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Court of Appeal, Fourth District, Division 1, California.

Robert MONZINGO, Petitioner and Respondent, v. CITY OF GARDEN GROVE, et al., Respondents and Appellants.

Civ. 28354.

Decided: March 23, 1983

Eric Lauterer, City Atty., for respondents and appellants. Silver & Kreisler and Stephen H. Silver, Santa Monica, for petitioner and respondent.

Robert Monzingo petitioned the superior court for a writ of mandate to compel Frances Kessler, the Chief of Police of the City of Garden Grove (Chief), and the City of Garden Grove (City) to provide him with a written statement of the reasons why the endorsement to his identification certificate as a peace officer authorizing him to carry a concealed firearm was revoked.   He also requested he be given an opportunity to respond to said written statement at an evidentiary hearing at which the burden of proof would be placed on the Chief and the City.   The superior court granted the requested relief, and the City appeals.

Monzingo is a former Garden Grove police officer who was disabled by reason of an industrial injury and retired.

In conjunction with his retirement, Monzingo requested his I.D. be endorsed to authorize him to carry a concealed firearm pursuant to Penal Code 1 section 12027.   The request was denied.   On October 31, 1980, Monzingo's attorney wrote the Chief demanding a written statement of the reasons for the denial and an opportunity to respond.   On November 12, 1980, the Chief, with staff members and Monzingo's attorney present, orally discussed the matter with Monzingo and explained that in light of the medical reports he had received in connection with the disability claim, he was satisfied good cause existed to deny the request.   On November 17, Monzingo filed a declaration in response to the reasons given orally.   This declaration was received by the Chief who declined to reconsider his decision or cause a hearing to be held.

The Chief was not explicit nor would he clarify the exact reasons for denial of the permit.   The superior court made the following order granting the writ:

“1. A Peremptory Writ of Mandate shall issue commanding Respondents, and each of them, to provide to Petitioner (a) a written statement of the specific reasons why Respondents seek to revoke and/or deny his endorsement to carry a concealed weapon pursuant to Section 12027 of the California Penal Code;  (b) copies of all materials relied upon in support of that action;  (c) an opportunity to respond thereto at a full and fair evidentiary hearing before an impartial body at which the burden of proving the truth of the reasons for the action shall rest with Respondents;  and (d) a written statement of the resulting decision, including the reasons in support thereof.”

Under Penal Code section 12025, every person who carries a concealable firearm without having obtained a license is guilty of a misdemeanor.   Section 12050 authorizes the chief of police of a city to issue such a license on specified conditions.   It is significant, however, that section 12027, subdivision (a), exempts all active and honorably retired city police officers from the prohibition of section 12025, and thus the licensing requirement, but provides:

“The agency from which a peace officer is honorably retired may, upon initial retirement of the peace officer, or at anytime subsequent thereto, deny or revoke, for good cause, the retired officer's privilege to carry a weapon as provided in this subdivision.”

The section thus authorizes the “agency from which a peace officer is honorably retired,” not the chief of police, to deny the exemption.   The Penal Code gives us no assistance in determining which particular agency it refers to but it must, of necessity, exclude the chief of police because of the distinction made in the language of these otherwise related sections.   We believe it refers to the city since a city is normally considered an entity which “agency” suggests.   A department is simply a part of the functioning “agency” (see 3 Ops.Atty.Gen. 234, asserting the water department of the City of Long Beach is not a public agency within the meaning of the Public Employees Retirement Law, since it has no existence independent of the city itself).   For retirement purposes, the Government Code provides some assistance.   The members of the police department are employees of a public agency (see Gov.Code, §§ 20009) and it is the city which is the contracting agency from which an employee would retire (see Gov.Code, § 20020).   For these reasons, we believe only the City can deny or revoke the retired police officer's exemption from the licensing requirement.

Here, the Police Chief, acting as such, denied the request and we hold he does not have that authority under the law.   The determination whether good cause exists to deny Monzingo's right to exemption from the concealed firearms licensing laws rests with the city council.

