On Monday, David P. Mastagni—partner at Mastagni Holstedt, joined a panel discussion sponsored by The First Amendment Coalition and CALmatters. The panel, which included State Senator Nancy Skinner, discussed the current legislative landscape surrounding SB 1421 and public access to police personnel files.
David P. Mastagni will join Senator Nancy Skinner (SB 1421's author), David Synder from the First Amendment Coalition and reporter Thomas Peele at a forum to discuss the policies, the legal battles and the perspectives raised by S.B. 1421.
David P. Mastagni is the founder and managing partner of Mastagni Holstedt, APC, where he practices primarily in the areas of civil litigation and labor law. Mastagni labor and employment attorneys located throughout California provide representation in all disciplinary matters, from the administrative investigation through any administrative appeal, including matters involving suspension, demotion, or dismissal. His son, David E. Mastagni represented PORAC in negotiations with Senator Skinner over S.B. 1421 and filed an extraordinary writ of mandate with the California Supreme Court on behalf of Crime Victims United and the Sacramento Police Officers Association seeking clarification of third party and officer privacy rights under S.B. 1421. Although the court declined to review the issues raised, it did request supplemental briefing on the impacts of S.B. 1421 on another matter before the Court involving Brady tips. The Mastagni and Wilkinson firms subsequently filed an Amicus Curiae brief brief with the Court on behalf of PORAC. The Supreme Court will likely soon determine whether S.B. 1421 has retroactive application in the still pending Brady tip appeal.
The forum hosted by Cal Matters and moderated by Laurel Rosenhall will be held:
Date And Time
Mon, May 13, 2019
12:00 PM – 1:15 PM PDT
Add to Calendar
Capitol Event Center, Main Room
1020 11th Street
Sacramento, CA 95814
This critical piece
of legislation leaves current use of force standards in place while creating
uniform use of force policies and training standards throughout California.
This bill was widely supported by law enforcement and passed out of the Public
Wednesday, the Sacramento Bee published a gut-wrenching special by Julie Robertson, a Sacramento County Sheriff's Deputy who survived a "split-second" encounter in which she was shot and her partner was killed. It is a must read to understand why AB 392 must be opposed.
The April 2019 edition of the PORAC Law Enforcement News published David E. Mastagni's article explaining why A.B. 392 is a threat to safe communities and would unconstitutionally impair peace officers' right of self-defense and defense of others. The article titled, "Modernizing Use of Force on Our Terms" details how the ACLU's strident desire to criminalize law enforcement derailed discussions over consensus legislation and prompted law enforcement leaders to sponsor S.B. 230 to bring California police standards and training into the 21st century.
Precedent-Setting Legislation Reflects Input from Attorney General, Community Leaders
Sacramento, CA – California law enforcement and Senator Anna Caballero (D – Salinas) yesterday announced sweeping amendments to SB 230 – the California use of force bill that will set a national precedent by requiring consistent policies and mandatory training standards for all 500 California law enforcement agencies.
“California has an opportunity and an obligation to protect our families, officers and communities,” said Senator Caballero. “Collaboration is key to developing the most effective and comprehensive use of force policy that results in change. These amendments reflect input and feedback from impacted parties throughout the state. As a result, this legislation will truly set an example the rest of the nation can follow.”
"AB 392 is a deeply flawed and unconstitutional bill. SB 230 will help achieve better outcomes for everybody by providing officers clear guidelines and training on deescalation and alternative tactics," said David E. Mastagni.
The new amendments to the bill have been in the works for some time now, as the bill’s author and supporters have been working with the Attorney General, legislators and community leaders from throughout the state to implement the feedback they have received. With these amendments, SB 230 now:
•Establishes the first statewide guidelines to clearly define when officers are authorized to use force.
•Requires that every California law enforcement officer receive the most robust training in the nation strictly designed to minimize the use of force.
•Sets specific policy requirements on de-escalation, rendering medical aid, proportional use of force and more.
