Supreme Court Holds Officer’s Pre-Shooting Conduct Relevant but Not Determinative in Use-of-Force Cases, Consistent with California’s Totality Framework

    In a unanimous ruling on May 15, 2025, the U.S. Supreme Court revived a civil rights lawsuit against Houston-area traffic officer Roberto Felix Jr., who fatally shot 24-year-old Ashtian Barnes during a 2016 traffic stop. The Court overturned the Fifth Circuit’s dismissal of the case, which had relied on a narrow “moment-of-threat” doctrine, limiting review to the seconds before the shooting. Writing for the majority, Justice Elena Kagan emphasized that the Fourth Amendment requires courts to consider the “totality of circumstances,” including an officer’s actions leading up to the use of force, as established in the 1989 Graham v. Connor precedent. This ruling strengthens protections for evaluating California peace officers by establishing an analytical framework that balances the officer’s tactical decisions against the suspect’s threat, while affirming that a genuine and immediate threat can justify deadly force, even if the officer made errors in judgment.

    The Court’s opinion mirrors Penal Code § 835a(e)(3)’s requirement to include "the conduct of the peace officer and the subject leading up to the use of force." Both frameworks reject a narrow focus on the instant of force deployment and mandate a broader contextual analysis. Peace Officers Research Association of California (“PORAC”) and the California Association of Highway Patrolmen (“CAHP”) filed an amicus curiae brief arguing against adopting a rigid “provocation rule” that would automatically negate an officer’s self-defense rights based solely on their prior actions. The Court held that reckless or unreasonable actions (e.g., escalating a minor stop into a deadly encounter) could weigh against the reasonableness of force but do not automatically negate a justification defense. Courts must also consider the suspect’s actions, and the immediacy of the suspect’s threat is often the "most important and fact-intensive" factor.

    The case arose when Felix pulled Barnes over for unpaid tolls, and Barnes drove away. Standing on the doorsill of the vehicle as Barnes sped away, Felix shot him in self-defense. Barnes’ mother, Janice Barnes, sued under Section 1983, alleging excessive force. Lower courts dismissed the suit, citing the Fifth Circuit’s moment-of-threat analysis.

    The Supreme Court rejected this approach, finding it improperly narrowed Fourth Amendment protections. The ruling requires consideration of pre-shooting conduct of both the officer and the suspect in weighing the totality of the circumstances and sent the case back to the lower court for reconsideration. While the decision affirms the definition of totality of the circumstances set forth in AB 392 (Penal Code § 835a(e)(3)), the Court did not determine whether Felix’s alleged escalation of the danger negated the reasonableness of his use of deadly force in response to the threat posed by Barnes’s actions. Instead, it left this question for lower courts to address under the broader totality framework.

    While the decision arguably opens new avenues for police liability, consideration of whether an officer's actions prior to a shooting helped create the danger they later claim justified deadly force was held to be one of many reasonableness factors. Ultimately, the Court issued a narrow ruling about the “timing” of the totality of the circumstances and expressly declined to address the appropriateness of the “Provocation Rule” theory, which had been previously rejected in County of Los Angeles v. Mendez and which the California Legislature had also rejected in amending AB 392. The majority explained:

We do not address here the different question Felix raises about use-of-force cases: whether or how an officer's own “creation of a dangerous situation” factors into the reasonableness analysis. The courts below never confronted the issue, precisely because their inquiry was so time-bound. In looking at only the two seconds before the shot, they excluded from view any actions of the officer that allegedly created the danger necessitating deadly force. So, to use the obvious example, the courts below did not address the relevance, if any, of Felix stepping onto the doorsill of Barnes's car. And because they never considered that issue, it was not the basis of the petition for certiorari. The question presented to us was one of timing alone: whether to look only at the encounter's final two seconds, or also to consider earlier events serving to put those seconds in context. (Citations omitted.)

    Justice Kavanaugh’s concurrence, joined by Justices Thomas, Alito and Barrett, provided important guidance for assessing the reasonableness of an officer’s use of force in response to a fleeing vehicle. His concurrence elaborates on the inherent dangers of traffic stops for police officers, particularly when a driver flees, and emphasizes the need for courts to consider these risks when assessing the reasonableness of an officer’s use of force. Highlighting that traffic stops are “fraught with danger” for officers, he cited historical examples of officers killed or assaulted during such encounters, even for minor violations. He noted that drivers who flee, such as Barnes, amplify these risks by potentially endangering the officer, bystanders, and other drivers. Fleeing in the face of a minor violation may also indicate more serious criminal activity, such as possession of illegal drugs, weapons, or involvement in violent crimes, as illustrated by cases like Timothy McVeigh and Ted Bundy, who were apprehended after traffic stops.

