POBRA Entitles Peace Officers to Investigation Notes and Source Materials

A recently published Appellate Court case clarifies that Section 3303 of POBRA requires public employers to disclose original source materials placed within final investigative reports prior to Skelly hearings.  

In James Davis v. County of Fresno, a supervising juvenile correctional officer was terminated. Prior to his termination, James Davis was served with a Notice of Intent to terminate, as well as, a packet of information containing an Internal Affairs Report and a 2012 Memo. Both the IA report and the 2012 Memo referenced certain attachments. The attachments were not provided to Davis.   

On appeal, Davis alleged the County’s failure to produce those documents violated his procedural due process rights that apply before his Skelly hearing.  In addition, Davis alleged the failure to produce the requested documents violated his rights under POBRA, Government Code section 3303 (g), which states a peace officer is entitled to “any reports and complaints.”

The court held materials delivered prior to Davis's Skelly hearing satisfied the requirements of due process applicable before disciplinary action was imposed, but that the County violated Davis's right under POBRA to receive “any reports or complaints made by investigators or other persons.”

The court analyzed the facts under Gilbert v. Sunnyvale (2005), stating the materials provided to Davis were only required to 1) adequately explain the employer’s evidence, and; 2) provide notice of the substance of the evidence so that Davis could adequately respond at the Skelly hearing.  However, the Court suggested that Davis might have been able to carry his burden by demonstrating how his response at the Skelly hearing would be hindered by the absence of the attachments, but David never made this demonstration and the Court held Davis’s pre-removal safeguards under due process were not violated.

However, the Court interpreted the term “any reports” to include the incident reports and interview transcripts attached to a September 2012 memorandum that was authored/prepared by a special probation investigator. The Court specifically appealed to POBRA’s legislative intent that providing officers with a copy of the attachments to an investigative memorandum helps assure the integrity of the report because the officer will be able to check the source documents to determine if they are accurately described in the memorandum. Thus, interpreting the term “report” to include attachments furthers POBRA's purpose of promoting stability, integrity and public confidence in law enforcement.

This case illustrates the importance of serving disciplinary discovery requests under multiple statutory and Constitutional grounds.  Generally, public safety union members have due process discovery rights under Skelly, the MMBA, and the POBR/FFBOR.  Had Davis only requested the information under Skelly he would not have prevailed. Discovery of source materials and investigative notes are often critical in refuting the conclusions and summaries contained in disciplinary investigations.  

California Supreme Court Grants Review of Mastagni Holstedt, APC Workers Compensation Case

The California Supreme Court agreed to hear oral arguments on one of Mastagni Holstedt, APC's workers compensation cases. At issue in the case is whether a permanent peace officer is entitled to the maximum temporary disability benefit as a result of an on the job injury.

Officer John Larkin was injured in a motor vehicle accident in November of 2008 while employed as an active police officer with the City of Marysville. He received benefits under Labor code section 4850 which expired. He then received temporary disability benefits. The temporary disability benefits are paid at two thirds the weekly earning rate. Officer Larkin's weekly earnings were $1008 resulting in a $671 weekly temporary disability benefits rate.

However, Labor Code section 4458.2 states temporary disability benefits are paid at the maximum statutory rate for eligible peace officers. The maximum rate in 2008, the time of the case, was $916 per week. Labor Code section 4458.2 makes reference to Labor Code section 3362 which defines who is eligible for the maximum benefit. Labor Code section 3362 states that every person registered as an active police officer shall be considered an employee of the municipality he or she works for.

Labor Code section 3362 has evolved over time. Originally the language included only men and specified the peace officer had to be a volunteer to receive the maximum benefit. However, the California State Legislature in 1989 modernized the statute including both genders and removing the word "volunteer." This evidences the intent of the legislature to provide maximum benefits to all peace officers.

Officer Larkin challenged the lower compensation rate in front of the Workers' Compensation Appeals Board. He argued he was entitled to the full $916 per week rather than the $671 per week. The Workers' Compensation Appeals Board argued that since Labor Code section 3362 only applied to volunteer peace officers, Officer Larkin was not entitled to the maximum temporary disability benefit. On appeal, the California Court of Appeal for the Third District upheld the Workers' Compensation Appeals Board determination.

