Petition — Singer v. Gates

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83-1145

SUPREME COURT —s

OF THE

UNITED STATES

No.

OCTOBER TERM, 1983

ROBERT SINGER,

v.

BRAD GATES, sheriff-Coroner,

.. COUNTY OF ORANGE, and

COUNTY OF ORANGE, 3 ; :

PETITION FOR WRIT OF CERTIORARI

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Gregory G. Petersen

Member of the Bar,

U.S. Supreme Court

600 W. Santa Ana Bivd. =

Santa Ana, California 92701 =

(714) 667-8071

Nero ee

QUESTIONS PRESENTED

1. Does the requirement of “good cause” to deny or

revoke the statutory benefits of honorably retired deputy

sheriffs create a reasonable expectation of entitlement

sufficient to implicate the Due Process Clause of the

Fourteenth Amendment?

2. Whether the endorsement on the retired deputy sher-

iffs’ certificate, as required by California Penal Code § §

12027 and 12031, constitutes a publication of defamatory

and stigmatizing information, i. e., that “good cause”

exists to deny or revoke the statutory rights found in § §

12027 and 12031. If so, has petitioner suffered a loss of his

liberty interest within the meaning of the Fourteenth

Amendment?

3. When a Federal Court must determine the existence of.

a property interest protectableby the Fourteenth Amend-

‘ment by reference to State law, may the Federal Court dis-

regard the decision of the State Court of Appeals on the

identical legal question and render a contrary decision?

4. Can the United States Court of Appeals for the Ninth

Circuit ignore the decision of the California Court of

Appeal and the admission of respondents that California

Penal Code § § 12027 and 12031 create a statutory en-

titlement for retired California Peace Officers which the

California Court of Appeal finds to be a protected pro-

Ya, 7

perty interest under the Fourteenth Amendment. If not,

must the Federal Court abstain or follow the California

Court of Appeal’s interpretation of state law? ©

CERTIFICATION AS TO INTERESTED PARTIES |

the Petitioner hereby certifies tht there are

no parties of interest in the case at bar except those

in the caption and their attorneys of record. These

presentations are made to enable judges of the court to

evaluate possible disqualifications or recusal.

/

7.

TABLE OF CONTENTS

QUESTIONS PRESENTED. ..........sseeeeeeees i

CERTIFICATION AS TO INTERESTED PAR-

THES, ...cccccccccccccccccscccecs sovvcccccccee .« iii

I. PETITION FOR WRI OF CERTIORARI ..... 1

II. OPINIONS BELOW. ...........cceecceeeeeess 2

Ill. JURISDICTION ........... ' cvcccecseosceses 2

IV; CONSTITUTIONAL AND STATUTORY PRO-

VISIONS INVOLVED..............ececees secceeS

V. STATEMENT OF THE CASE....... ee

VI. REASONS FOR GRANTING THE WRIT ....7

(a) The United States Court of Appeals has con-

strued California Penal Code §§ 12027 and

12031 in a manner which contravenes theinter-

pretation of the identical statutes by the Calif

(b) The United States Court of Appeals and the

United States District Court Have Decided an

Important Question of Federal Law in a Way

that Conflicts with the Applicable Decisions of

this Court and Other Circuits ...... Uae

(c) Respondents Admitted the Entitlement

Claimed By Petitioner Pursuant to California

Penal Code §§ 12027 and 12031 ..........22

Vil. ABSTENTION OR CONCURRENCE WITH

THE CALIFORNIA COURT OF APPEALS’ INTER-

PRETATION IS REQUIRED BY THE DOCTRINE

OP COMMIT ...0....cccccccccccccccseveccessecs 25

CONCLUSION. .........00ceccecccceccececsencs 30

STATEMENT OF RELATED CASES........... 31

YR EE ee 32

IDSA 2... <2. caasenccasscloseadl 39

MN, 6... icin aceesocnatscctascecnias 52

APPENDIX D ...........-- ee ee 63

APPENDIX E.............. ORIOLE OD ae 64

APPENDIX F......... ingtdicdcndtabedaa .o2e 85

APPENDIX G eeeeeeeeeeeeeeeeeee ncndnonshaeel

:

-

APPENDIX I obccedecundaducdoeedossnedOeeaawe

Vv

TABLE OF AUTHORITIES

Cases:

Page:

Arnett v. Kennedy

416 U.S. 134, 207-208, 94 S.Ct. 1663, 40 L.Ed. 2d 15

CRT seta i eR a Pees is cae Se eee eka 18

Baer v. City of Wauwatosa

716 F.2d 1117 (7th Cir. 1983) .............05. 18

Barnett v. Housing Authority of City of Atlanta

707 F.2d 1571 (11th Cir. 1983) ............... 18

Bell v. Burson

402 U.S. 535, 91 S.Ct. 1586 29 LEd 2d 90

CROTID a6 0d oe kane vacbas béackuaes asa 18, 21

Bishop v. Wood

426 U.S. 341, 345, 96 S.Ct. 2074, 48 L.Ed 2d 684

OOD: ba ws id tiniivmes ncisks oe eleineceee epee

Board of Regents v. Roth

408 U.S. 564, 92 S.Ct. 2701, 33 LEd 2d 548

(107B) i cipceccsapsvoesvntncana vases eM; MSS” ams

423 U.S. 6, 96 S.Ct. 168, 46 LEd 24 148 .

ee Se ee ee te

a =

Brockert v. Skornicka

711 F.2d 1376 (7th Cir. 1983) ................ 18

Bueno v. City of Donna

714 F.2d 484 (5th Cir. 1983) ................. 18

California v: Taylor

353 U.S. 553, 77 S.Ct. 1037, 1 L.Ed 2d 1034

YE IS SOE Hey iar pews Bue geeas Pe he 9

California District Courts of Appeal, Six Counties of Cal-

ifornia v. Joint Highway District

311 U.S. 180, 61 S.Ct. 186, 85 L.Ed 114 (1940) reh.

den. 311 U.S. 730, 61 S.Ct. 438, 85 L.Ed 475, 311

pik Sk PGES Ey a bape Uepeee manana TH. a 9

Connell v. Higginbotham

403 U.S. 207, 91 S.Ct. 1772, 29 LEd 2d 418

IONE ss sacs vas acigcewsasitetokotaahvse Inala 18 >

Curry v. Fred Olsen Line

367 F.2d 921, 924, fn. 10 (9th Cir. 1966)..... 19

Dennis v. Sparks ¥

: 445 U.S. 942, 100 S.Ct. 1336, 63 L.Ed 2d 775 ag

% (1980). 00... eee eeeerer er eeenereceeeeeeesee ee LO ; Se

"3 ely F.2d 61 (9th Cir. 1982) seb ctntwkamaeiatecue By, ae

sy ‘ ware “

Factors Etc., Inc. v. Pro Arts, Inc.

652 F.2d 278, 282-283 (2nd Cir. 1981) ........ 29

Ferrell v. Estelle

573 F.2d 867 (5th Cir. 1978) ............-000e- 8

Fidelity Union Trust Co. v. Field

BRE a NO dk on vey cpu bnnccdeateccsosamndene 9

Goldberg v. Kelly

397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed 2d 287

CPN ihc 6k Cas cea chet aranes sone dceceeeeten 18

Goss v. Lopez

419 U.S. 565, 573-574, 95 S.Ct. 729, 42 L.Ed 2d 725

CRT aks ica sin Na eee OER s ohn 5 eben es ckpaeeks 18

Huddleston v. Dwyer

322 U.S. 232, 64 S.Ct. 1015, 88 LEd 1246

LOGO oi. fo caves bs Xe caGR ei aseuoapertekena 26

4

Jacobson v. Hannifin )

627 F.2d 177 (9th Cir. 1980) ................. 20

Jones v. aoe eae Care Coe ee

‘ TOR S-S Oee e 1983) . a ph RAG weve lB

ee |

608 F.2d 1319, 1334 (9th Cir. 1979). .. aks

Loca! 205, United Electrical, Radio & Machine Workers of

America (UE) v. General Electric Company

172 F.Supp. 53 (D.Mass. 1959) ..............- 17

Matthews v. Eldridge

424 U.S. 319, 96 S.Ct. 893, 47 L.Ed. 2d 18

DCG ék na be winut Vaetenep hetecdcsievernts 18

McGregor v. State Mutual Life Assurance Co.

315 U.S. 280, 62 S.Ct. 903, 86 L.Ed. 846 (1942)... 26

Memphis Development Foundation v. Factors Etc., Inc.

616 F.2d 956, 958 (6th Cir. 1980)............. 28

Memphis Light Gas & Water Div. v. Craft

436 U.S. 1, 11-12, 98 S.Ct. 1554, 56 L.Ed 2d 30

DER SG cnn ccashenubhtesscsccepobbnacubeaan 17

Monzingo v. Garden Grove

190 Cal. Rptr. 750 (1983). .............0000. 7, 25

Mullane v. Central Hanover Benk & Trust Company

339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed 865

PS wih bcc bis en aseccdpwarkcckecenCen occa

Sears, Roebuck & Co. v. Marhenke

121 F.2d 598 (Oth Cir. 1941) .........eeeeee0eD

Sparks v. Duval County Ranch Co.

604 F.2d 976, 979 (5th Cir. 1979)(en banc), cert. den.

445 U.S. 943, 100 S.Ct. 1339, 63 L.Ed2d777...... 8

Werner v. Hearst Publishing Co.

297 F.2d 145, 148 (9th Cir. 1961).............. 9

West v. American Telephone & Telegraph Co.

311 U.S. 223,61 S.Ct. 179 85 L.Ed 139 (1940)..... 9

Codes:

Page: ;

Local Rules of Court, Rule 21(c) ...............06. 14

California Code of Civil Procedure, §394 .......... 29

California Penal Code $12025...............c0005 12

California Penal Code § 12027 .... i, ii,3,4,5,6,7, 11, 12,

i WB 2 Bs Be oe. co Ge ae

California Penal Code § 12031 .. . i, ii, 3, 4,6,7, 11, 12, 13,

15, 16, 18, 22, 23, 24,25

California Penal Code §12050...... duties ooebees wlll

}

errr re eo eo eee eee

P

Federal Rules of Civil Procedure, Rule 8(d)...,. 11, 23

és Title 28, U.S. Code 1254... ....ccccccccccccccccceet }

Title 42, U.S. Code 1983 .............c cece cece eeeedD

. :

United States Constitution, XIVth Amendment ... . i, ii, 8

4

2

728

4

a

a

F

9 Fi

IN THE UNITED STATES SUPREME COURT

October Term, 1984

No.

ROBERT SINGER,

Petitioner,

Vv.

BRAD GATES, Sheriff-Coroner,

COUNTY OF ORANGE, and

COUNTY OF ORANGE,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO: The Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United States:

Robert Singer, the petitioner herein, prays a Writ of

Certiorari issue to review the Judgment of the United

States Court of Appeals for the Ninth Circuit entered in

the above case on September 23, 1983.

:

: I. ;

Oe), eae ote

II

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit is reported at 716 F.2d 733 (9th Cir.

1983) and is printed in Appendix “A” hereto, infra..

The Judgment of the United States District Court for the

Central District of California is printed in Appendix “A”

hereto, infra.

Ill

JURISDICTION

The judgment of the United States Circuit Court of

Appeals for the Ninth Circuit (Appendix “A”, infra.) was

entered on September 23, 1983. The jurisdiction of the

Supreme Court is invoked under Title 28, U.S.C. § 1254.

IV

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Constitution, Amendment XIV!

Title 42, United States Code §19837

California Penal Code § 120279

California Penal Code § 120314

California Rules of Court, Rule 976(b)®

V

STATEMENT OF THE CASE

This action was originally commenced in the United

States District Court for the Central District of California

by the Association of Orange County Deputy Sheriffs and

four (4) medically disabled retired deputy sheriffs of the

County of Orange. Deputies Byrd and White were dis-

i es

Rd.

eS Ue a —_

missed from the action by the District Court on the Dis-

trict Court’s ruling that they did not present a case or

controversy, within Article III, since they did not reside in

the State of California. ® Cross Motions for Summary

Judgment were considered by the District Court and

judgment was entered in favor of the defendants on July 6, .

1982.7 On July 16, 1982, a Notice of Appeal to the United

States Court of Appeal for the Ninth Circuit was filed.® On

September 23, 1983, the United States Court of Appeal

for the Ninth Circuit upheld the trial Court’s decision.®

The focal point of this litigation concerns the provisions

of California Penal Code § § 12027(a) and 12031(b)(1).

The petitioner herein applied for a position as a diamond

courier escort for the International Diamond Company.

