Third Circuit Court of Appeals Upholds Sanctions Against the Philadelphia District Attorney’s Office for Misleading the Court About Conferring with Crime Victims

    

    A federal court has ordered Philadelphia District Attorney Larry Krasner and two supervisors from his office to apologize to the family and survivor of vicious murders. The DA’s Office made representations to the trial court that the office had consulted with the family before conceding the death penalty for the murderer.

The Case and Decision

    In the mid-1980s, Robert Wharton terrorized the Hart family for months. Wharton burglarized the Hart’s home repeatedly, left threatening messages, and ultimately killed Bradley and Ferne Hart. Wharton turned off the heat to the home and left seven-month-old Lisa Hart to freeze to death in the cold Pennsylvania winter.  By no small miracle, Lisa survived the encounter. Wharton was later convicted of these crimes and sentenced to death. Wharton was retried for the murders in 1992 and again found guilty.

    Ultimately, Wharton filed a federal habeas corpus petition to have his death sentence overturned. The court determined that the last major issue was whether Wharton had adjusted well to prison and if his adjustment would have changed the second jury’s opinion of guilt. Wharton’s defense insisted that he had adjusted well to prison life, but Wharton truly did not. Wharton had attempted to escape from prison multiple times, racked up numerous prison misconduct charges and was caught—twice—with makeshift handcuff keys. 

    After nearly 30 years of dutifully prosecuting the case and opposing Wharton’s numerous appeals, the Philadelphia District Attorney’s Office suddenly decided to concede the death penalty issue. Specifically, the DA’s Office claimed they no longer sought the death penalty after “communication with the victims’ family” and their own internal review by their death penalty committee.  The DA’s briefs and arguments lacked any mentions or evidence of his poor adjustment to prison. 

    The federal trial court was suspicious of the sudden concession and refused to accept it.  After further hearings, the court reprimanded the DA’s Office. The Office had violated Federal Rule of Civil Procedure 11(b)(3) because the Office made “representations to the Court that lacked evidentiary support and were not in any way formed after ‘an inquiry reasonable under the circumstances.’”  As punishment for their conduct, DA Krasner was required to provide a written apology to the Hart family’s survivors and the DA’s Office was ordered to be more forthcoming in the future. 

    The DA’s Office (and two involved supervisors) appealed the District Court’s order finding they lacked candor in their representations to the court to protect their professional reputation. The Third Circuit Court of Appeals upheld the sanctions and findings of the District Court. In their decision, the Third Circuit noted:

 

“Though literally true, [the claim of communication with the victims’ family] was misleading. Our opinion remanding this case identified Lisa hart by name as the sole survivor of Wharton’s crimes. Any reasonable reader would expect, as Judge Goldberg did, that this phrasing meant Lisa had been contacted. Yet she was not. And any reasonable reader would expect, as Judge Goldberg did, that the Office had solicited the views of other family members. Yet the Office had not contacted anyone besides [the victims’] brother. Plus, when it reached him, it never told him clearly that it was planning to concede the death penalty.”

Discussion

    This case is a prime example of an attempt to cover up poor performance with clever wording. The prosecutors were not technically being dishonest in their representations. But a reasonable person reading the court’s instructions and orders would interpret the claims in their contextual meaning, rather than literal. 

    Outside of the issue of candor by lawyers, there is also an issue of protecting victims of crime and their survivors.  Pennsylvania has a Victim’s Bill of Rights codified in statute at Pa.C.S. §11.201, which is similar to the California Victim’s Bill of Rights. Both states require victims to be kept informed about the status of cases, including regarding hearings and proceedings that may result in the release of a defendant. While Wharton was seeking relief from his death sentence and not release from custody, the Hart family had a right to be notified of the true nature of the proceedings and be given a voice in the decision to concede.

    This case serves as a reminder that prosecutors and other government agents should make reasonable efforts to involve victims in the justice process—both for moral reasons and from legal expectations set out in the Victim’s Bill of Rights.