Mastagni Holstedt, APC appealed the decision to the California Supreme Court. In its briefs, the firm argues all officers, regardless of status, are entitled to maximum benefits. This is the clear language of the statute which must be followed by the court system. By reading extra terms into the statute, the Court of Appeal created an absurd result which harms peace officers across the state.

Oral argument for the case will be held on September 2, 2015 at 9 AM in San Francisco. The case will be argued by Mastagni Holstedt, APC attorney Brian A. Dixon. Mastagni Holstedt, APC attorney Gregory G. Gomez assisted in drafting the briefing materials for the case.

PERB Clarifies Jurisdiction Over "Mixed Unit" Associations with Peace Officer and Non-Peace Officer Members

In County of Santa Clara (2015) PERB Decision 2431-M, the Public Employment Relations Board  found PERB has jurisdiction over charges brought by labor associations representing mixed units.

This case involved the Santa Clara County Correctional Peace Officers Association, which represents one bargaining unit, the Correctional Employees Unit.  That unit is composed of peace officers under Penal Code section 830.1(c) and non-peace officer correctional officers.  This type of unit is sometimes called a "mixed unit."

There has been a dispute about whether PERB has jurisdiction over charges brought by or against labor associations representing peace officers, but also other employee classifications. The reason there is a dispute is that Government Code section 3511, part of the MMBA, exempts "persons who are peace officers" from the 2001 changes to the MMBA that gave PERB jurisdiction over the Act. Some parties claimed this meant PERB does not have jurisdiction over claims brought by labor associations representing mixed units, since those units contain peace officers.  The Board heard oral argument on this issue two years ago, but that case settled before the Board issued a decision.

Since this case also involved a mixed unit, the Board clarified its jurisdiction over these units.  The Board wrote "we make explicit PERB's authority to hear charges, such as the present one, that are brought by employee organizations, including employee organizations representing or seeking to represent units including persons who are peace officers."

The Board explained, "MMBA section 3511 precludes jurisdiction only with respect to charges brought by peace officers, not employee organizations."  The Board found support for this distinction in the MMBA's own definition of person which refers to a natural person, distinguishing it from an entity, such as a labor association.  Likewise, the Board noted the Legislature gave it jurisdiction over factfinding requests without a restriction on mixed units.

Mastagni Holstedt senior associate Jeffrey R. A. Edwards represented the Santa Clara County Correctional Peace Officers Association in the matter.

Court of Appeal Blocks Criminal's Attempt to Bypass Pitchess

In People v. Davis (Cal. Ct. App., June 12, 2014) 14 Cal. Daily Op. Serv. 6496, an appeals court held a convicted criminal could not bypass the Pitchess process on appeal.  The defendant attempted to get access to a peace officer's personnel file to try to claim the court made a mistake when it did not grant a Pitchess motion before trial.  The court decided he did not have a right to independent appellate review concerning a post-judgment Brady order. 

Instead, the court decided even in cases where a defendant can get discovery after a trial, he must comply with the Pitchess v. Superior Court, procedure and requirements.  The requirements include showing that the discovery sought is material to pending litigation.

Court Upholds Trial Verdict Against Peace Officer on Alleged POBR Violations

In Abney v. Board of Trustees of the California State University (May 20, 2013) 2013 WL 2241922, the Court of Appeal affirmed a trial verdict for the CSU.  The court said POBR only requires an employer to tell the officer of the nature of the investigation. The court decided the employer did not have to state the potential discipline or exactly what the charges were while the investigation was ongoing.  The Court also noted POBR does not require employers to record IA interviews.  It only requires them to give officers a copy of the recording or transcript if they do record them.

Court of Appeals Upholds Termination for Medical Marijuana Card-Holder

In Casias v. Walmart (Sept. 19, 2012) 2012 WL 4096153, the Court of Appeals for the Sixth Circuit upheld the termination of an employee who tested positive for marijuana even though he had a state-issued medical marijuana registry card.  Casias was an employee of Walmart in Michigan when he tested positive for marijuana on a drug test and Walmart fired him.  He claimed he never used marijuana at work or came to work under the influence and that Walmart should not be allowed to fire him because he had a state-issued medical marijuana card.  The Court disagreed.

