Wednesday, May 15, 2019

LISTEN NOW: David P. Mastagni Joins Panel Discussion on SB 1421

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.

Listen to the entire discussion here:

For further coverage of SB 1421, please check out previous blog posts here.

Tuesday, May 7, 2019

Attend Cal Matters Forum where David P. Mastagni will discuss the impacts and concerns regarding S.B. 1421 with the Bill's Author Senator Skinner

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

Wednesday, April 24, 2019

Friday, April 19, 2019

READ NOW: The Sacramento Bee Publishes Compelling Personal Account On How AB 392 Will Endanger The Lives of Police Officers

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 entire story can be read here: 

Tuesday, April 16, 2019

Read PORAC Law Enforcement News: "Modernizing Use of Force on Our Terms" by David E. Mastagni

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.

Friday, April 12, 2019

California Law Enforcement and SB 230 Author Senator Anna Caballero Announce Major Amendments to California Use of Force Bill

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.”

Thursday, April 11, 2019

David P. Mastagni Commended for 45 years Devotion to Public Safety Professionals

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.

Click Here to View Full Size Document

California Globe Article on AB 392 Featuring Kathleen Mastagni Storm Taking the Fight to Them

The California Globe highlights Kathleen Mastagni Storm's testimony on AB 392 in the article linked below:

Police Use of Force Bill is ‘Epitome of Second Guessing’ by Lawmakers

Tuesday, April 9, 2019

WATCH NOW: Kathleen Mastagni Storm Testifies Before the California Assembly Public Safety Committee In Opposition to AB 392

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.

Wednesday, April 3, 2019

New 2nd Amendment Ruling Invoking Right of Self-Defense Illustrates Unconstitutionality of AB 392

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 law that 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.”)


Wednesday, March 27, 2019

Assembly Member McCarty Introduces New Use of Force Legislation

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.)  

Thursday, March 14, 2019

READ NOW: David E. Mastagni Quoted In Christian Science Monitor's Coverage of Pending Use of Force Legislation

csm masthead

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."

You can read the entire article here.

Friday, March 8, 2019

WATCH NOW: David E. Mastagni and Todd Henry of the California Peace Officers Association Interviewed by KCRA on AB 392

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.

Wednesday, March 6, 2019

LISTEN NOW: President Tim Davis of Sacramento Police Officers Association Discusses the Attorney General's Decision on Stephon Clark During NPR's Morning Edition.

NPR logo

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

Tuesday, March 5, 2019

Mastagni Holstedt, FUPOA, and Law Enforcement Associations Throughout the Nation Demand UC Davis Professor Be Terminated After Advocating the Murder of Police Officers

In an article first published on February 25, 2019, The California Aggie reporter Nick Irvin brought to light UC Davis professor Joshua Clover’s comments regarding, among other things, “cops need to be killed.” Here’s a link to the article:

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 age #letsnotmakemore” – 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.

California Supreme Court Upholds Elimination of Air Time in Latest Vested Rights Case

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.  

1.            Background

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 future.

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 Clause.

3.            Final Thoughts

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.

Friday, March 1, 2019

ABA Journal Quotes David E. Mastagni and PORAC President Brian Marvel In SB 1421 Coverage

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.

Friday, February 22, 2019

Mastagni Holstedt and Berry Wilkinson Challenge SB 1421's Retroactive Application In Supreme Court Amicus Brief

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.)

Thursday, February 7, 2019

Former President of Contra Costa County Firefighters Local 1230 Appointed to PERB Board.

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.

Read Governor Newsom’s appointment announcement here.

Wednesday, February 6, 2019

Listen to the PORAC Podcast on the Future of AB 931

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 Refuses to Apply SB 1421 Retroactively

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.”

Wednesday, January 30, 2019

Attorney General Issues Vague Preservation Order In Wake of SB 1421

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 Law.

Wednesday, January 16, 2019

Supreme Court Clarifies That Qualified Immunity Attaches Unless An Officers’ Use of Force Clearly Violates Established Law

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 violence incident.

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.” 

Thursday, January 3, 2019

The California Supreme Court Requests Supplemental Briefing Regarding the Impact of SB 1421 on Brady Tips

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.

Wednesday, January 2, 2019

Public Employee Unions Entitled to Reasonable Leaves of Absence to Serve As Union Stewards or Officers

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 representative.  

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:

·         Reasonable 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.

·         Right to 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.

·         Right to 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.

Finally, the new law permits any union to reopen “negotiations to reach a mutual agreement concerning the grant of leave.”