LE Assault Weapon - Individual Officer Purchase

[CH483]

I recently inherited the armory / range instructor / range master duties for my dept. And I've been working with one of our designated level 1 reserves (sworn under 830.1) to get an AW exemption letter from the Chief to use on duty.

To me PC 31005(a)(1), PC 30630, and PC 30625 are pretty clear. None of which list "level designation" as a requirement. However, the Chief is concerned about a reserve getting an exemption.

My questions are:

1) Do any of your agencies give AW exemption letters for DL1 reserves?
2) Are there any relevant penal codes I'm missing that states they must be X or Y to get an exemption.

I'd like to help this guy out, but this is also my first rodeo with stuff. Any insight is appreciated.

[RickD427]

Originally Posted by CH483

I recently inherited the armory / range instructor / range master duties for my dept. And I've been working with one of our designated level 1 reserves (sworn under 830.1) to get an AW exemption letter from the Chief to use on duty.

To me PC 31005(a)(1), PC 30630, and PC 30625 are pretty clear. None of which list "level designation" as a requirement. However, the Chief is concerned about a reserve getting an exemption.

My questions are:

1) Do any of your agencies give AW exemption letters for DL1 reserves?
2) Are there any relevant penal codes I'm missing that states they must be X or Y to get an exemption.

I'd like to help this guy out, but this is also my first rodeo with stuff. Any insight is appreciated.

You got off on the right track by going straight to the relevant Penal Code sections.

There is no direct significance to the PC 830.1 appointed LEO being a "Reserve." The only requirement in the statute is that person be a "sworn peace officer." There is no requirement that the LEO be a full-time employee.

Although it may appear semantic, there is a great deal of importance to the officer being appointed under PC 830.1 as opposed to PC 830.6.

The difference is that a PC 830.1 appointee is a peace officer at all times. A PC 830.6 appointee is a peace officer only when on duty. We often use the "Level One - Designated" terminology to describe PC 830.1 appointed reserve officers, but in this case it's not the "Level One-Designated" lingo that is important, it's the PC 830.1 status that is important. The status of the PC 830.1 reserve officer is the same as any other PC 830.1 appointed officer in your department.

Where things can get problematic with reserve officers is with the PC 830.6 appointees. Those folks only have peace officer status while on duty. A PC 830.6 appointed officer may be able to legally purchase and register an Assault Weapon while on duty, but as soon as they go off duty, the authority to possess the Assault Weapon goes away, and under the provisions of Attorney General Opinion 09-901, the officer is required to surrender their AW when they go off-duty.

[CH483]

Rick - Thank you for the detailed response. That aligns with what my research has come up with as well. I just wanted a sanity check from other pro-gun LE guys. Thanks again!

[t-1]

Tag for good info

[ArmedChef]

Hi, I wanted to weigh in on a couple of things here.

Reserves of all levels are appointed under 830.6, including Designated Level I reserves who have full 24/7 peace officer authority granted under 830.1. One example of this differentiation is Designated Level I reserves are not exempt from Los Angeles County Jury Duty service because 830.6 is not one of the listed exempt sections (Section A, Question 9).

The two relevant subsections are:

830.6(a)(1):
"Whenever any qualified person is deputized or appointed by the proper authority as a reserve or auxiliary [lots of examples]... and is assigned specific police functions by that authority, the person is a peace officer, if the person qualifies as set forth in Section 832.6. The authority of a person designated as a peace officer pursuant to this paragraph extends only for the duration of the person's specific assignment."

830.6(a)(2):
"Whenever any qualified person is deputized or appointed by the proper authority as a reserve or auxiliary [lots of examples]... and is assigned to the prevention and detection of crime and the general enforcement of the laws of this state by that authority, the person is a peace officer, if the person qualifies as set forth in paragraph (1) of subdivision (a) of Section 832.6. The authority of a person designated as a peace officer pursuant to this paragraph includes the full powers and duties of a peace officer as provided by Section 830.1."

832.6(a)(1) (referenced above) describes Level I reserves (Designated and Non-Designated).