•Sets forth detailed, standardized requirements for reporting all instances when force is used in our communities.
•Specifies that use of force policies and training are considered in legal proceedings.
•Strengthens the California Penal Code’s definition of justifiable homicide for peace officers.
Law enforcement leaders throughout the state expressed strong support for S.B. 230 as amended.
“SB 230 will establish the nation’s most comprehensive legislative solution to one of the most important issues facing America,” said Brian Marvel, President of the Peace Officers Research Association of California (PORAC). “As law enforcement officers, we know we can improve – we need to do everything in our power to minimize the use of force. The country is watching. They are counting on California to lead.”
“These substantive amendments are a testament to California law enforcement’s commitment to achieving meaningful change through collaboration,” said Ron Lawrence, President of the California Police Chiefs Association (CPCA). “We surveyed all of the proven best practices from around the country and incorporated them into one piece of legislation that will modernize and update California’s use of force policies.”
“California’s use of force policies must be updated, not only to reflect best practices, but to reflect our shared knowledge and expectations for what it means to enforce the law in our communities,” said Carrie Lane, CEO of the California Association of Highway Patrolmen (CAHP). “SB 230 is a bill we can all get behind.”
March 30th, 2019 Assembly Member Honorable Jim Cooper of the 9th District introduced a resolution to the legislature to commend David P. Mastagni and the Mastagni Holstedt Law Firm for 45 years of service and devotion to protecting the rights of public safety professionals including Law Enforcement, Firefighters, and First Responders throughout the State of California.
Today, in powerful testimony before the Public Safety Committee, Kathleen Mastagni Storm urged members of the committee to vote no on AB 392. As outlined in her testimony, AB 392 would criminalize police use of force and incentivize disengagement through prosecution of officers.
Below, watch the opposition tesimony of Shane LaVigne of Capitol Advocacy, Deputy Sheriff Julie Robertson, and Kathleen Mastagni Storm.
On March 29, 2019, federal Judge Roger Benitez issued a permanent injunction invalidating a California law (Penal Code Section 32310) mandating the confiscation of high capacity magazines, i.e. magazines holding more than 10 rounds. The broader ramifications of Judge Benitez' ruling spotlight the unconstitutionality of A.B. 392 in severely restricting peace officer self-defense rights, as well as violating equal protection by subjecting officers to second class constitutional rights. Following U.S. Supreme Court precedent, the Ninth Circuit has already recognized, “Central to the rights guaranteed by the Second Amendment is “the inherent right of self-defense.” United States v. Torres (9th Cir. 2019) 911 F.3d 1253, 1257 (citing, District of Columbia v. Heller, 554 U.S. 570, 628, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The Ninth Circuit recognized, the “core” of the Second Amendment right “is the right of self-defense by ‘law-abiding, responsible citizens.’” Id. In holding the magazine ban violated the Constitutional right to “keep and bear arms”, Judge Benitez explained our inherent right of self-defense under the U.S. Constitution and that "for laws that do impair self-defense, strict scrutiny" is applicable. "A law that imposes such a severe restriction on the fundamental right of self-defense of the home that it amounts to a destruction of the Second Amendment right is unconstitutional under any level of scrutiny." Duncan v. Becerra (S.D. Cal., Mar. 29, 2019, No. 3:17CV1017-BEN (JLB)) 2019 WL 1434588, at *10 (citing, Silvester v. Harris, 843 F.3d 816, 821 (9th Cir. 2016)). Judge Benitez ultimately concluded, “California’s law prohibiting acquisition and possession of magazines able to hold any more than 10 rounds places a severe restriction on the core right of self-defense of the home such that it amounts to a destruction of the right and is unconstitutional under any level of scrutiny.” A.B. 392 imposes far more severe impairments on officers' right of self-defense in several important respects. First, if officers attempt to detain or arrest the wrong person by mistake, they are stripped of their right of self-defense if that person attempts to kill or injure the officer (under this scenario an otherwise justified use of deadly force constitutes manslaughter). Officers are also stripped of their right not to retreat in the face of resistance or threat posed by a suspect to themselves or others. Most significantly, officers are subjected to a watered down right of self-defense by requiring them to utilize the least intrusive means of self-dense rather than objectively reasonable