June 29, 2014 -- Client Alert
This Client Alert provides a broad overview of the rights of retired peace officers when it comes to retirement identification certificates and carrying concealed firearm endorsements under California and federal law. The decision to deny or revoke a retired peace officer’s retirement identification or firearm endorsement should not be made before discussing with legal counsel. Please feel free to contact our office with any additional questions.
Peace officers, including honorably retired peace officers, are exempted from California’s general prohibition against carrying concealed and loaded firearms, so long as they meet certain annual training requirements.[i] If a peace officer is honorably retired, California law requires that the agency from which he retired issue the officer an identification certificate containing an endorsement to carry a concealed firearm.[ii] However, the Penal Code prohibits the issuance of an endorsement to a peace officer who retired due to a psychological disability.[iii]
An “honorably retired peace officer” is one who “has qualified for, and has accepted, a service or disability retirement,” but not one who has agreed to a service retirement in lieu of termination.[iv] A former peace officer may fall into one of three categories: resigned, terminated, or retired, depending upon the exact and sometimes technical nature of their departure.[v] Only a peace officer who separates from employment with the agency under the last category is considered an “honorably retired peace officer.”
The nature of the separation between the peace officer and the agency is key, and settlement agreements with a departing officer can lead to subsequent disputes over retirement identification and carrying concealed firearms endorsements.[vi] In one case, an investigator for a district attorney’s office publicly made false accusations against the district attorney.[vii] The county and the investigator eventually reached a settlement whereby the investigator would resign immediately and begin collecting his California Public Employees’ Retirement System (CalPERS) benefits. Shortly after his resignation, the investigator applied for and was denied a carrying concealed firearms endorsement. The appeals court upheld the denial, pointing out that the investigator, despite his retirement benefits, technically resigned and therefore did not meet the definition of honorably discharged. This type of dispute may be avoided by addressing the issue of retirement identification and carrying concealed firearms endorsements at the time of settlement.
There may also be confusion regarding the different categories of retirements because “service retirement” and “disability retirement” are not defined in the Penal Code. However, the CalPERS provisions of the Government Code refer to these terms repeatedly. To qualify for a service retirement, a peace officer must be at least 50 years-old and have a minimum five years of credited service.[viii] To qualify for a disability retirement, the disability must be deemed either work-related (“industrial disability”) or non-work-related (“non-industrial disability”) by a medical professional.[ix] The relevant Penal Code sections do not differentiate between industrial and non-industrial disability retirement for the purpose of determining whether a peace officer is “honorably retired,” so it is reasonable to assume that both are covered. However, it appears that this proposition has not been tested in court.
An agency may revoke or deny an endorsement to carry a concealed firearm if a retired peace officer violates any departmental rule or state or federal law that would result in the arrest, suspension, or removal from the agency of an active duty officer.[x] Furthermore, the issuing agency may immediately and temporarily revoke an identification certificate or endorsement if the retired peace officer’s conduct endangers public safety.[xi] For example, in one case an officer on disability leave injured a young girl while jet-skiing and was charged with negligent and reckless operation of a jet ski, as well as providing false information to a police officer. The officer also failed to report the charges to the department, as required.[xii] A hearing board refused to grant the officer an endorsement to carry a concealed firearm, and the appeals court found that the board had good cause to do so, in compliance with the Penal Code.[xiii]
When revoking or denying an identification certificate or endorsement, the agency must provide notice to the retired peace officer either personally or via first-class mail, and the retiree must respond to this notice within 15 days of service if he or she wishes to request a hearing.[xiv] The hearing must be held no later than 120 days from the request for same.[xv] The hearing must be before a three-member board consisting of one agency designee, one designee of the retired officer, and one jointly-selected board member.[xvi] The decision of the board is binding upon the retiree and the agency.[xvii]
Retired Reserve Peace Officers
In 2002, a California court ruled that retired reserve peace officers do not satisfy the “honorably retired” requirement because reserves do not qualify for and accept a “service retirement.”[xviii] In that case, a retired reserve police officer for the City of Berkeley sued the city when his request for an endorsement to carry a concealed firearm was denied.[xix] Even though the retired reserve officer was enrolled in a Public Agency Retirement System (PARS) benefit program, the court held that a PARS plan did not qualify as a service or disability retirement. The court ruled that PARS benefits did not meet the required retirement standard because the benefits are not based on any term of service requirement and are available to reserve officers immediately after their service ends for whatever reason.[xx] Thus, retired reserve peace officers were not entitled to retirement identification certificates and carrying concealed firearm endorsements.
