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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

DANIEL E. LUNGREN
 Attorney General
 

OPINION : 

: No. 93-519 

of : 

: October 8, 1993 

DANIEL E. LUNGREN : 

Attorney General : 

: 

GREGORY L. GONOT : 

Deputy Attorney General : 

: 

THE HONORABLE ROSS JOHNSON, MEMBER OF THE CALIFORNIA 

ASSEMBLY, has requested an opinion on the following question: 

Are federal correctional officers employed by the Bureau of Prisons and assigned to

duties in California exempt from those provisions of the Dangerous Weapons Control Law which

prohibit the carrying of concealed or loaded firearms? 

CONCLUSION 

Federal correctional officers employed by the Bureau of Prisons and assigned to

duties in California are exempt from those provisions of the Dangerous Weapons Control Law which

prohibit the carrying of concealed or loaded firearms. 

ANALYSIS 

The United States Bureau of Prisons operates under the direction of the United States

Attorney General and has charge of such functions as the management and regulation of all federal

penal and correctional institutions and the protection, instruction, and discipline of all persons

charged with or convicted of offenses against the United States. (18 U.S.C. § 4042.) We are asked 

whether federal correctional officers employed by the Bureau of Prisons in California are exempt

from California's laws which prohibit persons from carrying concealed or loaded firearms. We 

conclude that these federal officers are exempt. 

With respect to the carrying of concealed weapons, Penal Code section 12025, 

subdivision (a)1 provides: 

1

 All undesignated section references hereafter are to the Penal Code. Section 12025 is part of

the Dangerous Weapons Control Law (§§ 12000-12101). 

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"A person is guilty of carrying a concealed firearm when he or she does any

of the following: 

"(1) Carries concealed within any vehicle which is under his or her control

or direction any pistol, revolver, or other firearm capable of being concealed upon

the person. 

"(2) Carries upon his or her person any pistol, revolver, or other firearm

capable of being concealed upon the person." 

Section 12031, subdivision (a)(1) contains the following general proscription against the carrying

of loaded firearms: 

"Except as provided in subdivision (b), (c), or (d), every person who carries

a loaded firearm on his or her person or in a vehicle while in any public place or on

any public street in an incorporated city or in any public place or on any public street

in a prohibited area of unincorporated territory is guilty of a misdemeanor." 

The relevant exceptions to the foregoing prohibitions are set forth in sections 12027 and 12031.

Section 12027, subdivision (a)(1)(A) provides that section 12025 does not apply to or affect: 

"Any peace officer, listed in Section 830.1 or 830.2, whether active or

honorably retired, other duly appointed peace officers, honorably retired peace

officers listed in subdivision (c) of Section 830.5, full-time paid peace officers of

other states and the federal government who are carrying out official duties while

in California, or any person summoned by any of these officers to assist in making

arrests or preserving the peace while he or she is actually engaged in assisting that

officer." (Italics added.) 

Similarly, section 12031, subdivision (b)(1) provides an exemption with respect to the carrying of

loaded firearms for the same individuals as those specified in section 12027, subdivision (a)(1)(A). 

Thus, if the federal correctional officers in question qualify as (1) full-time (2) paid

(3) peace officers (4) who are carrying out official duties (5) while in California, they are exempt

from the concealed and loaded firearms prohibitions of sections 12025 and 12031.2 

As to whether federal correctional officers employed by the Bureau of Prisons are

"peace officers" for purposes of sections 12027 and 12031, we note that the term "peace officer" is

a generic term embracing many specific classifications of public officers having law enforcement

powers and responsibilities. (See 65 Ops.Cal.Atty.Gen. 527 (1982).) Regarding the performance

of law enforcement duties, these particular federal officers qualify as "law enforcement officers" as

defined under federal law, since each is "an employee occupying a rigorous position, whose primary

duties are the investigation, apprehension, or detention of individuals suspected or convicted of

offenses against the criminal laws of the United States." (5 C.F.R. § 842.802 (1993).)3 

2

 We shall assume that these officers occupy full-time paid positions. 

3

 A "rigorous position" is one "the duties of which are so rigorous that employment opportunities

should, as soon as reasonably possible, be limited (through establishment of a maximum entry age

and physical qualifications) to young and physically vigorous individuals whose primary duties are 

2. 93-519 
 


 

An officer or employee of the Bureau of Prisons is authorized by federal law to

"make arrests on or off of Bureau of Prisons premises without warrant for violations of the following

provisions regardless of where the violation may occur: sections 111 (assaulting officers), 751

(escape), and 752 (assisting escape) of title 18, United States Code, and section 1826(c) (escape) of

title 28, United States Code . . . if such officer or employee has reasonable grounds to believe that

the arrested person is guilty of such offense, and if there is likelihood of such person's escaping

before an arrest warrant can be obtained." (18 U.S.C. § 3050.) Moreover, "[o]fficers and employees

of the said Bureau of Prisons may carry firearms under such rules and regulations as the [United

States] Attorney General may prescribe." (Ibid.)

4 

In addition to being federal "law enforcement officers" with the authority to arrest

for federal offenses, correctional officers employed by the Bureau of Prisons serve in substantially

the same capacity as state correctional officers -- an occupational group designated by section 830.5

as having "peace officer" status. Given each of these circumstances, we believe that the federal 

correctional officers in question are employed as "peace officers" as that term is used in sections

12027 and 12031. 