If you go to the POST Regulations Procedure H - Reserve Officer Program Commission Procedure H-1 and go to "H-1-2. Definitions" the three levels are described in further detail. The relevant portion here is H-1-2(a).

H-1-2(a)
A Level I Reserve refers to a trained reserve officer as described in Penal Code section 832.6(a)(1), and who is assigned specific police functions... [830.6(a)(1)] OR to the prevention and detection of crime and the general enforcement of the laws of the state [830.6(a)(2)]...

H-1-2(a)(1)
The authority of a Non-Designated Level I Reserve shall extend only for the duration of assignment to specific police functions, as provided by Penal Code section 830.6(a)(1).

H-1-2(a)(2)
The authority of a Designated Level I Reserve, assigned to the prevention and detection of crime and the general enforcement of the laws of this state, shall include the full powers and duties of a peace officer as provided by Penal Code section 830.1...

As far as assault weapons go, that is correct that section 30630 does not specify "full time paid," it only specifies "sworn peace officer." It also explicitly states that the possession is legal "whether on or off duty" without mention of 24/7 peace officer authority.

I don't have any written information to support this but as I understand it that opinion from AG Brown has effectively been reversed. The DOJ has told agencies it's up to them whether or not to allow their retiring officers to keep their assault weapons. I do know of agencies where retirees keep theirs with no pushback from the DOJ. Even if we were still operating under that opinion it does acknowledge that the penal code "does not expressly restrict peace officers to using their assault weapons for law enforcement purposes." I do not see anything in the penal code or opinion that restricts off-duty assault weapon possession to 830.1 authority.

Level III/II/Non-Designated Level I reserves are still active peace officers, even though off-duty they have no peace officer authority, like retirees. Under the interpretation that those 830.6(a)(1) reserves had to surrender their assault weapons at the end of a shift it could also be construed to restrict possession of high capacity magazines and off-roster handguns to only on-duty use, even for those reserves with CCW authorization from their agencies.

The California Reserve Peace Officers Association is a good resource for questions like these. Unfortunately their general counsel just retired and they are in the process of getting a new one. However once that is sorted out they will be able to provide good information.

Sources:
https://leginfo.legislature.ca.gov/f...ctionNum=830.1.
https://leginfo.legislature.ca.gov/f...ctionNum=830.6.
https://leginfo.legislature.ca.gov/f...ctionNum=832.6.
https://leginfo.legislature.ca.gov/f...ctionNum=30630.
https://post.ca.gov/commission-proce...-1-definitions
https://www.lacourt.org/division/jury/pdf/summons.pdf
https://oag.ca.gov/system/files/opin...dfs/09-901.pdf

[L-2]

POST_5,
That's a great post/response you put together.
I was a Reserve at one department to start my career; went full time with another department; then retired and became a Reserve at that 2nd department upon retirement.
The entire Reserve statuses/levels were always confusing to me, but I was Level One anyway (disregard my user name).

For everybody, since I'm posting in this thread I'll brain-storm and throw out a thought. My department didn't issue AW letters or permits to us. All AR15s were 16" barreled and the shotguns upon retirement were 14" SBSs; all department owned.

If the OP's Chief, PD, or City wants to consider it. I suppose the PD/City could buy the AW and just issue it to the subject Reserve Officer, as that is what my department mostly did, although usually the shotguns were left at work.

Another idea would be for the Reserve Officer to "donate" the funds (like a "grant") to the PD, specifying the funds would be for the PD to buy the specific AW, to be issued to that Reserve Officer, and upon leaving the PD, be given the AW with whatever caveats necessary, such as the officer must somehow be exempt, legal to own, &/or for it to be shipped out of state (perhaps if the officer relocated out of state) if legal in that other state. Essentially, it'd be a contract between that Officer and the city.

I'm just brainstorming and the city attorney probably should draft it up for it to have exactly the right wording and legalities involved.

[ArmedChef]

Thanks! Having to sift through federal law, state law, DOJ opinions, and department policy gets crazy-making at times.

My agency will only issue private purchase letters to Level I reserves. On paper they'll allow any armed reserve to be rifle-qualified, though it's a hard process. Policy allows officers with privately owned rifles to take them home and use them off duty.

