Review Granted in Barnes v. Felix: CAHP and PORAC File Amici Curiae Brief Urging the U.S. Supreme Court to Reject Creation of a “Provocation Rule” under the "Totality of the Circumstances" Analysis

     The Supreme Court recently granted review in Barnes v. Felix, 91 F.4th 393, 394 (5th Cir. 2024), cert. granted, No. 23-1239, 2024 WL 4394125 (U.S. Oct. 4, 2024), a case which is likely to clarify the amount of weight given to the pre-shooting conduct of the officer and the suspect, as well as provide direction on evaluating the totality of the circumstances. The issue on appeal is framed as whether a court looks at the reasonableness of an officer’s actions only at the moment when an officer’s safety was threatened or more broadly at the totality of circumstances, including any actions officers took that may have unnecessarily increased the danger they faced.

On December 20, 2024, the Peace Officers Research Association of California (“PORAC”) and the California Association of Highway Patrolmen (“CAHP”) (collectively “Amici”) filed an Amici Curiae, i.e. friend of the Court, brief in the United States Supreme Court in support of Respondent, Officer Roberto Felix. David E. Mastagni was privileged to represent Amici. Read the full brief HERE.

Amici urged the Court not to adopt a new standard for evaluating the use of deadly force which would negate an officer’s justification if their pre-shooting conduct provoked the suspect, notwithstanding the imminent threat posed by the suspect.  Amici advocated for the Court to affirm that the primary consideration under the “totality of circumstances” required by Graham v. Connor[i] must be the moment of threat facing the officer, and to reject considerations of officer tactics that result in a deadly confrontation, consistent with County of Los Angeles v. Mendez[ii] and California law.

Background

The Fifth Circuit and a minority of other circuits employ the “moment of threat” standard for reviewing deadly force, whereby “the focus of the inquiry should be on the act that led the officer to discharge his weapon.”[iii] Any of the officer’s actions leading up to the shooting are not considered relevant for the purposes of an excessive force inquiry. The petitioners in the present case argue that under the Fifth Circuit’s approach, officers are permitted to create the threat that justifies force, so long as the force was justified at the moment the weapon was fired. Petitioner’s appeal is predicated on the flawed assumption that an otherwise reasonable use of force cannot be justified if the officer’s conduct contributed to the threat posed by the suspect.

However, the purported distinction between the “moment of threat” doctrine and other more traditional “totality of circumstances” review applied by other circuits is mostly artificial, as that doctrine recognizes the “most important Graham factor is whether the suspect posed an immediate threat to anyone’s safety.”[iv]

            Review of Felix v. Barnes ostensibly does not affect the Ninth Circuit which already considers the totality of circumstances by examining “the facts and circumstances” when evaluating whether the use of force was reasonable, including the “events leading up to the shooting.”[v]. Nevertheless, this case is of particular importance in California where the legislature recently codified the definition of the “’[t]otality of the circumstances’ [to] mean[] all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force” under California Penal Code section 835a(e)(3).

Although this definition of totality of the circumstances was plucked from Graham and its progeny, some civil rights attorneys have misconstrued this simple definition to resurrect the defunct provocation theory, which argues that a police officer may be held liable for an otherwise defensive use of deadly force if they intentionally or recklessly provoke a violent confrontation.  This appeal provides an opportunity for the U.S. Supreme Court to clarify that “officer-created jeopardy” is, at most, just one of the many factors to be considered, and to expressly reject the argument that any conduct in overcoming resistance that arguably contributed to the confrontation, including failure to utilize de-escalation tactics, automatically negates an officer’s right of self-defense and defense of others.

Summary of the Facts

Officer Felix was a Traffic Enforcement Officer with the Harris County Constable’s Office. Felix was advised of a Toyota Corola on the tollway with outstanding toll violations. Felix located the vehicle and conducted a traffic stop of the driver, Mr. Barnes. The car had been rented by Barnes’s girlfriend, and the unpaid toll fees had been incurred by her, not Barnes.

Barnes initially stopped. He stated that he did not have identification on him. Felix smelled marijuana in the vehicle. Felix ordered Barnes to turn off the vehicle. Barnes complied, removed the key, and placed the keys near the gear shifter. Barnes then stated that his identification documents might be in the trunk of the vehicle and popped the trunk. Felix asked Barnes to exit the vehicle and opened the driver’s door.

Suddenly, Barnes grabbed the keys and turned the car back on. Felix ordered him to stop but Barnes began to accelerate. Trapped between the open driver’s door and the vehicle, Felix jumped onto the vehicle frame, drew his gun and pointed it at Barnes, and ordered him to stop. Barnes continued down the service lane, ignoring the commands to stop. Officer Felix, fearing for his safety, shot and killed Barnes.

Trial Court and Fifth Circuit Holdings

Attorneys for Barnes’s family argued Officer Felix’s conduct in jumping on the floorboard of the vehicle created the danger that led to his use of deadly force. They argued that if he had remained standing on the ground, then there would have been no danger to him when Barnes decided to flee, and under those circumstances, the use of deadly force to apprehend him would not have been justified. Notably, this theory affords little weight to the officer’s authority to detain a suspect and prevent their flight, as well as the suspect’s elevation of the threat to the officer by disobeying commands to stop and accelerating while Felix was standing on the floorboard.

The district court found that Officer Felix's actions prior to the moment of threat, including that he “jumped onto the door sill,” had “no bearing” on the ultimate use of force. The court determined that the moment of threat occurred in the two seconds before Barnes was shot. At that time, “Felix was still hanging onto the moving vehicle and believed it would run him over,” which could have made Officer Felix “reasonably believe his life was in imminent danger.” This “moment of threat” test means that “the focus of the inquiry should be on the act that led the officer to discharge his weapon. Any of the officers' actions leading up to the shooting are not relevant for the purposes of an excessive force inquiry in this Circuit.” Petitioners appealed the district court’s decision to the Fifth Circuit.