    Specifically for lawyers, the Third Circuit summed up their opinion well: “As officers of the court, lawyers must not mislead courts. So, before they state facts, they must investigate reasonably.”

    For more than 30 years, the Lisa Hart and her family have waited for justice to be carried out against Wharton, only to have the DA’s Office mislead them about their plans to concede on the death penalty. Hopefully, the Third Circuit’s decision and the apology by the DA’s Office are steps towards finding that justice. 

Images: AFP/Getty Images Composite: Mark Kelly, Wall Street Journal 

California Supreme Court Rules that Pre-Shift and Post-Shift Work Must Be Compensated

    On March 25, 2024, the California Supreme Court ruled that time employees spent awaiting and during exit security procedures was compensable as “hours worked” because the time was subject to an employer's control. Huerta v. CSI Elec. Contractors, No. S275431, (Mar. 25, 2024) 2024 WL 1245291.  The employer required security checks of vehicles prior to beginning work each day and upon leaving. The checks caused delays of up to 30 minutes.

    The Court also provided guidance regarding on-duty meal periods, holding that employees must be paid at least minimum wage for “on-duty” meal periods when they can’t leave the premises. However, the Court also held that an inability to leave the premises did not render the meal period on-duty if they are otherwise free to spend the time as they choose.

    The Ninth Circuit Court of Appeals certified these questions to the California Supreme Court about the wage order governing wages, hours, and working conditions in the construction, drilling, logging, and mining industries and the scope of the term “hours worked.”

    This important ruling confirmed that under California wage and hour laws, non-exempt employees must also be paid for employer mandated pre and post shift activities.  This ruling comports with FLSA requirements that pre and post shift activities must be compensated where they are integral and indispensable to their work.

    While largely not applicable to public safety employees, this ruling reinforces similar off-the-clock claims of law enforcement officers and firefighters. For example, in Ketchum v. City of Vallejo, 523 F. Supp. 2d 1150, 1161 (E.D. Cal. 2007), our firm obtained a ruling that time spent by mounted officers preparing their horses and equipment, including time spent traveling to pick-up their horses prior to and after deployments, were compensable activities which were integral and indispensable to officers' law enforcement duties.

Click here to read the California Supreme Court’s Opinion referenced above.

SCOTUS Watch: Law Enforcement Groups file Brief in Support of Petition for Certiorari to the U.S. Supreme Court to Review Excessive CCW Carry Restrictions

    On Monday, March 25^th, 2024, the Peace Officers’ Research Association of California, the California Association of Highway Patrolmen, the California State Sheriffs' Association and the Crime Prevention Research Center (CPPC) filed an amicus brief in support of a Petition for Certiorari to review the constitutionality of New York’s new concealed carry law, which severely restricts the places CCW permit holders may carry concealed handguns much like California’s Senate Bill 2 (SB 2).  

    The brief is in connection to the U.S. Supreme Court case of Ivan Antonyuk, et al. v. Steven James, the Acting Superintendent of the New York State Police, et al. The case challenges New York’s Concealed Carry Improvement Act (CCIA), a revised gun law adopted in New York in July 2022 – only days after the Supreme Court’s landmark ruling in New York State Rifle & Pistol Association Inc. v. Bruen (Bruen).

    In Bruen, SCOTUS struck down as unconstitutional New York’s concealed carry law that required an individual to provide “proper cause” existed before a concealed carry license would be issued. The court held that this “proper cause” requirement violated the 14^th Amendment because it prevented law-abiding citizens who have ordinary self-defense needs from exercising their 2^nd Amendment right to keep and bear arms. Following Bruen, New York and California issued laws in an obvious attempt to evade the ruling.

    In February, PORAC, the California Association of Highway Patrolmen (CAHP), the California State Sheriffs’ Association (CSSA), and the Crime Prevention Research Center (CPPC) filed an amicus brief in the Ninth Circuit Court of Appeals challenging California’s SB 2. The related amicus filed in Antonyuk similarly challenges the unconstitutional efforts to defy the mandates of Bruen. The brief seeks to enforce the Bruen ruling by safeguarding citizen’s self-defense rights in public.

