Equality Lawsuit Challenges Special Gun Privileges for Retired Government Employees

United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
Firearms Policy Coalition
Firearms Policy Coalition

SAN FRANCISCO, CA-(Ammoland.com)- Attorneys for 4 civil rights advocacy organizations and 11 individuals filed an opening brief yesterday afternoon at the Ninth Circuit Court of Appeals in a federal lawsuit challenging the State’s many special statutory exemptions to gun laws for retired “peace officers” as a violation of the Fourteenth Amendment’s Equal Protection Clause.

The brief argues, among other things, that the retired “peace officer” exemption to California’s Gun-Free School Zone Act violates the Equal Protection Clause because it bears no rational relation to the purpose of the Act, that the classification favors retired “peace officers” over a similarly-situated group (civilians with a carry license), and that the retired peace officer classification further violates the equal protection clause because it is simply a benefit conferred on a politically powerful class that is denied to a politically unpopular class.

“The exemption is so broad that it even applies to retirees from ‘any federal law enforcement agency’ now authorized to carry a concealed weapon, regardless of whether they ever used a weapon in their pre-retirement duties,” wrote attorney Bradley Benbrook in the brief. “Thus, for instance, retired Internal Revenue Service agents and other federal agents are exempt simply by virtue of retiring in California or working for the agency in California for more than a year.”

The case, captioned Ulises Garcia, et al. v. California Attorney General Xavier Becerra, was filed after California enacted Senate Bill 707 (SB 707) in 2015, which was originally written to remove all civilian exemptions to the Gun-Free School Zone Act—including those for both retired “peace officers” and CCW licensees—but was later amended to re-include the exemption for retirees following significant lobbying by law enforcement associations and government employee special interest groups.

Craig DeLuz, an individual plaintiff in the case and a spokesperson for Firearms Policy Coalition, believes this case is about justice and equality. “As both a parent and a school board member, I believe it's important that our children see that the justice system does not allow the government to play favorites,” DeLuz said.

In 2002, the Ninth Circuit held in Silveira v. Lockyer that a “retired officers exception [to the Assault Weapons Control Act] arbitrarily and unreasonably affords a privilege to one group of individuals that is denied to others.” That legal analysis was reinforced in a 2010 opinion by then-Attorney General Jerry Brown, in which he held that “Silveira teaches that it is….a peace officer’s role as a law enforcement agent that provides a rational basis for distinguishing between a peace officer and a private citizen for purposes of possessing and using assault weapons. A retired officer is not authorized to engage in law enforcement activities.”

Civil rights groups Firearms Policy Coalition, Firearms Policy Foundation, The Calguns Foundation, and Madison Society Foundation are organizational plaintiffs in the lawsuit.

Key filings, including the appeal brief and related request for judicial notice (as well as 39 related exhibits) filed today, can be viewed or downloaded at www.firearmsfoundation.org/sb707.

Firearms Policy Foundation (www.firearmsfoundation.org) is a 501(c)3 grassroots nonprofit organization. FPF’s mission is to defend the Constitution of the United States and the People’s rights, privileges and immunities deeply rooted in this Nation’s history and tradition, especially the inalienable, fundamental, and individual right to keep and bear arms.

Firearms Policy Coalition (www.firearmspolicy.org) is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to defend the Constitution of the United States, especially the fundamental, individual Second Amendment right to keep and bear arms, through advocacy, legal action, education, and outreach.

The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to advance Second Amendment and related civil rights.

Madison Society Foundation (www.madison-society.org) was founded in 2001 as a tax exempt (501)(c)(3) organization. The mission and objective of the foundation is to serve and protect citizens of the United States their constitutional and civil rights as defined in the Bill of Rights Second Amendment.

  • 27 thoughts on “Equality Lawsuit Challenges Special Gun Privileges for Retired Government Employees

    1. As a retired NPS employee I could legally carry in California Gun Free Zones then. My job had nothing to do with LEO work, but I went through Range Training at one point. My caveat is that I was a Special County Deputy for a year and a local Police Officer for 5 1/2 years though. Even so, I see no need to exclude other CCW holders from the same privileges. It is time to stop all these “special privileges” for everyone and make a level playing field for all.