The Fifth Circuit affirmed the district court’s judgment, holding that Officer Felix's use of deadly force was presumptively reasonable, the force was not excessive, and no constitutional injury was found. It based its opinion on other Fifth Circuit precedent, holding “[r]egardless of what had transpired up until the shooting itself, [the suspect's] movements gave the officer reason to believe, at that moment, that there was a threat of physical harm.”[vi] Even without considering qualified immunity, the court affirmed granting summary judgment in favor of Officer Felix, noting the petitioner had failed to demonstrate a genuine issue of material fact as to a constitutional injury. Overall, the Fifth Circuit affirmed applying its “moment of threat” analysis.

Strikingly, Circuit Judge Patrick E. Higginbotham wrote a concurring opinion to urge the U.S. Supreme Court to revisit its Fourth Amendment analysis and resolve the circuit split between the moment of threat doctrine and the totality of the circumstances review. Judge Higginbotham criticized the moment of threat analysis as an “impermissible gloss on Garner that stifles a robust examination of the Fourth Amendment's protections” and held “the totality of the circumstances merits finding that Officer Felix violated Barnes's Fourth Amendment right[s].” The Judge stated, “[i]t is plain that the use of lethal force against this unarmed man preceded any real threat to Officer Felix's safety” because Barnes had begun to flee before Felix stepped on the floorboard.

Notwithstanding whetther Officer Felix could have made better tactical decisions, the Judge’s reasoning strongly resembles the discredited provocation rule in that he equates the decision to step on the floorboard with the decision to use deadly force. This reasoning ignores the officer’s legal authority to detain Barnes. It also ignores the conduct of the suspect in both attempting to flee and endangering an officer by accelerating with him attached to the vehicle. While the petitioner frames the issue as Officer Felix using deadly force to prevent toll evasion, in reality, Barnes chose to put Officer Felix’s life in danger seemingly to evade a fine.

The Moment of Threat Doctrine Adheres to the U.S. Supreme Court’s Use of Force Analysis

The U.S. Supreme Court’s Graham decision held that “all claims that law enforcement officers have used excessive force-deadly or not- . . . should be analyzed under the Fourth Amendment and its ‘reasonableness' standard.”[vii] What matters is whether the officer’s use of force was “objectively reasonable.” “The operative question in excessive force cases is ‘whether the totality of the circumstances justifie[s] a particular sort of search or seizure.’”[viii] “When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim.”[ix]

Graham identified non-exhaustive factors to consider, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”[x] This wholistic inquiry is “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” and “must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving.”[xi]

Whether under moment of threat review or totality of the circumstances review, reasonableness is “judged from the perspective of a reasonable officer on the scene” and provides for “allowance[s] for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving[.]”[xii] Despite the petitioner’s contention to the contrary, under the moment of threat analysis, each Graham factor is considered because “the reasonableness of an officer’s action is determined based on the information possessed by the officer at the moment that force is employed.”[xiii]

The “moment of threat” doctrine properly emphasizes Graham’s second factor analyzing whether the suspect posed an immediate threat to anyone’s safety. At the same time, the doctrine does not focus on that factor to the exclusion of Graham’s first and third factors—“severity of the crime at issue” and “whether he is actively resisting arrest or attempting to evade arrest by flight.” Circuits that employ the moment of threat doctrine recognize all of the factors are intertwined within the officer’s perception.

Petitioner’s desired perspective inevitably leads to making judgments about an officer’s actions with “20/20 vision of hindsight.” However, the U.S. Supreme Court has consistently reasoned “judges should be cautious about second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation.”[xiv] Therefore, the moment of threat doctrine appropriately assesses the reasonableness of the use of force when considered from the perspective of the officer in that moment, and is consistent with Graham’s totality of the circumstances analysis.

Totality of the Circumstances Considerations in the Ninth Circuit

            Applying Graham, the Ninth Circuit has long conducted a totality of the circumstances review of Fourth Amendment claims brought against deadly force applications, albeit that the U.S. Supreme Court has stepped in to prevent the distortion of this analysis into a dispositive provocation test. In Mendez, the U.S. Supreme Court corrected a Ninth Circuit decision that miscast the totality of the circumstances review as a provocation rule wherein an officer is liable for use of deadly force where the officer intentionally or recklessly provokes a violent confrontation. The highest court rejected the Ninth Circuit’s “two-prong test” for provocation which required: (1) the separate constitutional violation must “creat[e] a situation which led to” the use of force and (2) the separate constitutional violation must be committed recklessly or intentionally.[xv]

The Supreme Court criticized the Ninth Circuit’s provocation rule as essentially searching for a different Fourth Amendment violation during an encounter that can be used to render an otherwise reasonable use of force unreasonable. Because the rule uses one constitutional violation to manufacture an excessive use of force claim that has already been rejected under established Fourth Amendment precedent, it is an improper rule that lacks a constitutional basis. If the defendant has multiple Fourth Amendment violation claims, they should each be analyzed separately.

            Petitioners’ arguments in this appeal potentially go farther than the rule rejected in Mendez, as the Judge advocates a de facto provocation rule that does not even require a separate Constitutional violation. Standing on the car’s floorboard may represent questionable tactics, but it is not a Fourth Amendment violation.