 The Legislature has given city police officers, as well as retired city police officers, this exemption, a statutory privilege.   By the language of the statute, it may only be taken from them on a showing of “good cause.”   Certainly, any active or honorably retired city police officer under these provisions has “a legitimate claim of entitlement to” the privilege (see Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548).   Procedural safeguards required for the protection of an individual's statutory interests must be analyzed in the context of the principle that freedom from arbitrary adjudicative procedure is a substantive element of one's liberty.   This approach presumes that where an individual is subjected to deprivatory governmental action, he always has a due process liberty interest both in fair and unprejudicial decision-making and in being treated with respect and dignity (People v. Ramirez, 25 Cal.3d 260, 268, 158 Cal.Rptr. 316, 599 P.2d 622).   Likewise, it is held that “when a person has a legally enforceable right to receive a government benefit provided certain facts exist, this right constitutes a property interest protected by due process” (Skelly v. State Personnel Bd., 15 Cal.3d 194, 207, 124 Cal.Rptr. 14, 539 P.2d 774);  and “[s]uspension of a right or of a temporary right of enjoyment may amount to a ‘taking’ for ‘due process purposes' ” (Civil Service Assn. v. City and County of San Francisco, 22 Cal.3d 552, 560, 150 Cal.Rptr. 129, 586 P.2d 162).  Under either the “liberty” or the “property” theory, from the governmental and private interests at stake here, it is quite clear due process attends the deprivation of the statutory privilege of a city police officer to continue his lawful self-protective ability to carry a concealed firearm after his retirement (see People v. Ramirez, supra, 25 Cal.3d at pp. 264, 266–269, 158 Cal.Rptr. 316, 599 P.2d 622).   The only remaining question is “what process is due?”  (Civil Service Assn. v. City and County of San Francisco, supra, 22 Cal.3d 552, 560, 150 Cal.Rptr. 129, 586 P.2d 162).

Due process is flexible and calls for such procedural protection as the particular situation demands (Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484;  People v. Ramirez, supra, 25 Cal.3d at p. 268, 158 Cal.Rptr. 316, 599 P.2d 622).   The procedure held necessary in protecting a criminal's liberty interest in avoiding loss of good time credits or solitary confinement is advance written notice of the claimed violation, a written record of the proceedings including a statement by the fact finders as to the evidence relied on and the reasons for the action taken, and the right to call witnesses and present documentary evidence in his defense (see Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935).   By contrast, the due process required for a ten-day suspension of a child from school would require only notice and a chance to respond (Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725).

“More specifically, identification of the dictates of due process generally requires consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.  [Citation.]”  (People v. Ramirez, supra, 25 Cal.3d 260, 269, 158 Cal.Rptr. 316, 599 P.2d 622.)

 In applying this analysis here, we believe the privilege to carry a concealed firearm is not the kind of statutory benefit which entails loss of liberty or basic human rights.   We recognize, however, while self-protection is important, the need for it does not necessarily follow from service in the police force and nothing in this proceeding legally precludes the retired officer from seeking to obtain the license under the regular procedures for obtaining a license accorded every citizen (§ 12050 et seq.).   On the other hand, the denial of the statutory privilege of a retired officer to carry a concealed firearm for his own protection, particularly when it is based on certain medical reports, carries a stigma of mental instability which could cause serious damage to one's reputation and acceptance in the community (see Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515).

The denial of this important interest given by legislative fiat at least demands written notice of the proposed action and the basis upon which the action rests, and upon request a hearing where the honorably retired police officer will be confronted with evidence of the reasons for the action and an opportunity to present his own evidence, including documentation in contravention of the charges.   The statute makes clear the agency can only deny the exemption for “good cause” and there must be an appropriate record in support of those reasons for proper review showing good cause does exist.

Under the statute, the decision must be made by the agency, however, and the trial court's order that the decision should be made by “an impartial body” is not acceptable.   The law gives the decision-making function to the city council.2  It should provide for notice and, if requested, a hearing.   The record of the proceedings must contain substantial evidence to support its decision.   The burden of proof does not necessarily fall upon the city;  anyone who might be interested in seeing that the privilege is denied, including the Chief of Police, might appear and present evidence showing “good cause” for the denial or revocation.

Paragraph 1(c) of the order of the superior court granting a peremptory writ of mandate is modified to state:  (c) an opportunity to respond at a full and fair hearing before the City of Garden Grove, the record of which shall support a finding of good cause for denial of the privilege to carry a concealed firearm, pursuant to section 12027, if that be the City's decision.

In all other respects, the order appealed is affirmed.   Each of the parties shall bear his own costs of appeal.


FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   We do not suggest by this opinion that the hearing must be conducted by the City (see Gaylord v. City of Pasadena, 175 Cal. 433, 436–437, 166 P. 348;  Subriar v. City of Bakersfield, 59 Cal.App.3d 175, 204–205, 130 Cal.Rptr. 853).   It may, by ordinance, delegate this function to “an impartial body,” but the record before us does not reflect such a delegation has been made.

COLOGNE, Acting Presiding Judge.

STANIFORTH and WIENER, JJ., concur. Hearing denied;  MOSK, J., dissenting.