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

    

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

The Case and Decision

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

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

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

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

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

 

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

Discussion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Procedural History

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

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

Protecting Bruen & Public Safety

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

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

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

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

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

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

Image Creator: Michelle Ress 

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

Watch the oral argument below:

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

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

The Backstory:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

California Legislative Updates for 2024 and 2025: Sick Leave Expansion, Reproductive Loss Leave, & Workplace Violence Prevention

    California Governor Gavin Newsom signed several new employment laws impacting California employees. Unless otherwise specified, those laws, which are summarized below, took effect on January 1, 2024.  

S.B. 616: Sick Leave Expanded from Three to Five Days & Procedural Guarantees Extend to CBA Employees 

    Senate Bill (S.B.) 616 amends the Healthy Workplaces, Healthy Families Act of 2014 (HWHFA), the statewide paid sick and safe leave law, by increasing the required paid sick leave that an employer must provide each year from three days (or 24 hours) to five days (or 40 hours, whichever is greater). This means that an employee working 10-hour days will be entitled to use at minimum 50 hours of paid sick leave (this example assumes that the employee has earned or received upfront their full amount of leave).

   The new law keeps the requirement that leave must be accrued at a minimum rate of one hour for every 30 hours worked and the requirement for employers using an alternate accrual method that at least 24 hours of accrued leave be provided by the 120th day of employment. S.B. 616 adds an additional requirement that employers must provide at least 40 hours of accrued sick leave by the 200th day of employment. 

    Employers may still limit an employee’s annual usage of paid sick leave, but the annual usage cap increased from 24 hours or three days to 40 hours or five days. Existing law requires that accrued sick leave be carried over, but allows employers to set accrual caps. Under S.B. 616, employers may cap paid sick leave accrual at 80 hours or ten days (previously 48 hours or six days). 

    S.B. 616 also extends some procedural protections of paid sick leave law to nonconstruction industry employees covered under a collective bargaining agreement (CBA). The law previously excluded these CBA employees. Under the amended law, these employees now must be allowed to take sick leave for all the same reasons as covered employees (i.e., for the “[d]iagnosis, care, treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member”). Employers cannot require these employees to find a replacement worker and cannot retaliate against them for sick leave usage. 

    The new law however still excludes individuals employed by an air carrier as a flight deck or cabin crew member (if they receive compensated time off equivalent to paid sick leave law requirements). Other exempt groups include retired annuitants working for governmental entities, railroad employees, and construction employees covered by a CBA with specified provisions.

    For more information about California's amended paid sick leave law, please consult the FAQ shared by the California Labor Commissioner's Office (located here, updated December 21, 2023). 

S.B. 848: Five Days for Reproductive Loss

    S.B. 848 expands existing bereavement leave law and requires employers to provide up to five days of protected leave to employees who have: 1) worked for the employer for at least 30 days and 2) suffered a “reproductive loss event.” A “reproductive loss event” is defined as the day of a failed adoption, failed surrogacy, miscarriage, stillbirth or an unsuccessful assisted reproduction.” 

    The five days of protected leave are not required to be taken consecutively but should be taken within three months of the event. If an employee experiences more than one “reproductive loss event” in a 12-month period, the employer must provide up to 20 days of leave within that period. The reproductive leave is not required to be paid leave, but employees may use any acquired sick, vacation, or other paid time off. 

    The law adds Section 12945.6 to the Government Code and applies to private employers with five or more employees and to California public employers. The protections extend to any person who would have been a parent had the reproductive event been successful. Unlike existing bereavement law that carves out exemptions for CBA employees, S.B. 848 provides no exemption for CBA employees. 

    S.B. 848 explicitly characterizes reproductive leave loss as a “separate and distinct right” from any right under the Fair Employment and Housing Act, which grants legal protections from discrimination, retaliation, and harassment in the workplace. Employers that retaliate against an employee because of the employee’s exercise of the right to reproductive loss leave commit an unlawful employment practice. S.B. 848 also makes it an unlawful employment practice for an employer to deny, interfere with, or restrain an employee’s request to take reproductive loss leave. The new law also contains confidentiality provisions intended to protect the privacy rights of employees experiencing reproductive loss events. 