Amici asked the Court to affirm that liability must be limited to circumstances where an officer’s Fourth Amendment violation itself proximately causes the harm. “Proper analysis of this proximate cause question required consideration of the ‘foreseeability or the scope of the risk created by the predicate conduct,’ and required the court to conclude that there was ‘some direct relation between the injury asserted and the injurious conduct alleged.’”[xvi] This analysis must be conducted for each Fourth Amendment claim.  Critically, liability for a use of force Fourth Amendment violation is viable only if the conduct both was unreasonable under Graham and proximately caused the damages.

Mendez held a separate constitutional violation cannot reverse an otherwise reasonable use of force. Amici submitted their amicus brief seeking confirmation that the holding in Mendez equally means that once a use of force is deemed reasonable under Graham, it may not be found unreasonable by reference to an officer’s preceding tactics. Amici urged the Court to clarify that lawful conduct preceding a seizure, even if it potentially escalated the encounter, cannot be the basis of a Fourth Amendment claim.

Totality of the Circumstances Considerations in California

            California caselaw and recent amendments to statutory law are consistent with the U.S. Supreme Court’s Fourth Amendment precedent by focusing on the totality of the circumstances known to or perceived by the officer at the moment of the use of force. Despite recent attempts to legislatively resurrect a necessity or provocation rule, sound reasoning defeated those efforts, ultimately resulting in a statutory definition of “totality of the circumstances” that conforms with this Court’s Fourth Amendment precedent.

The California Legislature considered and rejected the enactment of a provocation rule in the new use of force statute. First, A.B. 931 expressly sought to strip officers of the justification defense if their conduct is “such a departure from the expected conduct of an ordinarily prudent or careful officer under the same circumstances as to be incompatible with a proper regard for human life, and where an officer of ordinary prudence would have foreseen that the conduct would create a likelihood of death or great bodily harm.” After that bill failed, A.B. 392 included a similar provision denying a justification defense “unless there was no reasonable alternative to the use of deadly force that would prevent death or serious bodily injury to the peace officer or to another person.” (A.B. 392 as introduced on February 6, 2010.)

This language was even more expansive than the Ninth Circuit’s provocation rule. This standard would have replaced Graham’s “objectively reasonable” standard with a so-called “necessary” standard that would effectively mandate officers to use the least amount of force possible and create a duty to retreat in the face of resistance, if feasible. This would require officers to pause and reevaluate their actions under any change in circumstance lest they unintentionally provoke an escalation of the situation and become civilly and criminally liable for the outcome.

Understandably, numerous local and statewide law enforcement associations joined with Amici to oppose the bill. On April 10, 2019, Sacramento Deputy Julie Robertson and Attorney Kathleen Mastagni Storm testified before the California Assembly Public Safety Committee in opposition to this provision’s impairment of Constitutional self-defense rights. In response to their powerful testimony, the language was amended out of the Bill.

In 2019, California enacted an amended version of A.B. 392 which codified the Graham principles by requiring that the officer’s decision to “use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time.”[xvii] The totality of the circumstances “includ[es] the conduct of the officer and the subject leading up to the use of deadly force.”[xviii] The statute expressly acknowledges judgment must not be made based on the benefit of hindsight, and that the totality of the circumstances must “account for occasions when officers may be forced to make quick judgments about using force.”[xix]

Since the enactment of A.B. 392, California courts have continued considering “an officer's pre-shooting conduct … as part of the totality of circumstances surrounding the use of force,” while rejecting these variants of the provocation rule.[xx] The Koussaya court warned “we must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day.”[xxi] The court confirmed that under California’s new use of force standards, "[l]aw enforcement personnel have a degree of discretion as to how they choose to address a particular situation.”[xxii] “As long as an officer's conduct falls within the range of conduct that is reasonable under the circumstances, there is no requirement that he or she choose the ‘most reasonable’ action or the conduct that is the least likely to cause harm and at the same time the most likely to result in the successful apprehension of a violent suspect, in order to avoid liability....”[xxiii]

Other California use of force cases incorporate state negligence claims, broadening the analysis beyond the Fourth Amendment use of force considerations by assessing whether pre-shooting conduct rendered the ultimate use of force unreasonable.  Nevertheless, “in a case . . . where the preshooting conduct did not cause the plaintiff any injury independent of the injury resulting from the shooting, the reasonableness of the officers' preshooting conduct should not be considered in isolation. Rather, it should be considered in relation to the question whether the officers' ultimate use of deadly force was reasonable.”[xxiv] This analysis considers whether a particular use of force was reasonable given the complete context, but does not permit a plaintiff to litigate each decision made by an officer in isolation.[xxv]

Conclusion

In short, this appeal presents an opportunity for Amici to encourage the Court to harmonize Graham’s consideration of the totality of the circumstances with Mendez’s repudiation of the provocation rule. The appeal presents an opportunity for the Court to clarify that lower courts must conduct a wholistic review of the pre-shooting conduct of both the officer and the suspect in considering all factors under the totality of the circumstances review, but the primary focus should remain on the moment of threat. Pre-shooting conduct, even if unreasonable or reckless, should be but one of many factors considered, and the Court should affirm the requirement in Mendez that separate claims for constitutional violations must be analyzed separately. In so doing, the U.S. Supreme Court can also protect California peace officers from efforts to misconstrue the definition of totality of the circumstances in A.B. 392 as a de facto provocation rule by mirroring the analysis of Koussaya.

David Emilio Mastagni is a partner with the law firm, Mastagni Holstedt, APC, specializing in labor and employment law representation, including trial and appellate litigation in California and federal courts. He is general counsel to the CAHP and a PORAC Legal Defense Fund Panel attorney. David also provides legal analysis on legislation and testimony before the Legislature on behalf of PORAC and CAHP.

