Judges: BILL LOCKYER, Attorney General
Filed Date: 4/18/2002
Status: Precedential
Modified Date: 7/5/2016
BILL LOCKYER Attorney General GREGORY L. GONOT Deputy Attorney General
THE HONORABLE GEORGE NAKANO and THE HONORABLE ALAN LOWENTHAL, MEMBERS OF THE STATE ASSEMBLY, have requested an opinion on the following questions:
1. Are federal law enforcement officers, who are employed on a full-time, salaried basis as Department of Defense police officers at the Los Angeles Air Force Base, exempt from the state law prohibition against carrying concealed, loaded firearms when the officers are not on duty?
2. When Department of Defense police officers are engaged in the enforcement of federal criminal laws at the Los Angeles Air Force Base, may they make arrests for violations of state law occurring on the base if the arrests are incidental to the performance of their federal law enforcement duties?
3. Are the provisions of the state Vehicle Code applicable to the roads of the Los Angeles Air Force Base?
2. When Department of Defense police officers are engaged in the enforcement of federal criminal laws at the Los Angeles Air Force Base, they may make arrests for violations of state law occurring on the base if the arrests are incidental to the performance of their federal law enforcement duties and they have satisfied the appropriate training requirements.
3. The provisions of the state Vehicle Code are applicable to the roads of the Los Angeles Air Force Base.
Under federal law, the police officers in question are authorized to carry firearms while performing their official duties (
1. Carrying Concealed, Loaded Firearms Off-Duty
The first question to be resolved is whether under California law, LAFB police officers may carry concealed, loaded firearms when they are not on duty. We conclude that they may.
Penal Code section
"A person is guilty of carrying a concealed firearm when he or she does any of the following:
"(1) Carries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person.
"(2) Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person.
"(3) Causes to be carried concealed within any vehicle in which he or she is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person."
Similarly, section
"A person is guilty of carrying a loaded firearm when he or she 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 unincorporated territory."
However, the Legislature has enacted specific exemptions from these two statutory prohibitions. Section
We are given that LAFB police officers are full-time and salaried and are carrying out official duties while in California. The term "peace officer" embraces many specific classifications of public officers having law enforcement powers and responsibilities. (76 Ops.Cal.Atty.Gen. 223, 224 (1993) [federal correctional officers employed by Bureau of Prisons are "peace officers" for purposes of sections
Because of their status as peace officers of the federal government, these police officers are entitled to an exemption from the sections
". . . What is the usual, ordinary import of the words `carrying out official duties while in California'? Nothing in these words implies or suggests any geographical limitation on the application of the exemption to any area less than all of California. The word `while' limits the exemption as to time to the period the officer is `in California.' Significantly the word `while' does not qualify the words `carrying out official duties' because it follows rather than precedes those words. Thus, the usual and ordinary import of the words used in the statute would make the exemption applicable to full-time federal peace officers who are assigned duties to be performed in California, anywhere in California, and for the period of time they are in California for the purpose of performing those duties.
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". . . Had the Legislature meant to restrict the application of this exemption either in time or territorially, it knew how to do so as evidenced by the language it used in other exemptions contained in the same section when the exemption for officers of other states and the federal government was added to Penal Code section
We conclude that federal law enforcement officers, who are employed on a full-time, salaried basis as Department of Defense police officers at the LAFB, are exempt from the state prohibition against carrying concealed, loaded firearms even when they are not on duty.
2. Arrests Incidental to Performance of Federal Duties
The second question to be resolved concerns certain powers of arrest granted to LAFB police officers under California law. The statute requiring our examination is section
"Federal criminal investigators and law enforcement officers are not California peace officers, but may exercise the powers of arrest of a peace officer in any of the following circumstances:
"(1) Any circumstances specified in Section
"(2) When these investigators and law enforcement officers are engaged in the enforcement of federal criminal laws and exercise the arrest powers only incidental to the performance of these duties.
"(3) When requested by a California law enforcement agency to be involved in a joint task force or criminal investigation.
"(4) When probable cause exists to believe there is any public offense that involves immediate danger to persons or property.
"In all of these instances, the provisions of Section
"This subdivision does not apply to federal officers of the Bureau of Land Management or the Forest Service of the Department of Agriculture. These officers have no authority to enforce California statutes without the written consent of the sheriff or the chief of police in whose jurisdiction they are assigned."
May LAFB police officers, while engaged in the enforcement of federal criminal laws at the LAFB, make an arrest for a violation of state law occurring on the base when such arrest is incidental to the performance of their federal law enforcement duties? We conclude that they may if they have satisfied the appropriate training requirements.