means based upon the totality of the circumstances. Officers will be stripped of their right to self-defense and subject to criminal jeopardy any time a critic can conjure up an alternative to force. For example, if a suspect three feet away draws and aims a handgun at an officer, it will take the officer about 1.5 seconds to perceive this threat, decide to draw his or her gun, and shoot at the suspect. Nearly everyone would agree the officer’s decision was an objectively reasonable use of deadly force. However, under A.B. 392 that officer’s right of self-defense would hinge on the “reasonableness” of the officer’s alternatives, such as the use of a gun take-away technique or quickly advancing on the suspect and knocking him off balance and taking him to the ground. Our Ninth Circuit has already rejected the premise of A.B. 392. "Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment.” (Scott v. Henrich (9th Cir. 1994) 39 F.3d 912, 915.) The appellate court explained further:
“In the heat of battle with lives potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead, he would need to ascertain the least intrusive alternative (an inherently subjective determination) and choose that option and that option only. Imposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment.” Id.
This new Second Amendment case highlights the unconstitutionality of A.B. 392. The last time the U.S. Supreme Court addressed the Second Amendment, it explained, "self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is 'the central component' of the Second Amendment right." McDonald v. City of Chicago, Ill. (2010) 561 U.S. 742. On the horizon, the U.S. Supreme Court recently granted review in a case involving a New York City lawthat limits residents from transporting their guns outside their homes and is widely expected to invalidate this law and further expand recognized self-defense rights outside the home. It should also be noted that the California Constitution provides a similar, if not stronger, express right of self-defense in Article I, Section 1. (see, People v. McDonnell (1917) 32 Cal.App. 694 (recognizing, that "[t]he right to defend life is one of the inalienable rights guaranteed by the constitution of the state.”)
In addition to co-sponsoring A.B. 392, Assembly
Member Kevin McCarty recently introduced A.B. 855 to require the Attorney General to promulgate a model use of force policy for law enforcement agencies by 2021 and provide an individualized review of any agency's use of force policy upon request after 2021.
Specifically, his sparse bill would require the Attorney General to convene a task force within the Civil Rights Enforcement Section of the Department of Justice to study officer-involved shootings throughout the state and to develop policy recommendations and a model written policy or general order for the use of deadly force by law enforcement officers, with the goal of promulgating best practices and reducing the number of deadly force incidents that are unjustified, unnecessary, or preventable. The bill, which can be read here, appears to be modeled after the review the Attorney General conducted for the Sacramento Police Department.
In contrast to the delayed impacts of A.B. 855, PORAC and other law enforcement groups have sponsored S.B. 230, which will immediately establish a uniform set of use-of-force best practices and mandate every California law enforcement agency to enact them. S.B. 230 will help achieve better outcomes for everybody, including law enforcement, by providing officers clear guidelines and training on the circumstances when deadly force is authorized, utilizing de-escalation tactics, considering reasonably available alternatives to deadly force, proportionality, rendering medical aid, interceding to prevent excessive use of force, securing medical assistance, interacting with vulnerable populations, reporting requirements, and tactics.
A.B. 855, like A.B. 392, appears to be predicated on the false assertion that police can currently use deadly force under circumstances where deadly force is not necessary. Deadly force has always been judged under a necessary standard. The difference is whether necessity is judged by the totality of the circumstances or redefined as the least possible amount of force. The latter is an inherently subjective inquiry that opens an officers’ split-second decision making in a life or death situation to second guessing as to whether there was a lesser level of force available to them. Under A.B. 392 officers would be stripped of their constitutional right to self-defense anytime a critic can conjure up an alternative course of action, such as simply retreating. (See Art. I, Sect. 1, California Constitution.) In fact, our Ninth Circuit expressly repudiated such a standard as unconstitutional, stating “(r)equiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment.” (Scott v. Henrich (9th Cir. 1994) 39 F.3d 912, 915.)