    The concurrence outlines the limited and risky options available to an officer when a driver flees: (1) letting the driver go, which may embolden dangerous behavior and pose public safety risks; (2) pursuing the driver, which can lead to hazardous high-speed chases; (3) shooting at the vehicle’s tires, which is often ineffective and dangerous; or (4) physically intervening, as Felix did by jumping onto the vehicle. Kavanaugh stresses that none of these options are safe, requiring officers to make split-second decisions in “tense, uncertain, and rapidly evolving” circumstances. His concurrence underscores the need for judicial sensitivity to the real-world risks officers face, ensuring that the reasonableness analysis reflects the high-stakes nature of such encounters.

    Echoing PORAC and CAHP’s arguments, he urges courts to recognize the extraordinary dangers of traffic stops, especially when drivers flee, and to account for the suspect’s flight as a key factor in the “totality of the circumstances.” “The question when a driver flees, therefore, is not merely whether the underlying traffic violation ‘presents risks to public safety’—it is also ‘whether flight,’ and what that flight might indicate or enable, ‘does so.’” In other words, the “totality of the circumstances” inquiry includes not only the “severity of the crime” that prompted the stop but also takes into account the suspect's attempt “to evade” the officer “by flight.”

    In conclusion, the Supreme Court’s opinion in Barnes v. Felix largely conforms with the arguments raised in PORAC and CAHP’s amicus brief rejecting a rigid provocation rule and that holding the pre-shooting conduct of the officer is merely one factor in the calculus of reasonableness. By avoiding clear guidance on the weight such conduct should be afforded, the Opinion does open the door for continued scrutiny of tactical decisions. However, the concurrence strongly suggests that Felix’s tactics may have been within the range of reasonableness and cautions lower courts against both hindsight analysis and failing to apportion significant weight to the risk posed by a suspect fleeing in a vehicle. In sum, the Court confirmed that for a justification defense to be nullified, the officer’s conduct would need to be so egregious that it outweighs the immediacy of the suspect’s threat in the reasonableness calculus, aligning closely with California’s framework under Penal Code § 835a.

    David E. Mastagni was privileged to file the amicus curiae brief on behalf of PORAC and CAHP.   

AB 2561: New Amendments to the MMBA Bring Transparency to the Public Sector Vacancy Crisis

    AB 2561, signed into law in September 2024, amends the Meyers-Milias-Brown Act (MMBA) to address the persistent public sector vacancy crisis in California while significantly enhancing the role of public sector unions in collective bargaining. Staffing vacancies in local governments continue to be a problem plaguing public service and affecting a wide range of occupations, including critical services like public safety. These vacancies tend to negatively impact both the public service employees that pick up the extra work and the Californians who rely on these public service deliverables.

    AB 2561 seeks to address this growing vacancy crisis and gives unions an additional avenue to address vacancy concerns outside of the regular contract negotiations cycles. It requires agencies to essentially provide yearly presentations focused on vacancy issues and solutions, along with providing unions: (1) an opportunity to present at such hearings, (2) an ability to put pressure on governing bodies to fix vacancy rates, and (3) an ability to gain easy access to data useful for other collective bargaining purposes. By mandating transparency in staffing data and providing unions with structured opportunities to influence agency policies, the bill equips unions with powerful tools to advocate for better wages, working conditions, and staffing levels.

    The Peace Officers Research Association of California (PORAC) and the California Professional Firefighters (CPF) are two of the many labor organizations that supported AB 2561.  

How Did We Get Here & Legislative Intent:

    The Legislature’s adoption of the bill followed a series a legislative findings in which the Legislature noted that “[j]ob vacancies in local government are a widespread and significant problem for the public sector affecting occupations across wage levels and educational requirements.” High vacancies put pressure on current employees who are forced to handle heavier workloads, and understaffing leads to burnout and increased turnover, which further exacerbates staffing challenges. The problem compounds as public service workers increasingly move into the private sector as they seek other jobs with more predictable hours, manageable workloads, and competitive pay.

    High vacancy rates in local government agencies have strained public service delivery and employee morale. The Legislature, citing a University of California at Berkeley Labor Center report, noted that vacancies across various occupations increase workloads for existing staff, leading to burnout, turnover, and a growing reliance on temporary or contracted workers. An example of this alarming trend can be found in a recent report by the California State Auditor. For example, a California State Auditor report highlighted a backlog of 47,000 wage theft claims at the Labor Commissioner’s Office, with resolution times exceeding 854 days due to understaffing. These challenges drive public sector workers to the private sector for better pay and manageable workloads, further exacerbating the crisis.

