens and restrictions that private citizens are not.' " (70 Ops.Cal.Atty.Gen., supra, at p. 27.)

Finally, in 72 Ops.Cal.Atty.Gen. 167 (1989), the Attorney General reached a similar determination with respect to the right of deputy probation officers to carry concealed firearms while not on duty. Penal Code section 835, the statute designating them as peace officers contains this provision: "Except as specified in this section, these peace officers may carry firearms only if authorized and under those terms and conditions specified by their employing agency." fn. 6 The opinion relied on its four predecessors on the points pertinent here and added no new analysis of relevance to the present case.

Liberty1
06-27-2009, 7:28 PM
Citing various pieces of legislative history potentially proving the Legislature originally intended to permit agencies to regulate the carrying of concealable firearms both on and off duty, fn. 7 county counsel argues the Attorney General is simply wrong. County counsel also reminds us the statutes themselves make no distinction between on- and off-duty peace officers. Finally, he attacks the Attorney General's assumptions that (1) because the statutes speak of "firearms" and not concealable weapons they must not refer to off-duty activities since the Legislature could not have intended to require employer approval for off- duty hunting trips and the like, and (2) employers would have no reason to control the carrying of firearms by their off-duty officers.
There is no reason to attempt to divine what the Legislature intended in 1980, however; and we decline the invitation to do so. As noted earlier, the Legislature's reactions to the Attorney General's interpretations tell the story.

[2a] In 1982, the Attorney General interpreted the language, "may carry firearms only if authorized and under terms and conditions specified by their [14 Cal.App.4th 582] employing agency," to refer only to on-duty officers. This is the identical wording contained in the implementing statutes we consider here (Pen. Code, 830.33, 830.35, and 830.36). When those statutes were passed in 1989, fn. 8 the Legislature was presumably aware of the Attorney General's interpretation. (See Henderson v. Board of Education, supra, 78 Cal.App.3d at p. 883.) Whatever the Legislature intended in 1980, in 1989 it surely intended the scheme as explained in the Attorney General's opinions.

Moreover, in various amendments to Penal Code section 830.5 over the past decade (see fn. 3, ante) the Legislature has specifically authorized on- and off-duty regulation of concealable firearms of state correctional officers. Had it intended county officers to be subject to similar controls, it surely would have said so.

The Supreme Court put it this way: "[A]lthough [People v.] Lobaugh [(1971) 18 Cal.App.3d 75 (95 Cal.Rptr. 547)] has been followed by the Courts of Appeal since 1971, the Legislature has not reacted to it despite repeated scrutiny of [Vehicle Code] section 23153. Section 23153 (or its predecessor, former 23101) was amended in 1972, 1976, 1977, 1978, 1980, 1981, 1982 and 1983, with a major rewriting and renumbering in 1981. [3] , [2b] 'Where a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed that the Legislature is aware of the judicial construction and approves of it.' [Citations.] 'There is a strong presumption that when the Legislature reenacts a statute which has been judicially construed it adopts the construction placed on the statute by the courts.' [Citation.]" (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 353 [211 Cal.Rptr. 742, 696 P.2d 134].)

So it is here. Similar presumptions apply in the case of Attorney General opinions (Henderson v. Board of Education, supra, 78 Cal.App.3d 875, 883), and among the statutes we have reviewed the Legislature has sought to avoid the Attorney General's interpretation only with respect to state correctional officers covered by Penal Code section 830.5. We must assume the Legislature knew what it was doing when it employed the language of the statutes [14 Cal.App.4th 583] at issue in this case. If the county wishes to restrict the carrying of concealed weapons by the affected officers, it will have to apply to the Legislature. fn. 9 The judgment is reversed with directions to grant declaratory relief in accordance with the views expressed above. OCEA shall have its costs on appeal.
Sills, P. J., and Sonenshine, J., concurred.

_FN 1. County counsel adopts OCEA's statements of the case and of the facts. This supports OCEA's assertion that there is no significant factual dispute and that we exercise de novo review of an unalloyed question of law.

_FN 2. They get there by different routes, however, OCEA takes the commonsense approach espoused by the Attorney General in several opinions we will shortly examine. County counsel, while contending the statutes are unambiguous and should be read literally, can only agree that the affected officers are not subject to more restrictions than ordinary citizens by interpreting the word "firearm" to mean a concealable or loaded weapon. There is no such definition in the statutory scheme, though; and we find these sections fraught with ambiguity. Accordingly, we must resort to techniques of statutory interpretation.

