# Petition — Singer v. Gates > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1085%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 466 U.S. 937 ## Text Te 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... 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 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. P - er *i io oe a ee ee . Meas PS ee eP AN oe fi ees PPR hot +t. ees, es 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 . ae (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. th oe (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. , . ae (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 -_ ae. 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. ee? ee a ae 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- Ie 4 - Se. ek we 4 Y oe : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1085%3A1. Public record. Not legal advice.