Shirey v. Los Angeles County Civil Service Commission
216 Cal. App. 4th 1
| Cal. Ct. App. | 2013Background
- Plaintiff Mark Shirey, a deputy sheriff, was discharged in 2009 for a perceived federal gun prohibition arising from a 1994 battery conviction.
- California court records show the 1994 conviction was a lesser offense (simple battery, PC 242) following a 1993 domestic violence charge; probation followed and later the conviction was set aside in 1997, with dismissal of the case.
- In 1997/1999, Shirey obtained relief from the state firearms prohibition via a court order; the Department nevertheless discharged him in 2009 based on federal 18 U.S.C. 922(g)(9) applying to misdemeanor domestic violence.
- The California Civil Service Commission upheld the Department’s discharge; the trial court denied then granted mandamus, then vacated, and finally judgment upheld the Commission.
- Shirey argued the Department and Commission misinterpreted Hayes (2009) and 922(g)(9), and that his state expungement/relief satisfied federal expungement relief under 18 U.S.C. 921(a)(33)(B)(ii).
- The appellate court reversed, holding the battery conviction does not qualify as a predicate misdemeanor crime of domestic violence under 922(g)(9); it remanded for mandamus relief and potential reinstatement consistent with this opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Penal Code 242 battery qualify as a misdemeanor crime of domestic violence under 18 U.S.C. 922(g)(9)? | Shirey contends 242 does not necessarily require 'use of physical force' as defined federally. | Department relies on Hayes to treat 242 as a qualifying predicate. | No; battery under 242 does not qualify as a predicate domestic violence crime under 922(g)(9). |
| Does state expungement/set-aside relief satisfy 18 U.S.C. 921(a)(33)(B)(ii) for a federal firearms exemption? | State 1203.4 expungement plus 12021 relief and DOJ notice should qualify as federal expungement. | State relief does not meet federal expungement requirements; federal ban applies. | Not satisfied; state relief did not meet the federal expungement criteria. |
| What is the proper standard of review for a petition under CCP 1094.5 when the conflict involves federal statutory interpretation? | Trial court’s independent de novo review should apply on undisputed facts to statutory interpretation. | Argues the standard aligns with substantial evidence review. | The court applied independent de novo review for undisputed legal questions. |
Key Cases Cited
- Hayes v. United States, 555 U.S. 415 (2009) (held domestic relationship need not be an element of underlying statute)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (defined 'use of physical force' in violent-offense context; strict force standard)
- Johnson v. United States, 559 U.S. 133 (2010) (interpreted 'use of physical force' in the context of violent felonies; did not decide it for misdemeanors/domestic violence)
- Belless v. United States, 338 F.3d 1063 (9th Cir. 2003) (overinclusive battery statutes may not qualify as predicate DV when they allow mere touching)
- Castleman v. United States, 695 F.3d 582 (6th Cir. 2012) (statutory language modeled after earlier acts interpreted as legislative interpretation)
- White v. United States, 606 F.3d 144 (4th Cir. 2010) (reaffirmed Belless reasoning on 'physical force' in DV context)
- Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006) (battery conviction not DV predicate under certain DV-related statutes)
- U.S. v. Daas, 198 F.3d 1167 (4th Cir. 1999) (legislative history consulted for congressional intent)