    2. @Chief, (answers in reverse order because it was easier for me at the time) the American Civil Liberties Union was started by two communists as a false flag op that has deceived many and collected their contributions.
      A business is not a federal or state governmental entity. The Second Amendment stops (supposedly) governmental actions.
      I, too, think that gun free zones, if promulgated by a government entity are an infringement on our Second Amendment Civil right.

    3. Actually I believe many here are missing the real point. That is that gun free zones are unconstitutional. That law is discriminatory to those who exercise their 2nd amendment right to keep and bear arms. If a business cannot discriminate against a gay couple over a wedding cake, how can a government set areas aside where a person legally exercising their 2nd amendment right be punished for dong so or denied entry into a given location. How can a business hang a sign and say no guns allowed and violate someone’s very clear 2nd amendment right? Can they order me to leave and deny me service but not do the same for a LGBT person? Where is the ACLU with this argument.

    4. I am in agreement with the Archie Bunker philosophy in that if we arm ALL citizens when they board their plane and then take up the guns after the flight it would eliminate all hijacking. Just saying his philosophy was laughed at in the seventies but he had merit. Let us keep the playing field level for all citizens. I know some great police and some jerks but we are all equal in God’s sight and according to our constitution. I am sticking with God, guns and equal rights for all including active and retired police or any rank and file.

    5. I believe the idea is that if law enforcement agents are permitted, the state has two choices… to deny the exemption to retired law enforcement agents, or to allow civilians the exemption, thus nullifying the law as it stands.

      The government of California already divides people by elitist groupings. Law Enforcement v civilian, liberal v conservative, religion v non-religious, and worst of all, politicians v We the People.

      As for the comments regarding county law enforcement v Big City, an in-depth poll of law enforcement officers across the nation clearly and overwhelmingly showed that rank and file law enforcement supports the 2nd Amendment for all. The dissenters were primarily those who owed their positions to political appointment or via contract. Such positions are most likely to be found in major metropolitan areas.

    6. You have not lived until you bump into someone on the street that you have arrested. It happened to me, but I was lucky and the guy (with his associates) did not remember where he had seen me. He thought it was TV or something.

      1. Wild, a relative was a LEO and told me when he worked undercover when he would arrest someone that he arrested previously, they never remembered he was a LEO. Often they didn’t even recognize him, or as you stated, couldn’t recall from where.

        Thankfully most criminals are criminals because they are too stupid to be gainfully employed, making them easier to catch.

    7. Congress should pass legislation that supersedes and removes ALL special “Protected Groups/Classes” created by any other legislation in the past, and bans the creation of any new “special classes.” It is idiotic, and clearly unconstitutional, to have any class of people, just because of minority status, receive special privileges under the law. We are ALL supposed to be EQUAL under the law – that is a very fundamental element of American political philosophy and constitutional law. We gun owners and CCW folks could seek special “protected” status as a class (which Ohio almost did recently), but that just adds to the basic problem. We need to do away with ALL protected groups instead, in order to return to a constitutionally based equality for all.
      Some will say this would return us to the old days of racial discrimination. For example, restaurant owners could ban Blacks as they have before, or bakers could refuse to bake cakes for gay weddings. Well, today, store owners can ban gun carriers – how are we less important than black or gay folks? The solution to this problem is not to create yet another special “protected class,” but rather legislation that requires businesses serving the public to serve ALL the public equally. THAT would be far more comfortable, constitutionally speaking, than creating special classes of people within the general population. Would it override “private property rights? Yes, for those private properties that desire to serve the public. If you open a business to serve the public, you would know ahead of time, that you would be expected to serve ALL the public, and could refrain from opening a public business if you didn’t want to abide by that restriction. After all, if your business is open to the public, it is difficult to call it truly “private property” in the same sense as your home, for example.

      1. same way, then, NO ONE would be able to FORCE me to do anything that is morally objectionable to me. Come on in and buy my flowers. But do NOT demand I come to YOUR place and decorate it, using MY talents, to support and approve of YOUR immoral actions. I’ll let you do those things, but will NOT become an accessory to your acts.

        I suppose, per your thinking, that if I operate a mechanic shop, and you bring in a Renault, I can’t refuse to work on your Renault…. a decision I made years ago, having tangled with a number of them over a short [eriod of time. I simply decided I would never touch one again. And have not. decades. But YOU would force me to do that? Peugeot, Simca, Citröen, fine.. but NOT Renault, So don’t get uppity about my “frogophobia”……..

