Peace Officers Who Resign Or Are Terminated Do Not Qualify As “Honorably Retired” Peace Officers For Purposes Of Obtaining A Concealed Weapons Permit.
On February 28, 2013 the Third Appellate District of the California Court of Appeal, in Gore v. Yolo County District Attorney’s Office, held that “honorably retired” peace officers only refers to those who enter retirement from active service as a peace officer and not those who resign or are terminated and later collect their pension.
California Penal Code, section 25400, prohibits the carrying of concealed firearms by anyone. However, active and “honorably retired” peace officers are exempt from this general prohibition under sections 25450 & 25455. Historically, there has been disagreement regarding who qualified as an “honorably retired peace officer” under these statutes.
Facts
Rick Gore was employed by the Yolo County District Attorney’s Office (“DA”) as an investigator. Gore was a peace officer and, therefore, authorized to carry a firearm. In 2008, he disseminated a letter making false statements about the DA that harmed the DA’s reputation and that of his office.
Gore was fired and he appealed to an arbitrator. The arbitrator upheld the misconduct but ordered him reinstated, with a suspension, if he retracted the statements in writing. As a result, Gore and the District Attorney’s Office entered into a settlement whereby Gore withdrew the false statements and resigned his position.
A year after Gore’s resignation, he qualified under state law to begin collecting his pension. He then sought an identification certificate from the DA under former Penal Code section 12027 (now codified under sections 25450 & 25455) stating that, since he was collecting his pension, he was an “honorably retired” officer and, therefore, authorized to carry a concealed weapon.
The DA denied the permit, and Gore then sought a hearing, allowed to retired officers, to review whether the DA had “good cause” to deny the permit. The DA also denied Gore’s request for a hearing.
Gore filed a petition for a writ of mandate directing the DA to provide him a hearing. The trial court granted Gore’s petition, finding that Gore did not fall within the only listed exclusion of the definition of honorably retired peace officers, those who have “agreed to a service retirement in lieu of termination.” The trial court ordered the DA to provide Gore a hearing to determine if good cause existed to deny him a certificate authorizing him to carry a concealed firearm.
“Honorably Retired” Peace Officer
The Court of Appeal reversed the trial court’s ruling and held that Gore did not qualify as an “honorably retired” peace officer. The Court noted that Gore did not retire when he left the DA’s office but, rather, he had resigned under a settlement agreement. Therefore, the trial court erred by including Gore within the definition of “honorably retired” peace officer.
In deciding that Gore was not an honorably retired peace officer, the Court adopted the position advocated by JONES & MAYER in an amicus curiae brief prepared on behalf of the California State Sheriffs’ Association, the California Police Chiefs Association, the California District Attorney’s Association, and the California Peace Officers’ Association.
The Court noted that “amici curiae point out that there is a difference between being a former peace officer, and later qualifying for a pension, and being a peace officer who has qualified for and accepted a service retirement.”
The Court also adopted the reasoning of a 1995 Attorney General Opinion that discussed the definition of an “honorably retired” peace officer. 78 Op. Cal. Att’y. Gen. 192 (1995). The Attorney General opined that the statute does not include a peace officer who, instead of retiring, elects to continue employment in a non-peace officer position.
The Court held that “the focus of the term ‘honorably retired’ is the nature of the separation between the employer and the employee, not the age of the former employee.”
At separation, the employee “falls into one of three categories – a resigned employee, a terminated employee, or a retired employee. These categories describe the manner in which the employment ended.”
Only those who retire are entitled under the statute to carry a concealed weapon. “Gore did not qualify as a retired peace officer because he resigned his position and later began drawing his CalPERS pension.” (Emphasis added.)
The Court held that a person must enter retirement from active service as a peace officer to be considered a “peace officer who is honorably retired” to qualify under the statute to carry concealed firearms.
HOW THIS AFFECTS YOUR AGENCY
The language of Penal Code section 25455 states that “any peace officer described in Section 25450 who has been honorably retired shall be issued an identification certificate by the law enforcement agency from which the officer retired.” It says nothing about the retired officer being issued an ID card authorizing the carrying of a concealed weapon.
However, although Penal Code section 25400 prohibits the carrying of a concealed firearm, section 25450 exempts certain people from that prohibition, including, “any peace officer, listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, whether active orhonorably retired.” (Emphasis added.)
Penal Code section 26300 (b) states that “any peace officer employed by an agency and listed in Section 830.1 or 830.2 or subdivision (c) of Section 830.5 who retired after January 1, 1981, shall have an endorsement on the officer’s identification certificate statingthat the issuing agency approves the officer’s carrying of a concealed and loaded firearm.” (Emphasis added.)
However, Penal Code section 25470 (a) states that “the agency from which a peace officer is honorably retired may, upon initial retirement of that peace officer, or at any time subsequent thereto, deny or revoke for good cause the retired officer’s privilege to carry a concealed firearm.” (Emphasis added.)
If that occurs, the former officer is entitled to a hearing under Penal Code section 26315 (a), which states, “an identification certificate authorizing the officer to carry a concealed and loaded firearm or an endorsement may be permanently revoked only after a hearing, as specified in Section 26320.” Once notified of his/her right to a hearing, the officer must request one within 15 days thereafter.
In summary, law enforcement agencies must determine (1) whether or not a former officer is “honorably retired” and, if so, (2) if there is any good cause to deny that retired officer an endorsement to carry a concealed weapon? If the agency believes that good cause exists to deny or revoke the endorsement, it must notify the officer of his/her right to a hearing.
In light of the Gore decision, honorably retired peace officers do not include former peace officers who were terminated or resigned, even after they start to draw their pension. Those applicants should not be given certificates under Section 25455.
As always, it is important to secure advice and guidance from your agency’s legal advisor. If you wish to discuss the case in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com
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