New York’s Revised Concealed Carry Law & Similarities to California’s Senate Bill 2

    Coined as the “Bruen Response Bill,” the CCIA restricts gun access by making the licensing process more onerous and expands the list of designated “sensitive places” where carrying firearms is prohibited. In place of the “proper cause” standard that Bruen invalidated, the CCIA requires an applicant to demonstrate “good moral character.” “Good moral character” is defined as “having the essential character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.” The CCIA demands character references, information about cohabitants and adult children, a personal “interview” with a licensing official, more than two full days of firearms training, and a list of social media accounts. 

    For those that persevere through this process, the CCIA then restricts where in public a licensee may carry a firearm, declaring not just the “island of Manhattan” but virtually the entire landmass of New York a “sensitive place.” When asked where New Yorkers could carry under the CCIA, Governor Hochul responded “[p]probably some streets.” These so-called “sensitive locations” include 20 categories, including the most ordinary locations. Filling in the gaps, the CCIA also effectively names all private properties in New York as “restricted locations” unless the owner posts “clear and conspicuous signage” or gives “express consent.”

    Like the CCIA, California’s SB 2 renders concealed carry permits effectively impossible to exercise by defining nearly every location as a prohibited “sensitive place.” Both SB 2 and the CCIA fail to adhere to the Bruen directive by expanding longstanding sensitive place definitions to encompass nearly their entire states, other than some streets and sidewalks. 

Procedural History

    Plaintiffs in the Antonyuk litigation first challenged certain provisions of the CCIA in district court under the First, Second, Fifth, and Fourteenth Amendments. The district court struck down several provisions of the CCIA, barring enforcement of those provisions. The Second Circuit then issued a stay effectively putting the district court’s ruling on hold. And in December 2023, the Second Circuit vacated much of the district court’s injunction, finding virtually all of the CCIA to be facially constitutional under the 2^nd Amendment. 

    In February 2024, petitioners filed a petition for certiorari asking the U.S. Supreme Court to review the Second Circuit’s December decision. The petition seeks review of two primary questions: (1) the proper historical time period for Bruen analysis; and (2) whether a “good moral character” requirement conflicts with Bruen. 

Protecting Bruen & Public Safety

    In Bruen, the Supreme Court identified “settled” sensitive places (like legislative assembles, polling places, and courthouses) where carrying a firearm is prohibited. The Court concluded that laws restricting protected 2^nd Amendment conduct must be “consistent with the Nation’s historical tradition of firearm regulation.” As to whether there are special places where the right to carry might be restricted without infringing on 2^nd Amendment rights, the Court explained that the “historical record yields relatively few 18^th and 19^th century ‘sensitive places.’” Likewise, the Court cautioned that “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement” is too broad of a category and would essentially eviscerate the general right to publicly carry arms. 

    In addition to the constitutional challenges presented by SB 2 and the CCIA, the laws themselves make little sense from a law enforcement perspective and do little to address lawmakers’ purported public safety concerns. CCW permit holders are some of the most highly vetted, trained, responsible, and law-abiding citizens. Violent criminals do not bother with CCW permits and simply carry illegally, and criminals intent on murder will not be deterred by these “sensitive place” designations. In actuality, criminals intent on committing a mass murder will likely choose to do so in a “sensitive place” where he or she is less likely to encounter armed citizens. 

    Again, these interests align with the research findings of renowned CPPC President John Lott, Jr., Ph.D. The Antonyuk brief cites his research concluding that right to carry laws actually reduce violent crime, especially murder and rape, whereas expansive restrictions on CCW permits may actually induce more violence.

    Laws such as SB 2 and the CCIA encourage gun violence by constricting self-defense options and reducing risks to criminals. States sincerely desiring to reduce gun violence and promote public safety could – instead of infringing on 2^nd Amendment protections and defying Bruen directives – enact laws and fund enforcement to keep guns out of the hands of prohibited persons and to impose meaningful consequences when guns are used in violent crimes.

