Nichols v. County of Santa Clara

• Decision Date: 14 September 1990
• Docket Number: No. B036238,B036238
• Citation: Nichols v. County of Santa Clara, 273 Cal.Rptr. 84, 223 Cal.App.3d 1236 (Cal. App. 1990)
• Court: California Court of Appeals
• Parties: Robert NICHOLS, et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CLARA, et al., Defendants and Respondents. Civ.

Page 84

273 Cal.Rptr. 84

223 Cal.App.3d 1236

Robert NICHOLS, et al., Plaintiffs and Appellants, v.COUNTY OF SANTA CLARA, et al., Defendants and Respondents.

Civ. No. B036238.

Court of Appeal, Second District, Division 5, California.

Sept. 14, 1990.

Robinson, Robinson & Phillips, Mark P. Robinson and John D. Rowell, Mission Viejo, for plaintiffs and appellants.

Steven M. Woodside, County Counsel, and Vanessa A. Zecher, Deputy County Counsel, for defendants and respondents.

ASHBY, Acting Presiding Justice.

In this casewe hold that a county sheriff has discretion to revoke a license to carry a concealed firearm issued pursuant to Penal Code section 12050.In connection with such revocation, the sheriff is not required to hold a "due process hearing," because the licensee has no constitutionally protected "property" or other interest in such a license.

The sheriff of Santa Clara County issued to plaintiff and appellantRobert Nichols a license to carry a concealed firearm pursuant to Penal Code section 12050.The sheriff subsequently revoked Nichols' license.Nichols and his corporate employer (appellants) filed this suit for money damages for violation of federal civil rights (42 U.S.Code § 1983) against defendants and respondentsCounty of Santa Clara, Sheriff Robert E. Winter and Undersheriff Lawrence Kelly.The theory of the action is that respondents violated Nichols' constitutional right to due process by revoking the license without a hearing for Nichols to present evidence on his behalf.Appellants appeal from the trial court's order of dismissal following the sustaining of a demurrer, without leave to amend, to appellants' third amended complaint.

We affirm.The trial court properly sustained the demurrer because appellants failed to allege any constitutionally protected interest in the license to carry a concealed firearm.

FACTS

As alleged in the third amended complaint, plaintiff and appellantRobert Nichols was licensed by the sheriff of Santa Clara County to carry a concealed firearm.Nichols is president of plaintiff and appellantMeridian Arms Corporation, a subsidiary of Meridian International Logistics Corporation.Meridian is a weapons manufacturer, and Nichols' license to carry a concealed firearm allegedly "is necessary and essential" to Nichols' livelihood and beneficial to appellants' business.

On or about April 9, 1986, Nichols was arrested in Los Angeles.Los Angeles police allegedly communicated false statements to respondents that Nichols "displayed a poor attitude toward police officers while under the influence of alcohol" and in effect was unfit to hold a license to carry a concealed firearm.

On the basis of the communication from Los Angeles police, respondents revoked Nichols' license.Respondents did not give Nichols an opportunity to be heard to present evidence on his behalf, either before or after the revocation.¹

DISCUSSION

Any person who carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person, without having a license to carry such firearm, is guilty of a misdemeanor.(Pen.Code, § 12025, subd. (b);see alsoPen.Code, § 12031, subds. (a), (b)(6)[carrying loaded firearm in a public place without license].)

Penal Code section 12050 provides: "(a) The sheriff of a county or the chief or other head of a municipal police department of any city or city and county, upon proof that the person applying is of good moral character, that good cause exists for the issuance, and that the person applying is a resident of the county, may issue to such person a license to carry concealed a pistol, revolver, or other firearm for any period of time not to exceed one year from the date of the license, or in the case of a peace officer appointed pursuant to Section 830.6, three years from the date of the license.[p](b) A license may include any reasonable restrictions or conditions which the issuing authority deems warranted, including restrictions as to the time, place, and circumstances under which the person may carry a concealed firearm...."(Emphasis added.)²

Section 12050 gives extremely broad discretion to the sheriff concerning the issuance of such licenses.(Salute v. Pitchess(1976)61 Cal.App.3d 557, 560, 132 Cal.Rptr. 345.)In CBS, Inc. v. Block(1986)42 Cal.3d 646, 655, 230 Cal.Rptr. 362, 725 P.2d 470, that discretion was described as "unfettered."The court noted that in Los Angeles County, with a population of over seven million, the sheriff had issued only 35 licenses, while in Orange County, the sheriff had issued over 400.(Id. at pp. 649, 655, 230 Cal.Rptr. 362, 725 P.2d 470.)