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[i]              Graham v. Connor, 490 U.S. 386.
[ii]             County. of Los Angeles, Calif. v. Mendez, 581 U.S. 420 (2017).
[iii]            Barnes v. Felix, 91 F.4th 393, 394 (5th Cir. 2024), cert. granted, No. 23-1239, 2024 WL 4394125 (U.S. Oct. 4, 2024)                     (citing Amador v. Vasquez, 961 F.3d 721, 728 (5th Cir. 2020)        

[iv]             Nehad v. Browder, 929 F.3d 1125, 1132 (9th Cir. 2019).
[v]              Hung Lam v. City of San Jose, 869 F.3d 1077, 1087 (9th Cir. 2017).
[vi]                Barnes, 91 F.4th at 399, (citing Amador, 961 F.3d at 728).
[vii]            Graham, 490 U.S. at 395.
[viii]           Mendez, 581 U.S. at 427–28 (quoting Graham 490 U.S. at 8–9.)
[ix]             Id.
[x]              Graham, 490 U.S. at 396.
[xi]             Id. at 396-397.
[xii]            Id.
[xiii]           Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005.)
[xiv]            Ryburn v. Huff, 565 U.S. 469, 477 (2012).
[xv]             Mendez, 581 U.S. at 430.
[xvi]            Id. at 431 (citations omitted).
[xvii]           Cal. Penal Code 835a(a)(4) (emphasis added).
[xviii]          Id. § 835a(e)(3).
[xix]            Id.
[xx]             Koussaya v. City of Stockton (2020) 54 Cal.App.5th 909, 935-936.
[xxi]            Id.
[xxii]           Id. at 936.
[xxiii]         Id. (affirming Hayes, supra, 57 Cal.4th at p. 632.)
[xxiv]         Hayes, 57 Cal. 4th at 632.
[xxv]         Id. at 637-38.

Stockton Voters Enact Interest Arbitration for Police and Fire Bargaining Units

On November 5, 2024, the voters in Stockton enacted the first interest arbitration ballot initiative since 2008 in passing Measure N by 65.57%. Measure N amended the City Charter to establish interest arbitration as the procedure to resolve impasses in contract negotiations with the Stockton Police Officers and Firefighters.

The impasse arbitration process is balanced and fair. Prior to Measure N, when the parties would reach impasse during contract negotiations, the City could ultimately impose its terms on police officers and firefighters or just leave the employees indefinitely without a contract. This process frequently resulted in long periods without pay increases despite rising inflation. 

Under interest arbitration, the parties still have a mutual obligation to bargain in good faith. The measure provides that at negotiations impasse, the parties shall submit a last offer of settlement for unresolved issues if no agreement is reached prior to the end of the arbitration process. 

The process establishes a three-party panel (comprised of a city appointee, a union appointee, and a mutually selected neutral) that shall consider “the financial condition of the City of Stockton and its ability to meet the costs of the decision of the Arbitration Board” and “those factors traditionally taken into consideration in the determination of wages, hours, benefits and terms and conditions of public and private employment.” The initiative requires consideration of "the wages, hours, benefits, and terms and conditions of employment of California state and local public employees performing similar services to the extent that such can be reasonably done, including comparable classifications in the greater metropolitan area, and in the four California cities next larger in population than Stockton and the four California cities next smaller in population than Stockton."

The Arbitration Board would, by majority vote, select which final offer to impose based on specified criteria and comparisons to other entities. The decision is binding after 10 days.

In the rare circumstances where arbitration is needed to achieve a successor labor contract, the process protects public safety by avoiding long periods where police and firefighters have to work without a labor contract. Stockton has historically experienced difficulties negotiating contracts with police and fire resulting in labor unrest and long periods where police and fire compensation is stagnant while the employees’ cost of living has been rapidly increasing. These circumstances have fueled high turnover of police officers who can leave for other higher paying agencies nearby.   

Binding arbitration is a particularly effective impasse resolution procedure for public safety employees who largely cannot strike like other public employees. Arbitration fosters public safety by replacing contentious labor disputes with a fair and prompt resolution process that avoids unrest and bolsters the agency's ability to recruit and retain quality employees. Even Scott Walker retained interest arbitration in Wisconsin for public safety unions in Wisconsin to avoid strikes, despite rolling back other bargaining rights.

Interest arbitration is common in Charter Cities and Counties near near Stockton, such as Sacramento City, Sacramento County, Santa Rosa, Gilroy, Oakland, Petaluma, Salinas, Modesto, and Napa.  Approximately 22 California jurisdictions and about 30 states provide interest arbitration for public sector negotiation impasses. However, Measure N is the first initiative passed since the Sacramento voters extended interest arbitration to public safety managers in 2008. In fact, between 2008 and 2024, several local politicians have attempted to repeal arbitration. In Palo Alto, Kathleen Mastagni Storm successfully overturned one such effort after years of litigation. Hopefully, Measure N represents a harbinger of more interest arbitration initiatives throughout California.   

The House of Representatives Passes H.R. 82 – Social Security Fairness Act of 2023

    On November 12, 2024, the United States House of Representatives passed H.R. 82, the “Social Security Fairness Act of 2023” by overwhelming bipartisan margins. This bill has been top priority for public safety labor nationwide, including the IAFF and PORAC, because it eliminates the Windfall Elimination Provision (WEP) and the Government Pension Offset (GPO), provisions that unfairly punish retired police officers, fire fighters, and other public employees. Although this Bill was was co-sponsored by 303 of 435 members of the House of Representatives, it had stalled in the powerful House Ways and Means Committee for nearly two years.

    "This discharge petition marks a critical victory in our long fight for fair retirement benefits for peace officers and public servants,” said Brian R. Marvel, President of PORAC. 

