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Harold Carter Iii v. California Exposition and State Fair et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


July 25, 2011

HAROLD CARTER III, PLAINTIFF AND APPELLANT,
v.
CALIFORNIA EXPOSITION AND STATE FAIR ET AL., DEFENDANTS AND RESPONDENTS.

(Super. Ct. No. 34200800014103CUCRGDS)

The opinion of the court was delivered by: Robie , J.

Carter v. California Exposition and Fair

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publicationor ordered published for purposes of rule 8.1115.

Plaintiff Harold Carter III was arrested by defendants California Exposition and State Fair and its police department (collectively Cal Expo) after he tried to enter the fairgrounds with a loaded firearm in his waistband under his T-shirt. Carter sued Cal Expo for false arrest, interference with his civil rights, and negligence,*fn1 alleging that his status as a juvenile intake officer for the Alameda County Probation Department and a "licensed private patrol officer" entitled him to carry the firearm. The trial court granted Cal Expo's motion for summary judgment, finding that the officers who arrested Carter for carrying a concealed firearm and for carrying a loaded firearm in a public place had probable cause for doing so. Agreeing with the trial court, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On review of a summary judgment in the defendants' favor, we independently examine the record to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) In performing this de novo review, we must "view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing h[is] evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Id. at p. 768.) Employing these standards, the following facts appear from the record:

Carter was working as a security guard for a musician when Carter tried to enter the fairgrounds on April 22, 2007, "carrying a loaded, concealed firearm on his waistband under his white t-shirt." "Officers detained [Carter] while they investigated whether or not he was lawfully able to carry a concealed firearm."

At the time Carter was detained, he possessed the following: (1) "a gold flat badge stating 'Alameda County Probation' and 'Harold Carter III' with no indication of [his] peace officer status"; (2) a Bureau of Security and Investigative Services/Department of Consumer Affairs "private patrol operator" license; (3) a Bureau of Security and Investigative Services/Department of Consumer Affairs "[p]ermit [f]or [e]xposed [f]irearm"; and (4) "[a] laminated copy of Attorney General Opinion No. 89-505 (deputy probation officer is a duly appointed peace officer and may carry a concealed firearm without first obtaining a license or receiving permission from employer)."

Carter told Cal Expo investigating officer Thomas Tom to verify his status as a peace officer by calling his supervisors, Wayne Wilson and George Perkins, of the Alameda County Probation Department. Wilson said Carter is a "[j]uvenile [i]ntake [o]fficer . . . a peace officer on duty only, with no authority to carry a firearm on or off duty. Personnel in Carter's classification are not issued 'peace officer' identification cards. Carter is not a peace officer while off duty." Perkins added that Carter is "considered a 'peace officer' while on duty only through Penal Code section 832 training. Carter is not a full-fledged, twenty-four (24) hour peace officer and is not a sworn peace officer. Carter's job classification does not justify or authorize him to carry a firearm. Alameda County Probation does not issue firearms to Juvenile Intake Officers."

Officer Tom relayed this information to Sam Sanchez, another Cal Expo officer. Officer Sanchez then arrested Carter for carrying a concealed firearm and carrying a loaded firearm in a public place. Despite the arrest, the Sacramento County District Attorney's Office declined to prosecute Carter, citing his "peace officer status."

Carter sued Cal Expo for false arrest, interference with his civil rights, and negligence, all based on the alleged improper arrest. The trial court granted Cal Expo's motion for summary judgment, finding that the officers had probable cause to arrest Carter. Thereafter, the court entered judgment in favor of Cal Expo. Although Carter appeals from the order granting summary judgment, we deem the notice of appeal to have been filed after entry of judgment. (Cal. Rules of Court, rule 8.104(d)(2); Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 288.)

DISCUSSION

Carter contends there was a triable issue of fact because there was "sufficient evidence . . . [he] had the proper license and permit to carrying [sic] a loaded firearm in a public place, and that he was a peace officer who is allowed to carry a concealed firearm." Finding that as a matter of law the officers had probable cause to arrest Carter, we affirm.