The Court ruled Michigan's medical marijuana law did not prevent employers from firing workers who use marijuana, it just prevented State and local agencies from seeking criminal penalties against card holders.  The Court's ruling mirrors California law.  In Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, the California Supreme Court ruled California's medical marijuana law does not prohibit employers from firing marijuana users.  Several attempts to change California law to ban the practice have failed, most recently SB 129 which died in committee in February.

Court Limits Protections for Peace Officers Accusing Other Officers of Misconduct

In Dahlia v. Rodriguez (9th Cir., Aug. 7, 2012, 10-55978) 2012 WL 3185693, the Ninth Circuit decided the First Amendment does not protect a police officer who told an outside agency some of his colleagues went too far during interrogations.

Angelo Dahlia, a detective for the Burbank Police Department, accused other officers of excessive interrogation tactics. He told the Los Angeles Sheriff's Department that officers squeezed a suspect’s throat and placing the barrel of a gun directly under the suspect’s eye. Dahlia also claimed he heard noises coming from the interrogation rooms including yelling and the sounds of someone being hit. Dahlia was later placed in administrative leave.

Dahlia filed a federal civil rights lawsuit alleging unconstitutional retaliation. The Court concluded Dahlia's actions, as a part of his public employment, were not protected by the First Amendment because he failed to establish that: 1) his speech was “spoken in the capacity of a private citizen and not a public employee”; and 2) that placement on administrative leave constitutes an adverse employment action. The Court relied heavily on Huppert v. City of Pittsburg, (9th Cir. 2009) 574 F.3d 696.

The Ninth Circuit looked at the precedent setting case of Garcetti v. Ceballos (2006) 547 U.S. 410, which held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Under Garcetti, the protection of the First Amendment is thus limited where the speech is “part of the core tasks that the employee is ‘paid to perform,’” but not where the speech is merely related to the speaker’s public employment.” Huppert, decided after Garcetti, went further. There, the Court held police officers have a duty to blow the whistle because they must disclose information regarding alleged misconduct and corruption. The Court criticized the Huppert, but it was required to follow the rule. Thus, the Court held Dahlia was acting within his professional duties, and not as a public citizen, when he accused other officers of abusive interrogation tactics, and his speech was not protected under the First Amendment.

The Ninth Circuit did make one favorable ruling to police officers suing for retaliation. The Court decided “under some circumstances, placement on administrative leave can constitute an adverse employment action.”  Importantly, the appeal was just about First Amendment rights. Other parts of the case dealt with state laws that also protect whistleblowers.

San Diego Mayor Under Fire at PERB

The Sacramento Bee reports San Diego mayor Jerry Sanders was "grilled" for more than five and a half hours during last week's hearing at the Public Employment Relations Board.  Sanders and the City face scrutiny at PERB over their attack on employee's retirement security.  PERB granted the unions' request for injunctive relief in February, but a San Diego Court stalled the process temporarily.  Then, in June, PERB won the right to proceed at the Court of Appeal.  Now, PERB is processing the complaint and an administrative law judge will rule whether the City violated the MMBA by putting the pension measure on the ballot without meeting and conferring with the unions.  Both sides are expected to appeal regardless of the outcome.

Court of Appeal Vindicates Injured Workers' Right to Temporary Disability

In Meeks Building Center et al. v. WCAB and Salem Najjar (June 26, 2012, C065944; WCAB No. ADJ4255212), the Third District Court of Appeal vindicated an injured worker's rights after his employer tried to use a legal technicality to cut off his temporary disability prematurely. After Salem Najjar was injured on the job, his employer sent him to a qualified medical evaluation to learn more about his injuries.  He saw the doctor on September 11, 2007 and received $64.71 for the wages he lost that day.

Najjar continued working.  Then, on March 17, 2009, the doctor determined he was temporarily disabled and needed to be off work.  As a result, he started getting temporary disability payments so he could recover.  Under the Labor Code, injured workers can receive up to two years of temporary disability payments if necessary.  However, on September 8, 2009, the employer cut off his temporary disability payments.  They claimed the two years started running when they sent him to the doctor in 2007, even though he only got one's days wages. 