    Previous to S.B. 848, the law remained unclear as to whether reproductive losses qualified as a type of leave protected under existing bereavement law. Existing bereavement law requires employers to provide employees with at least five days of bereavement leave upon the death of a family member (Gov. Code § 12945.7.) Although the law defines “family member” to include “child,” Section 12945.7 makes no specific mention to reproductive loss being a qualifying event subject to bereavement law protections. S.B. 848 clearly addresses this question. 

S.B. 553: Labor Union Ability to Apply for Workplace Restraining Order

    Approved by the Governor in September 2023 and commencing January 2025, S.B. 553 authorizes a bargaining unit representative to seek a temporary restraining order (TRO) on behalf of a bargaining unit member that has suffered unlawful violence or a credible threat of violence from any individual. Existing law already allows an employer to seek a TRO under similar circumstances, and S.B. 553 expands that provision to include unit representatives. At the discretion of the court, a bargaining unit representative may also seek a TRO on behalf of any number of other employees at the workplace, and if appropriate, on behalf of other employees at other workplaces of the employer. 

    S.B. 553 also requires that before filing any petition seeking a TRO, an employer or bargaining unit representative must provide the injured employee an opportunity to decline to be named in the TRO. An employee’s request not to be named in the TRO does not prohibit the employer or the unit representative from seeking the TRO on behalf of other employees at the workplace or at other workplaces of the employer. 

    Existing law, the California Occupational Safety and Health Act of 1973, imposes safety responsibilities on employers and employees, including the requirement that an employer establish and implement an effective injury prevention program and makes violations of these provisions a crime. S.B. 553 requires an employer to establish, at all times in all work areas, an effective workplace violence prevention plan. The new provisions also require that the employer keep a violent incident log for every “workplace violence incident,” that the employer provide effective workplace violence prevention training, and that the employer maintain records related to its workplace violence protection plan. 

    The law defines “credible threat of violence” as a “knowing and willful statement or course of conduct that would place a reasonable person in fear for their safety, or the safety of their immediate family, and that serves no legitimate purpose.” “Unlawful violence” is defined as “any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self-defense or defense of others.”

Please find links to the laws discussed above here:

SB 616

SB 848

SB 553

The PTSD Presumption: Covered Employees, Qualifying Injuries, and Related Compensation

The History of the PTSD Presumption 

This blogger greets you again, but with the topic of Post Traumatic Stress Disorder (PTSD) and Labor Code § 3212.15 (the PTSD presumption). The PTSD presumption under Labor Code § 3212.15 is distinct from general psychiatric injuries under Labor Code § 3208.3 and was first introduced, passed, approved and chaptered in 2019 through Senate Bill 542 and was amended through Senate Bill 623 that was introduced, passed, approved and chaptered in 2023 which amended subdivision (f) and added subdivision (g) which extended its sunset expiration date to January 1, 2029 (previously January 1, 2025). Further, Senate Bill 623 added a reporting requirement on PTSD claims filed by “public safety dispatchers, public safety telecommunicators, and emergency response communication employees from January 1, 2020, through December 31, 2023,” due no later than January 1, 2025. Also, it added a reporting requirement on data regarding “the effectiveness of the presumption created by this section” due no later than January 1, 2027. Senate Bill 623 has been the only legislation changing Labor Code § 3212.15 (the PTSD presumption) since its inception in 2019.