Probable cause is a complete defense to a civil action for false arrest. (White v. Martin (1963) 215 Cal.App.2d 641, 643; Pen. Code,*fn2 § 836.5.) "Probable cause to arrest without a warrant exists if the facts and circumstances known to the arresting officer would cause a man of ordinary care and prudence to believe and to conscientiously entertain an honest and strong suspicion that an offense has been committed and that the accused is guilty thereof." (People v. Gomez (1976) 63 Cal.App.3d 328, 333.) "The test is not whether the evidence would support a conviction but only whether it supports a strong suspicion." (Mercurius v. Rolon (1964) 231 Cal.App.2d 359, 362.) When the evidence is not in conflict, the court decides the issue of probable cause as a matter of law. (See, e.g., Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069; Roberts v. City of Los Angeles (1980) 109 Cal.App.3d 625, 629-630.)

Here, Carter contends Officer Sanchez lacked probable cause for two reasons: (1) Carter's private patrol operator license and permit for exposed firearm allowed him to carry a loaded firearm in a public place; and (2) he was a peace officer and therefore entitled to carry a concealed firearm. We take each contention in turn, rejecting both on the merits.

As to Carter's first contention, without more, the license and permit did not authorize Carter to carry a loaded firearm in a public place. On its face, the "[p]ermit [f]or [e]xposed [f]irearm" did not encompass carrying a loaded firearm. The license added nothing more to the permit; rather, the license was necessary to make "valid" the permit for "exposed" firearm. While the law does allow certain licensed private patrol officers to legally carry a loaded firearm in public, namely, those who have completed a firearms and arrest training course, (§§ 12031, subd. (d)(3) & 12033) there was nothing in the facts available to Officer Sanchez that would have alerted him Carter fell under that exception.*fn3 Therefore, there is no merit to Carter's assertion on appeal that "there was sufficient evidence showing that [Officer Sanchez] lacked probable cause to arrest [him] for carrying a loaded firearm in a public place because [he] had the proper license and permit."

As to Carter's second contention, contrary to his argument, the officers had no evidence Carter was a peace officer entitled to carry a loaded and concealed firearm in a public place. The basis for Carter's claim he was a peace officer is that he was a deputy probation officer allowed to carry a firearm off duty under section 830.5. That code section permits certain employees of the state Department of Corrections and the state Department of Youth Authority to "carry a firearm while not on duty," subject to the right of the "director or chairperson" to "deny, suspend, or revoke for good cause a person's right to carry a firearm." (§ 830.5, subd. (c).) It also permits state parole officers and state probation officers "to carry firearms, but only as determined by the director on a case-by-case or unit-by-unit basis and only under those terms and conditions specified by the director or chairperson." (§ 830.5, subd. (a).) Even those persons sanctioned to carry firearms are required to meet certain "training requirements" and "quarterly qualifications" to carry the firearms. (§ 830.5, subd. (d).) Here, there was no evidence Carter fell into the class of persons entitled to carry a firearm. His badge identified him simply as part of a county probation department and his supervisors stated he was a county juvenile intake officer who was not entitled to carry a firearm either on duty or off duty. A juvenile intake officer is not listed in any of the code sections as a class of officer entitled to carry a firearm.

Ignoring this evidence and the Penal Code, Carter makes much of the fact that supervisor Perkins said Carter was "considered a 'peace officer' while on duty . . . through Penal Code section 832 training," and from that argues he was "conferred peace officer status statutorily . . . ." The statement by Perkins did not create a triable issue of fact because, as a matter of law, a training course does not make one a peace officer. The training to which Perkins was referring is an "introductory course of training prescribed by the Commission on Peace Officer Standards and Training." (§ 832, subd. (a).) Nothing in that code section or the Penal Code states that a person who completes this training is a peace officer. To the contrary, through conversations with Carter's supervisors, the Cal Expo officers learned that Carter's own supervisors did not consider Carter a "full-fledged" peace officer and Carter had no authority to carry a firearm either on or off duty. This evidence, coupled with the insufficient documentation Carter provided, gave the officers probable cause to arrest him for carrying a concealed firearm and for carrying a loaded firearm in a public place.*fn4

DISPOSITION

The judgment is affirmed. Cal Expo is entitled to its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

We concur: HULL , Acting P. J. MAURO , J.


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