    The constitutionality of restrictions on where concealed carry may be prohibited is a serious national concern, particularly for the Sheriffs who issue the permits and the officers that must enforce constitutionally suspect laws.  Forcing officers to potentially violate citizens’ civil rights will subject officers to section 1983 liability and damages public confidence in law enforcement. Moreover, officers have a direct interest in protecting their own right to self-defense and concealed carry in their retirement.      

Attorneys David E. Mastagni, Taylor Davies-Mahaffey, and Timothy Talbot authored the brief. 

Image Creator: Michelle Ress 

Watch Kathleen Mastagni Storm’s Oral Argument in the Sixth District Court of Appeals on Behalf of the Palo Alto Professional Firefighters, IAFF Local 1319

Watch the oral argument below:

    On March 14, 2024, partner, Kathleen Mastagni Storm, presented oral argument in the Sixth District Court of Appeals over the City of Palo Alto’s illegal repeal of binding interest arbitration for Fire and Police Department employee disputes. The legal battle started in 2011, when the City of Palo Alto unilaterally placed Measure D on the ballot repealing binding interest arbitration from the City’s Charter. Prior to the change, the Charter required disputes involving wages, hours, and other terms and conditions of employment be submitted to binding arbitration. Palo Alto voters passed Measure D in November 2011.

    In 2020, Local 1319, on behalf of the State of California, filed a Writ in Quo Warranto in superior court to invalidate Measure D and restore the Charter’s binding interest arbitration procedures. The superior court found in Local 1319’s favor, but declined to rescind the unlawful charter amendment. Therefore, the State and Local 1319 appealed the decision. On Thursday, March 14^th, the 6^th District Court of Appeals heard argument on what the appropriate remedy should be.

The Backstory:

    Around 2010, the City of Palo Alto began efforts to remove the Charter’s binding interest arbitration provision. Local 1319 immediately demanded to meet and confer with the City over the proposed changes. From the beginning, the City adamantly refused. This resulted in Local 1319 filing an Unfair Practice Charge with PERB in 2011 alleging the City violated section 3507 of the California Government Code. Section 3507 is part of the Meyers-Milias-Brown Act (MMBA), and provides in part:

A public agency may adopt reasonable rules and regulations after consultation in good faith with representatives of a recognized employee organization or organizations for the administration of employer-employee relations chapter…The rules and regulations may include provisions for all of the following: … (5) Additional procedures for the resolution of disputes involving wages, hours, and other terms and conditions of employment. 

    The MMBA requires public agencies to engage in a “meet and confer” process with representatives of affected employee organizations before adopting rules/regulations related to the subjects mentioned above. Here, the Local argued it had been unlawfully deprived of the meet and confer rights to which the Local is entitled under Government Code section 3507. PERB ultimately found that the City violated the MMBA by failing to consult in good faith with the Local over the elimination of binding arbitration. And PERB ordered the City’s resolution referring to voters the ballot measure and to rescind the binding arbitration void.

    Although PERB determined the City violated the MMBA, it also held it could not overturn the election results repealing the provision. PERB concluded a quo warranto action was the exclusive remedy for this situation. A quo warranto action is a legal remedy used to revoke a charter amendment.

    As such, the Local filed a quo warranto action in superior court asking the court to determine whether the City’s charter amendment was invalid by reason of noncompliance with the MMBA and whether the City was required to restore binding arbitration.

    In February of 2022, the superior court issued its final decision concluding the City’s resolution to submit Measure D to the voters was an unlawful exercise of authority within the meaning of California Code of Civil Procedure § 803. Although the court ruled in favor of the Local on some issues, it did not grant their requested remedy of invalidation of Measure D.

Appeal to the Sixth District Court of Appeals: What is the Appropriate Remedy?

    Despite deeming Local 1319 the prevailing party, the superior court’s remedy failed to provide meaningful relief. Instead of invalidation, the trial court only enjoined the City from its unlawful action until it (1) meets and consults and (2) reaffirms its repeal of binding interest arbitration at a City Council meeting.