What AB 2561 Does:

    AB 2561 amends section 3502.3 of the Meyers-Milias-Brown Act (MMBA) to require public agencies to present detailed vacancy and recruitment data at an annual public hearing before their governing board. It requires a public agency to present the status of vacancies and recruitment and retention efforts during a public hearing before its governing board at least once per fiscal year.

    AB 2561 also imposes additional requirements on the agency if the number of job vacancies within a single bargaining unit meets or exceeds 20% of the total number of full-time positions. In such cases, the public agency (upon the union’s request) must include the following information in its presentation:

1.      The total number of job vacancies within the bargaining unit

2.      The total number of applicants for vacant positions within the unit

3.      The average number of days to complete the hiring process

4.      Opportunities to improve compensation and other working conditions

    This transparency statute is intended to disclose obstacles to recruitment and retention by requiring that the agency’s presentation must identify any necessary changes to policies, procedures, and recruitment activities that may lead to obstacles in the hiring process.

    The bill grants unions the right to present at the annual public hearing, with no time limit on their presentation. This provision allows unions to directly address governing bodies, such as city councils, and highlight the impact of vacancies on employees and public services. The bill encourages collaboration between agencies and unions to develop vacancy reduction plans. This collaborative framework also fosters stronger employer-employee relations, which can lead to more productive negotiations. By presenting in a public forum, unions can advocate for public agencies to prioritize recruitment and retention strategies, including budget allocations for higher wages or additional positions.

    This public platform amplifies the workers’ voices, enabling them to influence budgetary policies outside of traditional bargaining sessions. AB 2561 mandates that the agency’s vacancy presentation occur before the adoption of the final budget. This timing enables unions to influence budgetary decisions related to staffing and compensation.            

Conclusion:

    AB 2561 has the potential to not only mitigate the public sector vacancy crisis but also reshape the landscape of public sector labor negotiations, fostering greater accountability and collaboration between agencies and their employees. The disclosure mandates provide unions with critical evidence of recruitment and retention challenges without the need for time-consuming Public Records Act (PRA) or MMBA requests. Unions can use this data to challenge agency costing models during contract negotiations, demonstrating the need for increased staffing, higher wages, or improved benefits. For instance, data showing prolonged hiring times or low applicant numbers can bolster union arguments for competitive compensation packages to attract and retain workers.

When Agency Heads Must Speak Up: PERB’s New Video Notice Remedy

 

If you’re a public safety employee in California, you know your job comes with high stakes and unique workplace challenges. You also have rights under state labor laws, enforced by the Public Employment Relations Board (PERB). In two recent cases involving school districts, PERB ordered an unusual remedy: the districts’ top officials must read a notice out loud, record it on video, and share it with employees. While these cases involve schools, they set a precedent that also applies under the MMBA, Dills Act, etc. This post explains why PERB ordered this extraordinary remedy, and what it means for your workplace rights.

Background

In these cases, PERB found that two school districts violated the Educational Employment Relations Act (EERA), a law that protects public employees’ rights to organize and speak out.

• Clovis Unified School District (PERB Decision No. 2904, October 2024): Clovis Unified illegally propped up an employee group called the Clovis Unified Faculty Senate, giving it money, special access, and preferential treatment over a competing union, the Association of Clovis Educators (ACE). This created a “company union” that wasn’t truly independent, undermining employees’ freedom to choose their representation.
• Hacienda La Puente Unified School District (PERB Decision No. 2930, November 2024): The district retaliated against Margarita Caldera, a union leader who spoke out about workplace safety and contract issues during the COVID-19 pandemic. They investigated her, accused her of breaking their “civility policy,” and ordered her to stay quiet, scaring her so much she stepped down as union president.

These violations aren’t unique to schools. Peace officers, firefighters, and public attorneys often face similar issues: management favoring one union, punishing union leaders for speaking out, or interfering with your right to organize. PERB’s new remedy of a spoken notice read aloud and recorded sends a strong message to management.

What’s a Spoken Notice, and Why Video?

Normally, PERB orders employers to post a written notice, like on a break room bulletin board, promising to follow labor laws. But in these cases, PERB upped the ante:

• Clovis Unified: The superintendent must read PERB’s notice aloud on video, and the video must be shown at staff meetings across all 50+ schools during the school year, ensuring everyone hears it.
• Hacienda La Puente: The superintendent must read the notice aloud at meetings with employees in Caldera’s bargaining unit, designed to reach as many workers as possible. A union representative can attend to ensure it’s done properly. While not explicitly requiring a video, the formal reading is meant to maximize impact.