Federal officers have only such powers to enforce California laws as the State of California has conferred upon them. (80 Ops.Cal.Atty.Gen. 297, 299-300 (1997).) Here, under the terms of subdivision (a)(2) of section
Subdivision (a)(2) of section
Of course, when an LAFB police officer is not actually "engaged in the enforcement of criminal laws," whether on or off the base, an arrest may not be made pursuant to the terms of section
Finally, we reject the suggestion that the prior consent of the sheriff or chief of police in whose jurisdiction the LAFB is located is necessary in order for an arrest to be made pursuant to section
We note also that subdivision (b) of section
"Duly authorized federal employees who comply with the training requirements set forth in Section
832 are peace officers when they are engaged in enforcing applicable state or local laws on property owned or possessed by the United States government, or on any street, sidewalk, or property adjacent thereto, and with the written consent of the sheriff or the chief of police, respectively, in whose jurisdiction the property is situated."
Subdivision (b) of section
We thus conclude in answer to the second question that when Department of Defense police officers are engaged in the enforcement of federal criminal laws at the LAFB, they may make arrests for violations of state law occurring on the base if the arrests are incidental to the performance of their federal law enforcement duties and they have satisfied the appropriate training requirements.
3. Application of State Vehicle Code
The final question presented is whether the provisions of the state Vehicle Code are applicable to the roads of the LAFB. We conclude that they are.
As indicated above, the laws of the State of California are generally applicable to the LAFB and its annexes. Does the Vehicle Code itself provide an exemption from its requirements for the roads of the LAFB? The provisions of the Vehicle Code are applicable to streets and highways as therein defined. Section
In Vasquez v. Pacific Greyhound Lines (1960)
Initially, we note that the word "street" normally means a public highway rather than a private road. (Loma Vista Inv., Inc. v. Roman Catholic Archbishop of Los Angeles (1958)
In United States v. Barner, supra,
"The roadways on McClellan Air Force Base are ways or places used for purposes of vehicular travel. They are publicly maintained, being maintained by the sole sovereign which has jurisdiction over the area, namely, the United States. They are open to the public, subject only to reasonable restrictions and regulations. Certain members of the general body of the people of the State of California, who have no business upon the base, may be barred from using the roadways in the industrial portion of the base. However, the general body of the people of McClellan Air Force Base, who work or reside there, have a general right to use those roadways, subject to reasonable restrictions and regulations. These roadways clearly come within the definition of `highway' when a realistic application of the term is made.
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"There is no basis in logic or otherwise for a holding that a highway exists only when it is used by all of the public, without restriction or regulation. . . .
"When it is said that a highway of the State of California is open to the public, it does not mean that it may be used by anyone, anytime, in whatever fashion desired. All that it really means is that a person, who has passed a driver's test, and paid for, and had issued to him, a valid driver's license, may drive a vehicle, which is properly licensed, and meets requirements of safety and axle load, upon the highways, provided he complies with certain rules and regulations of the road. . . .
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"The rights of the public on the roadways at McClellan Air Force Base are not unlike their rights on the State highways. Any regulation and control exercised in conjunction with the use of the McClellan Air Force Base roadways is not such as would destroy the character of a State highway per se, if the regulation and control were adopted by the State of California. The State, for example, has the authority to insist upon liability insurance as a prerequisite to driving, if the lawmaking authorities so decree [citation]. Again, if the State had the problem of a bottlenecked area, with inadequate access roads, no one would question the right of the State to bar from the area people who had no business there. Such a restriction would be entirely reasonable. The roads in question would, none the less, remain highways. . . ." (Id. at pp. 105-108.)
The court additionally noted:
"Federal roads, which are maintained by the Federal Government and are open to the public as a matter of fact, are highways, and this is true even though such roads are placed under reasonable restrictions and regulations (Opinion No. N.S. 3719 of the Attorney General of the State of California). It is not the dedication, but rather the use of roads, that determines whether they are `open to the public' (Opinion No. 58-11. 32 Att'y Gen'l Opin. 29). If the Federal roads are lawfully used by the public, it follows as a matter of course that they are open to the public." (Id. at p. 107, fn. 2.)
A similar conclusion was reached by the court in United States v. Kiliz, supra,
". . . The relevant public in this case is the apparently large number of people who use the roadways of the shipyard daily. This includes, presumably, military personnel and civilian workers. The roadway's use, at least on the record before this Court, does not seem to be lacking in this `public' character." (Id. at p. 630.)6
In keeping with the Barner and Kiliz decisions, we conclude that the roads at the LAFB and its annexes constitute streets and highways within the meaning of the Vehicle Code's definitions of such terms. Accordingly, the provisions of the Vehicle Code are applicable to the roads of the LAFB and its annexes.