He was interviewed by the head of security for the

company and was informed that he must carry a concealed

weapon to qualify for the position. As a result of the failure

of the Sheriff of Orange County to endorse his retirement

identification card in the manner prescribed by California

PenalCode §12027 and 12031, concerning the right to

continue to carry a concealed weapon upon retirement,

the petitioner was denied the employment.!° California

6) Appendix “B*, p. 3, L 20-23.

7) Appendix “T’, United States District Court Docket Entry (herein-

after “D.E ”) 51.

8) Id, D.E. 52.

9) Appendix “T’, D.E. 11, p. 2.

10) Appendix “A”.

Penal Code § § 12027(a) and 12031(b)(1) require “good

cause” to “deny or revoke” the retired officer's privelege

to carry a weapon as provided in both California Penal

Code§ § 12027 and 12031. Petitioner has never been

given notice of the “good cause” that is claimed to exist to

“deny or revoke” the statutory entitlements; nor has he

ever been given a hearing or opportunity to confront the

allegations of “good cause” which are a statutory pre-re-

quisite to the denial and/or revocation of the statutory

entitlements.!!

Petitioner, Robert Singer, was employed as a full-time

deputy sheriff by the County of Orange from January 2,

1968 until medically retired; at which time he was

honorably retired from that employment due to job-

related injuries.'? A peace officer, retiring due to job-

related injuries, retires at 50% of the salary that he

received as a full-time employee.!* Disability retirements

often occur at times when the officers are financially

unprepared for the consequences of the severe reduction

in pay that is a norma! consequence of such retirement.

The average police officer seeks to supplement his retire-

ment income with employment in a field that is related to

his police employment and experience.!* This employ-

ment may be full or part-time and may range from menial

security positions to any number of other positions that

require the training which a retired police officer may

11) Id, p. 4.

12) Id, D.E. 39, Exhibit 1.

13) California Government Code § 31727.4.

14) Appendix “T’, D.E. 2, 4, 8-11, 14, 15, 37, 38, 45, 46 and 48.

have.!5 In many cases, the prime asset which allows the

retired police officer access to employment, even though

partially disabled, is a statutory right to carry a weapon as

granted in California Penal Code § § 12027 and 12031.'¢

Absent “good cause”, the right to carry a concealed

weapon is statutorily absolute. Petitioner contends that he

has more than a mere unilateral expectation or an abstract

need or desire for the entitlement in that the entitlement

allows him to be employable within his field of training,

experience and education. The contention of the petition-

er is that, absent “good cause”, he is entitled to the

benefits conferred upon him by statute. As such, petition-

er claims the protected property interest was created by

the statutes which may be divested only upon a showing of

“good cause” in accordance with the guarantees of pro-

cedural due process. !?

Additionally, the publication by way of negative en-

dorsement upon the retirement certificate, that the peti-

tioner is not entitled to carry a concealed weapon stigma-

tizes the petitioner by communicating to ary prospective

employer the fact that “good cause” exists to deny or

revoke the statutory entitlement as found in both Califor-

nia Penal Code § § 12027 and 12031. This denies the

petitioner employment and career advancement oppor-

tunities upon retirement alheit “good cause” has never

15) Id.

16) Id.

17) This contention was upheld by the California Court of Appeals;

see discussion infra. p. 8.

been demonstrated to deny the benefit. Common sense

would lead a reasonable man to conclude that a negative

weapons endorsement on the statutorily required retire-

ment identifiéation must be based on “good cause”.

VI

REASONS FOR GRANTING THE WRIT

Vi(a)

The United States Court of Appeals has construed

California Penal Code § § 12027 and 12031

in a manner which contravenes the interpretation of

the identical statutes by the California Court of

Appeals.

Shortly prior to the oral arguments before the United

States Court of Appeals for the Ninth Circuit, the Califor-

nia Court of Appeals decided the case of Monzingo v..

Garden Grove, 190 Cal.Rptr. 750 (1983). This decision

was presented to the United States Court of Appeals prior

to oral arguments. The California Court of Appeals

interpreted California Penal Code § § 12027 and 12031

as creating a legitimate claim of entitlement to the bene-

fits contained therein within the meaning of the Due

Process Clause of the Fourteenth Amendment to the

United States Constitution. Despite this fact, the United

States Court of Appeals upheld the decision of the District

Court and stated:

“This court finds, as did the court below, that

the requirement of ‘good cause’ prior to the

denial of a weapons certificate does not create a

constitutionally protected interest, because it is

not a ‘significant substantive restriction on the

basis for [the] agency’s action’.” 716 F. 2d at 734

The California Court of Appeals stated, as to these

same Penal Code sections:

“By the language of the statute, it may only be

taken from them on a showing of ‘good cause’.

Certainly, any active or honorably retired city

police officer under these provisions has ‘a

legitimate claim of entitlement to’ the privilege

(see Board of Regents v. Roth, 408 U.S. 564,

577, 92 S. Ct. 2701, 2709., 33 L.Ed. 2d 548).”

The petitioner respectfully submits that the opinion of

the United States Court of Appeals fails to properly

recognize the obligation of the Federal Courts to follow

the decisions of the State Court when interpreting state

statutes. Ferrell v. Estelle, 573 F.2d 867 (5th Cir.

1978); Sparks v. Duval County Ranch Co., 604 F.2d

976, 979 (5th Cir. 1979) (en banc), cert. den. 445 U.S. 943,

100 S. Ct. 1339, 63 L.Ed 2d 777, granted sub. nom.

a ie

Dennis v. Sparks, 445 U.S. 942, 100 S. Ct. 1336, 63 L.Ed

2d 775 (1980).

The decisions of an intermediate Appellate Court of

California are binding on the Federal Courts. California

v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1 L.Ed 2d 1034

(1957); California’s District Courts of Appeal, Six

Counties of California v. Joint Highway District, 311

U.S. 180, 61 S.Ct. 186, 85 L.Ed 114 (1940) reh. den. 311

U.S. 730, 61 S.Ct. 438, 85 L.Ed 475, 311 U.S. 730 (1941);

Sears, Roebuck & Co. v. Marhenke, 121 F.2d 598 (9th

Cir. 1941). See also, Curry v. Fred Olsen Line, 367 F.2d

921, 924, fn. 10 (9th Cir. 1966); Werner v. Hearst

Publishing Co., 297 F. 2d 145, 148 (9th Cir. 1961);

Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61

S.Ct. 176, 85 L.Ed 109, (1940), reh. den. 311 U.S. 730, 61

S.Ct. 438, 85 L.Ed 475, reh. den. 314 U.S. 709, 62 S. Ct.

118, 86 L. Ed 565 (1941); West v. American Telephone

& Telegraph Co., 311 U.S. 223,61 S.Ct. 179 85 L.Ed 139

(1940).

In Fidelity Union Trust Co. v. Field, 311 U.S. 169,

this Court held:

“An intermediate state court in declaring and

applying the state law is acting as an organ of the

State in its determination, in the absence of more

convincing evidence of what the state law is,

should be followed by a federal court in deciding

the state question. We have declared that princi-

ple in West v. American Telephone & Tele-

graph Co. [citation omitted]. It is true that in

that case an intermediate appellate court of the

state had determined the immediate question as

between the same parties in a psior suit, and the

highest state court has refused to review the

lower court’s decision, but we set forth the

broader principle as applicable to the decision of

an intermediate court, in the absence of a de-

cision by the highest court, whether the question

is one of statute or common law.

Here, the question was as to the construction

and effect of a state statute. The federal court

- was not at liberty to undertake the determination

of that question on its reasoning independent of

that construction and the effect which the State

itself accorded to its statute. That construction

and effect are shown by the judicial action

through which the State interprets and applies

its legislation.” Id., at 311 U.S. 178

Property interests are created by state law. Board of

Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed 2d

548 (1972). To determine if a property interest, protected

by the Fourteenth Amendment, exists reference to state

law must be had. Bishop v. Wood, 426 U.S. 341, 345, 96

S.Ct. 2074, 48 L.Ed 2d 684 (1976). The Ninth Circuit has

made no attempt to show what convincing evidence exists

to show that state law is not as stated by the California

Court of Appeals, albeit the decision was left undisturbed

by the California Supreme Court. !8

18) Appendix “C”, p. 1.

, 3 y

Pe re, tee Doe _*

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=P. :'

oe os o-

In this case, the appellees did not even place the right to

the statutory entitlement in issue since they:

“, . admit that California Penal Code Sec-

tions 12027 and 12031 entitles honorably retired

peace officers to the privilege of carrying con-

cealed weapons, . . .” Answer, Paragraph 19.!9

A finding that California Penal Code § § 12027 and

12031 do not entitle these appellants to this right does vio-

lence to the Federal Rules of Civil Procedure, Rule

8(d). “The allegations are to be treated as admitted since

not denied.” Legal Aid Society of Alameda County v.

Brennan, 608 F. 2d 1319, 1334 (9th Cir. 1979). The a

County, as an agency of the State, admitted the entitle-

ment, but controberted the eligibility of appellants entitle-

ment by claiming the appellants were not honorably

retired.2° This admission was not addressed and in Foot-

note 2 of its opinion, the United States Court of Appeals

stated:

“This Court, as did the District Court, as-

sumes appellants are equal in status to those

honorably discharged.” 716 F.2d at 733, fn.2

In determining the reasonable expectation of entitle-

ment the Court of Appeals stated:

“A reasonable expectation of entitlement is

determined largely by the language of a statute

19) Appendix “I”, D.E. 13.

20) Id

and the extent to which the entitlement is

couched in mandatory terms. 716 F.2d at 734”

Appellants respectfully submit that assuming this prop-

osition to be true, the Court cannot ignore the judicial in-

terpretations of the State Court of Appeals as well as re-

spondents’ admission of statutory entitlement. Respon-

dents admit:

“Prior to the 1974, all active and honorably

retired peace officers had an unrestrained priv-

ilege of exemption from the requirements of

Penal Code § 12025, which made carrying a

concealed weapon a crime.”?!

They argue further that since the benefits found in

California Penal Code § § 12027 and 12031 “only arises

by permission of the state Legislature” that there is no

property interest created by the statutes.”

In support of this argument, respondents argued the

contention presented and rejected in Monzingo v. City

of Garden Grove, supra:

“Neither plaintiffs nor any other citizen of the

United States have any property right to carry a

concealed weapon. The case as cited by plaintiffs

are inapposite. They deal with rights, such an

[sic] entitlement to a public education, to jobs,

welfare and benefits which are bestowed by gov-

ernment.”

In the instant case, where there is statutory

authority which allows specific citizens the

21) Id., DE. 29, p. 8, L 23-26.

22) Id, D.E. 33, p. 4, L 11-12.

privilege of carrying a concealed weapon, this

privilege does not rise to an individual property

right (Appendix “T’, D.E. 33, p. 4, 1. 17-20).

Additionally, it is also unknown, to the petitioner, the

extent upon which the United States District Court relied

upon purported California Trial Court interpretations of

Penal Code§ §12027 and 12031 since the District

Court’s opinion is silent on this point. It is clearly stated by

respondents, in their pleadings before the District Court,

that two (2) Superior Courts of the State of California had

found no property interest existed with regard to Califor-

nia Penal Code§ §12027 and 12031.2° Respondents

argued that the California Courts had not afforded due

process hearings for these statutes (Appendix “T’, p.8, 1.

11-17). 24 Yet these same respondents argue that a Calif-

ornia Court of Appeals decision, squarely on point and

interpreting these very statutes, is without precedential

value. On the record before this Court, the petitioner can-

not determine whether or not the District Court followed

the purported decisions of a Trial Court of the State of

California which, as a result of the decision of the

California Court of Appeals must be viewed as overruled.

The United States Court of Appeals, ifin doubtas to the

validity of the decision of the California Court of Appeals,

should have abstained when faced with this situation.

Boehning v. Indiana Employees Association, 423

23) Appendix “T’. D.E. 29, p. 8, l. 13-17.

24) No compliance with Title 28, United States Code § 1738 was at-

tempted by respondents.

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U.S. 6, 96 S. Ct. 168, 46 L. Ed. 2d 148 (1975), or, alterna-

tively required further briefing on the claim of appellee

that the decision was of no precedential value.”5

Subsequent to oral arguments before the U.S. Court of

Appeals, the California Supreme Court ordered the

Monzingo decision unpublished pursuant to California

Rules of Court, Rule 977. The Court gave no reason for

its ruling or its order and, under the appropriate criteria

for publication of intermediate appellate court decisions

in California, the opinion presumably failed to qualify for

publication under California Rules of Court, Rule 976(b).76

The State Supreme Court did not overrule or modify the

decision. While the United States Court of Appeals for the

Ninth Circuit Local Rules of Court, Rule 21(c) states

that an unpublished opinion of that Court is not of preced-

ential value, the California Courts do not seem to so view

unpublished opinions:

“Several decisions stated, ‘in one way or .

another that a non-published decision is not

available as a precedent (citations omitted).