Today, the Christian Science Monitor published an in depth article discussing the two competing "Use of Force" bills currently before the California State Legislature. The article, entitled "In California two proposed laws with one aim: saving civilian lives" relies heavily on David E. Mastagni's analysis. As David explains in detail, "if you change the standard for use of force, you're only going to put [officers] at higher risk of injury and death."
On March 7th, David E. Mastagni and Todd Henry of the California Peace Officers Association were interviewed as part of KCRA New's coverage of AB 392. As discussed in the broadcast, both David and Todd outline serious concerns with the use of force standard proposed by the legislation.
Today, Tim Davis--President of the Sacramento Police Officers Association, spoke with Steve Inskeep on National Public Radio regarding the recent decision by California Attorney General to not charge officers involved in the death of Stephon Clark. Listen to the entire interview here.
UC Davis professor Joshua Clover, who is still employed by
the University of California, has made the following unacceptable, vile, and
repugnant statements regarding police officers:
“I am thankful that every living cop
will one day be dead, some by their own hand, some by others, too many of old
– tweeted on Nov. 27, 2014.
UC Davis Professor Joshua Clover
“I mean, it’s easier to shoot cops when their backs are turned, no?” – tweeted on Dec. 27, 2014. “People think that cops need to be reformed. They need to be killed.” – published in an interview on Jan. 31, 2016.
To say that we were shocked, disgusted, and infuriated would
be an understatement. What was truly inconceivable was that the University of
California, after having been made aware of Clover’s comments, chose to keep Clover
in their employment. As you all know, we are staunch advocates of employees’
free speech rights pursuant to the First Amendment to the United States
Constitution (“First Amendment”). In fact, we have often waged many battles on
our clients’ behalf in order to protect their free speech rights pursuant to
the First Amendment. In this case, however, this is not about UC Davis professor Joshua Clover’s ability to enjoy free
speech rights pursuant to the First Amendment. Rather, it is about professor
Joshua Clover’s call for murdering police officers and advising the easiest way
to do it while maintaining a job at the UC Davis campus where he may continue
to spew his filth to young minds eager to learn. Under no circumstances should
the University of California nor UC Davis professor Joshua Clover attempt to
justify his perverse comments by using the First Amendment as a shield or by
suggesting that professors may say whatever they believe for the purpose of
maintaining unrestrained academic freedom.
On February 28, 2019, we sent the University of California a
letter condemning UC Davis professor Joshua Clover’s statements, demanding that
they reconsider their decision to keep him employed, and demanding an
investigation into his “on-duty” activities while teaching at the University of
California, Davis. A copy of the letter may be found here.
Since then, we have been made aware
that numerous law enforcement associations have also sent letters to the
University of California highlighting their concerns with the UC, the plight of
law enforcement, the statistics concerning the recent uptick in ambush-style
murders of law enforcement.
On March 4, 2019, UC Davis released a statement advising, in
relevant part, that since their original statement was released:
continued interest from the broader public requires further clarification.
Members of the public have been questioning why this professor continues to be
employed by UC Davis. Only the UC Board of Regents can dismiss a tenured
faculty member…The status of complaints lodged against faculty members are
confidential personnel matters, so we are unable to publicly comment on the
action steps we are taking at this time…The public expression of opinions, even
those opinions considered controversial or abhorrent, enjoy a high level of
protection under the First Amendment, and tenured faculty at the University of
California enjoy significant employment protections, particularly around
speech…Chancellor Gary S. May has asked the campus legal team to review the
professor’s conduct and provide advice on the application of federal and state
constitutional protections for freedom of expression.
