Untitled California Attorney General Opinion ( 1989 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
______________________________________
OPINION :
: No. 89-505
of :
: AUGUST 31, 1989
JOHN K. VAN DE KAMP :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE BOB EPPLE, MEMBER OF THE CALIFORNIA ASSEMBLY,
has requested an opinion on the following questions:
1. Can the Chief Probation Officer of a county prohibit an off-duty deputy
probation officer from carrying a concealed firearm?
2. Must a deputy probation officer obtain a license to carry a concealed firearm?
CONCLUSIONS
1. A County Chief Probation Officer's authority, limited as it is to employment
related conduct, cannot prohibit an off-duty deputy probation officer from carrying a concealed
firearm.
2. Holding the status of a duly appointed peace officer a deputy probation officer
need not obtain a license to carry a concealed firearm.
ANALYSIS
The Chief Probation Officer of a county and his or her deputies are given the status
of peace officers by section 830.5 of the Penal Code.1 In this opinion we analyze several questions
concerning the power of deputy probation officers to carry concealed firearms.
Section 830.5, as material to our consideration herein, provides:
1
All section references are to the Penal Code unless otherwise indicated.
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"The following persons are peace officers whose authority extends to any
place in the state while engaged in the performance of the duties of their respective
employment and for the purpose of carrying out the primary function of their
employment or as required under Sections 8597, 8598, and 8617 of the Government
Code. Except as specified in this section, these peace officers may carry firearms
only if authorized and under those terms and conditions specified by their employing
agency:
"(a) A parole officer of the Department of Corrections or the Department
of the Youth Authority, probation officer, or deputy probation officer or a board
coordinating parole agency employed by the Youthful Offender Parole Board. . . .
A parole officer of the Department of Corrections, the Department of the Youth
Authority, or the Youthful Offender Parole Board is authorized to carry firearms but
only as determined by the director on a case-by-case or unit-by-unit basis and only
under those terms and conditions specified by the director or chairperson.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(c) The following persons may carry a firearm while not on duty: a
parole officer of the Department of Corrections or the Department of the Youth
Authority, a correctional officer employed by the Department of Corrections or any
employee of the Department of the Youth Authority having custody of wards or any
employee of the Department of Corrections designated by the Director of
Corrections. A parole officer of the Youthful Offender Parole Board may carry a
firearm while not on duty only when so authorized by the chairperson of the board
and only under the terms and conditions specified by the chairperson. Nothing in
this section shall be interpreted to require licensure pursuant to Section 12025. The
director or chairperson may deny or revoke for good cause a person's right to carry
a firearm under this subdivision. That person shall, upon request, receive a hearing,
as provided for in the negotiated grievance procedure between the exclusive
employee representative and the Department of Corrections, the Department of the
Youth Authority, or the Youthful Offender Parole Board, to review the director's or
the chairperson's decision."
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Accordingly, certain state correctional and parole officers, and county probation
officers and deputy probation officers are designated by this section as peace officers. These section
830.5 peace officers "may carry firearms only if authorized and under those terms and conditions
specified by their employing agency" "except as specified" in section 830.5.2 Finally, it is seen that
section 830.5 sets forth certain terms and conditions under which the designated state peace officers
may carry firearms, particularly off-duty, but is completely silent with respect to county probation
officers or deputy probation officers as a distinct class, while on duty or off- duty.
In addition to section 830.5, sections 12025 and 12027 are material to a determination
whether the designated peace officers may carry concealed weapons. Section 12025 generally
prohibits carrying concealed on one's person or in a vehicle any firearm capable of being concealed,
unless licensed to do so pursuant to section 12050 et seq. Section 12027, however, excepts from the
2
We assume herein that the chief probation officer is acting with the authority and on behalf of
the "employing agency."
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12025 proscription, "[a]ny peace officer, listed in Section 830.1 or 830.2, whether active or
honorably retired, [and, inter alia,] other duly appointed peace officers. . . ." (Emphasis added.)
1. Carrying A Concealed Firearm Off-Duty
The first question presented is whether the Chief Probation Officer of a county may
prohibit an off-duty probation officer from carrying a concealed firearm. We conclude that the Chief
Probation Officer cannot do so. We so conclude despite the language of section 830.5 indicating
that these peace officers may carry firearms only "under those terms and conditions specified by
their employing agency."