    This bill was introduced in January of 2023 with the purpose of repealing provisions from the Social Security Act (42 U.S.C. 401, et seq.)  that reduce Social Security benefits for individuals who receive other government benefits, such as state or local pensions. Specifically, this bill eliminates the government pension offset which reduces Social Security for spouses, widows, and widowers who also receive their own government pensions. 

    Additionally, the bill eliminates the windfall elimination provision which could have reduces Social Security benefits for individuals who also receive a pension or disability benefit from an employer that does not withhold Social Security taxes from the individuals’ paychecks. The Bill strikes 42 U.S.C. 402(k)(5) which outlined how an individual’s Social Security benefits would be reduced if they received additional periodic benefits from federal, state, local, or any other government service within the last five years. 

As such, the provisions outlining spousal benefits are only contingent on the restrictions put forth in Section 202(q) and no longer are limited by Section 202(k)(5) should the spouse (and widow/widower) receive benefits of their own. Subsection (q) reduces a spouse’s insurance benefits should the employed individual begin receiving retirement benefits before reaching the statutory retirement age. Elsewise, Section 202 subsections (b)(2) and (c)(2) dictate that spousal benefits for each month are to be one-half the primary insurance amount of the primary insurance amount of his or her spouse (or, in the case of a divorcee, former spouse.) Under subsections (e)(2)(A) and (f)(2)(A), a widow’s or widower’s benefits for each month are to be equal to the primary insurance amount of his or her spouse. 

The bill also struck provisions altering the computation of benefits under the Social Security Act. Section 415 subsections (a)(7), (d)(3), and (f)(9) were all struck which covered delayed retirement, continued work after retirement, and the windfall elimination provision. Subsections (a)(7) and (f)(9) increased benefits for an individual who delayed claiming benefits beyond their full retirement age, thus incentivizing individuals to remain actively working, capping at age 70. Subsections (a)(7) and (d)(3) comprise the Social Security Windfall Elimination Provisions which reduce an individual’s Social Security benefits to reflect the person’s entitled to other benefits (such as old-age insurance or retirement benefits).  

    This bill repeals the Windfall Elimination provision and Government Pension Offset for individuals as well as their spouses or widow(er)s who receive benefits of their own from the government. These eliminated provisions have unfairly reduced retirement benefits for peace officers, firefighters, and their families as well as other public employees merely because they and their spouses can also claim alternative benefits. Additionally, by incentivizing increased service beyond the retirement age and penalizing early retirement, individuals are compelled to make decisions to keep working when doing so may not benefit them or their families. 

    By eliminating these provisions, firefighters or officers who are forced to retire early due to the demanding aspects of their careers can finally receive the full financial security in retirement benefits that they spent their entire career paying into. With the passing of this bill, the House of Representatives has made a critical step in ensuring financial stability for public employees in their post-retirement years. 

Now that H.R. 82 has passed the House, the bill moves to the Senate. The Senate version of this Bill has 62 co-sponsors, so the filibuster should not prevent enactment of this important Bill. 

IAFF General President Edward Kelly aptly stated, “[w]hile we’re proud of the work our team did to get this bill through the House, this is only half the battle. Now it’s time for Senators to step up and send this bill to the President’s desk.”

California Appellate Court of Appeal Upholds City Manager’s Decision to Terminate Officer and Reject Advisory Arbitration Award

    

    On September 13, 2024, the Fourth District Court of Appeal of California ruled in Ramirez v. City of Indio, finding that the Memorandum of Understanding ("MOU") between the City of Indio and the Indio Police Officers' Association ("POA") did not constrain the City Manager's authority to revoke an arbitrator's advisory findings and recommendation supporting an officer's reinstatement. 

    Former police officer Sergio Ramirez filed for writ of mandate challenging the determination by the Indio City Manager, upholding the decision to terminate Ramirez's employment, contrary to the arbitrator's recommendation. 

    Ramirez had been employed by the City of Indio Police Department since 2005. In August of 2016, he was charged with rape and two additional counts of sexual assault. Subsequently, the City placed him on administrative leave, asked him to turn in his work cell phone, and initiated an internal affairs investigation. Ramirez was acquitted of all criminal charges. However, in 2019, Ramirez was terminated by the Chief of Police. 

    Ramirez administratively appealed the decision under the "Appeals Procedure" outlined in the MOU between the City and the POA by requesting an evidentiary appeal to arbitration. The mutually agreed upon arbitrator conducted a three-day evidentiary hearing after which it was recommended that Ramirez was reinstated with full back pay and benefits. 

    In reviewing the arbitrator's findings and recommendations, the MOU, the Chief's Notice of Intent to Terminate, the City policies, the internal affairs investigation, transcripts from the criminal trial, and associated transcripts, motions, responses, briefs, and exhibits, the City Manager issued a final written decision rejecting the arbitrator's findings and affirming Ramirez's termination. Ramirez petitioned the Superior Court for a writ of mandate challenging the City Manager's administrative decision. On May 30, 2022, the Superior Court denied the writ petition. Ramirez then appealed to the Fourth District Court of Appeals, contending that the Superior Court incorrectly interpreted the arbitrator's role in the administrative appeal procedure and the City Manager's refusal to defer to the arbitrator's recommendation violated his due process rights. 

    Under the Public Safety Officers Procedural Bill of Rights (POBRA; Gov. Code § 3300 et seq.), police officers have a statutory right to an administrative appeal of punitive action that shall be conducted in conformance with the rules and procedures adopted by the local public agency. (Gov. Code § 3304.5) Such rules and procedures were outlined in the MOU which guided the court's interpretation of Ramirez's appeal. The rules and procedures must afford constitutional due process for an officer before depriving him or her of any significant property interest in employment. The court views the MOU as a whole, rather than disjointed sections in order to effectuate the mutual intent of the parties as it existed at the time of contracting. 