Prior Efforts to Change the PTSD Presumption (SB 284, AB 597, AB 1107)

Senate Bill 284 attempted to expand coverage to public safety dispatchers, telecommunicators, emergency response communications employees, The State Department of State Hospitals, The State Department of Developmental Services, The Military Department, The Department of Veterans Affairs and various other sworn peace officers but Senate Bill 284 was vetoed by Governor Gavin Newsom on September 29, 2022 who explained, “Expanding coverage of the PTSD injury presumption to significant classes of employees before any studies have been conducted on the existing class for whom the presumption is temporarily in place could set a dangerous precedent that has the potential to destabilize the workers’ compensation system going forward, as stakeholders push for similarly unsubstantiated presumption.” Other proposed and pending Assembly Bills include Assembly Bill 597 aimed to cover emergency medical technicians and paramedics and Assembly Bill 1107 aimed to cover additional Peace Officers. Each are in “Referred to Com. on INS.” status as of 01/04/2024 (AB 597) and 03/02/2023 (AB 1107). Based on the new reporting requirements in Senate Bill 623, will the PTSD presumption come to an end? If not, who will be covered next? And who is covered now?  

Covered Employees

For a list of employees covered under the PTSD presumption, please review the most current version of Labor Code § 3212.15 subdivision (a) as this subdivision lists the classes of employees covered. At the time of writing this blog (2024), Labor Code § 3212.15 currently applies to:

(1) Active firefighting members, whether volunteers, partly paid, or fully paid, of all of the following fire departments:

(A) A fire department of a city, county, city and county, district, or other public or municipal corporation or political subdivision.

(B) A fire department of the University of California and the California State University.

(C) The Department of Forestry and Fire Protection.

(D) A county forestry or firefighting department or unit.

(2) Active firefighting members of a fire department that serves a United States Department of Defense installation and who are certified by the Department of Defense as meeting its standards for firefighters.

(3) Active firefighting members of a fire department that serves a National Aeronautics and Space Administration installation and who adhere to training standards established in accordance with Article 4 (commencing with Section 13155) of Chapter 1 of Part 2 of Division 12 of the Health and Safety Code.

(4) Peace officers, as defined in Section 830.1 of, subdivisions (a), (b), and (c) of Section 830.2 of, Section 830.32 of, subdivisions (a) and (b) of Section 830.37 of, Section 830.5 of, and Section 830.55 of, the Penal Code, who are primarily engaged in active law enforcement activities.

(5) (A) Fire and rescue services coordinators who work for the Office of Emergency Services.

(B) For purposes of this paragraph, “fire and rescue services coordinators” means coordinators with any of the following job classifications: coordinator, senior coordinator, or chief coordinator.

Qualifying Injury

What type of psychiatric injury is covered under this presumption? Labor Code § 3212.15 subd. (b) explains “injury” includes “post-traumatic stress disorder,” as diagnosed according to the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association that that develops or manifests itself during a period in which any person described in subdivision (a) is in the service of the department, unit, office, or agency. Therefore, this statute specially applies to PTSD which is a distinct diagnosis (a critical factor). Another critical factor is whether the PTSD injury developed or manifested itself during a period in which the covered employee was in the service of the department, unit, office, or agency. Expert medical opinion framed in terms of substantial medical evidence is required under this section. 

Compensation

There are many technical rules involving the PTSD presumption for example, compensation shall not be paid pursuant to this section unless the person performed services for the department, unit, office, or agency for at least six months (the six months of employment need not be continuous); unless the injury is caused by a sudden and extraordinary employment condition. Upon a finding of compensability regarding the PTSD presumption, compensation includes full hospital, surgical, medical treatment, disability indemnity, and death benefits. The rate of pay and amount of pay (if any) are derived from a variety of factors and vary from case to case. 

Date of Injuries Covered

Labor Code § 3212.15 subd. (e) states, “This section, as added by Section 2 of Chapter 390 of the Statutes of 2019, applies to injuries occurring on or after January 1, 2020.” And Labor Code § 3212.15 subd. (g) states, “This section shall remain in effect only until January 1, 2029, and as of that date is repealed.”