I can’t help but wonder if UC Davis Professor Joshua Clover would still be employed if he had advocated the murder
of any other group of professionals or group of people. We are hopeful that the
University of California will ultimately do the right thing – sever all
employment ties with UC Davis professor Joshua Clover. We are also hopeful that
members of the public will continue to reach out to the University of
California concerning their shock, disgust, and concerns with UC Davis
professor Joshua Clover’s statements.
The California Supreme Court issued its eagerly awaited
ruling in Cal Fire Local 2881 v.
California Public Employees’ Retirement System (“Cal Fire”), which challenged the elimination of public employee’s
right to purchase additional retirement service credit (also known as “air
time.”) The case presented the Court with two issues: (1) whether employees had
a vested right to purchase air time; and (2) whether the Legislature’s
elimination of the right to purchase airtime unconstitutionally impaired that
right. The Court decided the case on the first issue, determining that
employees did not have a vested right to purchase air time. As a result, it did
not decide the second issue – likely deferring its discussion of what
constitutes an unconstitutional impairment of pension rights for one of the two
other major pension right cases pending before it, Alameda County Deputy Sheriffs’ Association v. Alameda County
Employees’ Retirement Association (“ACDSA”) or Marin Association of Public Employees v. Marin County Employees
Retirement Association (“MAPE”).
Because the Court did not reach the issue of whether
eliminating air time purchases unconstitutionally impaired a vested right, it
did not address the state’s assertion that the “California Rule” governing
pension benefits did not require detrimental changes to be offset by new
advantages to pass constitutional scrutiny. However, the Court’s brief characterization of
the parties’ arguments about the California Rule seems to indicate the Court
may ultimately reject the state’s position. The Court described the state’s
position as seeking to “reduce the protection afforded pension rights by
modifying or abandoning the California Rule,” seemingly implying the state’s
analysis of the California Rule conflicts with the Court’s precedent. We will
have to wait until the Court decides the ACDSA
or MAPE appeals to get its full
analysis of the issue, but the fact that it sees the state’s position as
seeking to modify or abandon the California Rule is certainly encouraging.
Before January 1, 2013, PERS members with at least 5 years
of service credit with a PERS contracting agency could purchase service credit towards
their PERS retirement. To buy air time, a member had to pay PERS an amount
“equal to the increase in employer liability” for the additional service time.
This practice was meant to provide employees a way to make up for time they
spent away from public employment, without imposing additional costs on the
retirement system. In 2012, however, the Legislature enacted the Public
Employees’ Pension Reform Act (“PEPRA”), which – among other things –
eliminated the right to purchase air time after December 31, 2012.
Cal Fire, Local 2881 sued PERS, claiming PEPRA’s elimination
of air time impaired its members’ vested rights to purchase air time. Cal Fire
alleged its members had a vested right to purchase air time, acquired by
working the requisite five years.Cal
Fire claimed the Legislature violated the Contracts Clause of the U.S. and
California Constitution because it eliminated a vested right to purchase air
time without providing a comparable new advantage. The trial court ruled
against Cal Fire, finding there was no vested right to purchase air time and,
even if there was, its elimination was permissible, because it was materially
related to the successful operation of a pension system. The Court of Appeal
affirmed the ruling on both grounds.
Cal Fire petitioned the Court for review, claiming in part
that the lower courts erred by upholding the elimination of air time even
though the change was not offset by a corresponding new advantage.
2.The Court’s Analysis
In evaluating whether Cal Fire could show there was a vested
right to purchase air time, the California Supreme Court recognized two
exceptions to the general rule allowing the Legislature to modify terms and
conditions of public employment.First,
terms and conditions of employment can be constitutionally protected from
changes when the statute or ordinance creating a benefit clearly evinces a
legislative intent to create contractual rights. Second, certain benefits of
employment can be constitutionally protected by implication, even if there is
no clear evidence the legislature intended them to be protected. If either
exception applied to the right to purchase air time, then the Contracts Clause
of the U.S. and California Constitution would restrict the Legislature’s power
to modify that right.