Mastagni Law partner John Holstedt fought for Najjar in the Workers' Compensation Appeals Board and the Third District Court of Appeal.  Both bodies found for Najjar, deciding the one day's payment in 2007 did not start the clock on temporary disability.  Instead, the Court of Appeal noted the one day payment was "not a payment of temporary disability benefits, but a reimbursement of a medical-legal expense."  Accordingly, the Court of Appeal affirmed the ruling at WCAB and upheld Najjar's right to receive full temporary disability payments while he was off work recovering from his injury.

PERB Wins First Round in Challenge to San Diego's Pension Initiative

In San Diego Municipal Employees Association v. Superior Court (4th DCA, June 19, 2012) 2012 WL 2308142, the Court of Appeal found PERB has initial jurisdiction to review a ballot initiative affecting public employee pensions and the trial court erred by blocking the PERB process.

The case started after the “Comprehensive Pension Reform Initiative” (CPRI) qualified for the ballot in San Diego. The initiative amends San Diego’s charter to impact retirement benefits for employees. The Municipal Employees Association (Association) filed an unfair labor practice charge alleging the City failed to meet and confer as required under the MMBA before placing the CPRI on the ballot.

PERB issued a complaint against the City and authorized its general counsel to file for an injunction. However, the trial court denied PERB’s motion to enjoin the City from placing the initiative on the ballot. The trial court also granted the City’s motions to stay the administrative proceedings and quash PERB's subpoenas. The Association then filed a writ in superior court.

The City argued PERB did not have jurisdiction over the Association’s claims as it involved a dispute over the constitutional free speech rights. The Court found while constitutional rights may be implicated it was not sufficient to divest PERB of its exclusive initial jurisdiction to consider the Association’s claims. The City also claimed go through the PERB process since PERB had already sought temporary injunctive relief and its neutrality was compromised. The Court disagreed the City’s argument that going before PERB would be futile. The Court also found the trial court erred in ordering a stay of the PERB administrative proceedings and let PERB proceed with the unfair practice charge.

9th Circuit: Assistant Chief Personally Liable for Retaliation

In Martha Karl v. City of Mountlake Terrace (9th Cir. May 8, 2012) No.11-35343, the federal Court of Appeals for the Ninth Circuit ruled "it was clearly established ... that a supervisor cannot retaliate against a public employee for his or her subpoenaed deposition testimony offered as a citizen in the context of a civil rights lawsuit."  As a result, the court held the local assistant chief of police could be personally liable for retaliation and is not entitled to qualified immunity.

The case started when a peace officer sued the city, alleging he was fired for being outspoken about the war on drugs.  Martha Karl was called as a witness in the officer's lawsuit and testified at a deposition that the assistant chief wanted to terminate the officer because of his political opinions and that the assistant chief "had a reputation as a 'smooth talker' and a “'back stabber.'”  When the assistant chief found out what Karl said, he told others she couldn't be trusted and that he would find a way to get rid of her.

According the court, the evidence showed the assistant chief had Karl transferred to a new position and set her up to fail during her probation period.  He then had her fired.  She sued for retaliation, naming the city and the assistant chief personally.

The court ruled the assistant chief was not entitled to qualified immunity, meaning he could be sued in his personal capacity.  Qualified immunity is the principle that protects peace officers from personal liability in federal civil rights cases unless their conduct clearly violates established statutory or constitutional rights of which a reasonable person would have known.  Here, the court decided it was clearly established that law enforcement supervisors cannot retaliate against employees called as witnesses in civil rights cases on account of their testimony and the assistant chief should have known that.

Court of Appeal: Fair Share Fee Payers Have No Right to Vote in Union Elections

In Williams v. PERB (B233494, April 13, 2012.), the Court of Appeal affirmed a previous PERB decision finding that fair share fee payers have no right to vote in union elections.

Members of the bargaining unit represented by the California Faculty Association at California State University, Northridge (CSUN) brought an unfair practice charge alleging that their state and federal rights were violated. The parties who filed the charge were fair share fee payers who allleged the union improperly denied them the right to vote on an furlough proposal. Instead, only members of the union were allowed to vote. PERB dismissed the charge on the ground that PERB has previously held that unions can exclude non-members from voting so long as the union provides non-members an opportunity to communicate their views.