In 70 Ops.Cal.Atty.Gen. 20 (1987) we were presented with the question whether a
district attorney [the employing agency] had the authority to prohibit or allow the carrying of
firearms by welfare fraud investigators while off-duty. Such officers are designated as peace
officers pursuant to section 830.31 of the Penal Code. We were confronted with language similar
to that presently found in section 830.5. Thus, section 830.31 then provided that "[s]uch peace
officers may carry firearms only if authorized and under such terms and conditions specified by their
employing agency." Relying heavily upon our opinion in 65 Ops.Cal.Atty.Gen 527 (1982), we
concluded that the just-quoted language gave the employing agency the authority to regulate the
carrying of firearms only with respect to employment-related conduct. Accordingly, we concluded
that the district attorney could not regulate the carrying of firearms by welfare fraud investigators
while off duty.
In 65 Ops.Cal.Atty.Gen. 527 (1982), supra, we were presented with the question
whether the Chief of the California State Police Division had the authority to prohibit or allow
security officers of that division to carry concealed firearms while off-duty. Such security officers
are designated as peace officers pursuant to section 830.4 which provided in 1982 that "[s]uch peace
officers may carry firearms only if authorized by and under such terms and conditions as are
specified by their employing agency." In concluding that this language did not authorize the Chief
of the State Police Division to prohibit or allow security officers of that division to carry firearms,
we reasoned as follows:
"The extent of the authority granted to the employing agency by the third
sentence of section 830.4 is significant. By declaring ``such peace officers may carry
firearms only if authorized. . .' the statute prohibits the carrying of firearms without
the requisite authorization. Thus, the employing agency is empowered to prohibit
the carrying of firearms by its security officers by simply withholding its
authorization as well as to authorize them to carry firearms ``under such terms and
conditions' as it specifies. Further the authority granted extends to the carrying of
any firearm including shotguns and rifles, not just handguns. The reason for
authorizing an employing agency to control the carrying of firearms by its employees
at a facility operated by the agency or at any place where the employees are acting
within the scope and in the course of their employment is apparent. However, we see
no reason why the employing agency would need or want to control the carrying of
firearms by its peace officer employees at times and places unrelated to their
employment. If the power granted the employing agency by the third sentence of
section 830.4 is construed to extend to any time and place it would mean that the
designated officers would need the authorization of their employing agency to carry
rifles on hunting trips or even national guard training exercises. Further, such
control would extend only to the designated officers and not to the nonpeace officer
employees of the agency. We believe that the Legislature did not intend to grant the
employing agency any such control over the nonemployment related conduct of its
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security officers. By granting the authority to the ``employing agency' we think the
Legislature meant it to apply only to employment related conduct. Such limitation
is also suggested by the words ``under such terms and conditions as are specified'
since an employer's authority to impose terms and conditions on an employee's
conduct is normally limited to the latter's employment related conduct. Thus we
interpret the provision to be applicable only to employment related situations, i.e.,
to the carrying of firearms at the place of employment subject to control by the
employing agency and to the carrying of firearms by the employee any place while
acting within the scope and in the course of his or her employment." (Id,. at p. 533.
Emphasis in original.)
In 65 Ops.Cal.Atty.Gen. 527 (1987), supra, we additionally noted that there were
situations where the law places responsibilities upon peace officers as a class which are not usually
related to their employment. As to such types of responsibilities, we reasoned:
"In most cases a peace officer's powers and duties
are related to his peace officer employment. However, there are some responsibilities
which the Legislature has given peace officers generally which do not usually relate
their peace officer employment. Section 142 requires 'any peace officer' to receive
custody of a person who has been arrested by a private person. (See 64
Ops.Cal.Atty.Gen. 886, 892-894.) Business and Professions Code section 25619
provides that ``every peace officer' shall enforce the provisions of the Alcoholic
Beverage Control Act and shall inform against persons whom they have reasonable
cause to believe offend against its provisions. Failure to perform either of these
responsibilities is made a misdemeanor by the statutes. There are other such statutes
applicable to peace officers generally. (See, e.g., Health and Saf. Code, § 4477, and
Fish and G. Code, § 10508.) Section 836 authorizes peace officers generally to make
arrests in specified circumstances which need not relate to their peace officer
employment duties. (See People v. Derby, supra, 177 Cal. App. 2d 626.) When acting
pursuant to such statutes in a manner unrelated to their peace officer employment,
such officers are not subject to any rules imposed by their employing agencies since
such agencies have no power to limit or change these statutorily created powers and
duties. (64 Ops.Cal.Atty.Gen. 886.) We believe this applies to rules relating to the
carrying of concealed firearms." (Id., at pp. 533-534.)