File a Claim – You Are Not Alone

If you suspect you have an industrial PTSD injury that developed or manifested itself during a period in which you were in the service of the department, unit, or agency and are an employee covered under the classes listed in Labor Code § 3212.15, subd. (a), file a claim right away without fear. Whether you wish to file a presumptive claim, or any claim in general, it is illegal for an employer to discriminate or otherwise discharge, or threaten to discharge, or in any manner discriminate against you because you filed or made known your intention to file a claim. See Labor Code § 132a. So don’t fear discrimination for filing a claim. And for PTSD in public safety, you are not alone. Senate Bill No. 542 Section 1 explained, “The Legislature finds and declares all of the following:

(a) Firefighting and law enforcement are recognized as two of the most stressful occupations. Only our nation’s combat soldiers endure more stress. Similar to military personnel, California’s firefighters and law enforcement personnel face unique and uniquely dangerous risks in their sworn mission to keep the public safe. They rely on each other for survival while placing their lives on the line every day to protect the communities they serve.

(b) On any given shift, firefighters and law enforcement personnel can be called on to make life and death decisions, witness a young child dying with their grief-stricken family, or be exposed to a myriad of communicable diseases and known carcinogens. Firefighters and law enforcement personnel are constantly at significant risk of bodily harm or physical assault while they perform their duties.

(c) Constant, cumulative exposure to these horrific events make firefighters and law enforcement personnel uniquely susceptible to the emotional and behavioral impacts of job-related stressors. This is especially evident given that the nature of the job often calls for lengthy separation from their families due to a long shift or wildfire strike team response.

(d) While the cumulative impacts of these aggressive, deadly events are taking their toll, our firefighters and law enforcement officers continue to stand up to human-caused devastation and nature’s fury, but they are physically and emotionally exhausted.

(e) Trauma-related injuries can become overwhelming and manifest in post-traumatic stress, which may result in substance use disorders and even, tragically, suicide. The fire service is four times more likely to experience a suicide than a work-related death in the line of duty in any year.

(f) It is imperative for society to recognize occupational injuries related to post-traumatic stress can be severe, and to encourage peace officers, firefighters, and any other workers suffering from those occupational injuries to promptly seek diagnosis and treatment without stigma. This includes recognizing that severe psychological injury as a result of trauma is not “disordered,” but is a normal and natural human response to trauma, the negative effects of which can be ameliorated through diagnosis and effective treatment.”

The PTSD Presumption v. the Good Faith Personnel Defense 

How does the defense in Labor Code § 3208.3 subd. (h) come into play which says, “No compensation under this division shall be paid by an employer for a psychiatric injury if the injury was substantially caused by a lawful, nondiscriminatory, good faith personnel action. The burden of proof shall rest with the party asserting the issue.” For example, what happens if your PTSD injury was substantially caused by something your employer lawfully did to you (i.e. reprimanded you, threaten to fire you, demoted you, suspended you on a lawful basis)? Assuming an employee demonstrates by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury (which arguably does not apply to the PTSD presumption but instead applies to other psychiatric injuries), will the court find that the specific PTSD statute under Labor Code § 3212.15 controls over the good faith personnel action defense found in Labor Code § 3208.3 subd. (h)? Afterall, it is well established that where a general statute conflicts with a specific statute, the specific statute controls over the general one. (See Bates v. County of San Mateo (2019) 84 CCC 648 at page 656 (panel decision) citing Fuentes v. WCAB (1976) 41 CCC 42. Therefore, it’s my legal position Labor Code § 3212.15 controls over Labor Code § 3208.3 which leaves the employer disputing the PTSD presumption only by “other evidence” that must be reasonably certain in view of all the circumstances. 

Presumptive Injury Technicalities

For presumptive injuries (heart trouble, pneumonia, cancer, meningitis, blood-borne infectious disease, MRSA, tuberculosis, hepatitis, Lyme disease, biochemical substances, hernia, lumbar spine injuries, and yes, PTSD), this blogger disclaims a warning. Generally, no presumption is conclusive and presumptions are controvertible (rebuttable) and just because a presumption applies, that does not mean your presumptive claim will be automatically accepted. Here is how it works - once the employee demonstrates that the presumption applies, the burden shifts to the employer to negate it and disprove that the injury was related to work. The law does not require absolute certainty nor conclusive proof to overcome the presumption. All that the law requires is proof that is reasonably certain in view of all the circumstances. The evidence necessary to overcome a rebuttable presumption depends on the character and circumstances of each case, and no hard-and-fast rule can be laid down other than that proof to a reasonable certainty, such as would convince the mind of an ordinary person, must be presented. 