The fee payers then sought review of PERB’s decision not to issue a complaint under the standards articulated in International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 271 (Fire Fighters).)  In Fire Fighters, the Supreme Court held that PERB’s decision not to issue a complaint is only reviewable in three narrow situations: 1) to determine whether PERB’s decision violates a constitutional right, 2) exceeds a specific grant of authority, or 3) is based on an erroneous statutory construction.

The court first addressed whether the charging parties’ constitutional rights were violated because they were required to join the union in order to vote. The court found no authority that there is a constitutional right to participate in a union vote and declined to find that such right exists. Next, the court addressed whether PERB’s decision was clearly erroneous. After analyzing PERB and NLRB precedent, the Court concluded that under the circumstances here—where the union solicited the views of nonmembers—PERB’s determination that there was no unfair practice was not clearly erroneous.

US Supreme Court Approves Strip-Searches Even For Suspects Arrested for Minor Offenses

On April 2, 2012, the United States Supreme Court held that the Constitution permits correctional facilities to conduct blanket strip searches on all arrestees entering general population, even those arrested only for minor offenses.   Florence v. Bd. of Chosen Freeholders of Cty. of Burlington et al. (2012) No. 10-945, slip. op., settles a division among lower courts about whether public safety professionals needed "reasonable suspicion" before strip-searching nonindictable offenders.

The case arose after Albert Florence was arrested in 2003 on a bench warrant related to his failure to pay a fine or appear at an enforcement hearing.  Arresting officers took him to a county correctional facility.  At the correctional facility he was required to shower with a delousing agent while officers checked him for scars, marks, gang tattoos and contraband.  Officers also visually inspected his body openings.  After six days he was transferred to a second facility with a similar procedures.  The procedure was the same for all arrestees and no one touched Florence during the process.  Florence later filed a federal civil rights lawsuit claiming the search was unconstitutional because he was arrested for a minor crime.

The Court rejected Florence's argument.  The Court's decision emphasized that "Correctional officials have a legitimate interest, indeed a responsibility, to ensure that jails are not made less secure by reason of what detainees may carry on their bodies."  The Court found ample evidence that suspects arrested for even minor crimes carry contraband into facilities, citing evidence from California where "San Francisco Officers have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance, and shoplifting."

Accordingly, the Court concluded the reasons a person is arrested has little bearing on whether intake procedures are constitutional.  Instead, the Court found the policy was reasonable and that courts should defer to public safety professionals to make the decision about when and how to search inmates.

Court of Appeal Upholds Termination of Correctional Officer For Telling Inmate to "Go Ahead" With Suicide Attempt

In Cate v. California State Personnel Bd. (Cal. Ct. App., Mar. 12, 2012, E053011) 2012 WL 810662, the Court of Appeal upheld the termination of a correctional officer accused of taunting a suicidal inmate. The Department terminated the officer, in part because he allegedly told another officer the inmate said “that she was going to hang herself” and he responded by saying “go ahead.” The inmate later attempted suicide.

On review, the Court of Appeal noted “the overriding consideration in these cases is the extent to which the employee’s conduct resulted in, or if repeated, is likely to result in, harm to the public service.” As a result, the Court decided against reducing the officer's punishment from termination to a 30-day suspension.

Ninth Circuit Finds for Former OCSO Lieutenant on Political Retaliation Claims

In Hunt v. County of Orange (February 13, 2012) 2012 WL 432297, the Ninth Circuit found the Orange County Sheriff’s Department violated a lieutenant’s constitutional rights by demoting him for allegedly bringing discredit to the Department after he ran against former Orange County Sheriff Mike Carona.

A lieutenant with the Orange County Sheriff's Department ran for sheriff against the incumbent sheriff and lost. During the election the lieutenant made statements criticizing the incumbent's performance and accused the sheriff of corruption. After the election was over, the Department placed the lieutenant on paid administrative leave pending an investigation into his speech and conduct during the campaign and gave him notice of demotion for violation of department rules and for bringing discredit upon the department. The lieutenant then filed a claim against Carona alleging violations of his First and Fourteenth Amendment rights.

Normally, an elected official cannot retaliate against a public employee for his or her political beliefs or activities. However, the “policymaker exception” allows elected officials to appoint “some high-level, personally and politically loyal officials who will help him implement the policies that the public voted for.” As a result, if an employee is a policymaker, an elected official can retaliate against him for political activity.