_FN 3. The Legislature has clarified Penal Code section 830.5 considerably in the ensuing years. Subdivision (c) of that section now provides, "The following persons may carry a firearm while not on duty: a parole officer of the Department of Corrections or the Department of the Youth Authority, a correctional officer employed by the Department of Corrections or any employee of the Department of the Youth Authority having custody of wards or any employee of the Department of Corrections designated by the Director of Corrections. A parole officer of the Youthful Offender Parole Board may carry a firearm while not on duty only when so authorized by the chairperson of the board and only under the terms and conditions specified by the chairperson. Nothing in this section shall be interpreted to require licensure pursuant to Section 12025. The director or chairperson may deny, suspend, or revoke for good cause a person's right to carry a firearm under this subdivision. That person shall, upon request, receive a hearing, as provided for in the negotiated grievance procedure between the exclusive employee representative and the Department of Corrections, the Department of the Youth Authority, or the Youthful Offender Parole Board, to review the director's or the chairperson's decision."

Subdivision (d) adds, "Persons permitted to carry firearms pursuant to this section, either on or off duty, shall meet the training requirements of Section 832 and shall qualify with the firearm at least quarterly. It is the responsibility of the individual officer or designee to maintain his or her eligibility to carry concealable firearms off duty. Failure to maintain quarterly qualifications by an officer or designee with any concealable firearms carried off duty shall constitute good cause to suspend or revoke that person's right to carry firearms off duty."

Finally, subdivision (e) provides, "The Department of Corrections shall allow reasonable access to its ranges for officers and designees of either department to qualify to carry concealable firearms off duty. The time spent on the range for purposes of meeting the qualification requirements shall be the person's own time during the person's off duty hours."

_FN 4. Unlike Penal Code section 830.5, the firearm language of section 830.4 has not been materially modified since the Attorney General interpreted it in 1982.

_FN 5. "Such peace officers may carry firearms only if authorized and under terms and conditions specified by their employing agency." (Pen. Code, former 830.31.) Now Penal Code section 830.35, it provides in part, "Those peace officers may carry firearms only if authorized and under terms and conditions specified by their employing agency."

_FN 6. While, as we have seen (see fn. 3, ante), the carrying of firearms by off-duty state correctional officers is now specifically regulated in Penal Code section 830.5, there were no similar provisions for county probation officers and still are not. The Attorney General cites this as legislative confirmation of his analysis in 70 Ops.Cal.Atty.Gen., supra, at page 20 and 65 Ops.Cal.Atty.Gen., supra, at page 527 and an indication that the Legislature intended to allow county probation officers to carry concealed weapons off duty, notwithstanding the possible objections of their employers. (72 Ops.Cal.Atty.Gen, supra, at p. 171.)

_FN 7. For example, the pertinent language in the special peace officer statutes we construe originated in chapter 1340 of the statutes of 1980. This was the chaptered version of Senate Bill No. 1447. We are told that the report to the Assembly Committee on Ways and Means stated, "This bill ... allows for limits on the authority of peace officers to carry firearms both on and off duty."

_FN 8. Penal Code section 830.35 was actually renumbered in 1989. But it was amended four times between 1982 and 1987 with no amendment to the statute similar to the changes made in Penal Code section 830.5 to specifically allow the employer to control off-duty carrying of concealed firearms.

_FN 9. The public employers have tired of being automatically named as defendants in every off-duty incident in which a plaintiff is injured by one of these special officer's firearms. They complain it is illogical to allow them to carry weapons because they have less firearm training than regular officers. But they do have firearm training and could obviously be provided more, if current training is truly insufficient.

bluestaterebel
06-27-2009, 7:41 PM
Man cliff notes please

Liberty1
06-27-2009, 7:52 PM
Man cliff notes please

OK

"If the county wishes to restrict the carrying of concealed weapons by the affected officers, it will have to apply to the Legislature. "

tyrist
06-27-2009, 8:02 PM
If I had to shoot somebody off duty I would rather it be with a department approved firearm and ammunition which they have trained me to use. Makes the whole thing cleaner when it comes time to sue. It also forces the department to provide a legal defense for you.

bluestaterebel
06-27-2009, 8:12 PM
OK

"If the county wishes to restrict the carrying of concealed weapons by the affected officers, it will have to apply to the Legislature. "

Okay thats better but who are these affect officers? Are all California LEO's affected? Does this mean I can carry what ever I want off duty?