A common misconception of presumptive injuries involves the mistaken belief that if a presumption applies, the claim should be automatically accepted. But that is incorrect. Afterall, if a claim is accepted (and not barred by the statute of limitations [see Labor Code § 5405 where accepted claims can turn into time-barred claims]), the employer could be responsible for a lifetime of medical care including other benefits that can become very expensive. So, in most cases, before a claim is accepted, discovery is allowed (typically while your claim remains denied) which often involves a deposition, subpoena of records and evaluations by a Medical-Legal Expert. But you don’t have to go through this process alone (and you shouldn’t). 

Get Help Right Away

Our 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. 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.  Call us at (877) 212-6907 and see how our skilled attorneys can assist you or your organization. 

By Jonathan Drake Char, Esq. Jonathan Char is an Associate Attorney in our Workers' Compensation Department at Mastagni Holstedt, A.P.C. Jonathan's frank, full, and direct approach in litigation allows for an efficient, effective, and economic resolution of work-related injuries for all laborers including state and local public safety employees. He has been recognized as a Top Lawyer in Sacramento Magazine and a Rising Star Honoree with Super Lawyers Northern California. His aspiration to win demonstrates his commitment to our clients, and we are proud to have him as part of our team. 

Court Grants Temporary Restraining Order Halting Forced Gender Identification Requirements for California Peace Officers

On January 1, 2024, new California Racial and Identity Profiling Act (RIPA) regulations went into effect, forcing police officers to disclose their own gender identity any time they submit a RIPA report to their employing agency.  The new regulations required, among other new disclosures, that an officer disclose whether they are cisgender, transgender, or nonbinary on a form that is reviewable by other department employees.  This aspect of the regulation not only violates employees’ right to privacy in their gender identity, but also places law enforcement agencies in the untenable position of choosing between incompatible laws.  On January 23, 2024, Sacramento Superior Court Judge Christopher E. Kruger issued a Temporary Restraining Order (TRO) restraining the Department of Justice (DOJ) from requiring officers to disclose their gender identity and from enforcing that disclosure subsection of the new regulation. 

Compliance with RIPA is a condition of employment for California peace officers and all of the RIPA reporting information must be submitted by officers to their employing agency, which must review, approve, anonymize, and then submit the information to the DOJ.  The privacy safeguards in RIPA only allow agencies to remove the reporting officers' identifying information from the data reported to DOJ.  Nothing safeguards the privacy of the officer's reporting to their employers when submitting RIPA reports.

As such, the gender identity disclosure requirement directly conflicts with the California Fair Employment and Housing Act (FEHA) anti-discrimination laws and officers’ right privacy under the California and United States Constitutions. FEHA states, “it is unlawful for employers and other covered entities to inquire about or require documentation or proof of an individual's sex, gender, gender identity, or gender expression as a condition of employment.” (Cal. Code Regs. tit. 2, § 11034(i)(1).) The Attorney General has openly admitted Californians possess a right to privacy in their gender identity.  In a recent legal alert regarding gender identity privacy rights, the Attorney General stated, "forced disclosure policies violate students’ California constitutional right to privacy" and that "an individual has a constitutionally protected privacy interest in their sexual orientation or gender identity."  Paradoxically, his DOJ refused to afford peace officers these same privacy rights by enacting this regulation over objections.  

PORAC, the California Association of Highway Patrolmen, the California Police Chiefs Association, and the California State Sheriffs’ Association filed a legal action seeking a TRO against the California DOJ to stop Attorney General Rob Bonta’s implementation of these forced identification regulations. David E. Mastagni and Timothy K. Talbot appeared in Sacramento Superior Court on January 22, 2024 to request the TRO.  Today the Court issued its order granting the TRO and halting the DOJ's enforcement of the gender disclosure requirements pending a hearing set for March 19 on the issuance of a preliminary injunction. 