Rule977 does not say this. It says only that a non-

25) Petitioner requested to brief the issue after respondents, by let-

ter, indicated to the panel that Monzingo, supra, was of no pre-

cedential value but no briefing was permitted.

26) Appendix “H”. To qualify for publication the opinion must meet

the standard of the California Rules of Court, Rule 976(b) which

states: (b) [Standard for opinions of other courts} No opinion of a

_ Court of Appeal or of an Appellate Department of the Superior Court

shall be published in the Official Reports unless such opinion (1) es-

tablishes a new rule of law, or alters or modifies an existing rule, (2) in-

volves a legal issue of continuing public interest or (3) criticizes exist-

ing law.

published opinion shall not be cited by a court or

party.” Gray v. Kay, 47 Cal. App.3d 562 (1975)

(Emphasis in original).

The United States Court of Appeals apparently accept-

ed, without argument or briefing, the contention of the

respondents that the order of the California Supreme

Court which unpublished the previously published appel-

late decision also removed any precedential authority.

This lage was uot addressed in the decision of thy United

States Court of Appeals.

Even had the precedential value been negated, peti-

titioners believe that such an expression of statutory con-

struction by the State Trial Court and the Appellate Court

should caution against the contrary construction of Calif-

ornia Penal Code § § 12027 and 12031 adopted by the

United States Court of Appeals. $

Vi(b)

The United States Court of Appeals

and the United States District Court

Have Decided an Important Question of ~

Federal Law in a Way that Conflicts with

the Applicable Decisions of this Court

and Other Circuits.

The United States Court of Appeals and the United

States District Court have determined that the term

“good cause” is of no consequence and is not a significant

substantive restriction on the basis for the local govern-

ment’s action in denying the benefits conferred by Penal

Code § § 12027 and 12031 upon honorably retired peace

officers of the State of California. The District Court

stated “There is no definition of good cause, and no other

details in the statutes which would limit the agency’s dis-

cretion.2” The broad reach of the implications of this de-

cision,2® coupled with the failure to find that the Legis-

lature’s use of the phrase “good cause” creates a legiti-

mate claim of entitlement, much less any restriction, pro-

tectable under the due process clause, is unsupported

even by the decisions of the Ninth Circuit. A review of the

history of Penal Code § § 12027 and 12031 shows that

petitioner has had, since the date of his employment, an

exemption to the prohibition against carrying a concealed

weapon in the State of California. The “good cause” re-

quirements prior to denying this right of an honorable

retirement cannot, with all reason, be characterized as an

abstract need or desire; nor as a unilateral expectation.

This Court has stated:

“The hallmark of property, the court has

emphasized, is an individual entitlement ground-

ed in state law, which cannot be removed except

‘for cause’.” (Citations omitted)

27) Appendix “B”, p. 7, L 17 to p. 8, L 2.

28) Petitioner is unaware of the total number of retired officers whose

rights wiil be affected.

Once that characteristice is found, the types of

interests protected as ‘property’ are varied and,

as often as not, intangible, relating to the whole

domain of social and economic fact.” (Citations

omitted). Logan v. Zimmerman Brush Com-

pany, 455 U.S. 422, 430-431, 102 S. Ct. 1148, 71

L.Ed 2d 265 (1982).

The requirements of “cause” prior to deprivation has

been held to be the essentia! trigger mechanism for cre-

ating an expectation of entitlement in cases too numerous

to mention. To decide, in light of this Court’s precedents,

that the words “good cause”, placed in these statutes by

the California Legislature as part of a limiting factor on the

previously absolute exception vested in retired peace

officers, is tantamount to the total removal of the phrase

“good cause” from the statute. The requirement that

there be “good cause” to deny or revoke the benefit does

not give the discretion as to whether or not to grant the

entitlement since the entitlement is granted by the statute

itself. The requirement of the term “good cause” is an ob-

jective, as opposed to a subjective and personal, test of the

sufficiency of the cause. Local 205, United Electrical,

Radio & Machine Workers of America (UE) v. Gener-

al Electric Company, 172 F.Supp. 53 (D. Mass. 1959).

In Memphis Light, Gas & Water Div. v. Craft,436

U.S. 1, 11-12, 98 S.Ct. 1554, 56 L.Ed 2d 30 (1978), this

“Because petitioners may terminate services

<i

"

AS

hi

* - ~ Ww

only ‘for cause’ (fn. omitted) respondents assert

a ‘legitimate claim of entitlement’ within the pro-

tection of the diie process clause.”

This rationale has been followed in Goss v. Lopez, 419

U.S. 565, 573-574, 95 S.Ct. 729, 42 L.Ed 2d 725 (1975);

Board of Regents v. Roth, 408 U.S. 564, 576-578, 92

8.Ct. 2701, 33 L.Ed 2d 548 (1972); Arnett v. Kennedy,

416 U.S. 134, 207-208, 94 S.Ct. 1633, 40 L.Ed 2d 15

(1974); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct.

893, 47 L.Ed. 2d 18 (1976); Connell v. Higginbotham,

403 U.S. 207, 91 S.Ct. 1772,'29 L.Ed 2d 418 (1971); Bell

v. Burson 402 U.S. 535, 91 S.Ct. 1586 29 L.Ed 2d 90

(1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011,

25 L.Ed 2d 287 (1970); Mullane v. Central Hanover

Bank & Trust Company, 339 U.S. 306, 314, 70 S.Ct.

652, 94 L.Ed 865 (1950); Bishop v. Wood, 426 U.S. 341,

345, 96. S. Ct. 2074, 48 L.Ed 684 (1976); Baer v. City of

Wauwatosa, 716 F.2d 1117 (7th Cir. 1983); Jones v.

Los Angeles Community College District, 702 F.2d

203 (9th Cir. 1983); Barnett v. Housing Authority of

City of Atlanta, 707 F.2d 1571 (11th Cir. 1983); Bueno

v. City of Donna, 714 F.2d 484 (5th Cir. 1983); Brock-

ert v. Skornicka, 711 F.2d 1376 (7th Cir. 1983).

Moreover, California Penal Code §§ 12027 and

12031 do not speak in the terms of a license “applicant”.

They deal with “the retired officers privilege to carry a

weapon”. This privilege,”? unrestrained prior to 1974 and

29) This Court rejected the distinction between “right” and “priv-

ilege” in Board of Regents v. Roth, 408 U.S. 564, 576-578, 92 S.Ct.

2701, 33 L.Ed 2d 548 (1972).

thus previously absolute, was modified to allow the agency

from which the peace officer is honorabley retired to deny

or revoke the privilege, for “good cause”, upon initial re-

tirement or at any time subsequent thereto. The most ob-

vious fact, that distinguishes this case from an instance

where one applies for a license or other benefit which he

has not enjoyed in the past, is the fact that the peace

officer who is retiring has enjoyed the exemption up to the

time of retirement and, by the language of the statute, may

expect to continue to enjoy the exemption unless there is

“good cause” to deny or revoke. The Ninth Circuit in rely-

ing upon their prior interpretation of California Penal

Code § § 12050 appears to have failed to consider this

fundamental factual distinction (See Erdelyi v. O’ Brian,

680 F.2d 61 (9th Cir. 1982). In Erdelyi, the plaintiff was

_ an individual who sought to obtain a permit to carry a con-

cealed weapon; a right that she had never before pos-

sessed. The Chief of Police of the City of Manhattan

Beach declined to issue the permit. It is important to note

that California Penal Code § 12050 does not contain a

requirement that there be “good cause” to deny or revoke

an exemption but, in its own statutory terms, grants

discretion to issue a permit which would, for the first time,

create a right or benefit not previously possessed by the

“applicant”. Thus, in Erdelyi, the plaintiff had not lost a

benefit. The difference between Erdelyi and this case is

dramatic. This petitioner has had the right to earn a living

based on a statutory exemption which he has been vested

with for his many years as a peace officer. The denial or

revocation of the right removes the benefit whereas in

Erdelyi, the denial merely prevents the benefit from oc-

curring. Even the language of the Erdelyi decision con-

firms this fact:

“Section 12050 explicitly grants discretion

to the issuing officer to issue or not issue a li-

cense to applicants meeting the minimum sta-

tutory requirements. Where State law gives the

issuing authority broad discretion to grant or

deny license applications in a closely regulated

field, initial applicants do not have a property

right in such licenses protected by the Four-

| teenth Amendment. id., 680 F. 2d at 63.”

' (Emphasis added)

In this case, the petitioner is not an initial “applicant”

and the respondent is not explicitly granted discretion to

grant or deny a license. Respondent’s function is limited to

denying or revoking the privilege upon a showing of “good

cause”.

The Ninth Circuit and District Court also relied on the

decision of Jacobson v. Hannifin, 627 F.2d 177 (9th Cir.

1980). In Jacobson, the Court found that the “applica-

tion” for a “license” could be denied under Nevada law for

“any cause” (Nev. Rev. Stat. § 463.220). Again, however,

the “applicant” was seeking a right which he did not have

at the time the application was made. The discretion to be

exercised, if any, in petitioner’s case is to deny or revoke

aie 2

a

for “good cause”. Simply put, a determination that “good

cause” existed to deny or revoke the privilege is required

at the time the retirement certificate is issued to the

petitioner. The retirement certificate must be issued,

pursuant to California Penal Code § 12027, and must be

endorsed pursuant thereto concerning the retired officers

right to continue to carry a weapon. That ministerial duty

does not confer unfettered discretion upon the sheriff or

respondent county. By analogy, this Court’s decision in

Bell v. Burson, 402 U.S. 535,91 S. Ct. 1586, 29 L. Ed. 2d

90 (1971) is extremely on point:

“Once licenses are issued, as in petitioner’s case,

their continued possession may become essen-

tial in the pursuit of a livelihood. Suspension of

issued licenses thus involve state action that ad-

judicates important interests of the licensees. In

such cases, the licenses are not to be taken away

without that procedural due process required by

the Fourteenth Amendment.” Id., p. 539.

There is an entitlement which the evidence shows plays

a significant role in the disabled deputy sheriff's ability to

earn a livelihood upon retirement. This entitlement is not

created by the officers’ retirement; but in fact is vested in

the deputy sheriff until the date of retirement and beyond

the date of retirement unless, at the time of retirement or

subsequent thereto, “good cause” is shown to deny or

revoke the entitlement. What the District Court and the

United States Court of Appeals appear to say is that there

ag ae Ss

a ‘

is no entitlement which is being divested. That is not the

status of California law as determined by the California

Appellate Court.

VI(c) |

Respondents Admitted the Entitlement Claimed By

Petitioner Pursuant To California Penal Code § §

12027 and 12031

In his complaint, petitioner pled:

“Penal Code § 12027(a), in conjunction with

Penal Code § 12031, statutorily entitled retired

peace officers the privilege of carrying concealed

weapons. Said statutory entitlement amounts to

a ‘property right’, and as such is protected by the

Fourteenth Amendment to the United States

Constitution. (Petitioner's Complaint, Para-

graph 23).”3°

Respondents’ Answer stated, at paragraph 19:

“As to the allegations of paragraph 23, admit

that California Penal Code § § 12027 and 12031

entitle honorably retired officers to the privilege.

of carrying concealed weapons, and, except as so

30) Appendix “TI”, D.E. 1, p. 8, L 15-20.

ry F

Cd }

ndany

ene ae

admitted, deny generally and specifically, con-

junctively and disjunctively, each and every other

allegation contained therein.*!

The United States Court of Appeals found, as a matter of

law, no entitlement under the California Penal Code

§ §12027 and 12031. The Federal Rules of Civil Pro-

cedure, Rule 8(d) provides:

“(d) EFFECT OF FAILURE TO DENY.

Averments in a pleadings to which a responsive

pleading is required, other than those as to the

amount of damage, are admitted when not de-

nied in the responsive pleading. Averments in a

pleading to which no responsive pleading is

required, or permitted shall be taken as denied

or avoided.”

Having admitted the entitlement to the benefits of Cal-

ifornia Penal Code § § 12027 and 12031 the respondent

then urged the Trial Court and Court of Appeals to find no

property interest protectable by the Fourteenth Amend-

ment. Such a construction is contradictory since such an

entitlement, under Board of Regents v. Roth, 408 U.S.

564, 577, 92 S. Ct. 2701, 33 L.Ed. 2d 548 (1972), normal-

ly creates a property interest. Additionally, the admission

raises the factual question with regard to a mutually

explicit understanding sufficient to create a protectable

31) See footnote 19, supra.

property interest.?? The representatives of several thou-

sand California peace officers show that the statute is un-

derstood to grant a property interest and an entitlement,

absent “good cause”, to carry a weapon upon retirement.*?