When did this happen?

scootergmc
06-27-2009, 8:20 PM
If I had to shoot somebody off duty I would rather it be with a department approved firearm and ammunition which they have trained me to use. Makes the whole thing cleaner when it comes time to sue. It also forces the department to provide a legal defense for you.


The department will be sued either way. They're the ones who give you the peace officer authority. Besides, you have no money. The city/county agency has it. :D

Opus109
06-27-2009, 8:26 PM
The question is, and I ask this because I am an attorney: Is this still good law?
Has it been superceded by a later opinion, either from an appellate court, or the AG? The case excerpted above is 16 years old.

scootergmc
06-27-2009, 8:34 PM
Okay thats better but who are these affect officers? Are all California LEO's affected? Does this mean I can carry what ever I want off duty?

When did this happen?

It's funny. Departments should've removed all this off-duty carry policy language, especially after LEOSA.

If you're an LEO (governmental agency employee who is authorized by law to engage in or supervise the prevention, detection, investigation, or
prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers of arrest) authorized to carry and currently qualified, you can carry. Anything. LEOSA doesn't discriminate weapon, caliber, DOJ safety list, etc (other than machine guns, silencers, or DDs)...

If your department is telling you that you can only carry certain weapons off duty, you (or the rep from your union/association) need to discuss the matter with the policy makers.

Liberty1
06-27-2009, 8:43 PM
The question is, and I ask this because I am an attorney: Is this still good law?
Has it been superceded by a later opinion, either from an appellate court, or the AG? The case excerpted above is 16 years old.

IANAL!

I'm told this is still good law. Check with your association attornys is all I can say. ;) If anyone has any other case law on this topic I'd like to read it.

There are also several AG Opinions before and after which basicly say in

OFFICE OF THE ATTORNEY GENERAL
State of California

DANIEL E. LUNGREN
Attorney General

______________________________________


OPINION

of

DANIEL E. LUNGREN
Attorney General

MAXINE P. CUTLER
Deputy Attorney General

No. 94-1106

July 7, 1995

...As long as the person has the status of being a duly appointed peace officer, the statutory exemption for possessing a firearm applies regardless of when or where the person may exercise peace officer powers. Such has been our consistent interpretation for 15 years, recently approved by the Court of Appeal in its Orange County decision.

We conclude that investigators of the Board are not required to have a license to carry a concealed firearm while off duty...

There is also "Gordon v. Horsley (2001) 86 Cal.App.4th 336 , 102 Cal.Rptr.2d 910" but that deals with limiting the concealed carry ability of one officer for cause and not a whole class of officers. Gordon also cites Orange County declining to find that it was wrongly decided.

When I called the DOJ on this issue I was directed to the above two cases.

Liberty1
06-27-2009, 8:47 PM
It's funny. Departments should've removed all this off-duty carry policy language, especially after LEOSA.



Correct, qualified LEOSA officers may carry concealed ANY firearm which is not a "machine gun" or "silencer". And you are also correct (or at least we agree) that LEOSA officers could carry an unregistered CA AW concealed. But stop carrying it and oops...

1911su16b870
06-27-2009, 9:24 PM
If I had to shoot somebody off duty I would rather it be with a department approved firearm and ammunition which they have trained me to use. Makes the whole thing cleaner when it comes time to sue. It also forces the department to provide a legal defense for you.

+1 anyone would rather have their department backing them up, than have to defend themselves.

Fire in the Hole
06-27-2009, 9:29 PM
The other fly in the ointment is something that has not been tested yet. Whereas a retired LEO, gets into a shooting either within the state he retired from, or another state. Is he left to twist in the wind alone, or is the dept. that certified him as competent on the hook as well. I'm thinking the former. However plaintiff's attorney will always go after deep pockets et al. That's why many Dept's won't certify a retired LEO that's not from their own Dept. Sadly and embarassingly, this is way my own old Dept. has a policy against certifying any retired LEO's that did not retire from this Dept.

bluestaterebel
06-27-2009, 10:03 PM
If I had to shoot somebody off duty I would rather it be with a department approved firearm and ammunition which they have trained me to use. Makes the whole thing cleaner when it comes time to sue. It also forces the department to provide a legal defense for you.