    The MOU Appeals Procedure in this case was "designed to provide an appeal system for the fair and just resolution of any dispute..." Specifically, the MOU did not grant binding arbitration to the parties in the case that an appeal hearing was held. Rather, the arbitrator was permitted to render a written statement of advisory findings and recommendations. Therefrom, the City Manager was required to review the arbitrator's findings and recommendations but had authority as the final decision maker to affirm, revoke, or modify the findings as appearing warranted. 

    In his appeal, Ramirez acknowledged the City Manager's final decision-making authority. However, he argued that the MOU must be interpreted to constrain the City Manager's discretion by requiring him to defer to the arbitrator's determinations of the relevancy, weight, and credibility of testimony and evidence presented during the hearing or at least afford them great weight. The Court found that this suggested interpretation ignores the rules of contractual interpretation by disregarding the MOU's express language and framework. Nothing in the MOU indicated intent by the parties to extend the arbitrator's authority beyond the hearing itself or require deference by the City Manager. Suggesting such would circumvent POBRA by requiring that an administrative appeal not be held in conformance with the rules and procedures adopted by the public agency. Ramirez's interpretation would effectuate binding arbitration on an MOU that explicitly designated advisory arbitration. 

    Lastly, the Court found that the Appeals Procedure in the MOU more than satisfied due process requirements as Ramirez was given the opportunity to respond to the Notice of Termination in writing. Additionally, the City maintained the burden of proof at the appeal hearing while Ramirez was permitted to present evidence and cross-examine witnesses. 

    The Court ultimately affirmed the Superior Court's denial of the writ based upon interpretation of the MOU as it complies with POBRA. 

    It is important to understand that the local rules and procedures, so long as they adequately retain an officer's constitutional due process rights, govern administrative appeals. If an MOU does not order binding arbitration or grants authority to a city official rather than an arbitrator, the results of an appeal hearing through arbitration may not be binding and a city may still choose to uphold an administrative decision. 

District Court Rules Vista Fire Department Battalion Chiefs Exempt from Overtime

On September 30, 2023, the district court in the Southern District of California granted summary judgment in favor of City of Vista Fire Department and against three Battalion Chiefs for the filed a collective action pursuant to the Fair Labor Standards Act (“FLSA”) alleging the City misclassified them as exempt employees and failed to pay them overtime. The City moved for summary judgment claiming the Plaintiffs qualified as exempt employees under the executive, administrative, and highly compensated employee exemptions of the FLSA. Plaintiffs opposed the motion, arguing the Department of Labor’s “first responder regulation” under 29 C.F.R. § 541.3(b) established a bright-line rule excluding all firefighters from FLSA exemptions.

The court held that the first responder regulation did not categorically exclude all levels of firefighters from exemption. Rather, FLSA exemptions turn on the nature of an employee’s actual primary duties, and as such, the inquiry is highly fact-specific. Here, Plaintiffs spent the majority of their on-duty time performing non-manual office work, including management tasks and “special projects” related to the administration of the Department. Critically, Plaintiffs spent an average of only 1.79% of their total shift time on emergency response. Based on these facts, the court held the Battalion Chiefs were not covered by first responder regulation. The court further held that these Plaintiffs met the three requirements to be exempt under the FLSA highly compensated employee exemption. Therefore, the court granted summary judgment for the City and dismissed the case.

FACTS

The Vista Fire Department Battalion Chiefs’ Duties were Primarily Managerial

A thorough understanding of Plaintiffs’ regular duties is essential to the exemption analysis as it depends on individualized circumstances. As Battalion Chiefs, Plaintiffs ranked third in the Department’s chain of command, under the Fire Chief and two Deputy Fire Chiefs. During the discovery phase of this case, Plaintiffs affirmatively admitted that they spent the majority of their on-duty time performing office or non-manual work including management tasks and administrative “special projects.” In contrast, they spent very minimal time performing emergency response duties.

Management Duties – Plaintiffs oversaw the operations of six fire stations, supervising six Captains (one at each station) and 12 to 24 Firefighter Engineers and Paramedics, including:

• Ensuring adequate staffing to respond to emergencies;
• Checking that no employee worked unauthorized overtime;
• Ensuring Captains were following Department polices and standards;
• Monitoring and evaluating Captains’ performance and issuing disciplinary actions;
• Coaching, counseling, and/or reprimanding lower ranked firefighters;
• Completing annual performance evaluations for Captains, which impacted pay;
• Reviewing Captains’ performance evaluations of lower-ranking members;
• Conducting trainings on effective emergency response and fire suppression operations.

Special Project Duties – each Battalion Chief was assigned non-manual office work necessary for Department operations in one of three areas.

• Records management – ensuring proper recordkeeping of fire incidents; generating summaries for the Fire Chief; learning and training staff on new software.
• Purchasing equipment and supplies – maintaining inventory; purchasing replacements as needed; ensuring all firefighters were adequately outfitted with PPE; tracking access.
• Maintaining fire engines and firefighting equipment - coordinating maintenance and repairs for all fire engines, scheduling testing and repairs for equipment; obtaining necessary certifications required for the firefighters to use their equipment.

Emergency Calls and Fire Suppression Duties – Plaintiffs spent an average of only 1.79% of their total shift time spent on emergency response, and their emergency duties differed significantly from those of the frontline firefighters they supervised:

• They were dispatched to less than 4% of emergency calls;
• They had discretion to add or remove themselves to and from an emergency call;
• When they did arrive on scene, Battalion Chiefs usually did not perform frontline firefighting work. Instead, about 75% of the time they acted as Incident Commander, a managerial role monitoring equipment, surveilling communications, and directing resources and medical personnel where they were needed;
• They were periodically deployed to help other fire stations at larger fires in neighboring areas or to the Strike Team to help in areas further away.