The respondent presented no evidence to the contrary

and the sole support for the decision of the Trial Court and

the Court of Appeals is to be found in California Penal

Code § §12027 and 12031.°4 Petitioner submits that

even assuming the correctness of the interpretation of the

phrase “good cause” by both the trial Court and the Court

of Appeals it is error to divest the petitioner of his opport-

unity to show a factually based mutually explicit under-

standing sufficient to create a protected property inter-

est. The evidence does not support a contrary factual con-

clusion. Declarations were received and filed in this case

from Mr. Al Angele, a Commissioner of the State Commis-

sion on Peace Officers Standard & Training of the Depart-

ment of Justice; Mr. Ken Harris, of the Denver Police Pro-

tective Association; Messrs. Bob MacLeod, Michael John-

son, Robert Singer, Michael Stover and Glen Clary of the

Association of Orange County Deputy Sheriffs; Mr. Les

Robins of the Association of Los Angeles County Deputy

Sheriffs; Mr. Wendell Phillips, of the Sacramento County

Deputy Sheriffs Association; and Mr. Dave Baca of the

32) See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33

L.Ed 2d 570 (1972).

33) See footnote 14, supra.

34) 716 F.2d 733, 735, fn. 7; Appendix “A”, p. 2.

4

P<

Los Angeles Police Protective League.*5

The declarants additionally show that the entitlement

to the benefits found in § § 12027 and 12031 of the Calif-

ornia Penal Code have a significant impact on a disabled

peace officers’ ability to earn a livelihood to augment their

retirement benefits and that they understand a negative -

endorsement to mean “good cause” exists to prohibit the

officer from continuing to carry a weapon.

Vil

ABSTENTION OR CONCURRENCE WITH THE

CALIFORNIA COURT OF APPEALS‘ INTERPRETA-

TION IS REQUIRED BY THE DOCTRINE OF COMITY

The Court of Appeal ., Fourth Appellate District, Divi-

sion One, State of California, stated in Monzingo v. City

of Garden Grove, 190 CalRptr. 750 (1983):

The Legislature has given city police officers,

as well as retired city police officers, this exemp-

tion, a statutory privilege. By the language of the

statute, it may only be taken from them on a

showing of ‘good cause’. Certainly, any active or

honorably retired city police officer under these

provisions has ‘a legitimate claim of entitlement

to’ the privilege (see Board of Regents v. Roth,

408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d

548).”

35) See footnote 14.

While this decision refers to city police officers there is

no statutory distinction between them and deputy sheriffs

under California Penal Code § § 12027 and 12031 (see

California Penal Code § §830.0 et. seq.)

In this case, the lower Federal Courts were not faced

with an absence of guidance by authoritative State Courts.

cf. McGregor v. State Mutual Life Assurance Co.,

315 U.S. 280, 62 S. Ct. 903, 86 L. Ed. 846 (1942). The

California decision “has at least raised such doubt as to

the applicable .. . law” that the decision of the lower Fed-

eral Courts should not stand. Huddleston v. Dwyer, 322

U.S. 232, 64 S. Ct. 1015, 88 L. Ed. 1246 (1944). Thus,

while “mere difficulty in ascertaining local law is no excuse ©

for remitting the parties to a state tribunal . . .”°° this

Court now faces the prospect of a square contradiction of

the state’s construction of its statutes by a Federal Court

of Appeal.

“* * * The principle is well established and

without dispute that under the rule of comity

under our dual [federal and state] system of

Government in cases involving state laws * * * eq-

uitable considerations will under certain circum-

stances require federal courts to stay their hands

where the parties have an adequate, speedy and

36) Lehman Brothers v. Schein, 416 U.S. 386, 390, 94 8.Ct. 1741,

40 L.Ed 2d 215 (1974).

complete determination of the controversy [avail-

able to them] in a state tribunal. * *** The Su-

preme Court has held that where there is pend-

ing in the federal court a case involving the con-

struction of a state law and if one construction

will remove the federal question q federal court

should stay its hand, retain jurisdiction and rele-

gate the parties to the state courts to first seek a

construction of the statute. * * *” General In-

vestment & Serv. Corp. v. Wichita Water

Co., C.A. 10th (1956), 236 F.2d 464, 468 [4], cit-

ing Meredith v. City of Winter Haven, 320

U.S. 228, 64 S.Ct. 7, 88 L.Ed 9 (1943). It is only

when “* * * the relevant state constitutional and

statutory provisions are plain and unambiguous

* * *” that a federal court should not abstain to

permit a state court to decide questions of state

law involved in federal litigation. Davis v. Mann

377 U.S. 678, 690, 84 S.Ct. 1441, 12 L.Ed. 2d

609, (1964).

It has been held, in fact, that where “* * * it

does not appear that the statutory [provisions] in

question have as yet been construed by the state

courts* * *”, it is error for a federal court to

| ee ~ bee ie ee POOL oe PA a eae

dpe et digi oi a |

' ® Shipman v. DuPre, 339°U.S. 321;°322, 70

“© <8.0¢ 640) 94° L.Bd°877, (1950): The rile has’ ©

been thus stated. Dodd v. Baiiddé, 279 F-Ship.”*

291, 293-294 (ED. Tenn. 1967). coil

“We have held that whete a federal constitu-

tional question turns ‘on ‘the’ interpretation of

local law and the local law is in doubt, the proper

procedure is for the federal court td hold the case

until 4 defihite determination of the local law can

be made.” Hillsborough Township v: Crom °

‘well, 326 U.S: 620, 628, 66 8. Ct. 445, 90 L. Ea.

358 (1946). .

In this case, albeit the United States Court of Appeals

commented upon its obligation to follow state law and spe-

cifically meritioned the Monzingo decision during oral ar-

guments, it did not do so. ‘Nor did it offer any reason for

disregarding the decision of the State Appe

tion v. Factors Ete., Inc., 616 F.2d 956, 958 (6th Cir,

1980), the Ninth Circuit did have “directly or indirectly”

‘othe 3

sod sad puree, atone So Sr eg,

\ppellat: Court. Tn

the case at bar, unlike Memphis Development Founda-

The Ninth Circuit Court of Appeals knew of the

Mozingo decision and the predisposition of the California

Court of Appeals. It is worth noting that the very Califor-

nia Court of Appeals that issued Monzingo v. City of

Garden Grove, supra, would hear any case in which Fed-

eral Court abstained.” Venue for a trial Court would have

been the Superior Court, County of Orange, State of

California. California Code of Civil Procedure §394.

Thus, in addition to the total disregard of the State

Court’s decision, the State Court responsible for the

Monzingo decision was denied the opportunity to affirm

the status of state law. As noted in Factors Etc., Inc. v.

Pro Arts, Inc., 652 F. 2d 278, 282-283 (2nd Cir. 1981), “a

Federal Court’s decision on state law cannot be corrected,

for the benefit of the litigants in the particular case, by the

state’s authoritative tribunal.”

Nor, under the particular circumstances of this case can

the interests established by the rule of comity be served.

The California Supreme Court declined to reverse the

California Court of Appeals’ decision in Monzingo v.

City of Garden Grove;*®

37 California Government Code §69104 provides: “The Court of

Appeal for the Fourth Appellate District consists of three divisions.

One division shall hold its regular sessions at San Diego and shail have

six judges. One division shall hold its regular sessions at San

Bernardino and shall have four judges. One division shall hold its

regular session in Orange County and shall have four judges.

38) Appendix “C”, p. 1.

The United States Court of Appeais confronted with a

decision of the State Court of Appeals, failed to abstain to

the very Trial and Appellate Courts responsible for the

decision which it ignores and published its contrary

decision, effectively silencing the thunder of the State

Court and injecting its own footnotes

CONCLUSION

The Petition for Writ of Certiorari should be granted,

the judgment vacated, and the case remanded to the

United States Court of Appeals for further consideration

in light of Logan v. Zimmermann Brush Co., 455 U.S.

422, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982) and

Monzingo v. City of Garden Grove, 190 Cal. Rptr. 750

(1983) with directions to ascertain, by abstention or

assessment, the predisposition of the State Courts in in-

terpreting California Penal Code 12027 and 12031.

STATEMENT OF RELATED CASES

Pursuant to Rules of the United States Supreme Court,

Petitioner knows of no cases that are rela’ ed to this appeal

which are now pending before this court.

DATED: December 22, 1983.

ha ——

Gregory G. Petersen

Attorney for Petitioner

APPENDIX A

ASS’N OF ORANGE COUNTY DEPUTY SHER-

IFFS v. GATES

ASSOCIATION OF ORANGE COUNTY DEPUTY

SHERIFFS, George By.d, Robert Singer, Cliff Mil-

ler, and John White, Plaintiffs/Appellants,

v.

Brad GATES, Sheriff-Coroner, County of Orange,

and County of Orange, Defendants/Appellees,

No. 82-5686 .

United States Court of Appeals, Ninth Circuit

Argued and Submitted May 3, 1983.

Decided Sept. 23, 1983.

Former deputy sheriffs retired under medical disability

brought civil rights action alleging they had been denied

certificates allowing them to carry concealed and loaded

weapons. The United States District Court for the Cen-

tral District of California, Malcolm M. Lucas, J., granted

summary judgment against the deputies, and they ap-

pealed. The Court of Appeals, Chambers, Circuit Judge,

held that statute providing for issuance of certificates

allowing retired peace officers to carry concealed and

loaded weapons did not create entitlement sufficient to

warrant constitutional protection.

Affirmed.

Constitutional Law 252.5

Weapons 12

Statute providing for issuance of certificates allowing

retired peace officers to carry concealed and loaded

weapons did not create entitlement sufficient to warrant

constitutional protection. U.S.C.A. Const. Amend. 14;

West’s Ann.Cal.Penal Code § § 12027, 12031.

Appeal from the United States District Court for the

Central District of California.

Before CHAMBERS, KENNEDY and HUG, Circui

Judges.

!

oe - “A Lah - = 20 “os . ! oP gs

UES SR OFS OS Fe RE EE Ok, ee A SLR Pena Bene AS big he

Appellants Association of Orange County Deputy Sher-

iffs Robert Singer and Cliff Miller appeal from the district

court’s order granting summary judgment to appellees

holding Cal.Penal Code § § 12031(b)(1) and 12027 do not

grant entitlements sufficient to invoke the Due Process

Clause of the Fourteenth Amendment.! The district court

also rejected appellants’ claim that their liberty interests

were implicated and injured by appellees’ action. We af-

firm.

Appellants, former deputy sheriffs retired under med-

ical disability, brought suit uader 42 U.S.C. § 1983 al-

leging they had been denied certificates allowing them, af-

ter retirement, to carry concealed and loaded weapons.”

Appellants argue Cal.Penal Code §§ 12031(b)(1) and

1) Plaintiff Byrd and White were dismissed by the trial court as their

claims did not present a case or controversy within Article IIL The

propriety of their dismissal was not contested on appeal.

Oy SuNG Acme, Go ESE Gietetet eoeih, aeeeces ap peeav eT eee

status to those honorably discharged.

12027,° which provide for the certificates, create an

3) Cal. Penal Code § 12031 provides in relevant part.-

12031. Carrying of loaded firearm; misdemeanor, exceptions (a)[Car-

rying a loaded firearm in a public place is a misdemeanor]

(b) Subdivision (a) shall not apply to any of the following:

(1) Peace officers listed in Section 830.1 or 830.2, whether active or

honorably retired. . .

The agency from which a peace officer is honorably retired may, upon

initial retirement of the peace officer, or at any time subsequent there-

to, deny or revoke, for good cause, the retired officer’s privilege to car-

ry a weapon as provided in this paragraph. A retired peace officer shall

petition the issuing agency for renewal of his or her privilege to carry a

loaded firearm in public every five years. Any peace officer who has

bee honorably retired shall be issued an identification certificate con-

taining an endorsement by the issuing agency and indicating whether

or not the retired peace officer has the privilege to carry a weapon pur-

suant tc this paragraph and the date when the endorsement is to be re-

viewed again.

Section 12027 provides in relevant part:

12027. Persons exempt

Section 12025 [carrying a concealed weapon is a misdemeanor or fel-

ony] does not apply to or affect any of the following: ‘

(a) Peace officers.

Peace officers listed in section 830.0 or 830.2 whether active or honor-

ably retired. . .

The agency from which a peace officer is honorably retired may, upon

initial retirement of the peace officer, or at any time subsequent there-

to, deny or revoke, for good cause, the retired officer's privilege to car-

ry @ weapon as provided in this subdivision.

entitlement sufficient to warrant constitutional protec-

tion.*

“A property interest in a benefit protected by the due

process clause results from a legitimate claim of entitle-

ment created and defined by an independent source, such

as state or federal law.” Board of Regents v. Roth, 408

U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed 2d 548

(1972). This interest does not arise “whenever a person

has only ‘an abstract need or desire for’ or ‘unilateral

expectation of,’ a benefit.” Erdelyi v. O’Brian. 680 F.2d

61, 63 (9th Cir. 1982) (quoting Board of Regents v.

Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709). A

reasonable expectation of entitlement is determined

largely by the language of the statute and the extent to

which the entitlement is couched in mandatory terms. See

Griffeth v. Detrich, 603 F.2d 118 (9th Cir. 1979),

cert. denied, 445 U.S. 970, 100 S.Ct. 1348, 64 L.Ed.2d

247 (1980).

The only restrictions imposed by § 12027(a) and §

12031(b)(1) are<i) the agency from which the officer

retires issues a certificate indicating whether or not the of-

ficer may carry a concealed weapon? and 2) the privilege of

5) Appellants have received their certificates; their objection is the

certificates expressly do not authorize the carrying of a concealed

weapon.

4) The nght of a retired deputy sheriff to carry concealed weapons is

not so fundamental as to warrant constitutional protection apart from

Its stats under state law See Erdetvi v. O’ Brian, 680 F 2d 61 (9th

Cir 1982)

carrying a loaded concealed weapon may be denied or

revoked for “good cause”.® This court finds, as did the

court below, that the requirement of “good cause” prior to

the denial of a weapons certificate does not create a consti-

tutionally protected interest, because it is not a “signif-

icant substantive restriction on the basis for [the] agency’s

action.” Jacobson v. Hannifin, 627 F.2d 177, 180 (9th

Cir. 1980). See also Erdelyi v. O’Brian, supra, (private

investigator did not have property interest in concealed

weapons permit under Cal.Penal Code § 12050).

Similarly, the court rejects appellants’ argument that

the denial of the exemption causes a loss of liberty without

due process of law in that their reputations were damaged

and alternative sources of employment were foreclosed.

“Unpublicized accusations do not infringe constitutional

liberty interests because, by definition, they cannot harm

‘good name, reputation, honor or integrity.’ (Citations

omitted). . .

When reasons are not given, inferences drawn from [denial

of the exemption] alone are simply insufficient to im-

plicate liberty interests.” Bollow v. Federal Reserve

Bank of San Francisco, 650 F.2d 1093, 1101 (9th Cir.

1981). Further, alternative sources of employment would

not be foreclosed for failure to issue a certificate author-

6) Appel ants were denied the privilege as contrasted to it being

revoked. The court does not express an opinion with respect to the

latter situation

izing the carrying of a loaded concealed weapon as appel-

lants can apply for such a permit under Cal.Penal Code §

12050 notwithstanding their success under the statutes at

issue here.

Finally, appellants have moved to strike pages three and

four of appellees’ opening brief. That motion is granted as

appellees’ allegations are insufficiently set forth.”

AFFIRMED.

7) Appellants have also requested this court to

remand the case so they can amend their complaint to allege

additional facts. Because this decision is based on legal as opposed to

factual issues, the request is denied. . .

:

Bi,

a

by

APPENDIX B

RECEIVED

JUL 07 1982

FILED

JUL 2 1982

Clerk, U.S. District Court

Central District of California

Deputy

ENTERED

JUL 6 1982

Clerk, U.S. District Court

CENTRAL DISTRICT OF CALIFORNIA

BY DEPUTY

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ASSOCIATION OF ORANGE COUNTY

DEPUTY SHERIFFS, GEORGE BYRD,

ROBERT SINGER, CLIFF MILLER,

and JOHN WHITE,

Plaintiffs,

BRAD GATES, SHERIFF-CORONER,

COUNTY OF ORANGE: AND COUNTY

OF ORANGE,

So ye eet

Defendants.

NO. CV-82-59-MML

ORDER GRANTING DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

The parties’ cross-motions for summary judgment came

on for hearing before the Court, the Honorable Malcolm

M. Lucas, District Judge presiding, on April 5, 1982. After

reading the briefs submitted by the parties, and consider-

ing the arguments of counsel, the Court took the motions

under submission. Shortly thereafter, on April 8, 1982, the

Court requested further briefing from the parties as to the

standing of the Association of Orange County Deputy

Sheriffs (AOCDS) to bring the instant action, and whether

the claims of each of the individual plaintiffs presented a

justiciable case or controversy, in light of their suggested

non-residency in California. The parties submitted addi-

tional briefing on these issues on May 3, 1982, on which

date the Court again took the matter under submission.

Plaintiffs brought suit under 42 U.S.C. § 1983 alleging

that they had been denied their constitutional rights to

due process because they were denied certificates allow-

ing them, after their retirement as deputy sheriffs, to carry

concealed and loaded weapons. Plaintiffs motion for

summary judgment argued that retired deputy sheriffs

have a property right to the certificate allowing them to

carry a concealed weapon, created by California statute,

and that this property right was denied to them by defend-

ants without due process of law. Plaintiffs urged the Court

to find as a matter of law that plaintiffs are entitled to the

weapons certificates. Such a decision would leave only

damage issues for trial. As to the standing issue raised by

the Court, the plaintiffs state that AOCDS has standing to

bring the instant action on behalf of its members. In addit-

ion, plaintiffs state that two of the four individual plaintiffs

are California residents; the other two are out of state resi-

dents. The latter two plaintiffs still have an active case or

controversy according to plaintiffs.

Defendants, in their motion for summary judgment,

argue that the California statute cited by plaintiffs does

not create a property right. Nor, defendants assert, do

plaintiffs’ rights otherwise rise to the level of a constitu-

tionally protected property right. Since no property right

is created, by statute or otherwise, the plaintiffs here, de-

fendants conclude, are not entitled to due process in the

denial of the concealed weapon certificates. In addition,

defendants argue that plaintiffs were denied permits for

good cause. Lastly, defendants state that California ex-

pressly made the denial of the weapons certificate a mat-

ter of discretion for the sheriff, and such a dicretionary act

cannot be challenged under state law because there is

absolute immunity for discretionary acts performed in the

course of an official’s duties.

As to the standing issues, defendants contend that

AOCDS does not have standing to raise the claims

asserted by the plaintiffs in this action. In addition,

although defendants do not contest the fact that two of the

plaintiffs are California residents, defendants contend

that the two non-resident plaintiffs’ claims must be dis-

missed because their claims do not present a case or con-

troversy. Lastly, defendants seized the opportunity for

additional briefing to argue that both defendants should

be dismissed from the action.

The Court finds that there is no issue that at least as to

the two California resident plaintiffs, Singer and Miller,

there is both standing and a case or controversy sufficient

to satisfy Article 3 of the Constitution. AOCDS also, it

seems to the Court, has standing to bring this action on

behalf of its members.

As to plaintiffs Byrd and White, however, who are un-

questionably out of state residents, the Court finds that

their claims do not present a case or controversy and must

therefore be dismissed by the Court. The statutes with

which this suit is concerned govern the right to carry

weapons in California. Plaintiffs Byrd and White are not in

California and therefore the issue of their ability to obtain

a weapon certificate in this stae is moot. The deprivation

of property without due process claims of Byrd and White

are therefore dismissed because they do not present a

case or controversy.!

1) Byrd and White contend that they still have claims for infringe-

ment of their liberty interests. The Court notes that the complaint

filed in this action does not allege infringement of such interests. In

addition, as discussed below by the Court, to the extent plaintiffs have

made claims of infringement of liberty interests, those claims are

rejected on their merits by the Court.

Before proceeding to the merits of the motions for sum-

mary judgment, the Court notes that defendants, in

their supplemental briefing of May 3, 1982, moved for dis-

missal of both defendants, the County of Orange and Brad

Gates. The Court will not consider these arguments for

dismissal, since they were not made in a properly filed mo-

tion which plaintiffs would have the opportunity to

oppose.

The guarantee of procedural due process created by the

Fourteenth Amendment applies only when a constitution-

ally protected liberty or property interest is at stake.

Board of Regents v. Roth, 408 U.S. 564, 569 (1972). To

have a property interest in a government benefit, plain-

tiffs must show a legitimate claim of entitlement, rather

than an abstract need or desire for the claimed benefit.

Board of Regents v. Roth, supra, 408 U.S. at 577. Such

entitlements are created and defined by rules or under-

standings that stem from independent sources, such as

relevant state or federal laws, regulations, ordinances, or

express or implied contracts. Bollow v. Federal Re-

serve Bank of San Francisco, 650 F.2d 1093, 1098 (9th

Cir. 1981), cert. denied, 50 U.S.L.W. 3669 (Feb. 22,

1982); Russell v. Landrieu, 621 F. 2d 1037, 1040 (9th

Cir. 1980).

Here, plaintiffs claim their entitlement to a concealed

weapons certificate is created by two California statutes,

California Penal Code § § 12027(a) and 12031(b)(1).?

Those statutes read, in relevant part, as follows:

“12027. Persons exempt

Section 12025 [carrying a concealed weapon is a mis-

demeanor or felony] does not apply to or affect any of the

following:

(a) Peace Officers.

(a) Peace officers listed in Section 830.1 or 830.2

whether active or honorably retired, other duly

appointed peace officers, full-time paid peace of-

ficers of other states and the federal government

who are carrying out official duties while in Calif-

ornia, or any person summoned by any such of-

ficers to assist in making arrests or preserving

the peace while he is actually engaged in assist-

ing such officer.

The ‘agency from which a peace officer is

honorably retired may, upon initial retirement of

the peace officer, or at anytime subsequent

thereto, deny or revoke, for good cause, the

retired officer’s privilege to carry a weapon as

provided in this subdivision.”

2) Plaintiffs never claim, and in facts expressly disclaim, any reliance

on the federal constitution, Second Amendment. See Complaint,

filed January 7, 1982; Plaintiffs’ Memorandum of Points and Author-

ities to Motion for Summary Judgment, filed March 26, 1982, pp. 11-

12.

“ |

ie Vie ag eR n ita

“12031. Carrying of loaded firearms; misdemeanor;

exceptions (a) [Carrying a loaded firearm in a public place

is a misdemeanor]

(b) Subdivision (a) shall not apply to any of the follow-

ing:

(1) Peace officers listed in Section 830.1 or

830.2, whether active or honorably retired, other

duly appointed peace officers, full-time peace

officers of other states and the federal govern-

ment who are carrying out official duties while in

California, or any person summoned by any such

officers to assist in making arrests or preserving

the peace while he is actually engaged in assist-

ing such officer.

The agency from which a peace officer is

honorably retired may, upon initial retirement of

the peace officer, or at any time subsequent

thereto, deny or revoke, for good cause, the

retired officer’s privilege to carry a weapon as

provided in this paragraph. A retired peace

officer shall petition the issuing agency for

renewal of his or her privilege to carry a loaded

firearm in public every five years. Any peace of-

ficer who has been honorably retired shall be

issued an identification certificate containing an

endorsement by the issuing agency and indicat-

ing whether or not the retired peace officer has

the privilege to carry a weapon pursuant to this

io. 4

i

Maes = a P ‘ ; er 4 tS a yas SE fe ae on Aes

eT OT cate cart Se eE EOw nt eeers ty LEI gS Lee REY Tey SF tis -S

DE CSE RARER ee he BN a Ty Oe anger AS A

paragraph and the date when the endorsement is

to be reviewed again.”

The Court finds that these two sections do not create an

expectation of entitlement sufficient to create a property

interest. A reasonable expectation of entitlement is deter-

mined largely by the language of a statute and the extent to

which the entitlement is couched in mandatory terms. See

Griffeth v. Detrich, 603 F.2d 118 (9th Cir. 1979), cert.

denied, 445 U.S. 970 (1980). The only restrictions im-

posed by § §12027(a) and 12031(b)(1) are (1) that the

agency from which the officer retires issue a certificate

indicating whether or not the officer may carry a con-

cealed weapon’ and (2) that the agency may deny a retired

officer a certificate for “good cause.”* There is no defini-

tion of good. cause, and no other. ‘details in the statutes

which would limit the agency’s discretion. This grant of

extremely wide discretion to the involved agency defeats

any expectation of entitlement under tho statutes. See

Jacobson v. Hannifin, 627 F.2d 177 (9th Cir. 1980). See

also, Erdelyi v. O’Brian, 82. Daily Journal D.A.R. 1637

(9th Cir., June 21, 1982) (private investigator did not have

3) Plaintiffs have received their certificates; their objection is that the

RN i a a RS No

weepon.

4) Only pi Se or ‘Rooesits retired officers are covered by

§ §12027(a) and 12031(b){1). The parties dispute the issue of

whether the individual plaintiffs here are honorably discharged. The

Court has assumed, for the p ‘poses of these motions, that plaintiffs

are honorably discharged officers.

cy

7

4 a ae eee Pe Oe a

Lo ME. CPSs gh TR, SID Ce Me ley we Re SO s Gee hs = oe

aS rae Df

PR TT Tet ae

Yel gh ene nae, eae

Pipe

ss

es See

property interest in concealed weapons eager wnder

Cal.Penal Code § 12050).