With respect to the last two qualifications of "carrying out official duties while in

California," without doubt these two qualifications are met by the federal officers in question.

However, an additional issue to be resolved is whether these officers are entitled to an exemption

from the section 12025 and 12031 prohibitions at all times while in California or only during the

period when they are actually engaged in the performance of their federal duties. This issue was 

previously addressed in 63 Ops.Cal.Atty.Gen. 550 (1980), concerning federal rangers employed by

the Bureau of Land Management to patrol the California Desert Conservation Area. We analyzed 

the question as follows: 

"The fundamental rule of statutory construction requires ascertainment of the

Legislature's intent in order to effectuate the purpose of the law. In determining that

intent the words used in the statute should be interpreted to give effect to the statute

according to the usual, ordinary import of the language used. [Citation.] What is the 

usual, ordinary import of the words `carrying out official duties while in California'?

Nothing in these words implies or suggests any geographical limitation on the

application of the exemption to any area less than all of California. The word `while' 

limits the exemption as to time to the period the officer is `in California.'

Significantly the word `while' does not qualify the words `carrying out official duties'

because it follows rather than precedes those words. Thus, the usual and ordinary

import of the words used in the statute would make the exemption applicable to fulltime federal peace officers who are assigned duties to be performed in California,

anywhere in California, and for the period of time they are in California for the

purpose of performing those duties. 

. . . [i]nvestigating, apprehending or detaining individuals suspected or convicted of offenses against

the criminal laws of the United States . . . ." (5 C.F.R. § 842.802 (1993).) We have determined from 

the position description for the correctional officers in question that the position is subject to a

maximum appointment age of 34 and that the duties of the position are primarily concerned with the

detention of individuals suspected or convicted of federal offenses. 

4

 In light of the conclusion reached herein, it is unnecessary to determine whether, due to the

supremacy clause of the United States Constitution, federal law preempts the application of the

section 12025 and 12031 prohibitions to Bureau of Prisons personnel. (See 75 Cal.Ops.Atty.Gen.

270 (1992).) 

3. 93-519 
 


 

5 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"We have found nothing in the history of the statute or in the context to

indicate that the Legislature did not intend the words `carrying out official duties

while in California' to have their ordinary and usual import. Nor do we see any

absurdity in such an interpretation. Had the Legislature meant to restrict the

application of this exemption either in time or territorially it knew how to do so as

evidenced by the language it used in other exemptions contained in the same section

when the exemption for officers of other states and the federal government was

added to Penal Code section 12027 in 1959." (Id., at pp. 552-553.)5 

Based upon our 1980 analysis, we believe that the federal correctional officers under consideration

herein are entitled to the exemptions of sections 12027 and 12031 at all times while in California. 

In California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 17, the

Supreme Court described the significance of Attorney General opinions that have not generated a

"corrective measure" by the Legislature: 

"`Opinions of the Attorney General, while not binding, are entitled to great 

weight. [Citations.] In the absence of controlling authority, these opinions are

persuasive "since the Legislature is presumed to be cognizant of that construction of

the statute."' (Napa Valley Educators' Assn. v. Napa Valley Unified School Dist. 

(1987) 194 Cal.App.3d 243, 251.) In Meyer v. Board of Trustees (1961) 195

Cal.App.2d 420, the court found the Attorney General's construction of the teacher

tenure requirements was decisive of the case, noting that `[a]s a contemporaneous

construction, and because he was charged with the duty of rendering an opinion with

respect to its meaning, the interpretation of the subject statute by the attorney general

in 1936 is entitled to great respect. [Citations.] [¶] It must be presumed that the

aforesaid interpretation has come to the attention of the Legislature, and if it were

contrary to the legislative intent that some corrective measure would have been

adopted . . . .' (Pp. 431-432.) Again in Ventura v. City of San Jose (1984) 151

Cal.App.3d 1076, 1080, the court relied heavily on an Attorney General opinion

concerning the preemptive effect of state fireworks regulation, stating that `We can

presume that this five-year-old opinion has come to the attention of the Legislature,

and that if it were a misstatement of the legislative intent, "some corrective measure

would have been adopted."'" 

As the situation presented herein differs in no significant respect from that involving

the federal rangers employed by the Bureau of Land Management to patrol the California Desert

Conservation Area, and as the controlling provisions of the Dangerous Weapons Control Law have 

 We also considered in our 1980 opinion whether the exemption was limited to temporary

assignments of federal personnel: 

"Wording of the exemption for officers of other states and the federal

government appears particularly appropriate to those officers who are in California

on temporary assignments. However, there is nothing in the language of the

exemption to make its application depend upon the duration of the California duty

assignment. The words `carrying out official duties while in California' are as

applicable to officers assigned to duties in California on a permanent or indefinite

basis as they are to temporary assignments." (Id., at pp. 553-554, fn. omitted.) 

4. 93-519 

 

not changed in pertinent part since our 1980 opinion, we conclude that federal correctional officers

employed by the Bureau of Prisons and assigned to duties in California are exempt from those

provisions of the Dangerous Weapons Control Law which prohibit the carrying of concealed or

loaded firearms. 

* * * * * 

5. 93-519