ANALYSIS

The First Responder Regulation Does Not Categorically Bar Firefighters from Exemption

The court first analyzed Plaintiffs’ contention that the first responder regulation at 29 C.F.R. § 541.3(b) creates a bright-line rule that all firefighters are barred from exempt status regardless of the primary duties of their employment. The regulation explains that FLSA exemptions do not apply to firefighters who perform work such as “preventing, controlling or extinguishing fires of any type” because “their primary duty is not management of the enterprise.”

The court found that the first responder regulation does not override the “primary duty test” that is used to determine exempt status. The court explained the plain reading of the regulation clarifies firefighters are nonexempt “if and because their primary duty is direct physical engagement with fires.” The regulation does not state that any worker within the firefighting field is automatically nonexempt. In fact, the preamble of the regulation explicitly states that certain “high-level police and fire officials” could be exempt if their primary duty consisted of “performing managerial tasks.” Therefore, the Battalion Chiefs could not rely on the first responder regulation to claim nonexempt status, and further examination into their primary duties was necessary to evaluate their claims.

The Vista Fire Battalion Chiefs Were Exempt Highly-Compensated Employees

Finding exemption was not barred by the first responder regulation, the court next analyzed whether the Battalion Chiefs qualified for the FLSA highly compensated employee exemption. 29 C.F.R § 541.601. The court found Plaintiffs satisfied each of the three elements as follows:

1) Annual compensation of at least $107,432 annually (at the time of the suit).

2) Customarily and regularly performed any one or more of the exempt duties or responsibilities of an executive, administrative, or professional employee.  Here, Plaintiffs performed executive duties because their “primary duty [was] management of the enterprise,” they regularly directed the work of two or more employees, and their recommendations regarding hiring, firing, and changes in employment status carried weight. See 29 C.F.R. § 541.100(a)(2)-(4). The fact that Plaintiffs were not involved in some personnel duties (i.e., promotions, investigations; labor negotiations; managing budgets, hiring, firing, setting pay levels) did not overcome this relaxed duties test.  

3) Primary duties included performing office or non-manual work. Here, Plaintiffs admitted the majority of their on-duty time was spent on the managerial tasks and non-manual special projects, and only a de minimis amount of on-duty time was spent responding to emergency calls. The Battalion Chiefs’ “principal value” to the employer was in overseeing the operations and personnel of the six fire stations, not on-the-ground firefighting, and they were largely free from direct supervision.

The court frequently referenced two cases that provided guidance in its analysis. In Morrison v. Cnty. of Fairfax, VA, 826 F.3d 758 (4th Cir. 2016), the court found the fire captains were nonexempt because their primary duty was first response. On the other hand, Emmons v. City of Chesapeake, 982 F.3d 245 (4th Cir. 2020),held the battalion chiefs were exempt because they were the brain of the firefighting operation, and their primary duty was management, not frontline firefighting.

CONCLUSION

The court summarized its findings that the Vista Fire Department Battalion Chiefs were “high-level fire officials whose principal mission was to manage fire station operations and personnel to ensure their operational readiness to respond to emergencies.” These managerial primary duties removed Plaintiffs from the first responder regulation. Based on the specific facts of this case, these Battalion Chiefs qualified for the highly compensated employee exemption under the FLSA. Accordingly, Plaintiffs were not entitled to overtime pay and the court dismissed the lawsuit.

Settlement: The "Stipulation with Request for Award"

    

  This blogger greets you again, but with the topic on the most common way to settle your workers’ compensation injury, the “Stipulation with Request for Award”. But what is a “Stipulation with Request for Award” and how does it work?

    A “Stipulation with Request for Award” generally gives you a lifetime medical award (yes, until you die, even if you switch employers, retire, get fired or move out of state). However, medical care is generally limited to treatment in the insurance company’s medical provider network (MPN) subject to denials of care. Your monetary award will be limited to the value of your percentage of permanent disability (PD) which originates from the impairment assigned from the QME or AME which can be further reduced based on apportionment (how much of your disability is from work or is pre-existing or is from non-industrial factors).

    A “Stipulation with Request for Award” generally pays you the value of your percentage of permanent disability in payments of $290.00 per week (for maximum wage earners) until the sum is paid in full. Note, the payments may have started on the “permanent and stationary” date if you were not working at the time of being found “permanent and stationary” by a doctor. If you were working, you would not have received payments beginning on the permanent and stationary date, thus, retro pay may be paid to make you current and to catch up on payments that would have been paid (but were not because you were working). However, there are exceptions to this general rule on when PD payments start.

    Accrued benefits owed to you are generally paid to your attorney first (if you are represented). Sometimes the accrued PD is not enough to pay the attorney fee and in that case the insurance company will borrow money off the back end of your payments to pay your attorney. Borrowing money off the back end of your payments generally involves a 3% interest rate which is much cheaper than interest rates today. Payments to you should continue until the remainder is paid. Then, no further PD money is owed to you. However, there are exceptions to this general rule and in some cases, additional PD payments can occur.

    Why is permanent disability paid in payments? Well, permanent disability is first translated into a number of weeks of payments under Labor Codes §§ 4453 and 4658. Then, the amount paid per week is determined on your average weekly wage multiplied by two-thirds with a minimum permanent disability payment per week of $160.00 and a maximum permanent disability payment per week of $290.00. Put another way, a 12% permanent disability rating that is worth 38.25 weeks of payments, is worth $6,120.00 to a minimum wage earner and $11,092.5 to a maximum wage earner. Through this example, you can see that the same injury to a minimum wage earner is worth less compared to a maximum wage earner. This concept applies to wage loss supplemental pay as well, which we call temporary disability and highlights how the workers’ compensation system regarding indemnity discriminates based on earnings.

