California State Employees' Ass'n v. Enomoto

Opinion

In the underlying superior court action, plaintiffs California State Employees’ Association (CSEA) and Charles

Defendants demurred on the ground that plaintiffs did not petition the OSHA Board to set a firearm safety standard (Lab. Code, §§ 142.1-142.5) and thus failed to exhaust their administrative remedies prior to seeking judicial relief. The court overruled the demurrer.

At trial, the court issued a writ of mandate commanding defendants “to furnish parole agents with firearms” and permit them to carry firearms on their persons at their individual discretion. It further granted attorney fees to plaintiffs. The court specifically found that Labor Code section 6401 compelled its decision. Although no parole agent of the Department has “ever been killed in any duty-connected circumstance,” it found the dangers of the employment such “. . . that death or violent injury might reasonably be expected to occur at anytime, and the failure of any fatality to occur is notwithstanding, rather than because of, the inability of parole agents to carry firearms.”

Defendants appeal the superior court judgment and contend the court (1) was required to dismiss the action for failure to exhaust administrative remedies, (2) impermissibly and without substantial evidence substituted its own discretion regarding parole agent safety for the administrative policy decisions within the discretion of the Department, and (3) erroneously awarded attorney fees.

For purposes of our review, we assume that plaintiffs exhausted all available administrative remedies. We also assume (without so holding or suggesting) that a parole agent’s service revolver is a “safety device”

The present record is devoid of any parole agent altercations involving guns. Not only does California have the fortunate history of never having had any agent killed in the line of duty, but plaintiffs have presented no instance in which an agent has ever been injured by gunfire. There is but a single instance in which an unknown man leveled a gun at an agent in the mistaken belief that he was the parolee under supervision; there was no injury. Other evidence presented falls short of proof that the arming of parole agents with a firearm’s deadly force would render their jobs safer. Specific altercations cited by plaintiffs include one rape in 1974, several assaults, and one instance in which an agent was robbed and severely beaten. Not one of these incidents however was directly related to any agent’s employment function, nor is there evidence in the record to establish, beyond speculation, that injury would have been avoided had the agent been armed.

Although all parole agent injuries are not reflected in the departmental altercation reports, the statistically low incidence of altercations is highly significant. In 1977, but 22 altercation reports were submitted relative to approximately 210,000 face-to-face contacts with parolees.

The trial court’s decision seemingly was based in part on a finding that the Department’s policy authorizing issuance of service revolvers only to specific agents whose safety is directly threatened has been ineffective because of time delays and the Department’s requirement of a “verifiable” threat. But the issue is not whether the Department’s individual arming policy is effective or efficiently implemented. The present controversy involves only the reasonable necessity of general deployment of firearms; plaintiffs have made no generalized showing.

We do not wish callously to hinge our decision on the auspicious record of no agent fatalities to date. To insist upon actual fatalities or injuries in large numbers before protective action is taken is folly. Yet we do not think a court should speculatively predict the likelihood of fatalities if the Department continues its current policy. Without contrary indications in the record, we defer to the experience and executive expertise of the Department on this issue. The question of deployment of