Untitled California Attorney General Opinion ( 1993 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 93-519
of :
: October 8, 1993
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE ROSS JOHNSON, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on the following question:
Are federal correctional officers employed by the Bureau of Prisons and assigned to
duties in California exempt from those provisions of the Dangerous Weapons Control Law which
prohibit the carrying of concealed or loaded firearms?
CONCLUSION
Federal correctional officers employed by the Bureau of Prisons and assigned to
duties in California are exempt from those provisions of the Dangerous Weapons Control Law which
prohibit the carrying of concealed or loaded firearms.
ANALYSIS
The United States Bureau of Prisons operates under the direction of the United States
Attorney General and has charge of such functions as the management and regulation of all federal
penal and correctional institutions and the protection, instruction, and discipline of all persons
charged with or convicted of offenses against the United States. (18 U.S.C. § 4042.) We are asked
whether federal correctional officers employed by the Bureau of Prisons in California are exempt
from California's laws which prohibit persons from carrying concealed or loaded firearms. We
conclude that these federal officers are exempt.
With respect to the carrying of concealed weapons, Penal Code section 12025,
subdivision (a)1 provides:
1
All undesignated section references hereafter are to the Penal Code. Section 12025 is part of
the Dangerous Weapons Control Law (§§ 12000-12101).
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"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 upon his or her person any pistol, revolver, or other firearm
capable of being concealed upon the person."
Section 12031, subdivision (a)(1) contains the following general proscription against the carrying
of loaded firearms:
"Except as provided in subdivision (b), (c), or (d), every person who 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 is guilty of a misdemeanor."
The relevant exceptions to the foregoing prohibitions are set forth in sections 12027 and 12031.
Section 12027, subdivision (a)(1)(A) provides that section 12025 does not apply to or affect:
"Any peace officer, listed in Section 830.1 or 830.2, whether active or
honorably retired, other duly appointed peace officers, honorably retired peace
officers listed in subdivision (c) of Section 830.5, full-time paid peace officers of
other states and the federal government who are carrying out official duties while
in California, or any person summoned by any of these officers to assist in making
arrests or preserving the peace while he or she is actually engaged in assisting that
officer." (Italics added.)
Similarly, section 12031, subdivision (b)(1) provides an exemption with respect to the carrying of
loaded firearms for the same individuals as those specified in section 12027, subdivision (a)(1)(A).
Thus, if the federal correctional officers in question qualify as (1) full-time (2) paid
(3) peace officers (4) who are carrying out official duties (5) while in California, they are exempt
from the concealed and loaded firearms prohibitions of sections 12025 and 12031.2
As to whether federal correctional officers employed by the Bureau of Prisons are
"peace officers" for purposes of sections 12027 and 12031, we note that the term "peace officer" is
a generic term embracing many specific classifications of public officers having law enforcement
powers and responsibilities. (See 65 Ops.Cal.Atty.Gen. 527 (1982).) Regarding the performance
of law enforcement duties, these particular federal officers qualify as "law enforcement officers" as
defined under federal law, since each is "an employee occupying a rigorous position, whose primary
duties are the investigation, apprehension, or detention of individuals suspected or convicted of
offenses against the criminal laws of the United States." (5 C.F.R. § 842.802 (1993).)3
2
We shall assume that these officers occupy full-time paid positions.
3
A "rigorous position" is one "the duties of which are so rigorous that employment opportunities
should, as soon as reasonably possible, be limited (through establishment of a maximum entry age
and physical qualifications) to young and physically vigorous individuals whose primary duties are
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An officer or employee of the Bureau of Prisons is authorized by federal law to
"make arrests on or off of Bureau of Prisons premises without warrant for violations of the following
provisions regardless of where the violation may occur: sections 111 (assaulting officers), 751
(escape), and 752 (assisting escape) of title 18, United States Code, and section 1826(c) (escape) of
title 28, United States Code . . . if such officer or employee has reasonable grounds to believe that
the arrested person is guilty of such offense, and if there is likelihood of such person's escaping
before an arrest warrant can be obtained." (18 U.S.C. § 3050.) Moreover, "[o]fficers and employees
of the said Bureau of Prisons may carry firearms under such rules and regulations as the [United
States] Attorney General may prescribe." (Ibid.)4
In addition to being federal "law enforcement officers" with the authority to arrest
for federal offenses, correctional officers employed by the Bureau of Prisons serve in substantially
the same capacity as state correctional officers -- an occupational group designated by section 830.5
as having "peace officer" status. Given each of these circumstances, we believe that the federal
correctional officers in question are employed as "peace officers" as that term is used in sections
12027 and 12031.