[RickD427]

Originally Posted by ArmedChef

Hi, I wanted to weigh in on a couple of things here.

Reserves of all levels are appointed under 830.6, including Designated Level I reserves who have full 24/7 peace officer authority granted under 830.1.

It's up to the appointing agency to determine what section of the Penal Code their peace officer employees are appointed under. When an agency makes a peace officer appointment, the PC section the appointment is made under is an included field in the form that the agency sends to the POST Commission.

There is no requirement that an employee be employed full time in order to be appointed under PC 830.1. The crux is that they have to meet the same POST criteria as do full-time officers.

I began my law enforcement career with a state agency that had just implemented a reserve option to meet staffing needs. Penal Code section 830.6 did not permit the agency to appoint reserves. I had to complete the POST Basic Course and was appointed as an hourly-paid officer under Penal Code section 830.2.

I know a lot of Level 1-Designated reserve officers, and those have all been appointed under PC 830.1 by their agencies. You do make a very good point that Penal Code section 830.6(a)(2) does permit appointment of reserve officers, who meet the POST Basic course requirements as sworn peace officers and without the "on-duty" limitation that applies to PC 830.6(a)(1) appointees. Please note that my comments made regarding reserve officers only apply to non-designated officers appointed under PC 830.6(a)(1).

Originally Posted by ArmedChef

As far as assault weapons go, that is correct that section 30630 does not specify "full time paid," it only specifies "sworn peace officer." It also explicitly states that the possession is legal "whether on or off duty" without mention of 24/7 peace officer authority.

You're correct that PC 30630 only addresses "sworn peace officer" and that it makes no mention of 24/7 peace officer authority, but then there is no need for it to make that distinction. For that matter PC 30630 also does not specifically exclude mail carriers and UPS delivery persons from being considered as "sworn peace officers." Whether a person is, or is not, a sworn peace officer is a purely binary question. It's like a light switch, they either are, or are not, a "sworn peace officer." PC 830.6 makes clear that reserve officers appointed under PC 830.6(a)(1) are "sworn peace officers" only when on duty. They are not "sworn peace officers" when off duty and that makes the distinction unnecessary. IMHO, that's a problem with the statute, but it's clearly what the statute provides.

Originally Posted by ArmedChef

I don't have any written information to support this but as I understand it that opinion from AG Brown has effectively been reversed. The DOJ has told agencies it's up to them whether or not to allow their retiring officers to keep their assault weapons. I do know of agencies where retirees keep theirs with no pushback from the DOJ. Even if we were still operating under that opinion it does acknowledge that the penal code "does not expressly restrict peace officers to using their assault weapons for law enforcement purposes." I do not see anything in the penal code or opinion that restricts off-duty assault weapon possession to 830.1 authority.

DOJ Opinions are not the same as published case law, but they are entitled to legal weight (refer to Thorning v. Hollister School District and Napa Valley Educators? Association v. Napa Valley Unified School District.) They are also binary, they are either in issue, or removed from issue. As of just a few moments ago, AG Opinion 09-901 concerning the disposition of RAWs when a peace officer leaves active status remains in issue. I very much agree with you that it horribly written, that it lacks a basis in the law, and that it would probably not survive a court challenge, but none of that matters, it remains in issue.

The prohibition on Assault Weapon possession does not lie in the DOJ opinion. All that the DOJ opinion does is to state a requirement that a peace officer surrender their RAW when the they cease being a peace officer. The point here being that a PC 830.6(a)(1) reserve officer ceases being a "sworn peace officer" when they go off duty.

The prohibition on possession is contained in Penal Code section 30605. A sworn peace officer is exempt from that penal provision by section 30630, but, as discussed above a PC 830.6(a)(1) reserve is not a sworn peace officer when off duty and therefore is not embraced by section 30630 when off duty.

Originally Posted by ArmedChef

Level III/II/Non-Designated Level I reserves are still active peace officers, even though off-duty they have no peace officer authority, like retirees. Under the interpretation that those 830.6(a)(1) reserves had to surrender their assault weapons at the end of a shift it could also be construed to restrict possession of high capacity magazines and off-roster handguns to only on-duty use, even for those reserves with CCW authorization from their agencies.