    On appeal, Kathleen Mastagni Storm argued the appropriate remedy is invalidation of Measure D and restoration of the binding arbitration provision. This is the only remedy that vindicates Local 1319’s rights and effectuates the purposes of the MMBA. The trial court’s remedy creates a dangerous precedent encouraging MMBA violations and weakening union rights. As the trial court did not restore the status quo ante and left Measure D intact, Local 1319 is left trying to recoup its losses at the bargaining table. It also encourages the City to engage in surface bargaining.

    Invalidation of Measure D serves the public interest by protecting and enforcing the MMBA. The public has an interest in ensuring charter amendments are validly enacted in accordance with the law and securing stable employer-employee relations. Failing to restore the status quo subverts both the MMBA and the will of the Legislature while simultaneously ignoring the public interest in promoting collective bargaining for the resolution of labor disputes.

Law Enforcement Amicus Brief Filed in the Ninth Circuit to Oppose SB 2's CCW Carry Restrictions

    On February 23, 2024, Peace Officers Research Association of California (PORAC), the California Association of Highway Patrolmen (CAHP), the California State Sheriffs’ Association (CSSA), and the Crime Prevention Research Center (CPPC) filed an amicus curiae brief in the Ninth Circuit Court of Appeals in the case May v. Bonta.  Granting an injunction against the "sensitive places" restriction in SB 2, District Court Judge Cormac J. Carney repeatedly cited PORAC President Brian Marvel's declaration explaining that instead of focusing on law-abiding CCW permit holders, the State should focus on preventing crimes committed with guns by restoring accountability and consequences.  

    The Amicus brief focuses on the State's unconstitutional efforts to defy the mandates of New York State Rifle & Pistol Association, Incorporated v. Bruen while openly condoning the nonenforcement of sentencing enhancements for committing violent crimes with firearms and law against prohibited persons possessing firearms. These interests are aligned with those of the research and crime data studies of CPPC President John R. Lott, Jr., Ph.D. The brief cites his research and analysis concluding that right to carry laws actually reduce violent crime whereas expansive restrictions on where CCW permit holders may carry actually encourage gun violence in those areas. Notably, Lott's research debunked claims that California's gun restrictions were responsible for dramatic reductions in violent crime during the 1990s, when in fact the reductions were due to California’s tough three-strikes law, which increased the risks and consequences for engaging in gun violence staring in 1994.

  Legislature responded to Bruen by rashly introducing new gun legislation that unconstitutionally burdens law abiding gun owners, including some retried peace officers, while having no appreciable impact on individuals who commit crimes with firearms. S.B. 2 is effectively the Legislature’s message to Californians that you can have your permit to carry for self-defense, but good luck using it.  

    SB 2 designates nearly everywhere a “sensitive place” where carrying a firearm is forbidden even with a CCW permit. Bruen recognized the lawfulness of certain restrictions on certain places, such as schools, government buildings, legislative assemblies, polling places, and courthouses, but warned against overbroad restrictions such as all places of public congregation.  The California Legislature disregarded the Court’s warning against “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement” and “effectively declar[ing] the island of Manhattan a ‘sensitive place.’” 

    For example, it bans carrying in private businesses unless they affirmatively post a sign welcoming people with firearms.  Several federal courts have invalidated similar “vampire” statutes (you must receive permission before entering) noting the property owners must impose that restriction, not the State. Under SB 2, the only place where an individual could legally carry is some (but not all) streets and sidewalks, and businesses that post “guns allowed” signs. Such restrictions have no influence on armed criminals or mass shooters.  

    This litigation is vital to protecting citizen's self-defense rights in public. Many retired peace officers are not subject to the restrictions of SB 2, but some must apply for permits in the same manner as private citizens. Moreover, vindicating Constitutional carry rights protects officers from future repeal of their carry rights under Penal Code section 25455.

Click this link to read the amicus curiae brief filed by David E. Mastagni and Timothy K. Talbot.