Hey tyrist, does the LAPD have a policy on only carrying only approved off duty handguns? I though it did but now i am not sure if that list called them "back-up" guns.

tyrist
06-27-2009, 10:14 PM
Hey tyrist, does the LAPD have a policy on only carrying only approved off duty handguns? I though it did but now i am not sure if that list called them "back-up" guns.

The lists calls them approved as back-up, plain clothes, and off duty handguns.

bluestaterebel
06-27-2009, 11:01 PM
The lists calls them approved as back-up, plain clothes, and off duty handguns.

Right but its a little misleading cause of course all on duty guns are authorized off duty, but it doesnt mention anything about being able to carry what ever we want off duty.

But it also doesnt say we cant. Interesting

tyrist
06-27-2009, 11:47 PM
Right but its a little misleading cause of course all on duty guns are authorized off duty, but it doesnt mention anything about being able to carry what ever we want off duty.

But it also doesnt say we cant. Interesting

From talking to the firearms instructors it has to be on the approved list and registered with the armory.

scootergmc
06-27-2009, 11:51 PM
Y'all need to get that issue resolved.

bluestaterebel
06-27-2009, 11:57 PM
From talking to the firearms instructors it has to be on the approved list and registered with the armory.

Of course they would say that, I dont think they know any better. Everyone in the LAPD thinks that. But, it just might not be the case. I do not want to be the test case though.

retired
06-28-2009, 12:06 AM
Of course they would say that, I dont think they know any better. Everyone in the LAPD thinks that. But, it just might not be the case. I do not want to be the test case though.

Oh come on now, you should do it for the troops...........and the children.:p:D

erik18
06-28-2009, 12:09 AM
This case has nothing to do with full time peace officers. IE: Deputy Sheriff's and Municipal city Police Officers.

This case was brought about by the Sheriff's Special Officers and Deputy Coroners in Orange County, California. These positions are not FULL TIME PEACE OFFICERS. I know this because I was a Sheriff's Special Officer with OCSD before I became a Deputy.

An SSO and Deputy Coroner have no official capacity to act as a Peace Officer on behalf of OCSD off duty. Only on Duty.

SSO's and DC's weren't allowed to carry a gun off duty for quite some time. They sued the county and won.

Ron-Solo
06-28-2009, 11:40 AM
LASD has an approved on & off duty weapons list. Additionally, you have to have had dept training on each optional gun you carry.

While you wouldn't be in trouble for CA law violations, you could be in deep for policy violations and exposed to more civil liability for an unauthorized gun.

Liberty1
06-29-2009, 2:18 AM
This case has nothing to do with full time peace officers. IE: Deputy Sheriff's and Municipal city Police Officers.


Specifically in this case yes.

But full time Peace Officers of counties and municipalities (830.1) enjoy the same classification privileges/duties as cited in that Case Law and AG memos.

Our departments can not restrict our privileges/duties when off duty POs as that comes from the legislature through the PC (concerning off duty weapon possession for example). It would be as if the dept. ordered us not to enforce the ABC or to not accept a citizens arrest off duty (none of us do it but the dept doesn't have the power to order that as we are "state" officers charged with that enforcement).

And we also retain the same 2nd A. rights as non leo citizens (what ever that turns out to be after it is litigated). The dept. can't prohibit us from lawfully bearing our own private arms just as they can't prohibit our off duty 1st Amendment Rights or make us off duty give up our 4th A. Rights.

Liberty1
06-29-2009, 2:21 AM
LASD has an approved on & off duty weapons list. Additionally, you have to have had dept training on each optional gun you carry.

While you wouldn't be in trouble for CA law violations, you could be in deep for policy violations and exposed to more civil liability for an unauthorized gun.

LT.,

LEOSA trumps dept. policy when off duty - (IMHO and according to my association attorney who will remain nameless as will I ;))

retired
06-29-2009, 11:05 AM
LT.,

LEOSA trumps dept. policy when off duty - (IMHO and according to my association attorney who will remain nameless as will I ;))

Liberty, that may be so, but it really isn't worth it to be put thru the ringer for a year or two while they are conducting the investigation. Any transfer or promotion would be put on hold while you are trying to fight the IA investigation.

In many cases, a deputy has his badge taken and is given civilian credentials while working in medical records or a similar position alongside non sworn personnel. This is while the IA is going on.

A person willing to be the test case and go thru that grinder will then, if/when they win a year or two later, know they probably won't be promoted or transferred to a unit they want in the future. The dept. has a long memory.