The Court found the first exception did not apply, because there
was no evidence the Legislature intended to create a contractual right to buy
air time. According to the Court, nothing in the pre-PEPRA law indicated the
Legislature promised not to modify or eliminate the right to buy air time in
The Court found the second exception did not apply, because the
right to buy air time was not a type of benefit that would be entitled to an
implied contractual protection.In
reaching this conclusion, the Court acknowledged that many pension benefits are
impliedly contractual in nature, and thus protected by the Contracts Clause of
the Constitution, because they represent a form of deferred compensation.
As the Court explained, pension benefits are a “classic
example of deferred compensation,” because they flow directly from a public
employee’s service, and their magnitude is roughly proportional to the time of
that service. By contrast, the right to
purchase air time was made available at the option of each employee, and
expired as soon as the employee retired or terminated employment. The amount of
the employee’s service was irrelevant to whether he or she could purchase air
time, once the five-year service time requirement was met.
Finding that neither exception applied to the right to
purchase air time, the Court held there was no vested right to purchase air
time. The Legislature was therefore free
to eliminate the right to purchase air time without implicating the Contracts
The Court’s decision only addressed whether there was a
vested right to purchase air time, not whether the California Rule allows the
government to reduce a vested benefit without providing an offsetting new
advantage. The Court will likely take up the latter issue when it decides the ACDSA and MAPE appeals, which are currently before it. Given the Court’s brief remarks about the
parties’ positions with respect to the California Rule, we are cautiously
optimistic the Court will ultimately affirm its precedent and continue
requiring detrimental changes to pension benefits be offset by comparable new
advantages to survive constitutional scrutiny.
David E. Mastagni and PORAC President Brian Marvel critique S.B. 1421 in the American Bar Association’s recent ABA Journal. As discussed in the article, SB 1421 circumvents the balanced
"Pitches" process for disclosure of relevant personnel information to
litigants without unnecessarily disrupting a victim's or a police officer's
right to privacy.
Mastagni Holstedt and the Berry Wilkinson Law Group were honored to file an amicus brief in the California Supreme Court on behalf of PORAC and the PORAC Legal Defense Fund. The highly anticipated brief informs the Court on SB 1421's impact on the commonly referred "Brady Tip Case" People
v. Superior Court (Johnson)(2015). As discussed at length in the Brief, pre-2019 Brady material contained in personnel files should only be disclosed through the Pitchess process. You can access the entire brief here.
The brief also highlights that there is no evidence that SB 1421 was ever meant to apply retroactively. The fact that complying with a request for pre-2019 records would be impossibly arduous, coupled with the State Legislature's silence on the issue, is clear evidence that Legislators did not intend to have SB 1421 apply retroactively. In fact, subjecting pre-2019 records to disclosure potentially violates crime victims' Constitutional rights. The case, Association for Los Angeles District Deputy Sheriffs v. Superior Court, is almost fully briefed and a decision should be forthcoming in the first half of the this year. We are hopeful for a quick determination as to whether pre-2019 records must be disclosed pursuant to SB 1421, thereby avoiding the patchwork litigation throughout the state on retroactivity. A Supreme Court determination in this appeal will also protect law enforcement unions and there members from further exposure to attorney fee liability to requesters, such as the ACLU and media organizations. (See, Pasadena Police Officers Association v. City of Pasadena (2018),holding the POA and 2 members liable for the requester's fees in unsuccessfully opposing the disclosure of an after-action shooting report.)
Mastagni Holstedt is pleased to
congratulate Lou Paulson on his recent appointment to the Board of the Public
Employment Relations Board (PERB). Mr. Paulson has spent decades
advocating for firefighters and first responders throughout California. As a
former Fire Captain and President of Contra Costa County Firefighters Local
1230 he worked tirelessly to advance labor rights.