The California Legislature passed Assembly Bill 703 in September 2013 to address the issue of retired reserve peace officers, and the law became effective January 1, 2014.[xxi] Specifically, AB 703 amends Section 26300(c) of the Penal Code to include retired reserve peace officers as persons entitled to retirement identification certificates and carrying concealed firearm endorsements, so long as they meet certain conditions.[xxii] First, the retired reserve officer must have been authorized to carry a firearm during the course and scope of duty, and had in fact done so.[xxiii] Second, the retired reserve officer must have served the minimum aggregate amount of time as specified by agency policy as a level I reserve officer, provided that the agency term requirement is not less than 10 years or more than 20 years. Any time spent as a reserve peace officer in a role other than level I reserve officer prior to January 1, 1997 may not count towards the aggregate term requirement.[xxiv] The agency may deny or revoke the firearm endorsement using the same procedures as for retired full-time officers.[xxv]
Federal Law Enforcement Officer’s Safety Act
Qualified retired peace officers also have rights under the Federal Law Enforcement Officer’s Safety Act (“LEOSA”). The LEOSA guarantees a “qualified retired law enforcement officer” who is carrying the proper identification the right to carry a concealed firearm that has been “shipped or transported in interstate or foreign commerce.”[xxvi] A qualified retired peace officer is one who (1) separated in good standing from service as a law enforcement officer after an aggregate 10 years of service or after a service-related disability retirement, provided that any applicable probationary period was completed; (2) is not otherwise prohibited by federal law from possessing firearms; and (3) is carrying identification that meets certain criteria.[xxvii] Identification issued by the agency from which the officer retired meets the criteria of the LEOSA if it (1) is photographic; (2) is issued by the agency from which the officer retired; (3) indicates that, within the past year, the person has been tested or is otherwise found by the agency to meet the agency’s active duty standards in firearms training, or that the person was found by a certified firearms instructor to meet state firearms standards for active duty officers, if such standards exist.[xxviii]
There is very little case law on the LEOSA, but courts that have examined it found the LEOSA has only a limited scope. For example, the Federal court for the Northern District of New York held that the LEOSA does not require any state or local agency to issue a firearms endorsement to retired officers.[xxix] Rather, the court found, the LEOSA only bars states and local governments from prosecuting qualified retired peace officers for carrying a concealed firearm.[xxx] Several state Attorneys General have reached similar conclusions in advisory opinions.[xxxi]
For further information, please contact Colin J. Tanner, partner at Aleshire & Wynder, LLP, specializing in labor and employment law issues.
Disclaimer: Aleshire & Wynder, LLP legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communication.
[i] Penal Code §§ 25450, 25475.
[ii] Penal Code §§ 25455, 25465.
[iii] Penal Code § 26305.
[iv] Penal Code § 16690.
[v] Gore v. Yolo County District Attorney’s Office, 213 Cal.App.4th 1487, 1493 (Cal. Ct. App. 2013).
[vi] E.g. Id.; 78 Op.Atty.Gen. 192 (June 19, 1995) .
[vii] See Gore v. Yolo County District Attorney’s Office.
[viii] Gov. Code §§ 21060, 21062.
[ix] Gov. Code. § 21159.
[x] Penal Code § 26305.
[xii] Sommerfield v. Helmick, 57 Cal.App. 4th 315 (Cal. Ct. App. 1997).
[xiv] Penal Code § 26315.
[xvi] Penal Code§ 26320.
[xviii] See Haas v. Meisner, 103 Cal.App.4th 580 (Cal. Ct. App. 2002).
[xxi] 2013 Cal. Legis. Serv. Ch. 267 (A.B. 703)(West)
[xxii] Penal Code § 26300
[xxiii] Penal Code § 26300(c)(1)
[xxiv] Penal Code § 26300(c)(2)
[xxvi] 18 U.S.C. 926c.
[xxvii] 18 U.S.C. 926c(c).
[xxviii] 18 U.S.C. 026c(d).
[xxix] Johnson v. New York State Dept. of Correctional Services, 709 F.Supp.2d 178 (N.D.N.Y 2010).
[xxxi] See Conn. Atty. Gen. Op. 2013-004 (April 24, 2012); Texas Atty. Gen. Op. GA-0564 (August 15, 2007); Ala. Atty. Gen. Op. No. 2005-165 (July 28, 2005).