MORE ON THE RIPA LEGISLATION: David Mastagni Joins PORAC's "On the Job" Podcast on "Standing Up for Officer Privacy Rights"

       

    In April, David Mastagni and Tim Talbot sat down with PORAC President Brian Marvel to discuss a significant legal victory in the realm of law enforcement rights and privacy. The episode examines the PORAC v. Bonta matter in relation to the fight for officers' rights to not have to disclose their gender. The episode provides an overview of the Racial and Identity Profiling Act (RIPA) that forced police officers to disclose their gender identity when reporting the outcome of a traffic stop. 

    The episode also discusses the implications of overreaching Department of Justice (DOJ) policies on law enforcement professionals and the LGBTQ+ community and discusses officer privacy double standards. David Mastagni highlights how the RIPA gender disclosure requirement contradicts the privacy standard Attorney General Rob Bonta declared regarding school teachers and parent notifications of a student's gender identity. The episode also discusses the regulation's implications and how the regulations infringe upon the constitutional rights of peace officers. An explanation of the legal intricacies surrounding PORAC's temporary restraining order against DOJ is also discussed. 

    You can listen to the podcast by clicking here. 

    You can also watch the podcast on YouTube here. 

JUST IN: Permanent Injunction Issued Against the State of California Related to the RIPA Requirement to Disclose Gender Identity

    On April 30, 2024, Judge Christopher E. Krueger of the Sacramento County Superior Court issued a Permanent Injunction against the State of California prohibiting the DOJ from enforcement of RIPA’s gender disclosure requirements set forth in section 999.226(a)(23) of Title 11 of the California Code of Regulation.

    PORAC, the California Association of Highway Patrolmen, the California Police Chiefs Association, and the California State Sheriffs’ Association filed a legal action and obtained a TRO against the California DOJ to stop Attorney General Rob Bonta’s implementation of these forced identification regulations on January 22, 2024.

    David E. Mastagni and Timothy K. Talbot appeared in Sacramento Superior Court to request issuance of a Permanent Injunction pursuant to stipulation with the DOJ on April 30, 2024.  Today, the Court issued its order granting the permanent injunction which stated in pertinent part:

• “Defendants and their agents, employees, and representatives are permanently enjoined from enforcing section 999.226(a)(23) of Title 11 of the California Code of Regulations, a regulation under the California Racial and Identity Profiling Act of 2015 (RIPA) that requires certain law enforcement officers to document their gender identity when performing a stop.  (Gov. Code § 12525.5.)”

• “Defendants and their agents, employees, and representatives are permanently enjoined from requiring any individual required to comply with RIPA to provide the “gender of officer,” as defined in section 999.226(a)(23) of Title 11 of the California Code of Regulations, on any disclosures required by RIPA.”

    The Court’s minute explained:

    “The declarations submitted by Plaintiffs with the application for the temporary restraining order, coupled with the decision by Defendants State of California, California Department of Justice and Attorney General Rob Bonta not to contest that evidence and to stipulate to the injunction, provide sufficient factual and evidentiary basis for the issuance of a permanent injunction. The Court will approve the stipulation for final judgment.”

    We are proud to have represented law enforcement labor and management organizations to jointly protect the privacy rights of the peace officers who protect us all.

    For more on the RIPA legal battle, visit our previous blog post here outlining RIPA more fully. 

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