Metropolitan News-Enterprise


Friday, January 7, 2011


Page 1


Retired Officers Cannot Own Assault Weapons—A.G.




A retired peace officer is not exempt from the state ban on possession of assault weapons, the attorney general has opined.

The opinion was issued by then-Attorney General Jerry Brown last Friday on his last business day in office before taking the oath as governor on Monday. It was made public yesterday.

Brown, responding to a request by San Diego County Sheriff William Gore said an exception to the ban allowing law enforcement officers to possess assault weapons if issued by their agencies, or if acquired by the officer with the consent of the agency, applies to active personnel only.

The right of a law enforcement officer to personally acquire and possess an assault weapon is strictly limited under the Assault Weapons Control Act, and specifically by Penal Code Sec. 12280(f)(2), Brown noted. Not only must the officer obtain the employer’s written consent, he or she must register the weapon with the state Department of Justice and comply with other requirements.

Traditional rules of statutory construction argue against application of the law to retired officers, Brown said.

He pointed out that there is no mention of retired officers in the act. “In our view, therefore, wherever section 12280 refers to a peace officer, it means one who is currently a peace officer,” the attorney general concluded.

He acknowledged that the lack of provisions regarding retired officers leaves gaps in the legislation, because the DOJ does not revoke the registration of an assault weapon, and does not require the officer to give it up, when the officer retires, and nothing in the statute addresses those questions.

“Nevertheless, we believe it would be improper to infer from that silence that the retired officer remains within one of the exceptions,” he wrote, because a statute cannot be construed as containing exceptions that are implied, rather than expressed. This is particularly true, Brown said, when construing a law like the Assault Weapons Control Act, which has a “plain” restrictive purpose.

“Upon retirement from government service, a peace officer becomes a private citizen, to whom the general prohibition on assault weapons becomes applicable,” the attorney general said.

Brown also cited Silveira v. Lockyer (2003) 312. F.3d, which held that a provision—subsequently repealed—of the original Assault Weapons Control Act permitting retired officers to possess weapons acquired from their agencies at the time of retirement violated the Equal Protection Clause, but that a provision allowing active officers to possess department-owned weapons while off-duty was valid under the rational-basis test.

Under Silveira and the ensuing legislation, Brown said, an officer who retires would no longer fall within an exception, so an officer who is permitted to possess a weapon off-duty must return the weapon to his agency upon retirement. Allowing an officer who has retired to possess a personally acquired weapon would be inconsistent with Silveira’s reasoning and the act’s intent to stop “the proliferation and use of assault weapons.”

Nor, he said, has Silveira been abrogated by the Supreme Court ruling that there is an individual right to possess firearms under the Second Amendment.

The opinion, prepared for Brown by Deputy Attorney General Diane E. Eisenberg, is No. 09-901.

In other action Friday, Brown granted a property owners’ group in Alameda County permission to bring a quo warranto action against Dennis M. Waespi, an elected member of the Castro Valley Sanitary District and Hayward Area Recreational and Park District boards.

The property owners seek to force Waespi to give up one of the board seats. He has served on the sanitation board since 1999; he was reelected to that board and elected to the parks board in 2008.

A significant question exists, the attorney general said, as to whether the two offices are compatible. The sanitation district, he noted, provides services to the parks district, so that Waespi might have divided loyalties, for example, if the sanitation board seeks to impose a rate increase and the parks board seeks to resist it.

The opinion granting leave to sue in quo warranto was prepared by Deputy Attorney General Daniel G. Stone. It is No. 10-506.


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