“PORAC remains committed to protecting the rights of all our members to live as they wish, identify as they see fit, and to share that identity on their own terms,” said PORAC President Brian R. Marvel. “It is not fair or right to put officers in the untenable position of disclosing their gender identity before they are ready to do so and as a condition of employment.” Read PORAC's press release here. 

The San Francisco Chronicle issued an article on January 23, 2024 covering the case and quoting David Mastagni. You can read the full article on their website here.  Similar coverage on the case can also be found on Officer.com here. 

Ninth Circuit Reinstates Injunction Against S.B. 2's Ban on Licensed CCW Authorization in Almost All Public Places

On January 6, 2024, a three-judge panel on the Ninth Circuit Court of Appeals dissolved a stay of a district court’s injunction against Senate Bill 2’s near-total ban on CCW gun carry in the state. In so doing, the Ninth Circuit has largely restored the status quo prior to the SB 2 ban on licensed concealed carry in nearly all public places.  Moreover, PORAC President Brian Marvel has been actively supporting the litigation, Mays v. Bonta, that obtained the issuance of an injunction against the carry restrictions in SB 2.

By SB 2’s plain terms openly admit “[i]t is the intent of the Legislature to enact legislation to address the United States Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen (2022)”, which held that the Second and Fourteenth Amendments protect a private citizen’s right to carry a handgun for self-defense outside the home. SB 2 amends or creates thirty separate sections of the penal code in regards to firearms possessions and the process for private citizens to obtain CCW permits. 

Prior to January 1, 2024, many private citizens vetted by a rigorous background check process and licensed by the state, regularly carried a firearm for personal protection. Some had done so for years.  SB 2 uprooted longstanding rights of CCW holders to carry in the places now designated as “sensitive” and thus off-limits. In what has been termed the “Vampire Rule”, SB 2 even prohibits CCW holders from carrying on private property open to the public, unless the owner first posts permission. In short, SB 2 designates nearly every public place a sensitive area where carrying is prohibited.  

The new statute and the implementing regulations also increased the costs and training requirements for obtaining a CCW, severely limiting the pool of eligible CCW instructors. 

Although SB 2 currently has minimal impact on active or retired peace officers, PORAC President Marvel remains concerned that the Legislature will eventually extend these restrictions to retired officers. The Legislature has recently began clawing back peace officer exemptions to gun laws such as the Unsafe Hand Gun Act (SB 377) and outright refusing to exempt peace officers from other noxious gun legislation, such as SB 505 which would have imposed strict liability even on the justified use of a firearm in self-defense and required firearm insurance. President Marvel filed a declaration in support of the injunction against SB 2, just as he had done previously in Boland v. Bonta to support an injunction against the Unsafe Handgun Act. (PORAC also filed an Amicus Curiae brief in the Ninth Circuit supporting the Boland injunction. The Ninth Circuit ruling on this appeal will be issued soon.)  

   

On December 20, 2023, Judge Carney enjoined SB 2's overly expansive sensitive places definitions banning carrying.  The Order describing SB 2 as “sweeping, repugnant to the Second Amendment, and openly defiant of the Supreme Court.” The preliminary injunction essentially maintained the status quo with respect to the pre-SB2 “gun-free zones” such as courts and government buildings. President Marvel’s declaration was cited repeatedly in the Order, which explained that criminals will not abide the restrictions imposed on highly vetted CCW holders. Marvel advised that if the State is serious about addressing gun violence, the Attorney General should fulfill his Constitutional duties to ensure enforcement of gun crime enhancements and prohibitions on firearm possession by prohibited persons in jurisdictions where progressive prosecutors are nullifying gun laws that actually enhance public safety. 

The Ninth Circuit Court of Appeals initially issued a stay that allowed the state’s new “gun-free zones,” which cover most public places and even private stores, to go into effect while that appeal is being heard. Thankfully, on January 6, 2024, the Stay was dissolved and the injunction is now restored while the Attorney General appeals the ruling. Although SB 2 currently exempts peace officers, the outcome of Mays will likely establish the outer limit of restrictions the Legislature can constitutionally impose on retired peace officers.