Shirey

5/6/

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MARK SHIREY, B238355

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BS130036) v.

LOS ANGELES COUNTY CIVIL

SERVICE COMMISSION,

Defendant;

LOS ANGELES COUNTY SHERIFF‘S

DEPARTMENT,

Real Party in Interest and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County. James C. Chalfant, Judge. Reversed and remanded with directions.

Ronald Talmo and Scott D. Hughes for Plaintiff and Appellant.

Hausman & Sosa, Jeffrey M. Hausman, Larry D. Stratton, and Vincent C. McGowan for Real Party in Interest and Respondent.

******** Plaintiff and appellant Mark Shirey, a former deputy sheriff, was discharged in 2009 by his employer, real party in interest and respondent Los Angeles County Sheriff‘s Department (Department). Plaintiff appealed his discharge to defendant Civil Service Commission of the County of Los Angeles (Commission). The Commission upheld the Department‘s decision to discharge plaintiff. Plaintiff sought a peremptory writ of mandate in the superior court for…

The context in which we are called upon to independently review whether plaintiff may seek reinstatement as a deputy sheriff after the United States Supreme Court issued its opinion in United States v. Hayes (2009) 555 U.S. 415 [ 172 L.Ed.2d 816 , 129 S.Ct. 1079 ] (Hayes) necessarily informs my analysis. This court does not bring its independent judgment to bear on the interpretation of Hayes in a contextual bell jar or in the intellectual ether. The issue before us arose in the real world context of county counsel having to analyze the effect of Hayes on county employees whose duties require them to bear arms, and to advise whether Hayes required the Los Angeles County Sheriff’s Department (Department) to discharge any deputy who has been convicted of an assault or battery upon a domestic victim.

In analyzing the effect of Hayes , county counsel must have known that if they concluded Hayes required discharge, the county might suffer the loss of one or more valuable deputies (and perhaps other county employees), and might incur the costs of defending the discharge in civil service commission proceedings or in court. On the other hand, could county counsel prudently advise that,…

Plaintiff and appellant Mark Shirey, a former deputy sheriff, was discharged in 2009 by his employer, real party in interest and respondent Los Angeles County Sheriff’s Department (Department). Plaintiff appealed his discharge to defendant Los Angeles County Civil Service Commission (Commission). The Commission upheld the Department’s decision to discharge plaintiff. Plaintiff sought a peremptory writ of mandate in the superior court for reinstatement and backpay. The court denied plaintiff’s writ petition.

*4 Plaintiff appeals, contending the Commission abused its discretion and the trial court’s decision is contrary to the law. At the heart of this appeal is a dispute over whether the federal Gun Control Act of 1968 ( Pub.L. No. 90-618 (Oct. 22, 1968) 82 Stat. 1213 ), as amended in 1996 ( 18 U.S.C. § 921 et seq.) prohibited plaintiff from possessing a firearm because of his conviction of misdemeanor battery upon a domestic partner. There is no dispute on appeal that, if plaintiff is prohibited from possessing a firearm under the federal statute, he was properly discharged.

We reverse, finding the trial court incorrectly concluded the United States Supreme Court…