Plaintiffs argue that because a weapons certificate may

be denied only on good cause, there are factual issues as to

whether good cause here was shown, as to whether the

agency’s discretion was exerciséd, and whether that

discretion was exercised in good faith. Plaintiffs are argu-

ing that, in esserice, there is a separate protectable inter-

est created by the statutes’ use of “good cause”..The

Court finds that the requirement of “‘good-eause” prior to

the denial of 'a weapons certificate does not create a

constitutionally protected interest, because it is not a

OS Oe ie Lene ie aay

agency's ‘actions.” Jacobson v. Hannifin, supra, 627

F.2d at 180. This Court cannot: and will not review the

grounds for the denial of the certificate where there is no

due process right involved; ' these'issues of fact-do not,

therefore, preclude, summary --cpnseed on fused 7

grounds reviewed above. = - ©

Plaintiffs also claim that eit llibdy vindbleid lane

been’ implicated “and injured by defendants’ actions.

There are no allegations in plaintiffs’ complaint of loss of a

allegations in.the- motions before the Court: “the pro-

tected ‘liberty’ interest which is brought into play bby the

stigma which results from the egat: :

of Points and Authorities to Motion for Summary Judg-

+

a

ment, filed March 26, 1982, p. 7. See also id., pp. 12-13,

20.5

The Supreme Court has held, however, that a liberty

interest is not infringed when the only loss suffered at the

hands of the government is a stigma or damage to repu-

tation. Paul v. Davis, 424 U.S. 693 (1976). Here, plain-

tiffs have not been deprived of any tangible loss nor sub-

jected to alteration of some right or status recognized and

protected by state laws. See discussion supra. They

cannot, therefore, claim infringement of a liberty interest

as a result of the denial of a certificate to carry a concealed

weapon.

5) Plaintiffs do not identify any “allegations” made by defendants.

Plaintiffs introduce declarations in which the declarant states that the

normal inference of persons within the “police community” when told

of a retired officer refused a weapons certificate would be that the

retired officét had a mental disorder or had undergone a “stress

retirement.” See, e.g., declarations of: Ken Harris, filed April 30,

1982; Dave Baca, filed March 23, 1982; Al Angeles, filed March 22,

1982. See also the individual plaintiffs’ declarations that they were

embarrassed to explain the “circumstances of their retirement certif-

_ feate” to others; declarations of Robert Singer, Cliff-Miller, filed

January 7, 1982.

Further, even if plaintiffs’ alleged liberty interest was

linked to a protectable property interest, the Court would

find as a matter of law that the plaintiffs’ liberty interests

were not infringed by defendants. The stigma which

infringes a liberty interest is that which “seriously dam-

ages a person’s reputation or significantly forecloses his

freedom to take advantage of other employment oppor- |

tunities... .” Jablon v. Trustees of California State

Colleges, 482 F.2d 997, 1000 (9th Cir. 1973), cert.

denied, 414 U.S. 1163 (1974). Here, there are no

“charges” which reach the level of accusations of moral

turpitude such as dishonesty or immorality. Even if it is

assumed that the sheriff made a public declaration that

the plaintiffs were denied weapons certificates for “good

cause,” (see, however, below), the charges would not reach

the level of severity at which it could be said they infringed

constitutional liberty interests. See, e.g., Stretten v.

Wadsworth Veterans Hospital, 537 F.2d 361 (9th Cir.

1976) (termination from federal job for incompetence and

inability to deal with co-workers does not infringe liberty

interests); Gray v. Union County Intermediate Educa-

tion District, 520 F.2d 803 (9th Cir. 1975) (public

teacher’s contract not renewed because of interference

with another agency and poor student and parent rela-

tions). See also, Erdelyi v. O’Brian, 82 Daily Journal

D.A.R. 1637 (9th Cir., June 21, 1982) (liberty interest not

infringed by denial to private investigator of concealed

- , - wi »*

- > at ‘©

RE, SESS Pear gael fe Fee oe

weapons license). Cf. Vanelli v. Reynolds School Dist.

No. 7,667 F.2d 773 (9th Cir. 1982) (teacher terminated in

mid-year on grounds of immoral conduct; implicated both

property and liberty interests).

In addition, there has been no public disclosure of why

plaintiffs did not receive weapons certificates. The “in-

ferences” that may be drawn by others from the bare is-

suance of the plaintiffs’ retirement certificates (without

weapons certification) is not sufficient to implicate lib-

erty interests. As the Ninth Circuit stated in Bollow v.

Federal Reserve Bank of San Francisco, 650 F.2d

1093, 1101 (9th Cir. 1981), cert. denied, 50 U.S.L.W.

3669 (Feb. 22, 1982) (internal citations omitted):

“Unpublicized accusations do not infringe con-

stitutional liberty interests because, by defini-

tion, they cannot harm ‘good name, reputation,

honor or integrity’. ..When reasons are not given,

inferences drawn from dismissal [or denial] alone

are simply insufficient to implicate liberty inter-

ae

Plaintiffs cannot show that they should prevail on their

claims. Summary judgment is therefore granted to de-

fendants as to each plaintiff, on all claims. The plaintiffs, in

their opposition to the defendants’ Motion for Summary

Judgment, argue that they need more time for discovery

prior to resolution of the issues presented in that motion.

However, none of the issues decided above is decided on

the basis of disputed facts; in every instance the Court has

; accepted all of plaintiffs’ allegations as true, and has de- 3

| nied the claims on legal grounds. By reason of the Y

foregoing disposition, plaintiffs’ motion for summary

judgment is denied in its entirety.

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the Clerk shall serve,

. by United States mail, copies of this Order on counsel for 4

| ' the parties in this matter. 4

Dated: July 2, 1982 ;

Malcolm M. Lucas %

United States District Judge

APPENDIX C

Robert MONZINGO, Petitioner

and Respondent,

v.

CITY OF GARDEN GROVE, et al.,

Respondents and Appellants.

Court of Appeal, Fourth District,

Division 1.

March 23, 1983.

Rehearing Denied April 12, 1983.

As Modified April 12, 1983.

Hearing Denied May 25, 1983.*

Honorably retired peace officer petitioned the Super-

ior Court, Orange County, James W. Cook, J., for a writ of i

mandate to compel the chief of police and the city to s

provide him with a written statement of the reasons why

the endorsement to his identification certificate as a peace i

officer authorizing him to carry a concealed firearm was re- B

voked. After the requested relief was granted, the city ap-

pealed. The Court of Appeal, Cologne, Acting P.J., held

ee pee ee

not officially published.

that the honorably retired peace officer was entitled to

written notice and a statement of the reasons for the

revocation of his privilege to carry a concealed weapon

and, upon request, was entitled to a full and fair hearing.

Affirmed as modified.

1. Weapons - 11(1)

Any active or honorably retired city police officer has le-

gitimate claim of entitlement to privilege to carry con-

cealed weapon. West’s Ann. Cal. Penal Code § 12027.

2. Constitutional Law - 254.1

Where individual is subjected to deprivatory govern-

mental action he has liberty interest in fair and un preju-

dicial decision making and in being treated with respect

and dignity. U.S.C.A. Const. Amends. 5, 14.

3. Constitutional Law - 274(2)

Due process attends the deprivation of the statutory

privilege of a city peace officer to continue with lawful self-

protective ability to carry concealed firearm after his re-

tirement. West’s Ann. Cal. Penal Code § 12027; U.S.C.A.

Const. Amends. 5, 14.

4. Weapons - 11(1)

Privilege of active or honorably retired peace officer to

carry concealed weapon is not the kind of statutory bene-

fit which entails loss of liberty or basic human rights and,

therefore, denial of that privilege requires written notice

of proposed action and basis upon which action rests and,

upon request, a hearing at which honorably retired peace

officer would be confronted with evidence of reasons for

action and opportunity to present his own evidence.

Eric Lauterer, City Atty., for respondents and appellants.

Silver & Kreisler and Stephen H. Silver, Santa Monica,

for petitioner and respondent.

COLOGNE, Acting Presiding Judge.

Robert Monzingo petitioned the superior court for a

writ of mandate to compel Frances Kessler, the Chief of

Police of the City of Garden Grove (Chief), and the City of

Garden Grove (City) to provide him with a written

statement of the reasons why the endorsement to his id-

entification certificate as a peace officer authorizing him

to carry a concealed firearm was revoked. He also request-

ed he be given an opportunity to respond to said written

statement at an evidentiary hearing at which the burden of

proof would be placed on the Chief and the City. The

Superior Court granted the requested relief, and the City

appeals.

Mozingo is a former Garden Grove police officer who

was disabled by reason of an industrial injury and retired.

In conjunction with his retirement, Monzingo requested

his LD. be endorsed to authorize him to carry a concealed

firearm pursuant to Penal Code! section 12027. The

1) All statutory references ave to the Penal Code unless otherwise

request was denied. On October 31, 1980, Monzingo’s

attorney wrote the Chief demanding a written statement

of the reasons for the denial and an opportunity to

respond. On November 12, 1980, the Chief, with staff

members and Monzingo’s attorney present, orally dis-

cussed the matter with Monzingo and explained that in

light of the medical reports he had received in connection

with the disability claim, he was satisfied good cause

existed to deny the request. On November 17, Monzingo

filed a declaration in response to the reasons given orally.

This declaration was received by the Chief who declined

to reconsider his decision or cause a hearing to be held.

The Chief was not explicit nor would he clarify the exact

reasons for denial of the permit. The Superior Court made

the following order granting the writ:

“1. A Peremptory Writ of Mandate shall issue

commanding Respondents, and each of them, to

provide to Petitioner (a) a written statement of

the specific reasons why Respondents seek to

revoke and/or deny his endorsement to carry a

concealed weapon pursuant to Section 12027 of

the California Penal Code; (b) copies of all

materials relied upon in support of that action;

(c) an opportunity to respond thereto at a full and

fair evidentiary hearing before an impartial body

at which the burden of proving the truth of the

reasons for the action shall rest with Respon-

dents; and (d) a written statement of the result-

ing decision, including the reasons in support

thereof.”

Under Penal Code section 12025, every person who car-

ries a concealable firearm without having obtained a

license is guilty of a misdemeanor. Section 12050 author-

izes the chief of police of a city to issue such a license on’

specified conditions. It is significant, however, that section

12027, subdivision (a), exempts all active and honorably

retired city police officers from the prohibition of section

12025, and thus the licensing requirement, but provides:

“The agency from which a peace officer is

honorably retired may, upon initial retirement of

the peace officer, or at anytime subsequent

thereto, deny or revoke, for good cause, the re-

tired officer’s privilege to carry a weapon as pro-

vided in this subdivision.”

The section thus authorizes the “agency from which a

peace officer is honorably retired,” not the chief of police,

to deny the exemption. The Penal Code gives us no as-

sistance in determining which particular agency it refers to

but it must, of necessity, exclude the chief of police be-

cause of the distinction made in the language of these

otherwise related sections. We believe it refers to the city

since a city is normally considered an entity which

“agency” suggests. A department is simply a part of the

functioning “agency” (see 3 Ops.Atty.Gen. 234, asserting

the: water depaztment of the City of Long Beach is not a

public agency within the meaning of the Public Employ-

eex,Retirement Law, since it has no existence independent

of the city itself). For retirement purposes, the Govern-

‘ment Code provides some assistance. The members of the

police department are employees of a public agency (see

Gov.Code, § §20009) and it is the city which is the con-

tracting agency from which an employee would retire (see

Gov.Code, § 20020). For these reasons, we believe only the

City can deny or revoke the retired police officer’s exemp-

tion from the licensing requirement.

Here, the Police Chief, acting as such, denied the re-

quest and we hold he does not have that authority under

the law. The determination whether good cause exists to

deny Monzingo’s right to exemption from the concealed

firearms licensing laws rests with the city council.

[1-3] The Legislature has given city police officers, as

well as retired city police officers, this exemption, a

statutory privilege. By the language of the statute, it may

only be taken from them on a showing of “good cause.”

Certainly, any active or honorably retired city police of-

ficer under these provisions has “a legitimate claim of

entitlement to” the privilege (see Board of Regents v.

Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d

548). Procedural safeguards required for the protection of

an individual’s statutory interests must be analyzed in the

context of the principle that freedom from arbitrary

adjudicative procedure is a substantive element of one’s

liberty. This approach presumes that where an individual

is subjected to deprivatory governmental action, he al-

ways has a due process liberty interest both in fair and un-

prejudicial decision-making and in being treated with res-

pect and dignity (People v. Ramirez, 25 Cal.3d 260, 268,

158 Cal.Rptr. 316, 599 P.2d 622). Likewise, it is held that

“when a person has a legally enforceable right to receive a

government benefit provided certain facts exist, this right

constitutes a property interest protected by due process”

(Skelly v. State Personnel Board, 15 Cal.3d 194, 207,

124 Cal.Rptr. 14, 539 P.2d 774); and “[sjuspension of a

right or of a temporary right of enjoyment may amount toa

‘taking’ for ‘due process purposes” (Civil Service Assn.

v. City and County of San Francisco, 22 Cal.3d 552,

560, 150 Cal.Rptr. 129, 586 P.2d 162). Under either the

“liberty” or the “property” theory, from the govern-

mental and private interests at stake here, it is quite clear

due process attends the deprivation of the statutory

privilege of a city police officer to continue his lawful self-

protective ability to carry a concealed firearm after his re-

tirement (see People v. Ramirez, supra, 25 Cal.3d at pp.

264, 266-269, 158 Cal. Rptr. 316, 599 P.2d 622). The only

remaining question is “what process is due?” (Civil

Service Assn. v. City and County of San Francisco,

supra, 22 Cal.3d 552, 560, 150 Cal.Rptr. 129, 586 P.2d

162).

at aie gira tae

Due process is flexible and calls for such procedural

protection as the particular situation demands (Morris-

sey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33

L.Ed.2d 484; People v. Ramirez, supra, 25 Cal.3d at p.

268, 158 Cal. Rptr. 316, 599 P.2d 622). The procedure

held necessary in protecting a criminal’s liberty interest in

avoiding loss of good time credits or solitary confinement

is advance written notice of the claimed violation, a writ-

ten record of the proceedings including a statement by the

fact finders as to the evidence relied on and the reasons for

the action taken, and the right to call witnesses and

present documentary evidence in his defense (see Wolff

v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d

135). By contrast, the due process required for a ten-day

suspension of a child from school would require only notice

and a chance to respond (Goss v. Lopez, 419 U.S. 565,95

8.Ct. 729, 42 L.Ed.2d 725).

“More specifically, identification of the dictates

of due process generally requires consideration

of (1) the private interest that will be affected by

the official action, (2) the risk of an erroneous

deprivation of such interest through the pro-

cedures used, and the probable value, if any, of

additional or substitute procedural safeguards, |

(3) the dignitary interest in informing individuals

of the nature, grounds and consequences of the _

action and in enabling them to present their side —

of the story before a responsible governmental

Ciel Callan

official, and (4) the governmental interest, in-

cluding the function involved and the fiscal and

administrative burdens that the additional or

substitute procedural requirement would entail.

[Citation.]” (People v. Ramirez, supra, 25

Cal.3d 260, 269, 158 Cal.Rptr. 316, 599 P.2d

622.)

[4] In applying this analysis here, we believe the

privilege to carry a concealed firearm is not the kind of

statutory benefit which entails loss of liberty or basic

human rights. We recognize, however, while self-protec-

tion is important, the need for it does not necessarily

follow from service in the police force and nothing in this

proceeding legally precludes the retired officer from seek-

ing to obtain the license under the regular proeedures for

obtaining a license accorded every citizen (§ 12050 et

seq.). On the other hand, the denial of the statutory

privilege of a retired officer to carry a concealed firearm

for his own protection, particularly when it is based on

certain medical reports, carries a stigma of mental insta-

bility which could cause serious damage to one’s reputa-

tion and acceptance in the community (see Wisconsin v.

Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27

L.Ed,2d 515).

The denial of this important interest given by legislative

fiat at least demands written notice of the proposed action

and the basis upon which the action rests, and upon re-

ios)

‘ie oad

tion and an opportunity to present his own evidence,

including documentation in contravention of the charges.

The statute makes clear the agency can only deny the

exemption for “good cause” and there must be an appro-

priate record in support of those reasons for proper re-

view showing good cause does exist.

Under the statute, the decision must be made by the

agency, however, and the trial court’s order that the

decision should be made by “an impartial body” is not

acceptable. The law gives the decision-making function to

the city council.? It should provide for notice and, if re-

quested, a hearing.

The record of the proceedings must contain substantial

evidence to support its decision. The burden of proof does

not necessarily fall upon the city; anyone who might be

interested in seeing that the privilege is denied, including

the Chief of Police, might appear and present evidence

showing “good cause” for the denial of revocation.

Paragraph 1(c) of the order of the superior court

granting a peremptory writ of mandate is modified to

state: (c) an opportunity to respond at a full and fair

hearing before the City of Garden Grove, the record of

2) We do not suggest by this opinion that the hearing must be con-

ducted by the City (see Gaylord v. City of Pasadena, 175 Cal. 433,

436-437, 166 P.348; Subriar v. City of Bakersfield, 59 Cal. App.3d

175, 204-205, 130 Cal.ptr. 853). It may, by ordinance, delegate tms

function to “an impartial body,” but the record before us does not

reflect such a delegation has been made.

which shall support a finding of good cause for denial of

the privilege to carry a concealed firearm, pursuant to

section 12027, if that be the City’s decision.

In all other respects, the order appealed is affirmed.

Each of the parties shall bear his own costs of appeal.

STANIFORTH and WIENER, J.J., concur.

Hearing denied; MOSK, J., dissenting.

APPENDIX D

AMENDMENT 14

Section 1. Citizens of the United States.

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

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APPENDIX E

§ 1983. Civil action for deprivation of rights _

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or

the District of Columbia, subjects, or causes to be sub-

jected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for

redress. For the purposes of this section, any Act of Con-

gress applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of

Columbia.

(As amended Dec. 29, 1979, P.L. 96-170, § 1, 93 Stat.

1284.)

§ 12027. [Persons excepted from prohibition against

carrying certain firearms without license] Section

12025 does not apply to or affect any of the following:

(a) Peace officers lised in Section 830.1 or 830.2

whether active or honorably retired, other duly appointed

peace officers, full-time paid peace officers of other states

and the federal government who are carrying out official

duties while in California, or any person summoned by any

such officers to assist in making arrests or preserving the

peace while he is actually engaged in assisting such officer.

The agency from which a peace officer is honorably re-

tired may, upon initial retirement of the peace officer, or at

anytime subsequent thereto, deny or revoke, for good

cause, the retired officer’s privilege to carry a weapon as

provided in this subdivision.

A retired peace officer who retired after January 1,

1981, shall petition the issuing agency for renewal of his or

her privilege to carry a concealed firearm every five years.

Any peace officer who has been honorably retired shall be

issued an identification certificate containing an endorse-

ment by the issuing agency indicating whether or not the

retired peace officer has the privilege to carry a weapon

pursuant to this subdivision and where the officer retired

after January 1, 1981, the date when the endorsement is to

be reviewed again.

. a

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(b) The possession or transportation by any merchant of

unloaded firearms as merchandise.

(c) Members of the Army, Navy, or Marine Corps of the

United States, or the National Guard, when on duty, or

organizations which are by law authorized to purchase or

receive such weapons from the United States or this state.

(d) Duly authorized military or civil organizations while

parading, or the members thereof when going to and from

the places of meeting of their respective organizations.

(e) Guards or messengers of common carriers, banks,

and other financial institutions while actually employed in

and about the shipment, transportation, or delivery of

any money, treasure, bullion, bonds, or other thing of value

within this state.

(f) Members of any club or organization organized for

the purpose of practicing shooting at targets upon estab-

lished target ranges, whether public or private, while such

members are using any of the firearms referred to in this

chapter upon such target ranges, or while going to and

from such ranges.

(g) Licensed hunters or fishermen while engaged in

hunting or fishing, or while going to or returning from such

hunting or fishing expedition.

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(h) Members of any club or organization organized for

the purpose of collecting and displaying antique or his-

torical pistols, revolvers or other firearms, while such

members are displaying such weapons at meetings of such

clubs or organizations or while going to and from such

meetings, or individuals who collect such firearms not

designed to fire, or incapable of firing fixed cartridges or

fixed shot shells, or other firearms of obsolete ignition

type for which ammunition is not readily available and

which are generally recognized as collector’s items, pro-

vided such firearm is kept in the trunk. If the vehicle is not

equipped with a trunk, such firearm shall be kept in a

locked container in an area of the vehicle other than the

utility or glove compartment. [1953 th 36§1; 1959 ch

1854 § 1; 1963 ch 1677 §1; 1965 ch 281 §2; 1968 ch 1222

§61; 1969 ch 1012 §1; 1974 ch 1090 §1; 1980 ch 1340

§24, effective September 30, 1980; 1981 ch 32 §2,

effective May 14, 1981.] 21 Cal. Jur. 3d Criminal Law

§ 2425.

APPENDIX G

§ 12031. (Carrying loaded firearm in public place

or street] (a) Except as provided in subdivision (b), (c), or

(d), every person who carries a loaded firearm on his or her

person or in a vehicle while in any public place or on any

public street in an incorporated city or in any public place

or on any public street in a prohibited area of unincor-

porated territory is guilty of a misdemeenor.

Every person convicted under this section who has pre-

viously been convicted of an offense enumerated in

Section 12001.6, or of any crime made punishable under

this chapter, shall serve a term of at least three months in

the county jail, or, if granted probation, or if the execution

or imposition of sentence is suspended, it shall be a condi-

tion thereof that he or she be imprisoned for a period of at

least three months.

The court shall apply the three-month minimum sen-

tence except in unusual cases where the interests of justice

would best be served by granting probation or suspend-

ing the imposition or execution of sentence without the

minimum imprisonment required in this subdivision or by

granting probation or suspending the imposition or execu-

tion of sentence with conditions other than those set forth

in this subdivision, in which case, the court shall specify on

the record and shal! enter on the minutes the circum-

stances indicating that the interests of justice would best

be served by such a disposition.

-, ie

(b) Subdivision (a) shall not apply to any of the fol-

lowing:

(1) Peace officers listed in Section 830.1 or 830.2,

whether active or honorably retired, other duly appointed

peace officers, full-time paid peace officers of other states

and the federal government who are carrying out official

duties while in California, or any person summoned by any

such officers to assist in making arrests or preserving the

peace while the person is actually engaged in assisting

such officer.

The agency from which a peace officer is honorably

retired may, upon initial retirement of the peace officer, or

at any time subsequent thereto, deny or revoke, for good

cause, the retired officer’s privilege to carry a weapon as

provided in this paragraph. A retired peace officer shall

petition the issuing agency for renewal of his or her

privilege to carry a loaded firearm in public every five

years. Any peace officer who has been honorably retired

shall be issued an identification certificate containing an

endorsement by the issuing agency indicating whether or

not the retired peace officer has the privilege to carry a

weapon pursuant to this paragraph and the date when the

endorsement is to be reviewed again.

(2) Members of the military forces of this state or of the

United States engaged in the performance of their duties.

(3) Persons who are using target ranges for the purpose

of practice shooting witn a firearm or who are members of

shooting clubs while hunting on the premises of such

. clubs. ,

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(4) The carrying of concealable weapons by persons who

are authorized to carry such weapons pursuant to Article 3

(commencing with Section 12050) of Chapter 1 of Title 2

of Part 4.

(5) Armored vehicle guards, as defined in Section 7521

of the Business and Professions Code, (A) if hired prior to

January 1, 1977; or (B) if hired on or after such date, if they

have received a Firearms Qualification Card from the De-

partment of Consumer Affairs, in each case while acting

within the course and scope of their employment.

(c) Subdivision (a) shall not apply to any of the follow-

ing who have completed a regular course in firearms train-

ing approved by the Commission on Peace Officer Stand-

(1) Patrol special police officers appointed by the police

commission of any city, county, or city and county under

the express terms of its charter who also under t! 2 express

terms of the charter (i) are subject to suspension or dis-

missal after a hearing on charges duly filed with the com-

mission after a fair and impartial trial, (ii) must be not less

than 18 years of age nor more than 40 years of age, (iii)

must possess physical qualifications prescribed by the

commission, and (iv) are designated by the police com-

mission as the owners of a certain beat or territory as may

be fixed from time to time by the police commission.

(2) The carrying of weapons by animal control officers or

zookeepers, regularly compensated as such by a govern-

mental agency when acting in the course and scope of their

-_

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M wal

employment and when designated by a local ordinance or,

if the governmental agency is not authorized to act by

ordinance, by a resolution, either individually or by class,

to carry such weapons, or by persons who are authorized

to carry such weapons pursuant to Section 607f of the

Civil Code, while actually engaged in the performance of

their duties pursuant to that section.

(3) Harbor policemen designated pursuant to Section

663.5 of the Harbors and Navigation Code.

