Active and Retired Peace Officers Escape the CCW Restrictions of Senate Bill 2, for Now

DAVID E. MASTAGNI
Partner
Mastagni Holstedt, APC

            This letter addresses questions raised regarding the impacts of Senate Bill 2 (Portantino) (“SB 2”), which went into effect on January 1, 2024, on active and retired peace officers in California. In short, the severe restrictions on Carry Concealed Weapon (CCW) authorization exclude or exempt peace officers and retired peace officers. Moreover, PORAC President Brian Marvel has been actively supporting the litigation, May v. Bonta, that has resulted in the issuance of an injunction against the carry restrictions in SB 2.

Scope of SB 2 Concealed Carry Restrictions 

            SB 2’s plain terms openly admit “[i]t is the intent of the Legislature to enact legislation to address the United States Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen (2022),” which held that the Second and Fourteenth Amendments protect a private citizen’s right to carry a handgun for self-defense outside the home. SB 2 amends or creates thirty separate Sections of the Penal Code regarding firearm possession and the process for private citizens to obtain CCW permits.

            Prior to January 1, 2024, many private citizens – vetted by a rigorous background check process and licensed by the state – regularly carried a firearm for personal protection. Some had done so for years. SB 2 uprooted long-standing rights of CCW holders to carry in the places now designated as “sensitive” and, thus, off-limits. In what has been termed the “Vampire Rule,” SB 2 even prohibits CCW holders from carrying on private property open to the public, unless the owner first posts permission. In short, SB 2 designates nearly every public place a sensitive area where carrying is prohibited. 

            The new statute and the implementing regulations also increase the costs and training requirements for obtaining a CCW, thus severely limiting the pool of eligible CCW instructors.

Application of Sensitive Places Expansion to PORAC Members

            Just as Active and Retired officers were not subject to the pre-SB 2 restrictions on where private CCW holders may carry, the new restrictions do not apply to active or retired peace officers.  SB 2 creates Penal Code Section 26230 that lists twenty-nine location types where non-sworn CCW permit owners may not carry a concealed firearm. Section 26230 applies to licenses granted pursuant to Penal Code Sections 26150, 26155, and 26170, which govern the granting of CCW permits to private citizens. Active and Retired officers are granted the right to concealed carry under Section 25450 and loaded firearm authority under Section 25900.

            Generally, it is a crime to carry a concealed firearm on one’s person or in a vehicle. (Cal. Penal Code § 25400). Peace officers and retired peace officers are exempt from this prohibition. (Cal. Penal Code § 25450). Generally, it is also a crime to carry a loaded firearm on your person or in a vehicle. (Cal. Penal Code § 25850). Peace officers and retired peace officers are also exempt from this prohibition. (Cal. Penal Code § 25900).

            The process for retired officers to obtain and renew their identification cards and obtain a CCW authorization is separate and independent from the process appliable to private citizens.  Peace officers are covered by Penal Code Sections 25455-25475. Similarly, Penal Code Sections 25910-25952 govern how retired officers obtain and renew their identification cards and CCW authorization. Conversely, SB 2 applies to the process for non-peace officers to obtain a CCW permit, which is issued pursuant to Penal Code Sections 26150-26235.

            SB 2 amends Penal Code Section 26200 to create a list of prohibited activities while carrying a firearm. This list applies to holders of CCW licenses under “this chapter.” “This chapter” covers Penal Code Sections 26150-26235 and does not pertain to Active and Retired officers. SB 2 also amends several Penal Code sections that protect locations the legislature has deemed worthy of special protections, such as government buildings, schools, airports, and transit terminals.  Nearly all of these prohibitions have specific exemptions for active and retired peace officers.[1]

            Additionally, the Federal Law Enforcement Officers Safety Act (LEOSA) protects the right of qualified active and retired law enforcement officers to carry. (18 U.S.C.A. §§ 926B, 926C). Both Sections specifically preempt state and local laws on this subject, except for laws that “permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property: or [] prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.” (18 U.S.C.A. § 926C(b)).

Retired Peace Officers from An Agency Outside of California, Who Now Reside in California

            Questions have also been raised regarding the rights of retired officers from out of state to carry in California. There are no specific exemptions in California law for out-of-state retirees who now reside in California to carry in California. The protections that in-state retired officers enjoy under Sections 25450 and 25900, which exempt California peace officers and retirees from the concealed and loaded firearms crimes, do not appear to apply to out of state or federal retired officers. Despite the lack of specific state exceptions, these retired officers are allowed to carry in California under federal law (LEOSA). 

            Some uncertainty exists as to whether Sections 25450(d) and 25900(d), which both cover “any other honorably retired peace officer who during the course and scope of his or her appointment as a peace officer was authorized to, and did, carry a firearm,” exempt retired peace officers who retired from an out-of-state or federal agency because the Sections are silent on this issue. However, the statutory construction indicates these exemptions would likely be construed to only apply to California retired officers.

          For example, Section 25455(a) requires “the law enforcement agency from which the officer retired” to issue an identification certificate to “[a]ny peace officer described in Section 25450 who has been honorably retired.” Section 25905(a)(1) contains nearly identical language. As California cannot require out of state law enforcement agencies to issue their retirees an identification certificate, Sections 25455 and 25905 coverage of “any peace officer described in Section[s] 25450/25900” implies Sections 25450 and 25900, including subsections (d), only cover California peace officers. 