Property Interest

In light of this statute's delegation of such broad discretion to the sheriff, it is well-established that an applicant for a license to carry a concealed firearm has no legitimate claim of entitlement to it under state law, and therefore has no "property" interest to be protected by the due process clause of the United States Constitution.(Erdelyi v. O'Brien(9th Cir.1982)680 F.2d 61, 63;Guillory v. County of Orange(9th Cir.1984)731 F.2d 1379, 1382-1383;see alsoFullman v. Graddick(11th Cir.1984)739 F.2d 553, 561[Alabama law];Ass'n of Orange County Deputy Sheriffs v. Gates(9th Cir.1983)716 F.2d 733, 734[retired peace officer's application pursuant to Penal Code section 12027];Conway v. King(D.N.H.1989)718 F.Supp. 1059, 1061[license to carry concealed weapon had by its terms expired; no property interest in renewal or new license].)

Appellants contend that because this case involves revocation of an existing license rather than application to acquire one, appellant Nichols had a property interest entitled to the protection of constitutional due process.³Contrary to appellants' suggestion, this conclusion does not necessarily follow.(Brescia v. McGuire(S.D.N.Y.1981)509 F.Supp. 243, 248[license to carry concealed weapon revoked; federal civil rights action dismissed because no property interest shown under state law].)Not every right or benefit based on a statute constitutes property for purposes of the due process clause.It is necessary to analyze the nature of the right or benefit to determine if it constitutes a protectible property interest.

In Board of Regents v. Roth(1972)408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, the court stated, "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it.He must have more than a unilateral expectation of it.He must, instead, have a legitimate claim of entitlement to it.It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined.It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.[p] Property interests, of course, are not created by the Constitution.Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."(Emphasis added.)

In Beitzell v. Jeffrey(1st Cir.1981)643 F.2d 870, 874, the court stated that procedural protections previously given to landowners have been "provided as well to many others who depend heavily upon the continued availability of, for example, welfare, social security, or government employment.[p] The broadening of the term 'property' to include this 'new property', has required the courts to determine when an interest in a government benefit rises to the level of protected 'property'.The Supreme Court has made clear that the answer depends in large part upon the extent to which a person has been made secure in the enjoyment of the benefit as a matter of substantive state or federal law.[Citations.]The greater the interest and protection accorded an interest by such substantive law, the more reasonable is the holder in expecting to continue to enjoy it and in making decisions in reliance upon that expectation, and the less reasonable it is for the state to interfere directly with that enjoyment without according a fair opportunity to the holder to contest that interference."(Emphasis added; fns. omitted.)

In Rios v. Cozens(1972)7 Cal.3d 792, 795, 103 Cal.Rptr. 299, 499 P.2d 979, vacated and remanded410 U.S. 425, 93 S.Ct. 1019, 35 L.Ed.2d 398, reaffirmed(1973)9 Cal.3d 454, 107 Cal.Rptr. 784, 509 P.2d 696, our Supreme Court referred to the constitutional right to due process in the deprivation of a "significant interest" or "vital personal and property rights."

The nature of a license to carry a concealed firearm pursuant to Penal Code section 12050 does not constitute a significant property right under the guidelines suggested by these cases.

The privilege to carry a concealed weapon on the person is certainly not property in the ordinary sense.It is not monetary, such as welfare or social security benefits (e.g., Goldberg v. Kelly(1970)397 U.S. 254, 261-262, 90 S.Ct. 1011, 1016-1017, 25[223 Cal.App.3d 1243] L.Ed.2d 287;Mathews v. Eldridge(1976)424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18); it is not a government job (e.g., Perry v. Sindermann(1972)408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570); it is not a required license to practice a profession, occupation or business (e.g., Willner v. Committee on Character(1963)373 U.S. 96, 103, 83 S.Ct. 1175, 1180, 10 L.Ed.2d 224).Notwithstanding appellants' conclusory allegations that the privilege is essential to their business of weapons manufacturing, they point to no statute or regulation which makes it so.Appellants have not shown that they cannot practice this business without a license of this type.(SeePen.Code, §§ 12027, subd. (b)[exemption for possession or...