Untitled California Attorney General Opinion ( 1997 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-503
of :
: October 24, 1997
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________
THE COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING, has
requested an opinion on the following question:
If a police officer or deputy sheriff fails to complete the training prescribed by the
Commission on Peace Officer Standards and Training or obtain the basic certificate issued by the
commission, what powers may such officer exercise?
CONCLUSION
If a police officer or deputy sheriff fails to complete the training prescribed by the
Commission on Peace Officer Standards and Training or obtain the basic certificate issued by the
commission, such officer may exercise only non-peace officer powers; the officer may not exercise the
powers of arrest, serving warrants, carrying concealed weapons without a permit, or similar peace officer
powers.
ANALYSIS
We are here concerned with police officers and deputy sheriffs who are required to complete
a comprehensive course of training prescribed by the Commission on Peace Officer Standards and Training
("Commission"). Two statutes are the focus of this opinion. Penal Code section 832.3, subdivision (a)
Footnote No. 1 provides:
". . . any sheriff, undersheriff, or deputy sheriff of a county, any police officer of a
city, and any police officer of a district authorized by statute to maintain a police department,
who is first employed after January 1, 1975, shall successfully complete a course of training
prescribed by the Commission on Peace Officer Standards and Training before exercising the
powers of a peace officer, except while participating as a trainee in a supervised field training
program approved by the Commission on Peace Officer Standards and Training. The training
1 of 4
program approved by the Commission on Peace Officer Standards and Training. The training
course for an undersheriff and deputy sheriff of a county and a police officer of a city shall be the
same." (Italics added.)
Subdivision (a) of section 832.4 states:
"Any undersheriff or deputy sheriff of a county, any police officer of a city, and any
police officer of a district authorized by statute to maintain a police department, who is first
employed after January 1, 1974, and is responsible for the prevention and detection of crime and
the general enforcement of the criminal laws of this state, shall obtain the basic certificate issued
by the Commission on Peace Officer Standards and Training within 18 months of his or her
employment in order to continue to exercise the powers of a peace officer after the expiration of
the 18-month period." (Italics added.)
Accordingly, a police officer or deputy sheriff must first take a course of training "before exercising the
powers of a peace officer" (§ 832.3, subd. (a)) and thereafter obtain a basic certificate from the Commission
within 18 months "in order to continue to exercise the powers of a peace officer" (§ 832.4, subd. (a)).
Footnote No. 2
The Commission sets standards and issues various certificates, depending upon the duties
and responsibilities of the individual peace officers. (See §§ 13510-13519.9.) The standards serve "the
purpose of raising the level of competence of local law enforcement officers . . . ." (§ 13510, subd. (a).)
Certificates are issued "for the purpose of fostering professionalism, education, and experience necessary to
adequately accomplish the general police service duties performed by peace officer members of city police
departments, county sheriffs' departments . . . ." (§ 13510.1, subd. (b).) The training includes, among other
aspects, a comprehensive firearms course. (Cal. Code Regs., tit. 11, § 1081.)
In examining these statutory requirements and the law enforcement powers of a peace
officer, we are guided by well-settled principles of statutory construction. "When interpreting a statute our
primary task is to determine the Legislature's intent." (Freedom Newspapers, Inc. v. Orange County
Employees Retirement System (1993) 6 Cal. 4th 821, 826.) "The words of the statute must be construed in
context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject
must be harmonized, both internally and with each other, to the extent possible." (Walnut Creek Manor v.
Fair Employment & Housing Com. (1991) 54 Cal. 3d 245, 268.) "A statute must be construed `in the context
of the entire statutory system of which it is a part, in order to achieve harmony among the parts.' [Citation.]"
(People v. Woodhead (1987) 43 Cal. 3d 1002, 1009.)
In applying these principles of statutory construction, we note that the principal power of a
peace officer involves the more liberal standards applicable to the power of arrest. Section 836, subdivision
(a) states:
"A peace officer may arrest a person in obedience to a warrant, or, pursuant to the
authority granted to him or her by Chapter 4.5 [§§ 830-832.9] without a warrant, may arrest a
person whenever any of the following circumstances occur:
(1) The officer has reasonable cause to believe that the person to be arrested has
committed a public offense in the officer's presence.
(2) The person arrested has committed a felony, although not in the officer's presence.
(3) The officer has reasonable cause to believe that the person to be arrested has
committed a felony, whether or not a felony, in fact, has been committed."
A peace officer may also carry out searches and seizures incident to an arrest, provided that the arrest is both
2 of 4
A peace officer may also carry out searches and seizures incident to an arrest, provided that the arrest is both
custodial and lawful. (U.S. v. Mota (9th Cir. 1993) 982 F.2d 1384.) Any peace officer who has reasonable
cause to believe that the person to be arrested has committed a public offense may use reasonable force to
effect the arrest, to prevent escape, or to overcome resistance. (§ 835, subd. (a).)