There is no basis in statute for that position. I'm not as well-read in the POST regulations as I was when still working, but a quick check of the regs also shows no basis for that belief. The statutes and regs are pretty clear that a PC 830.6(a)(1) reserve is not a "sworn peace officer" when off duty.

I think that your analogy to retirees is misplaced. A retired peace officer no longer has any peace officer status.

[ArmedChef]

Apologies for the unclear language in the analogy. What I was trying to say is that Non-Designated reserve officers have no peace officer authority when off duty. Likewise retirees have no peace officer authority.

It's an issue of status vs. authority. Do peace officers without 24/7 peace officer authority still retain peace officer status when off duty? 860.6(a)(1) states that if a qualified person meets the requirements "the person is a peace officer" (emphasis mine). Next it says "The authority... extends only for the duration of the person's specific assignment" (emphasis mine).

Status vs. authority was an issue when LEOSA was being interpreted to see how it affected reserve officers. The CRPOA's general counsel wrote about it here in great detail, specifically sections 2 (Peace Officer "Status" vs. Peace Officer "Authority") and 3 (California Attorney General Opinions).

Status vs. authority was also adjudicated in Llanos v. Becerra (Llanos was a Non-Designated Level I reserve). The court ruled that reserve officers are sworn peace officers afforded the same exemptions to the restrictions on assault weapon purchase/possession. The CRPOA's general counsel summarized it in the first article here.

[RickD427]

Originally Posted by ArmedChef

Apologies for the unclear language in the analogy. What I was trying to say is that Non-Designated reserve officers have no peace officer authority when off duty. Likewise retirees have no peace officer authority.

It's an issue of status vs. authority. Do peace officers without 24/7 peace officer authority still retain peace officer status when off duty? 860.6(a)(1) states that if a qualified person meets the requirements "the person is a peace officer" (emphasis mine). Next it says "The authority... extends only for the duration of the person's specific assignment" (emphasis mine).

Status vs. authority was an issue when LEOSA was being interpreted to see how it affected reserve officers. The CRPOA's general counsel wrote about it here in great detail, specifically sections 2 (Peace Officer "Status" vs. Peace Officer "Authority") and 3 (California Attorney General Opinions).

Status vs. authority was also adjudicated in Llanos v. Becerra (Llanos was a Non-Designated Level I reserve). The court ruled that reserve officers are sworn peace officers afforded the same exemptions to the restrictions on assault weapon purchase/possession. The CRPOA's general counsel summarized it in the first article here.

The Llanos v. Becerra case is a good find and is an outstanding contribution to this discussion, but as a trial court decision, it's only applies to the parties in that case. A different court hearing the same facts could reach a different conclusion.

[merchantprince]

@CH483 Just sent you a DM. I have all the info straight from the doj and the template our agency uses that they drafted and approved. Luckily the groundwork has already been done on this and would be happy to share what we learned.

[merchantprince]

Originally Posted by RickD427

The Llanos v. Becerra case is a good find and is an outstanding contribution to this discussion, but as a trial court decision, it's only applies to the parties in that case. A different court hearing the same facts could reach a different conclusion.

While I appreciate the discourse and intellectual analysis here, DOJ has a very clear policy on this subsequent to the lawsuit. Reserves, both designated and non-designated have been and continue to be allowed to purchase and register AW and store them at home and use them on and off duty. Regardless of our personal opinions or interpretations, this is what the court decision and the DOJ policy are. Its not theoretical at this point as I know at least 30 non-designated reserve officers who have been allowed to purchase and register and the officer in the court case was non-designated.

[RickD427]

Originally Posted by merchantprince

While I appreciate the discourse and intellectual analysis here, DOJ has a very clear policy on this subsequent to the lawsuit. Reserves, both designated and non-designated have been and continue to be allowed to purchase and register AW and store them at home and use them on and off duty. Regardless of our personal opinions or interpretations, this is what the court decision and the DOJ policy are. Its not theoretical at this point as I know at least 30 non-designated reserve officers who have been allowed to purchase and register and the officer in the court case was non-designated.

That's groovy. And I'm actually pleased to see that result.