With respect to the last two qualifications of "carrying out official duties while in
California," without doubt these two qualifications are met by the federal officers in question.
However, an additional issue to be resolved is whether these officers are entitled to an exemption
from the section 12025 and 12031 prohibitions at all times while in California or only during the
period when they are actually engaged in the performance of their federal duties. This issue was
previously addressed in 63 Ops.Cal.Atty.Gen. 550 (1980), concerning federal rangers employed by
the Bureau of Land Management to patrol the California Desert Conservation Area. We analyzed
the question as follows:
"The fundamental rule of statutory construction requires ascertainment of the
Legislature's intent in order to effectuate the purpose of the law. In determining that
intent the words used in the statute should be interpreted to give effect to the statute
according to the usual, ordinary import of the language used. [Citation.] 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.
. . . [i]nvestigating, apprehending or detaining individuals suspected or convicted of offenses against
the criminal laws of the United States . . . ." (5 C.F.R. § 842.802 (1993).) We have determined from
the position description for the correctional officers in question that the position is subject to a
maximum appointment age of 34 and that the duties of the position are primarily concerned with the
detention of individuals suspected or convicted of federal offenses.
4
In light of the conclusion reached herein, it is unnecessary to determine whether, due to the
supremacy clause of the United States Constitution, federal law preempts the application of the
section 12025 and 12031 prohibitions to Bureau of Prisons personnel. (See 75 Cal.Ops.Atty.Gen.
270 (1992).)
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". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"We have found nothing in the history of the statute or in the context to
indicate that the Legislature did not intend the words `carrying out official duties
while in California' to have their ordinary and usual import. Nor do we see any
absurdity in such an interpretation. 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 12027 in 1959." (Id., at pp. 552-553.)5
Based upon our 1980 analysis, we believe that the federal correctional officers under consideration
herein are entitled to the exemptions of sections 12027 and 12031 at all times while in California.
In California Assn. of Psychology Providers v. Rank (1990) 51 Cal. 3d 1, 17, the
Supreme Court described the significance of Attorney General opinions that have not generated a
"corrective measure" by the Legislature:
"`Opinions of the Attorney General, while not binding, are entitled to great
weight. [Citations.] In the absence of controlling authority, these opinions are
persuasive "since the Legislature is presumed to be cognizant of that construction of
the statute."' (Napa Valley Educators' Assn. v. Napa Valley Unified School Dist.
(1987) 194 Cal. App. 3d 243, 251.) In Meyer v. Board of Trustees (1961) 195
Cal. App. 2d 420, the court found the Attorney General's construction of the teacher
tenure requirements was decisive of the case, noting that `[a]s a contemporaneous
construction, and because he was charged with the duty of rendering an opinion with
respect to its meaning, the interpretation of the subject statute by the attorney general
in 1936 is entitled to great respect. [Citations.] [¶] It must be presumed that the
aforesaid interpretation has come to the attention of the Legislature, and if it were
contrary to the legislative intent that some corrective measure would have been
adopted . . . .' (Pp. 431-432.) Again in Ventura v. City of San Jose (1984) 151
Cal. App. 3d 1076, 1080, the court relied heavily on an Attorney General opinion
concerning the preemptive effect of state fireworks regulation, stating that `We can
presume that this five-year-old opinion has come to the attention of the Legislature,
and that if it were a misstatement of the legislative intent, "some corrective measure
would have been adopted."'"
As the situation presented herein differs in no significant respect from that involving
the federal rangers employed by the Bureau of Land Management to patrol the California Desert
Conservation Area, and as the controlling provisions of the Dangerous Weapons Control Law have
5
We also considered in our 1980 opinion whether the exemption was limited to temporary
assignments of federal personnel:
"Wording of the exemption for officers of other states and the federal
government appears particularly appropriate to those officers who are in California
on temporary assignments. However, there is nothing in the language of the
exemption to make its application depend upon the duration of the California duty
assignment. The words `carrying out official duties while in California' are as
applicable to officers assigned to duties in California on a permanent or indefinite
basis as they are to temporary assignments." (Id., at pp. 553-554, fn. omitted.)
4. 93-519
not changed in pertinent part since our 1980 opinion, we conclude that federal correctional officers
employed by the Bureau of Prisons and assigned to duties in California are exempt from those
provisions of the Dangerous Weapons Control Law which prohibit the carrying of concealed or
loaded firearms.
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