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 _*
ie.
=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.
oe
ier Ry.) 3. * a, 7 yey sail we
ee = 2 aaah Naas res i aaa ie Ss ok aM 6 Bi ie mM,’
RT ee Kt LR a AZT TaN OP oP
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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.