    In a “Stipulation with Request for Award,” you can reopen your claim within 5-years of your original date of injury if your injury worsens, thereby seeking an increase in the percentage of permanent disability. Also, within 5-years of your original date of injury, you can seek compensation for a compensable consequence (a consequential injury that would have never occurred but for the original injury). Within 5-years from your original date of injury, you can also use unspent temporary disability pay if a work comp doctor pulls you off work or gives you work restrictions your employer cannot accommodate (but that is rare if a doctor has already deemed you to be “Permanent and Stationary”).

    In conclusion, I hope this information helps you better understand how the most common settlement type (the “Stipulation with Request for Award”) works. However, please beware, much more can be settled, waived, dismissed or released in a “Stipulation with Request for Award” so you must read and fully understand everything that is agreed upon. That is why having a skilled, trained and knowledgeable attorney is important. Having a good attorney can help you secure a good QME or AME to start with and can help you secure proper compensation and medical care. 

    Mastagni Holstedt attorneys have built a track record of success at trial and on appeal in state and federal courts across California. Founded on attorney-client privilege, we have been assisting police officers, firefighters and other safety workers for decades in matters ranging from internal discipline and criminal defense to wage and hour, disability and workers’ compensation claims. If agreed upon, our office can file your claim for you, direct you to treatment, give you the best advice and see you through your injury until the end. This blog is for educational purposes only. This is not legal advice. There is no substitute for competent legal advice tailored to your specific circumstance. 

By Jonathan Drake Char, Esq. 

US Supreme Court Delivers Big Win For Police Officer in Title VII Challenge to Involuntary Transfer

 On April 17, 2023, the United State Supreme Court ruled in Muldrow v. City of St. Louis (2024) 601 U.S. 346 that to prevail in a Title VII suit, an employee must show some harm from a forced transfer, but the harm does not need to satisfy any particular level of significance. The Court held that changes to working conditions such as responsibilities, duties, schedules, and work perks were sufficient to establish an employment disadvantage. 

A St. Louis Police Department Sergeant, Jatonya Clayborn Muldrow, brought suit alleging that the Police Department violated Title VII by transferring her to another position due to her gender. Between 2008 and 2017, Muldrow worked as a plainclothes officer in the Department’s specialized Intelligence Division. In 2017, the new Division commander initiated a transfer of Muldrow out of the unit against her wished, so that she could be replaced with a male officer. The outgoing commander communicated with the new commander that Muldrow was an exemplary sergeant. The new commander testified that he deemed Muldrow’s male replacement to be a “better fit for the Division’s very dangerous work.” Additionally, the new commander repeatedly referred to Muldrow as “Mrs.” rather than “Sergeant.” 

Muldrow’s rank and pay remained the same, but her perks, responsibilities, and schedule changed. After the transfer, Muldrow no longer worked with high-ranking officials on specialized Intelligence Division priorities and instead supervised the day-to-day activities of patrol officers. Muldrow also had her FBI status and access to an unmarked take-home vehicle revoked and her schedule became less regular and included weekend shifts. 

The District Court granted the City summary judgment which was affirmed by the Eighth Circuit because Muldrow failed to show that the transfer caused her a “materially significant disadvantage.” (30 F.4th 680, 688.) Because the transfer had caused “only minor changes in working conditions” and not “a diminution to her title, salary, or benefits,” Muldrow’s suit could not proceed. 

The Supreme Court overruled the Eighth Circuit, holding that the harm required for a challenged transfer under Title VII need not be significant. Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such an individual’s sex.” (42 USC § 2000e-2(a)(1).) The statutory language therefore merely required that Muldrow prove some disadvantageous change to an identifiable employment term or condition as a result of the transfer. The statute does not require that the harm be economic or tangible. 

The transferee does not have to show that the harm was significant or exceeded some heightened bar as “discriminate against” means simply to be treated worse on some basis. Nowhere in the statute is there a demand for significant harm, as was required by the Eighth Circuit. 

The City presented three arguments to justify a heightened significance standard: statutory text, precedent, and policy. The Court held that none of these arguments justified the use of such a bar. The Court rejects the statutory text argument because any harm resulting from a discriminatory employment action is united on that basis, making all effects equal regardless of significance. Additionally, past Supreme Court decisions have only imbued a significant harm standard on retaliatory employer actions serious enough to dissuade an employee from pursuing a discrimination charge. Lastly, the Court found it unpersuasive that employees would flood the courts with litigation without a significant harm standard because courts have multiple ways to dispose of meritless claims. Regardless, the Supreme Court refused to add words to the statutory language to "achieve what the City would deem a desirable result.”

This decision provides police officers additional legal basis to challenge an involuntary transfer, even without a direct loss in pay.  The Peace Officers' Procedural Bill of Rights and the Firefighters Bill of Rights guarantee California public safety employees the due process right to appeal any transfer for the purpose of discipline or resulting in the loss of pay.  However, these statutes provide limited protections for non-disciplinary transfers from desirable or career enhancing assignments that are not associated with special assignment pay. 

        As a result of this decision, an employee who is forcefully transferred to a new role because of sex, gender, race, or some other protected basis may challenge the transfer under Title VII even if there is not a direct loss in pay, so long as there was some harm to his or her employment conditions. The employee need not prove that the transfer caused a significant, serious, or substantial adverse effect, only that there was an adverse effect at all.This decision has since been cited by the Ninth Circuit and the Second District Court of Appeal of California.