(d) Subdivision (a) shall not apply to any of the follow-

ing who have been issued a certificate pursuant to Section

12033. Such certificate shall not be required of any person

who is a peace officer, who has completed all training re-

quired by law for the exercise of his or her power as a peace

officer, and who is employed while not on duty as such

peace officer.

(1) Guards or messengers of common carriers, banks,

and other financial institutions while actually employed in

and about the shipment, transportation or delivery of any

money, treasure, bullion, bonds, or other thing of value

within this state.

(2) Guards of contract carriers operating armored

vehicles pursuant to Cal fornia Highway Patrol and Pub--

lic Utilities Commission authority (i) if hired prior to

January 1, 1977; or (ii) if hired on or after January 1, 1977,

if they have completed a course in the carrying and use of

partment of Consumer Affairs.

(3) Private investigators, private patrol operators, and

alarm company operators who are licensed pursuant to

Chapter 11 (commencing with Section 7500) of Division 3

of the Business and Professions Code, while acting within

the course and scope of their employment.

(4) Uniformed security guards or night watchmen

employed by any public agency, while acting within the

scope and in the course of their employment.

(5) Uniformed security guards, regularly employed and

compensated as such by persons engaged in any lawful

business, and uniformed alarm agents employed by an alarm

company operator, while actually engaged in protecting

and preserving the property of their employers or on duty

or en route to or from their residence of their place of em-

ployment. Security guards and alarm agents en route to or

from their residence or employer-required range training.

Nothing in this paragraph shall be construed to prohibit

cities and counties from enacting ordinances requiring

alarm agents to register their name.

ed pursuant to Chapter 11 (commencing with Section

7500) of Division 3 of the Business and Professions Code

while acting within the course and scope of their employ-

_ ment as private patrolmen or private investigators.

(e) In order to determine whether or not a firearm is

loaded for the purpose of enforcing this section, peace of-

ficera are authorized to examine any firearm carried by

anyone on his or her person or in a vehicle while in any

public place or on any public street in an incorporated city

or prohibited area of an unincorporated territory. Refusal

to allow a peace officer to inspect a firearm pursuant to the

provisions of this section constitutes probable cause for

arrest for violation of this section.

(f) As used in this section “prohibited area” means any

place where it is unlawful to discharge a weapon.

(g) A firearm shall be deemed to be loaded for the pur-

poses of this section when there is an unexpended

cartridge or shell, consisting of a case which holds a charge

of powder and a bullet or shot, in, or attached in any man-

ner to, the firearm, including, but not limited to, in the

firing chamber, magazine, or clip thereof attached to the

firearm; except that a muzzle-loader firearm shall be

deemed to be loaded when it is capped or primed and has a

powder charge and ball or shot in the barrel or cylinder.

(h) Nothing in this section shall prevent any person

engaged in any lawful business, including a nonprofit

organization, or any officer, employee, or agent authorized

y- by such person for lawful purposes connected with such

business, from having a loaded firearm within such

person’s place of business, or any person in lawful posses-

sion of private property from having a loaded firearm on

such property.

(i) Nothing in this section shall prevent any person from

carrying a loaded firearm in an area within an incorporated

city while engaged in hunting, during suchtimeandinsuch __

area as the hunting is not prohibited by the city council. —_

— >”

(j) Nothing in this section is intended to preclude the

carrying of any loaded firearm, under circumstances

where it would otherwise be lawful, by a person who

reasonably believes that the person or property of himself

or herself or of another is in immediate, grave danger and

that the carrying of such weapon is necessary for the

preservation of such person or property. As used in this

subdivision “immediate” means the brief interval before

“and after the local law enforcement agency, when reason-

ably possible, has been notified of the danger and before

the arrival of its assistance.

(k) Nothing in this section is intended to preclude the

carrying of a loaded firearm by any person while engaged

in the act of making or attempting to make a lawful arrest.

(1) Nothing in this section shall prevent any person from

having a loaded weapon, if it is otherwise lawful, at his or

her place of residence, including any temporary residence

or campsite.[1967 ch 960 § 1; 1968 ch 1222 § 62; 1969 ch

1164 § 1; 1970 chs 938 § 1, 1292 § 2; 1972 ch 579 § 39;

1974 ch 1090 § 2; 1975 ch 1170 § 1, operative January 1,

1977; 1976 ch 1426 § 4; 1978 ch 1023 § 4; 2979 ch 296 §

5, effective July 25, 1979; 1980 ch 1340 § 25, effective

September 30, 1980; 1981 ch 1065 § 1; 1982 ch 136 § 9,

effective March 25, 1982, operative April 24, 1982, ch

1262 § 23] ae CAL JUR 3D Criminal Law § 2428.

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APPENDIX H

DIVISION III

Rules for Publication of Appellate Opinions

Adopted by the Supreme Court of the State of California,

effective January 1, 1964

Rule 976. [Publication of appellate opinions]

(b) [Standard for opinions of other courts] No opinion

of a Court of Appeal or of an appellate department of the

superior court shall be published in the Official Reports

unless such opinion (1) establishes a new rule of law or

alters or modifies an existing rule,’ (2) involves a legal

1) This criterion calls for publication of the relatively few opinions

that establish new rules of law, including a new construction of a

statute, or that change existing rules. This criterion does not justify

publication of a fact case of first impression, where a legal rule or prin-

ciple is applied to a substantially new factual situation.

‘

issue of continuing public interest,? or (3) criticizes

existing law.? [As amended effective January 1, 1972;

previously amended effective November 11, 1966.]

2) This criterion requires that the legal issue, rather than the case or

controversy, be of public interest and that the interest be of a continu-

ing nature and not merely transitory. Public interest must be distin-

guished from public curiosity. The requirement of public interest may

be satisfied if the legal issue is of continuing interest to a substantial

group of the public such as public officers, agencies or entities, mem-

bers of an economic class, or a business or professional group. An

opinion which clarifies a controlling rule of law that is not well estab-

lished or ciearly stated in prior reported opinions, which reconciles

conflicting lines of authority, or which tests the present validity of a

settled principle in the light of modern authorities elsewhere may be

published under this criterion if it satisfies the requirement that the

legal issue be of continuing public interest.

3) This criterion would justify publication of the rare intermediate

appellate opinion which finds fault with existing common law or

statutory principles and doctrines and which recommends changes by

a higher court or by the Legislature.

DOCKET FILING DATE

DIST. OFF. YR. NUMBER MO. DAY YR. J N/S O Pif Def R

1973 2 82-0059 ~—S-=—«01/07/82 ger ee 23

PS ee ee ea) ees kee

- Sa :

TITLE:

DEPUTY SHERIFFS ORANGE CO ASSN-V-GATES :

CAUSE:

COMPLT FOR DECLARATORY JUDGMNT MML (kx)

ASSOCIATION OF ORANGE COUNTY DEPUTY a

SHERIFFS, GEORGE BYRD, ROBERT SINGER, a

CLIFF MILLER and JOHN WHITE, | ae

GREGORY G. PETERSEN

600 WEST SANTA ANA BLVD, STE 900

SANTA ANA, CA,92701

GREGORY G. PETERSEN

600 WEST SANTA ANA BLVD., STE 900

SANTA ANA, CA 92701

(714) 667-8071

Edward N. Duran Deputy Co. Cnsl

10 Civic Ctr Plaza

P.O.Box 1379

Santa Ana, CA 92702

(714) 834-6612 (for all defts)

CV82-0059-MML (Kx)

ASSOC. OF ORANGE COUNTY DEPUTY SHERIFFS,

et al., V. BRAD GATES, et al.

1/7/82 ag 1. Fid cmplt. Issd ams.

Case may be referred to Mag Kron-

enberg fr discvry.

2. Fid pitf declratn of Cliff Miller in

supp of motn for prelim inj

3. Fid plitf P&A’s in supp of motn for

preliniinj.

4. Fid pltf deciratn of Robert Singer in.

supp of motn for prelim inj.

5. Fid pltf note of motn retnbl 2/1/82

10AM & motn for prelim inj.

_

1/28/82

*1/21/82

1/26/82

*1/25/82

cw

6. Fid deft opp to motn fr prelim inj

7. Fid pltfs reply to opp to mtn for

prelim inj.

8. Fid declar of Al Angele.

9. Fid declar of Michael Stover.

10. Fid declar of Glenn’Clary.

11. Fid declar of Robert Singer.

12. Fid declar of Gregory G. Petersen.

13. Fid defts’ ANSWER TO COMPLT.

14. Fid declar of Wendell Phillips.

15. Fid declar of Les Robbins.

16. Fid defts ntc of requirement of

personal presence of affiants. _

17. MIN ORD:Hrg pitfs ex parte appl

for excusal of affiants fm hrg of the mtn

for prelim inj. Hrg held, appl granted &

the 2 affiants are excused. Deft is to file

written opp to their affids by 1-28-82 &

pitf is to reply by 2-1-82, 10am.

18. Fid pltfs ex parte appl for relief of

presence of affiants or alt mtn to cont

1/28/82

2/1/82

2/3/82

*2/1/82

2/5/82

2/12/82

3/4/82

3/10/82

3/12/82

sb

Le eee, ee

21. Fid defts objs to the declars of Phil-

lips & Angele.

22. Fid pitfs opp to defts objs to de-

clars.

23. Fid ORD denying plitfs mtn for

prelim inj.

24. MIN ORD: Plitfs mtn for prelim inj

taken under submission.

25. Fid proof of svc of ntc of mtn & mtn

for prelim inj; P&A in suppt., etc. on

Brad Gates exec 1-11-82.

26. Fid Ord re early meeting cnsl

Mandatory Status conf 5-17-82 10am

27. Fid cnsls’ report to court pur to LR

9.2.7.

28. Fld pltfs proof of svc of reply to opp

to mtn for p/i, etc.

29. Fid defts ntc of mtn & mtn rtnbi

4/5/82, 10am for s/j; memo of P&A in

suppt. J

30. Fid pltfs ntc of mtn & mtn rtnbi

4/5/82, 10am for s/j.

0 ee a

. ee: :

SS Se a fae

3/19/82 cw 32. Fld defts nte of requirement of

personal presence of affiants.

33. Fld defts opp to pltfs mtn for s/j.

3/22/82 cw 34. Fid pitfs declar of Gregory Peter-

sen.

35. Fld pltfs proof of svc of ntc of mtn &

mtn for s/j etc.

36. Fid pitfs stmt of genuine issues.

37. Fid pitfs declar of Al Angele.

3/23/82. cw = 38. Fid pitfs declar of Dave Baca.

39. Fld pltfs reply to detfs opp to pitfs -

mtn for s/j.

3/24/82 cw 40. ee ay Oe op toe

mtn for s/j.

3/26/82 cw 41. Fid pitfs memo of P&A to mtn for

8/j.

4/5/82 cw 42. MIN ORD: Mtns for s/j argued &

taken under subm. '

| 4/8/82 ew 43. Fld ORD (MML) re fur briefing on ‘9

x 6/3/82 = cw ~— 44. Fi defts fur brief on cross mtn for a

a/j. 4

“<

= 45. Fid declar of Johnson.

_ ¢ sors

.: 5/11/82 cw 49. MIN ORD: Man stat conf contd to

6/14/82, 10am.

6/11/82 cw 50. Fld STIP & ORD (MML) contg

‘ Man stat conf to 8/2/82, 10am.

7/2/82 rib 651.Fid ORD Granting dfts’ mot forS/J.

(Ent 7/6/82 m/cpys & ntfd prtys) JS-6

| 7/26/82 cw 53. Fld trans desig & ord form.

11/4/82 am _ Fid orig rptrs trans of proc had on

4/5/82. :

CIVIL DOCKET CONTINUATION SHEET :

PLAINTIFF :

Assoc of Orange County Deputy %

Sheriffs, et al. - i

DEFENDANT _

Brad Gates, et al.

DOCKET NO. 82-0059-MML (Kx)

PLAINTIFF

Assoc of Orange County Deputy

Sheriffs, et al.

PROOF OF SERVICE

STATE OF CALIFORNIA )

) es:

COUNTY OF RIVERSIDE )

I am a citizen of the United States and a resident of the

County aforesaid; I am over the age of eighteen years and

not a party to the within entitled action; my business ad-

dress is 4075 Agate Street, Riverside, California 92509.

On December 22, 1983, I served the within PETITION

FOR WRIT OF CERTIORARI on the interested parties

in said action, by placing a true copy in each of two (2)

sealed envelopes, with postage thereon fully prepaid, in

the United States mail at San Bernardino, California, ad-

dressed as follows:

ADRIAN KUYPER

County Counsel

EDWARD DURAN

Deputy County Counsel

10 Civic Center Plaza

P. O. Box 1379

Santa Ana, California 92702-1379

I certify under penalty of perjury that the foregoing is

true and correct.

EXECUTED on December 22, 1983, at Riverside, Cal-

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