Vince Wells, president of the United Professional
Firefighters of Contra Costa County, Local 1230, as well as, 4th District vice
president for the California Professional Firefighters claims “Lou’s
knowledge, background, and character, will be a tremendous asset to PERB and to
all Californians.” The entire Mastagni Law Firm and Local 1230 congratulate him
on his appointment and wish him success at PERB.
On this episode of On the Job with PORAC Brian Marvel, Damon Kurtz, Randy Perry (Aaron Read & Associates), and David E. Mastagni (Mastagni Holstedt, A Professional Corporation) dive into the future of use-of-force legislation, compared to last year’s AB931. As we’ve heard in previous podcasts, this type of legislation will have considerable impacts on law enforcement officers; therefore, it is critical that we have a seat at the table in getting it right. This is one of the biggest fights the law enforcement community will face this year, so it’s important to understand what’s at stake and what to expect as the legislative session ramps up. Tune in to learn more about our approach here at PORAC and how we’ll all need to work together to see that measures as drastic and dangerous as AB931 don’t become law. Listen to the PORAC Podcast here.
California Attorney General Xavier Becerra has declined to release pre-2019 police records requested pursuant to SB 1421 until the court adjudicate whether the new law applies retroactively. “We have a couple of cases where courts are about to weigh in on how to interpret that state law, and we want to make sure that we remain consistent,” Becerra told KQED in an interview.
Mark Beckington, California’s supervising deputy attorney general, is quoted in the ABA Journal stating, “Therefore, until the legal question of retroactive application of the statute is resolved by the courts, the public interest in accessing these records is clearly outweighed by the public’s interest in protecting privacy rights.”
On January 3, 2019, the California Department of Justice,
Division of Law Enforcement issued Information Bulletin 2019-DLE-01(“Bulletin”) instructing all California law enforcement agencies to preserve
all records that may be subject to disclosure as a result of Senate Bill 1421.
The Bulletin provides a specific list of applicable files that should be
preserved, including but not limited to electronic communications regarding the
potential destruction of covered information.
It should be noted that information bulletins are issued by
the California Department of Justice to advise criminal justice and applicant
agencies of changes in departmental regulations and policies. While
informative, this Bulletin fails to address or cite to any controlling law that
supports the instruction for law enforcement agencies to preserve all records
that may be subject to disclosure as a result of Senate Bill 1421 when those
records may otherwise be lawfully destroyed. California law permits Counties
and Cities to destroy records according to lawfully established retention
policies and procedures. Senate Bill 1421 does not create a new duty to retain
records that may be lawfully destroyed. Accordingly, this Bulletin should be
considered a reminder for law enforcement agencies to adhere to existing
records retention policies that have been established according to California
In City of Escondido
v. Emmons, the Supreme Court examined if qualified immunity applied when two
police officers forcibly apprehended a man at the scene of a reported domestic
In April of 2013, Escondido police received a 911 call concerning
a possible domestic disturbance at Maggie Emmons' apartment. Officer Houchin
and Officer Robert Craig responded to the call. The entire event was captured
on Body Worn Cameras (“BWC”).
Upon arriving at the scene, the two Officers knocked on the
door of the apartment. No one answered. However, a side window was open. The
two officers spoke with Maggie through that window. They were attempting to
convince Maggie to open the door to her apartment so that they could conduct a
welfare check. At the same time, a male inside the apartment began telling Maggie
to back away from that window.
A few moments later, a man opened the apartment door and
came outside. At that point, Officer Craig was standing alone just outside the
door. Officer Craig told the man not to close the door, but the man closed the
door and tried to brush past him. Officer Craig stopped the man, took him
quickly to the ground, and handcuffed him.
Officer Craig did not hit the man, nor display any weapon.
The BWC footage shows that the man was not in any visible or audible pain as a
result of the takedown or while on the ground. Within a few minutes, the officers
helped the man up and arrested him for a misdemeanor offense of resisting and
delaying a police officer.
The man turned out to be Maggie Emmons' father, Marty
Emmons. Marty Emmons later sued Officer Craig claiming excessive force.
