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  • Court of Appeal Rules Custodial Deputies are Exempt from CCW Permit Requirement
    Posted On: Sep 01, 2016

    By Paul D. Knothe on September 1, 2016 Posted in Public Safety Issues

    STANISLAUS COUNTY, CA - In Stanislaus County Deputy Sheriffs’ Association v. County of Stanislaus, decided August 11, 2016, the California Court of Appeal, Fifth Appellate District, held that custodial deputies may lawfully carry concealed firearms while off duty without obtaining a CCW permit, and invalidated the Stanislaus County Sheriff’s policy of requiring all such custodial deputies to obtain a permit to carry in their off-duty hours.  In reaching this conclusion, the Court of Appeal disagreed with a 2002 California Attorney General opinion on which the County had relied.  Agencies may still limit peace officers’ ability to concealed carry off-duty on an individualized basis.

    Stanislaus County Sheriff’s Department had a policy that sworn custodial deputies may carry a concealed firearm while off duty only if that deputy has first obtained a license or a permit to carry a concealed weapon.  The union representing those deputies, the Stanislaus County Deputy Sheriff’s Association, alleged that this policy violates Penal Code section 25450, which exempts peace officers from the general prohibition against carrying a concealed weapon.

    The union filed a petition for writ of mandate in the Superior Court and argued that because Section 25450 categorically exempts all peace officers listed in Penal Code section 830.1 from the permit requirement, the County could not require sworn custodial deputies to obtain a permit to carry off-duty.  The County, in opposition, relied on language in Section 830.1 limiting the scope of the custodial deputies’ peace officer authority.  The statute states:

    “Any deputy sheriff of [the County of Stanislaus] who is employed to perform duties exclusively or initially relating to custodial assignments with responsibilities for maintaining the operations of county custodial facilities, including the custody, care, supervision, security, movement, and transportation of inmates, is a peace officer whose authority extends to any place in the state only while engaged in the performance of the duties of his or her employment and for the purpose of carrying out the primary function of employment relating to his or her custodial assignments, or when performing other law enforcement duties directed by his or her employing agency during a local state of emergency.” The Superior Court agreed with the County that this language bestowed peace officer status on Custodial Deputies only while on-duty, and therefore did not entitle them to carry concealed firearms without a permit while off-duty.

    The union appealed, and the Court of Appeal reversed the decision of the Superior Court.  In reaching this decision, the Court of Appeal held that the language in Section 830.1 relied on by the County and the Superior Court limited the scope of Correctional Deputies’ peace officer authorities but does not limit their peace officer status; they are peace officers at all times, even at times they do not have the authority to act as peace officers.  The Court of Appeal chose not to follow a 2002 opinion of the California Attorney General on which the County had relied, which had expressly interpreted Section 830.1 to mean that custodial deputies described in that section do not have peace officer status or authority when they are away from the county detention facilities at which they perform their peace officer duties.  The Court noted that Attorney General opinions are not binding on the courts, and disagreed with the Attorney General’s analysis that the statute only confers peace officer status on custodial deputies while performing those duties.

    Further, the Court of Appeal noted that other sections of the Penal Code (sections 830.3, 830.5, 830.6, 830.33, 830.35, 830.36) place limitations on off-duty carrying of firearms by other categories of peace officers, but Section 830.1 does not.  The Court of Appeal additionally cited a previous Court of Appeal decision, Orange County Employees, Assoc., Inc. v. County of Orange (1993), that stated that even where Legislature specifically limited a type of peace officer’s ability to carry a concealed weapon on-duty, that type of peace officer is still exempt from the requirement to obtain a permit to carry a concealed weapon off-duty unless the statute expressly says otherwise.

    However, the Court of Appeal’s decision does not entirely eliminate an agency’s ability to limit the off-duty carrying of concealed weapons by custodial deputies or similarly-limited peace officers.  In a footnote, the decision reads, “Of course, our discussion assumes that the custodial deputies are in good standing with the Stanislaus County Sheriff’s Department and have complied with all legal requirements of peace officers (see [Penal Code] sections 830, 832).”  This language does not define what it means to be in “good standing” but it appears to allow for restriction on off-duty concealed carrying on an officer-by-officer basis based on the department’s assessment of the deputy’s “standing.”  Further, the footnote expressly states, as held in Gordon v. Horsley (2001), that a sheriff or police department may impose restrictions on a particular officer’s privilege to carry a concealed weapon off duty when necessary for public safety.

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