The 3 who ran against the present Sheriff can certainly attest to that memory.

Just my 2 cents.

Liberty1
06-29-2009, 11:16 AM
Liberty, that may be so, but...

Points are well made. I am letter of the law for the sake of discussion and it does, I believe, give us a better understanding of the interplay of laws. Some day one of us may be in the sights of over reaching unlawful policy and I want all to know, whether or not they willingly went there, that they have a defense.

It also helps educate Admin. types on their limitations and to avoid costing their departments expensive fights when they violated the rights of their employees by causing them hardships over BS policies which should be repealed to avoid these fights.

There will always be a test case without which there would never be case law. I want that brother/sister to come out on top in the end.

retired
06-29-2009, 12:50 PM
I want that brother/sister to come out on top in the end.

As of course, do I. Are you volunteering to be that test case.:D j/k

Ron-Solo
06-29-2009, 1:17 PM
LT.,

LEOSA trumps dept. policy when off duty - (IMHO and according to my association attorney who will remain nameless as will I ;))

Maybe....maybe not. But the second you ID yourself as a peace officer, you become 'on-duty' and are covered by workers comp for any injuries sustained, so you would also be 'on-duty' for weapons policy violations. "Catch 22"

Also, if you use an "unauthorized" gun the department can wash theri hands of you in a civil suit. They may face civil liability also, but they will do everything they can to lay the blame squarely on you. That alone makes it not worth the risk in my personal view.

There are too many excellent handguns out there that are authorized to merit taking the unnecessary risk. If they said the only thing we could carry off duty was a single shot .22 derringer, I'd have a different viewpoint. Why carry an unauthorized Glock .40 cal when I have several 9mm and .45ACP options with S&W, SIG, H&K,etc just because I like Glocks?

Just my $0.02.........

retired
06-29-2009, 6:26 PM
just because I like Glocks?

Oh my gosh, you like Glocks.:eek::eek: Well, I guess I'll have to re-evaluate my opinion of you.;):)

Ron-Solo
06-29-2009, 10:33 PM
Oh my gosh, you like Glocks.:eek::eek: Well, I guess I'll have to re-evaluate my opinion of you.;):)

Easy Big Fella.............I was just using Glocks as an example. I don't own one, but they're not a bad firearm.

:43:

retired
06-30-2009, 8:15 AM
Ron, just so you know, I really didn't edit your post. I clicked on the quote button to make my own post and somehow, my post became part of your post. I deleted what I wrote, nothing that you wrote. I guess I'm still getting the hang of the moderation abilities I have.:o

What I wrote is the following:

I know, I'm just joking of course. The subcompacts just didn't work for me when I wanted a semi for a ccw when I was retired and free from dept. restrictions. I ended up buying a XDSC 9mm 6yrs. ago and it is a great gun!

RollingCode3
08-22-2010, 3:38 PM
Sorry to bring old thread back. I have one quick question. Does this case law apply to Correction Officer/Probation Officer? We are peace officer under section PC 830.5.

Ron-Solo
08-22-2010, 3:48 PM
Sorry to bring old thread back. I have one quick question. Does this case law apply to Correction Officer/Probation Officer? We are peace officer under section PC 830.5.

I think it depends on how bad you want to be the test case. There was no general consensus when this was originally bashed about last year. In a few months, I'll be retired and can carry whatever I want. :cool:

It is now Sunday 8/22/2010 at 3:47:52 PM
Event: Retirement
Scheduled For 3/31/2011 12:01 AM
7 months 8 days 8 hours 13 minutes 8 seconds or
31 weekends or
221 days or
5,288 hours (3,525 waking hours) or
317,293 minutes or
19,037,587 seconds

MaHoTex
08-22-2010, 5:05 PM
In a few months, I'll be retired and can carry whatever I want. :cool:

It is now Sunday 8/22/2010 at 3:47:52 PM
Event: Retirement
Scheduled For 3/31/2011 12:01 AM
7 months 8 days 8 hours 13 minutes 8 seconds or
31 weekends or
221 days or
5,288 hours (3,525 waking hours) or
317,293 minutes or
19,037,587 seconds

You are not looking forward to it are you? :D
Congrats on the upcoming retirement. As my dad says, "I am retarded now, I can do whatever the <heck> I want."

mig79
08-22-2010, 5:21 PM
Sorry to bring old thread back. I have one quick question. Does this case law apply to Correction Officer/Probation Officer? We are peace officer under section PC 830.5.