Our opinions in 70 Ops.Cal.Atty.Gen. 20 (1987), supra, and 65 Ops.Cal.Atty.Gen.
527 (1982), supra, construe statutes similar to section 830.5 which is applicable to probation
officers, except that section 830.5 contains several statutory differences which reflect the actions of
the 1982 Legislature. In 1982 the Legislature substituted "except as specified in this section, these
peace officers may carry" for the prior language "such peace officer may carry" in the introductory
clauses; added the third sentence to subdivision (a) with respect to state parole officers, and added
subdivision (c) with respect to the off-duty use of firearms by State Department of Corrections and
Youth Authority peace officers.3
Do these differences dictate a different result as to county probation officers than that
reached by us in 1987 with respect to district attorney investigators and in 1982 with respect to State
Police Division security officers? In our view they do not.
3
Minor amendments not relevant to our consideration herein were also made in 1988 with respect
to the carrying of firearms by parole officers of the Youth Offender Board. (Stats. 1988, ch. 942.)
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Analysis of these amendments discloses that they were apparently enacted in
response to our opinion in 64 Ops.Cal.Atty.Gen. 832 (1981) wherein we analyzed the authority of
the Director of Corrections to regulate the carrying of firearms by State Department of Correction
employees. Thus, the amendments were intended to govern when the state peace officers designated
in section 830.5 may carry firearms off-duty. These amendments have the effect of restricting the
authority of the Director of Corrections to regulate the carrying of firearms by its peace officers
while outside the prison and off-duty. Accordingly, in our view these amendments were in no way
intended by the Legislature to affect the authority of a Chief Probation Officer of a county to
regulate the authority of his or her deputies to carry firearms either on or off duty. This being so,
the general principles set forth by us in 70 Ops.Cal.Atty.Gen. 20 (1987) and 65 Ops.Cal.Atty.Gen.
527 (1982), supra, would still be applicable to deputy probation officers and their employing
agency, the Chief Probation Officers. These are that the employing agency has no interest in or
authority to prohibit or allow such peace officers to carry concealed firearms while off-duty. Their
authority in this regard is governed by sections 12025 and 12027.
Accordingly, we conclude on question one that the Chief Probation Officer of a
county may not prohibit his or her deputies from carrying concealed weapons while off duty.4
2. The Question of a License.
The second question presented is whether a deputy probation officer must obtain a
license pursuant to section 12050 to carry a concealed firearm. This question is answered in the
negative by section 12027. Section 12027 exempts peace officers from license requirements.
Under the provisions of section 830.5 probation officers are "peace officers" at all
times. In prior opinions we have pointed out the distinction between the "status" of peace officer
and the "authority" of a peace officer and that both need not exist at the same point in time. (See
generally, 65 Ops.Cal.Atty.Gen. 527 (1982) supra,; 65 Ops.Cal.Atty.Gen. 618, 626 (1982).)
Applying this distinction to section 830.5 peace officers, we see from the introductory paragraph that
they are "peace officers whose authority extends to any place in the state while engaged in the
performance of their duties, etc. . . . ." (Emphasis added.) Accordingly, under the wording of
section 830.5, they have the "status" of a peace officer without any time limitation, thus at all times,
although they have the authority of a peace officer only while engaged in the performance of their
duties, etc. The "while" clause modifies their authority, not their status. (See also Opinion No. 89-
203, 72 Ops.Cal.Atty.Gen. ___ (1989).)
We conclude that probation officers are "peace officers" within the meaning of
section 12027. Accordingly, since they are peace officers at all times, they are exempt from the
proscriptions of section 12025 at all times. (Cf. 70 Ops.Cal.Atty.Gen. 20 (1984), supra; 65
Ops.Cal.Atty.Gen. 527 (1982), supra; 63 Ops. Cal.Atty.Gen. 385 (1980).)
*****
4
In so concluding we note, however, the general provisions of section 1126 of the Government
Code which permits a local agency to prohibit off-duty conduct of its officers and employees "for
compensation which is inconsistent, incompatible, in conflict with, or inimical to his or her duties.
. . . " (Emphasis added.)
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