          Notably, Sections 25450(e) and 25900(e) expressly reference “any full-time paid peace officer of another state or the federal government” and provides a very limited exemption for them “carrying out official duties while in California.” Under the “expressio unius est exclusio alterius” principal of construction, “the expression of certain things in a statute necessarily involves exclusion of other things not expressed.” (Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379.)  Thus, the limited exemption expressed in these statutes for non-California peace officers, coupled with the exclusion of any reference to peace officers of another state or the federal government in Section 25455(d) or 25905(d), suggests that the only retired peace officers exempted under Sections 25450 or 25900 are those honorably retired in California.

            While LEOSA allows these officers to carry, LEOSA comes with limitations of its own.  Under LEOSA, states are allowed to create prohibitions to carrying on government property and private property owners are allowed to exclude retired officers with firearms. While the new list of location restrictions contained in 26230 and the list of prohibited activities contained in 26200 do not apply to out-of-state retirees carrying under LEOSA, the restrictions in Penal Code §§ 171b, 171d, 171.5, 171.7, and 626.9 likely do apply to out-of-state retired officers, so far as those restrictions are on state or local government property.

            Retired federal officers who reside in California have their own exceptions in Penal Code Sections 25650 and 26020, but these retired officers must comply with additional requirements, including gaining approval from the local sheriff where they now reside. Retired Federal officers complying with Sections 25650 and 26020 are specifically exempted from the school zones (Penal Code § 626.9), but are still prohibited from carrying on state and local government property in accordance with Penal Code Sections 171b, 171d, 171.5, and 171.7.

            If an out-of-state retired officer has obtained a CCW from their former, out of state, agency and has complied with the LEOSA, then the new activities and locations restrictions do not apply to them. If the retired officer obtains a California CCW in the same manner as a private citizen, that retired officer is likely subject to the sensitive places restrictions contained in Section 26230 and the prohibited activities listed in 26200. Of course, the May v. Bonta litigation may render the concerns over differences in SB 2’s “sensitive places” definitions moot.    

Second Amendment Challenge to SB 2 (May v. Bonta)

            Although SB 2 currently has little impact on active or retired peace officers, PORAC remains concerned that the Legislature will eventually extend these restrictions to retired PORAC members. The Legislature has recently began clawing back peace officer exemptions to gun laws such as the Unsafe Hand Gun Act (SB 377) and outright refusing to exempt peace officers from other noxious gun legislation, such as SB 505, which would have imposed strict liability even on justified use of a firearm in self-defense and required firearm insurance. PORAC President Brian Marvel filed a declaration in support of the injunction against SB 2 in this case, just as he had done previously in Boland v. Bonta to support an injunction against the Unsafe Handgun Act. (PORAC also filed an Amicus Curiae brief in the Ninth Circuit, supporting the Boland injunction.)    

            On December 20, 2023, Judge Carney enjoined SB 2’s overly expansive “sensitive places” definitions banning carrying. His Order described SB 2 as “sweeping, repugnant to the Second Amendment, and openly defiant of the Supreme Court.” The preliminary injunction essentially maintained the status quo with respect to the pre-SB 2 “gun-free zones,” such as courts and schools.  Marvel’s declaration[2] was cited repeatedly in the Order, which explained that criminals will not abide by the restrictions imposed on highly vetted CCW holders. Marvel advised that if California is serious about addressing gun violence, the Attorney General should fulfill his Constitutional duties to ensure enforcement of gun crime enhancements and prohibitions on firearm possession by prohibited persons in jurisdictions where progressive prosecutors are nullifying gun laws that actually enhance public safety.

            The Ninth Circuit Court of Appeals initially issued a stay that allowed the state’s new “gun-free zones,” which cover most public places and even private stores, to go into effect while that appeal is being heard. Thankfully, on January 6, 2024, the stay was dissolved, and the injunction is now restored while the Attorney General appeals the ruling. Although SB 2 currently exempts peace officers, the outcome of May will likely establish the outer limit of restrictions the Legislature can constitutionally impose on active and retired peace officers. 

[1] Penal Code § 171b prohibits possessing firearms in state and local buildings, or at places where government meetings are taking place with exceptions for active and retired peace officers. Penal Code § 171d prohibits possessing firearms at the residences of the Governor, constitutional officers, or members of the legislature with exceptions for active peace officers only. Penal Code § 171.5 prohibits possessing firearms in areas under control of the airport, including any building, real property, and parking lots, with exceptions for active and retired peace officers. Penal Code § 171.7 prohibits possessing firearms in a public transit facility, including buildings, land, and transportation vehicles, with exceptions for active and retired peace officers. Penal Code § 626.9 prohibits possessing firearms in a school zone, including within 1000 feet, with exceptions for active and retired peace officers.

[2] https://michellawyers.com/wp-content/uploads/2023/10/2023-09-29-Dec-of-Brian-R.-Marvel-ISO-Plaintiffs-MPI2264427.1.pdf

ABOUT THE AUTHOR:

David E. Mastagni is a partner with the Labor Department of Mastagni Holstedt, A.P.C. He focuses on labor and employment law representation, including trial and appellate litigation in California and federal courts. David is an experienced Legal Defense Fund panel attorney and is admitted in U.S. District Court, Southern, Eastern, Northern and Central Districts of California, the Ninth Circuit Court of Appeals, and the U.S. Supreme Court. He also provides legal analysis on legislation and testimony before the Legislature on behalf of PORAC.