But also please note that I haven't been able to locate any such "DOJ Policy" anywhere in the record. Please cite the source. I'm left to think that you may have only inferred such a policy based on the actions that you have observed. As explained below, that may not give you an accurate understanding.

I author my postings from a very conservative read of case law, statutory law and regulation. I do that for the purpose of keeping myself and others out of trouble. It's an intentional bias on my part.

If a regulatory agency opts for a more lenient reading, as you have suggested here, that's all well and good. For the record, it's their judgment that counts.

But at the same time, I've asked you to cite the "policy". All you've done above is cite a number of anecdotal cases where non-designated reserves have completed purchases. In the absence of a "policy", we really don't know if those transactions were properly completed, or if they lacked sufficient scrutiny. Please remember that DOJ had some pretty classic gaffes when they permitted the sale of several SKS Rifles with Detachable Magazines, and Walther .22 Pistols with Threaded Barrels. Everyone later found out that the DOJ permitted sales didn't make the underlying violations lawful. One big problem with "DOJ Policy" is that it is subject to change upon the will and fancy of whoever is serving at the State Attorney General at the time.

[merchantprince]

Originally Posted by RickD427

That's groovy. And I'm actually pleased to see that result.

But also please note that I haven't been able to locate any such "DOJ Policy" anywhere in the record. Please cite the source. I'm left to think that you may have only inferred such a policy based on the actions that you have observed. As explained below, that may not give you an accurate understanding.

I author my postings from a very conservative read of case law, statutory law and regulation. I do that for the purpose of keeping myself and others out of trouble. It's an intentional bias on my part.

If a regulatory agency opts for a more lenient reading, as you have suggested here, that's all well and good. For the record, it's their judgment that counts.

But at the same time, I've asked you to cite the "policy". All you've done above is cite a number of anecdotal cases where non-designated reserves have completed purchases. In the absence of a "policy", we really don't know if those transactions were properly completed, or if they lacked sufficient scrutiny. Please remember that DOJ had some pretty classic gaffes when they permitted the sale of several SKS Rifles with Detachable Magazines, and Walther .22 Pistols with Threaded Barrels. Everyone later found out that the DOJ permitted sales didn't make the underlying violations lawful. One big problem with "DOJ Policy" is that it is subject to change upon the will and fancy of whoever is serving at the State Attorney General at the time.

True. They can always reverse course. But for now this is their policy. My agency has been in direct contact with the chief of the firearms bureau at doj. We spent the last 3 months clarifying the policy and position and the field agents were informed as well as the dealers.

The court case specifically dealt with a non-designated reserve and in light of that, doj reversed course. This isn't something they put out to the public but that has been conveyed from the highest levels of the doj to the dealers and command staff at my agency in writing. Its not something I am at liberty to share publicly but any responsible party at an agency can contact the doj to corroborate what I am saying.

[RickD427]

Originally Posted by merchantprince

True. They can always reverse course. But for now this is their policy. My agency has been in direct contact with the chief of the firearms bureau at doj. We spent the last 3 months clarifying the policy and position and the field agents were informed as well as the dealers.

The court case specifically dealt with a non-designated reserve and in light of that, doj reversed course. This isn't something they put out to the public but that has been conveyed from the highest levels of the doj to the dealers and command staff at my agency in writing. Its not something I am at liberty to share publicly but any responsible party at an agency can contact the doj to corroborate what I am saying.

That's actually good news. I've been retired ten years now and no longer have any dialogue with anyone at DOJ. The former firearms chief that I dealt with has now moved on be counsel for the Assembly Committee on the Judiciary.

I'm not gonna ask you to put anything that was privately given to your command staff into a public forum. But I will tell you, from personal experience, not to put too must trust into such communications. I'm sure that they were sincerely authored from the current staff at DOJ, but expect change as the leadership of DOJ changes.

I was doing policy maintenance work for my agency when the DOJ Opinion on personally owned "Assault Weapons" was issued. I can tell you from first-hand experience with that one, that getting any kind of consistent word from DOJ was impossible. I can also tell you that DOJ "flipped and flopped" on quite a few firearms policy issues during the years that I was in that position.