The Trial court rejected his claim. It noted that the
"video shows that the officers acted professionally and respectfully.” Moreover,
the trial court held that the officers were entitled to “qualified immunity”
because the officers were responding to a domestic dispute, and that the
encounter had escalated when the officers could not enter the apartment to
conduct a welfare check. In fact, the trial court pointed out that when Marty
Emmons exited the apartment, none of the officers knew whether he was armed or
dangerous, or whether he had injured any individuals inside the apartment.
The Supreme Court agreed with the trial court. It held that “it
is sometimes difficult for an officer to determine how the relevant legal
doctrine, here excessive force, will apply to the factual situation the officer
confronts. Use of excessive force is an area of the law in which the result
depends very much on the facts of each case, and thus police officers are
entitled to qualified immunity unless existing precedent squarely governs the
specific facts at issue.”
To that end, the Court stressed that “while
there does not have to be a case directly on point, existing precedent must
place the lawfulness of the particular [action] beyond debate. Accordingly, the
Supreme Court remanded the case to the Court of Appeals “to
properly analyze whether clearly established law barred Officer Craig from
stopping and taking down Marty Emmons in this manner as he exited the apartment.”
On January 2, 2019, the California Supreme Court denied Petitions for Writ of Mandate and Requests for Stay filed by Crime Victims United of California and the Sacramento Police Officers Association challenging the the scope of the S.B. 1421 and by the San Bernardino County Sheriff’s Employees’ Benefit Association challenging its retroactive application. The Court's denial of the writs did not address the merits of the challenges; Rather, the Court merely declined to decide the issues directly without a lower court record. As a result, the application and scope of S.B. 1421 will be adjudicated piecemeal in trial courts throughout California.
However, the Supreme Court did order supplemental briefing regarding the scope of S.B. 1421 in Association for Los Angeles Deputy Sheriffs v. Superior Court (2017), a case currently pending before the Court. The court of appeal had ruled that law enforcement agencies cannot provide a so-called "Brady Tip" to the District Attorney advising which officers' personnel files contain sustained allegations of misconduct involving moral turpitude. The Court granted review on October 11, 2017. Today's Supreme Court order stated: "The parties are directed to serve and file supplemental briefs addressing the following question: What bearing, if any, does SB 1421, signed into law on September 30, 2018, have on this court's examination of the question presented for review in the above-titled case?"
Presumably, the Court is examining the interplay between S.B. 1421's designation of certain sustained allegations of misconduct involving work-related dishonesty as subject to disclosure under the CPRA with the Brady disclosure obligations pertaining to credibility.
Starting January 1st 2019, Section 3558.8 of the California Government Code goes into effect. This
much needed law ensures that public employees are able to take a leave of
absence in order to represent their union without losing their job or benefits
during time performing union duties.
Often referred to as “loss time,” this leave allows
employees the ability to perform union duties without loss of pay or other
employment benefits. Under the new law, a public employer is required to grant
employees, after meeting-and-conferring, reasonable leaves of absence in order
for those employees to serve as stewards or officers of their exclusive
It is important to note, the union must reimburses the
employer for the costs of the employee’s salary and benefits while employers
are permitted to utilize temporary employees to fill a union representative’s
position while they are absent.
Other key elements of the new law include:
Leave: Section 3558.8 requires that the public employer grant a “reasonable
time.” Although “reasonable time” is not defined, the new law states that leave
may be granted on a full-time, part-time, periodic, or intermittent basis.
Reinstatement: At the conclusion of the leave, the employee is entitled to
be reinstated to the same position and work location held prior to the leave. If
that is unfeasible, the employee must be given a substantially similar position
without loss of seniority, rank, or classification.
Retirement Contributions: During any leave of absence, the public employer
is required to continue paying the employee’s salary AND any contributions to
the employee’s retirement fund under the applicable labor agreement.
the new law permits any union to reopen “negotiations to reach a mutual
agreement concerning the grant of leave.”