Why did PERB order the top boss to read it aloud and record it? A written notice can be ignored in a busy workplace like a police station, firehouse, or the courthouse. Hearing your agency’s leader admit they broke the law, in their own voice, is harder to miss. This remedy:

• Shows Accountability: When the head of your agency reads the notice, it proves they’re taking the violation seriously and committing to change.
• Reaches Everyone: Your work is often spread across precincts, stations, or offices. Videos or live readings ensure the message gets to you, whether you’re on shift or in a meeting.
• Restores Confidence: If you’ve felt pressured to avoid a union or silenced for raising concerns, this public act reassures you that your rights are protected.

Why These Cases Matter to You

The violations in these cases hit close to home for public safety employees. In Clovis, the district controlled the Faculty Senate with money and influence, making it hard for employees to pick a union that truly represented them. Imagine your agency retaliating against your representatives for demanding better safety gear, less mandatory overtime, or fair disciplinary investigations. In Hacienda La Puente, Caldera was punished for raising safety issues, which scared others from speaking up. If you’re calling out unsafe equipment, unfair promotions, or contract violations, your agency can’t retaliate to silence you.

PERB ordered spoken notices because these violations were serious and widespread. Clovis Unified has a history of favoring one group, going back to 1984. Hacienda La Puente’s actions chilled free speech across the workplace. This remedy signals that PERB won’t let agencies undermine your rights to engage in concerted action, whether it’s understaffing, excessive overtime, or budget cuts.

What’s Next?

In Clovis, the district must record the superintendent reading the notice within 60 days of the decision being final (no more appeals) and show the video at staff meetings. In Hacienda La Puente, the superintendent must read the notice at employee meetings within 60 days or at the semester’s start, if the union prefers. Both districts also have to post written notices and take other steps, like stopping illegal actions and clearing Caldera’s disciplinary records.

These spoken notices are a wake-up call and a reminder that PERB has your back. When labor organization file unfair practice charges, they should consider requesting recorded readings of the notice. PERB can’t award remedies that the union does not request.

The President Signs the "Strengthening and Unleashing America’s Law Enforcement to Pursue Criminals and Protect Innocent Citizens" Executive Order

President Donald J. Trump, signed an Executive Order dated April 28, 2025, titled "Strengthening and Unleashing America’s Law Enforcement to Pursue Criminals and Protect Innocent Citizens." The order focuses on empowering state and local law enforcement by providing legal protections, increasing resources (e.g., military assets, training, and pay), revising federal oversight such as consent decrees, and holding officials accountable for obstructing law enforcement. It emphasizes proactive policing and rejects policies that the administration views as hindering public safety. Below is a concise summary of its key provisions:

1. Purpose and Policy: The order aims to empower state and local law enforcement to combat crime aggressively, protect citizens, and reject policies prioritizing race- or sex-based "equity." It emphasizes supporting police, establishing best practices, defending officers from unjust accusations, and surging resources to law enforcement.
2. Legal Defense for Officers: The Attorney General is directed to create a mechanism, including private-sector pro bono assistance, to provide legal resources and indemnification for officers facing unjust expenses or liabilities from actions taken in their official duties.
3. Empowering State and Local Law Enforcement: Federal resources will be maximized to:
• Develop best practices for aggressive policing.
• Enhance training, pay, and benefits for officers.
• Strengthen legal protections and seek harsher sentences for crimes against officers.
• Invest in prison security and crime data collection.
• Within 60 days, the Attorney General must review and modify or rescind federal consent decrees and agreements that hinder law enforcement.
4. Using National Security Assets: Within 90 days, the Attorney General and Secretary of Defense, with input from the Secretary of Homeland Security, will:
• Provide excess military and national security assets to local law enforcement.
• Determine how military assets, training, and personnel can prevent crime.
5. Holding Officials Accountable: The Attorney General will pursue legal remedies against state and local officials who:
• Obstruct criminal law enforcement unlawfully.
• Engage in discriminatory practices under "diversity, equity, and inclusion" initiatives that restrict policing or endanger citizens.
6. Homeland Security Task Forces: The Attorney General and Secretary of Homeland Security will use existing Homeland Security Task Forces (per Executive Order 14159) to advance this order’s objectives.
7. General Provisions: The order does not impair existing agency authority, is subject to applicable law and appropriations, and does not create enforceable rights against the U.S. government.  

The Executive Order provides significant benefits to peace officers through legal protections, increased pay, better training, access to advanced equipment, and enhanced safety measures. It also strengthens Association advocacy by aligning federal policy with their goals, boosting their bargaining power, and offering resources to protect and support members. These measures address key union priorities like officer safety, compensation, and operational support.