Association of Orange County Deputy Sheriffs v. Gates

• Citation: 716 F.2d 733
• Decision Date: 23 September 1983
• Docket Number: No. 82-5686,82-5686
• Parties: ASSOCIATION OF ORANGE COUNTY DEPUTY SHERIFFS, George Byrd, Robert Singer, Cliff Miller, and John White, Plaintiffs/Appellants, v. Brad GATES, Sheriff-Coroner, County of Orange, and County of Orange, Defendants/Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 733

716 F.2d 733

ASSOCIATION OF ORANGE COUNTY DEPUTY SHERIFFS, George Byrd, Robert Singer, Cliff Miller, and John White, Plaintiffs/Appellants, v. Brad GATES, Sheriff-Coroner, County of Orange, and County of

Orange, Defendants/Appellees.

No. 82-5686.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 3, 1983.

Decided Sept. 23, 1983.

Edward N. Duran, Santa Ana, Cal., for defendants/appellees.

Gregory G. Petersen, Santa Ana, Cal., for plaintiffs/appellants.

Appeal from the United States District Court for the Central District of California.

Before CHAMBERS, KENNEDY and HUG, Circuit Judges.

CHAMBERS, Circuit Judge:

Appellants Association of Orange County Deputy Sheriffs Robert Singer and Cliff Miller appeal from the district court's order granting summary judgment to appellees holding Cal.Penal Code Secs. 12031(b)(1) and 12027 do not grant entitlements sufficient to invoke the Due Process Clause of the Fourteenth Amendment. ¹ The district court also rejected appellants' claim that their liberty interests were implicated and injured by appellees' action. We affirm.

Appellants, former deputy sheriffs retired under medical disability, brought suit under 42 U.S.C. Sec. 1983 alleging they had been denied certificates allowing them, after retirement, to carry concealed and loaded weapons. ² Appellants argue Cal.Penal Code Secs. 12031(b)(1) and 12027, ³ which provide for the certificates, create an entitlement sufficient to warrant constitutional protection. ⁴

"A property interest in a benefit protected by the due process clause results from a legitimate claim of entitlement created and defined by an independent source, such as state or federal law." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). This interest does not arise "whenever a person has only 'an abstract need or desire for' or 'unilateral expectation of,' a benefit." Erdelyi v. O'Brien, 680 F.2d 61, 63 (9th Cir.1982) (quoting Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709). A reasonable expectation of entitlement is determined largely by the language of the statute and the extent to which the entitlement is couched in mandatory terms. See Griffeth v. Detrich, 603 F.2d 118 (9th Cir.1979), cert. denied, 445 U.S. 970, 100 S.Ct. 1348, 64 L.Ed.2d 247 (1980).

The only restrictions imposed by Sec. 12027(a) and Sec. 12031(b)(1) are 1) the agency from which the officer retires issues a certificate indicating whether or not the officer may carry a concealed weapon ⁵ and 2) the privilege of carrying a loaded concealed weapon may be denied or revoked for "good cause". ⁶ This court finds, as did the court below, that the requirement of "good cause" prior to the denial of a weapons certificate does not create a constitutionally protected interest, because it is not a "significant substantive restriction on the basis for [the] agency's action." Jacobson v. Hannifin, 627 F.2d 177, 180 (9th Cir.1980). See also Erdelyi v. O'Brien, supra, (private investigator did not have property interest in concealed weapons permit under Cal.Penal Code Sec. 12050).

Similarly, the court rejects appellants' argument that the denial of the exemption causes a loss of liberty without due process of law in that their reputations were damaged and alternative sources of employment were foreclosed. "Unpublicized accusations do not infringe constitutional liberty interests because, by definition, they cannot harm 'good name, reputation, honor or integrity.' (Citations omitted) ... When reasons are not given, inferences drawn from [denial of the exemption] alone are simply insufficient to implicate liberty interests." Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093, 1101 (9th Cir.1981). Further, alternative sources of employment would not be foreclosed for failure to issue a certificate authorizing the carrying of a loaded concealed weapon as appellants can apply for such a permit under Cal.Penal Code Sec. 12050 notwithstanding their success under the statutes at issue here.

Finally, appellants have moved to strike pages three and four of appellees' opening brief. That motion is granted as appellees' allegations are insufficiently set forth. ⁷

AFFIRMED.

1 Plaintiff Byrd and White were dismissed by the trial court as their claims did not present a case or controversy within Article III. The propriety of their dismissal was not contested on appeal.

2 This court, as did the district court, assumes appellants are equal in status to those honorably discharged.

3 Cal.Penal Code Sec. 12031 provides in relevant part:

12031. Carrying of loaded firearm; misdemeanor, exceptions (a) [Carrying a loaded firearm in a public place is a misdemeanor]

(b) Subdivision (a) shall not apply to any of the following:

(1) Peace officers listed in Section 830.1 or 830.2, whether active or honorably retired ...

The agency from which a peace officer is honorably retired may, upon initial retirement of the peace officer, or at any time subsequent thereto, deny or revoke, for good cause, the retired officer's privilege to carry a weapon as provided in this paragraph. A retired peace officer shall petition the issuing agency for renewal of his or her privilege to carry a loaded firearm in public every five...