The fact that a private person may also make an arrest under certain conditions (§ 837;
People v. Martin (1964) 225 Cal. 2d 91, 94) does not affect our analysis of "the powers of a peace officer" for
purposes of sections 832.3 and 832.4. A police officer or deputy sheriff may exercise his or her powers as a
private person--as authorized by statute--even when the more extensive powers of arrest by a peace officer
are precluded under the terms of sections 832.3 or 832.4.
Peace officers have various other powers, such as the authority Footnote No. 3 to serve search
warrants (§§ 1528-1530), close areas in a disaster or other emergency (§ 409.5; 67 Ops.Cal.Atty.Gen. 535
(1984)) and operate emergency vehicles (Veh. Code, § 21055).
Peace officers are exempt from numerous statutory prohibitions such as those against
carrying a concealed weapon (§§ 12025, 12027) and carrying a loaded firearm in a vehicle or public place
(§ 12031). (See 80 Ops.Cal.Atty.Gen. 100 (1997).) Do these statutory exemptions qualify as "powers of a
peace officer" for purposes of sections 832.3 and 832.4? In a letter opinion (Cal. Atty. Gen., Indexed Letter,
No. IL 75-123 (Aug. 18, 1975)), we concluded that peace officers who have not successfully completed the
training mandated by section 832.3 may not carry a loaded firearm. We stated in part:
". . . [I]n enacting the Penal Code section 832 series, the Legislature was particularly
concerned with seeing that peace officers receive training in the exercise of their powers to arrest
and in the carrying and use of firearms. It is apparent, therefore, that the Legislature intended the
exemption . . . granted peace officers under Penal Code section 12031(b)(1) to be one of the
`powers of a peace officer' as that phrase is used in Penal Code section 832.3. Those peace
officers specified in Penal Code section 832.3 who are hired after January 1, 1975, and who have
not successfully completed the training mandated by section 832.3, therefore, are not exempt
from [the prohibition] . . . by the exception codified in Penal Code section 12031(b) . . . ." (Id., at
pp. 2-3.)
Carrying a concealed weapon and a loaded firearm in a vehicle or public place are part of "the powers of a
peace officer" as that phrase is used in sections 832.3 and 832.4. Footnote No. 4
The requirements of sections 832.3 and 832.4 are not conditions of employment, but rather
are limitations placed upon the exercise of peace officer powers. (Gauthier v. City of Red Bluff (1995) 34
Cal. App. 4th 1441, 1448, fn. 3.) Thus the officers who fail to meet the requirements may retain their "status"
as peace officers, although their powers would change. (See Service Employees International Union Local
715 (AFL-CIO) v. City of Redwood City (1995) 32 Cal. App. 4th 53, 59-60; 78 Ops.Cal.Atty.Gen. 209,
212-213 (1995); 72 Ops.Cal.Atty.Gen. 167, 172 (1989); 65 Ops.Cal.Atty.Gen. 618, 626 (1982); 63
Ops.Cal.Atty.Gen. 829, 833-834 (1980).) Even though a police officer or deputy sheriff has not received
training (§ 832.3) or obtained the basic certificate (§ 832.4), he or she would nevertheless be considered
"designated" as a peace officer in section 830.1, subdivision (a) ["Any . . . deputy sheriff, . . any police
officer . . . is a peace officer"] for purposes of section 830 ["no person other than those designated in this
chapter is a peace officer"].
We conclude that if a police officer or deputy sheriff fails to complete the training
prescribed by the Commission or fails to obtain the basic certificate issued by the Commission, such officer
may exercise only non-peace officer powers; the officer may not exercise the powers of arrest, serving
warrants, carrying concealed weapons without a permit, or similar peace officer powers.
*****
3 of 4
Footnote No. 1
All references hereafter to the Penal Code are by section number only. Return to text
Footnote No. 2
While certain exceptions are contained in the statutory scheme (see § 832.3, subd. (e)), none pertain to the present inquiry.
Other peace officers may be required to take only the introductory course of training and possibly some specialized
training. (See § 832, subd. (b)(1).) Return to text
Footnote No. 3
In this context, we may use the terms "powers" and "authority" interchangeably. (See 72 Ops.Cal.Atty.Gen. 154, 156
(1989.) Return to text
Footnote No. 4
As with our discussion of the powers of arrest, a private person may carry a concealed weapon and a loaded firearm in a
vehicle or public place under certain conditions (e.g., by obtaining a license). (See §§ 12027, subd. (j); 12031, subd. (b)(6);
12050-12054.) Sections 832.3 and 832.4 only preclude the exercise of "the powers of a peace officer," not the more limited
powers of a private person.
4 of 4