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Orange County Employees Assn., Inc. v. County of Orange (1993) 14 Cal.App.4th 575 , 17 Cal.Rptr.2d 695
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
1. [No. G012704. Fourth Dist., Div. Three. Mar. 23, 1993.]
ORANGE COUNTY EMPLOYEES ASSOCIATION, INC., Plaintiff and Appellant, v. COUNTY OF ORANGE et al.,
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. ORANGE COUNTY EMPLOYEES ASSOCIATION, INC., Plaintiff and Appellant, v. COUNTY OF ORANGE et al.,
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
If anyone has any other case law on this topic I'd like to read it.
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