Yes, last i heard. Which probation department? CO's can carry off duty, but they do not have 24/7 peace officer powers (same for probation, peace officer powers while on duty only).

ETA: Not sure if probation departments have your back if SHTF.

RollingCode3
08-22-2010, 5:33 PM
Yes, last i heard. Which probation department? CO's can carry off duty, but they do not have 24/7 peace officer powers (same for probation, peace officer powers while on duty only).

ETA: Not sure if probation departments have your back if SHTF.

They will not back us up if SHTF for sure. In addition, it doesn't have any policy in writing regarding off duty carry. I just want to make sure we can carry off duty according to "state law" and not breaking any law. The last thing i want is to get arrested from carrying a concealed and loaded firearm. :eek: The article from OP doesn't mention anything about county CO's (peace officer under 830.5) Even the penal code section 830.5 doesn't mention anything about county correction officer. :confused::confused:

mig79
08-22-2010, 5:45 PM
I cant remember what AG opinion it was, if i find it i will post it. But im sure its related to the ones above. LA county has the same "policy", i know that their armed guys cannot carry department guns offduty. Im sure that the liability would be the same as if you were a CCW holder in got into some kind of incident. So it kinda boils down to judged by 12 or carried by 6. Either way YOU pay.

CSDGuy
08-22-2010, 5:59 PM
While I do not know YOUR specific position, the LEOSA does contain a "who qualifies" list. If you meet ALL of the qualifications, you're considered a QLEO for LEOSA purposes. Now if you qualify, you'd be able to carry w/o a CCW. Here's the rub though... you'd end up being a test case for the LEOSA and people in your specific line of work. Your agency would probably try to wash their hands of you, and attempt to discipline you for a violation of your work's policies, leaving YOU with TWO fights on your hands. One is the criminal charge of CCW w/o License or appropriate endorsement on your ID, and the OTHER would be in regard to what may be unlawful discipline on the part of your employing agency...because the LEOSA is supposed to override any law or agency policy that has the effect of law...

This quandry happens with agencies that employ armed non-sworn Public Officers that function under 836.5... The LEOSA doesn't just apply to sworn LE or Corrections Officers.

SVT-40
08-22-2010, 6:02 PM
More simply, the decision said the officers in question CAN CCW. However as a condition of employment one must comply with departmental rules about WHAT you may CCW.

This is while you are employed.

Upon retirement you are no longer "employed" so that condition is removed. Under the LEOSA you may CCW any legal firearm as long as you comply with the annual qualification requirement.


I think it depends on how bad you want to be the test case. There was no general consensus when this was originally bashed about last year. In a few months, I'll be retired and can carry whatever I want. :cool:

It is now Sunday 8/22/2010 at 3:47:52 PM
Event: Retirement
Scheduled For 3/31/2011 12:01 AM
7 months 8 days 8 hours 13 minutes 8 seconds or
31 weekends or
221 days or
5,288 hours (3,525 waking hours) or
317,293 minutes or
19,037,587 seconds


I smell a good party!! let me know I'll be there.!!!!

:party:

:cheers2: :cheers2:

:grilling:

:hurray:

mig79
08-26-2010, 12:17 PM
Sorry to bring old thread back. I have one quick question. Does this case law apply to Correction Officer/Probation Officer? We are peace officer under section PC 830.5.


The AG opinion is 89-505, found this post on CG that gives some info regarding why this AG opinion was needed.

http://www.calguns.net/calgunforum/showpost.php?p=1080380&postcount=35

CaptMike
08-26-2010, 3:10 PM
Thanks Mig for bringing up my old reply. Rollin, as was stated in my old reply, Deputy Probation Officers may be limited peace officers, but the state Attorney General has given the legal opinion that we have the status of a peace officer 24 hours of day. We may only have the authority on duty, but we have the status all day. And due to that status of peace officer, we may carry off duty without our chiefs permission. I know of three DPO's in my department that were detained and cited to court for CCW because the officer they ran into did not know the case law. When all three made it to court, the cases were thrown out and the judge ordered their firearms returned. the arresting officers where then chastised by the judges for arresting a fellow peace officer for CCW. the only important part for us is that even though the state authorizes us to CCW, if your chief prohibits it, then all liability rests on you if you get into a shooting. Like I tell my fellow officers, only carry if you feel you can be responsible for your actions. good luck