        1. Not exactly, Tio – Here’s how I’d see it. If you don’t work on Renaults that’s fine just say so. I’m not telling you what services you have to offer. But if you DO work on Renaults, and a black or gay guy brings one in, you should HAVE to work on it for him. If you find it morally objectionable to sell flowers to gays, then don’t open a flower shop at all, because a gay person might shop there. If you would normally go to someone else’s place and decorate it, then you shouldn’t be able to refuse to do so, just because you disagree with a particular customer’s life style or politics. Yes, that means a Jewish baker should be expected to bake a cake for a NAZI party too. He could make a real point of putting his logo, complete with Mogen David, etc. on it if he wants, he could make it a crappy cake, but he shouldn’t be able to refuse the customer just because of his politics. Now if the customer has a history of bad behavior, welching on debts, etc. THEN you can deny service based on those PERSONAL criteria, but not simply because you dislike the customer or some group he belongs to.
          Essentially, what I’m saying is that anyone who wants to open a business that offers services or products to the public, should have to decide BEFORE opening the business, whether or not he is willing to do business indiscriminately (ie, without discriminating), and if he is NOT willing to offer his services to ALL the public because of personal moral convictions or whatever, then DON’T open a public business.

      2. @oldshooter, If your first sentence refers to our Second Amendment Civil Rights, then the very first Congress already did what your suggest. All of the later judicial decisions and Congressional act are just deceptions. Like the NFA, a tax on your civil right. Balderdash! The GCA, Congress exercising its commerce authority, to infringe on your civil right. Rubbish! Permission from a state to bear your firearm. More elitist bulls**t. Special exceptions carved out for select groups. Intentionally divisive.

    8. They should also argue that the laws must be applied to the “ruling class”. If it is good enough for us pheasants it should be equally good enough for our fearless lowlife leaders. The “do as we say not as we do” should not apply to any LAW or regulation they contrive for the “betterment” of our society. Happy Friday1

    9. There should not even be exemptions for on duty government employees. If it is illegal for a citizen, it should be illegal for a government employee, PERIOD.

      1. Yeah, and it ought to be illegal for the GUARDS of the POLITICIANS……Why do THEY need protection that I can not have….

        1. Actually, I’m just trying to show the hypocrisy of the ELITE. YES, all retired L.E. should carry. And so should I. Only when we disarm the politicians’ guards will we all be equal under the law….

          1. or, leave their guards armed… and allow US to be armed as well.

            In my state, lawfully armed folk can be on the floor of the legislature during session, armed. Or in the governor’s office, even when he is there. Or in the various other legislative buildings. Only the Courts, and they have manned metal detectors and locked storage lockers for the arms carried by visitors. NO ONE is armed in there.

            fair’s fari, equal is equal, None a this some pigs are MORE equal…..

    10. Seems like a no brainer. “All men are created equal.” So just because someone was a gun slinger for the government, he’s given more rights than me? Nope, ain’t going to happen.

      1. Bad. And I say that as a retired big city police officer (a real cop; unlike federal LEO’s).

        1. Clark, you are showing your true colors here, again. Our Republic is based on the ideal of an egalitarian society. You can’t have that when certain groups get to follow different rules.

          1. Certain groups get to follow different rules – you mean like muslims and members of congress being exempt from obama care, clintons from extortion and accepting bribes known as the clinton foundation or obama not being held guilty of treason for revealing “enhanced interrogation techniques” and troop movements to the enemy?

        2. Big city cops are the worst when it comes to conferring special privileges to themselves and wanting to take away law abiding firearms owners rights. Give me LEO’s from the real America which is small towns and county sheriffs any day.

          1. BINGO!!!! Big city cops are a part of, and ruled by, government bureaucracies. Sheriffs are the only law enforcement established by the Constitution and answerable to “We the People.” In my county we have a County Sheriff’s Office and a County Police Department. Why??? Because our county government wanted their own little enforcement arm. I have, and will continue to, speak out for abolishing said county department. If we needed more cops, the Sheriff should have gotten them BUT he doesn’t answer to county bureaucrats. Corruption at it’s finest.

        3. where, Chicago? New York? Baltimore? Places where citizens must check their rights at the city limits?

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