To decide whether this exception applied in this case, the court evaluated whether "the hiring authority can demonstrate party affiliation is an appropriate requirement for the effective performance of the public office involved." The court also noted "if an employee's private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield.”

The court found political considerations were not appropriate requirements for the lieutenant's job and found the lieutenant did not fall within the policymaker liability exception. However, the court found the sheriff had qualified immunity since the sheriff could have reasonably, but mistakenly, believed the employee’s demotion was not unconstitutional.

Court of Appeal Limits Former Officers' POBR Rights

In a carefully tailored decision, the Court of Appeal in Barber v. California Dept. of Corrections and Rehabilitation (Cal. Ct. App., Feb. 15, 2012) 12 Cal. Daily Op. Serv. 1936, held POBR does not entitle a former peace officer to review years of personnel records.  The decision emphasized the plaintiff made a "broad request" to review his personnel records only after he had been terminated.

The plaintiff was an employee with the California Department of Corrections and Rehabilitation (CDCR) until being terminated in April of 2009. Six months after his termination, the plaintiff requested copies of his CDCR personnel records. CDCR denied the request and the plaintiff filed a petition for writ of mandamus and a complaint for declaratory and injunctive relief seeking copies of the records under POBR.  The superior court denied plaintiff’s requests, and plaintiff appealed.

Government Code section 3306.5, part of POBR, states that an employer of public safety officers shall permit a requesting officer to view or copy personnel files that have or are being used to determine that officer’s qualifications for benefits or disciplinary action.  The Court of Appeal found the right to inspect records only applied to public safety officers and plaintiff was no longer a public safety officer after his termination went into effect.  Because plaintiff made his request for records well after being terminated from CDCR, he was not entitled to access the records. The court, therefore, affirmed the ruling of the lower court and awarded CDCR its costs on appeal.

Court of Appeal: Names of Police Officers Involved in Critical Incidents Not Always Confidential

In Long Beach Police Officers' Association v. City of Long Beach, (February 7, 2012) the Second District Court of Appeal ruled the city must release the names of police officers involved in officer-involved shootings.  In reaching its decision, the Court disagreed with the arguments of the POA and the city against disclosure, but declined to issue a blanket rule, noting public agencies have to consider disclosure on a case-by-case basis.

The case arose after the Los Angeles Times sent a public records request to the city requesting the names of all police officers involved in officer-involved shootings for a five-year time period.  After the city initially agreed to comply, the POA sued the city and the city backed down.  Then the LA times sued the city.  After initially blocking the release, the superior court ordered the city to release the names and the city and POA appealed.

The Court held the names of officers were not confidential personnel records protected from disclosure by the Penal Code.  The Court also decided not to apply the so-called "catch-all" exception to the public records act.  The catch-all exception applies whenever "the public interest served by withholding the records clearly outweighs the public interest served by disclosure."  The POA argued the exception applied because of threats to officer safety.  The Court, however, held "generalized safety concerns" are not enough to trigger the exception, but noted  "in certain circumstances protecting the anonymity of a peace officer may outweigh the public interest in disclosure."

Court of Appeal Upholds Police Officer's Termination

In an unpublished opinion, Lake v. City of Hercules (January 26, 2012) 2012 WL 243203, the Court of Appeal upheld a police officer's termination even though the city failed to call a key witness against her.

The plaintiff, a police officer with the City of Hercules, was assigned to an interagency narcotics task force. She told the Chief of Police she needed an assault rifle as part of those responsibilities.   However, the Chief believed she had lied to him to obtain his approval for the purchase of the rifle and she was terminated for dishonesty. The employee appealed the determination to superior court.

At trial, the officer claimed she was denied a fair administrative hearing since the City failed to call its main investigator as a witness. However, the Court found the City was not required to call the investigator as it did not rely solely on the report to prove its case.  As a result, the Court found sufficient evidence to show the employee was dishonest and upheld the termination.

Court Dismisses DEA Agent's Lawsuit Over Leaked Shooting Video

On January 17, 2012, the federal appellate court for the District of Columbia dismissed a privacy lawsuit brought by a DEA after a video of him accidentally discharging his weapon was released on the internet.  The agent discharged his weapon, injuring himself, during a presentation to students at a local school.  One of the parents was recording the presentation and turned the video over to the DEA shortly after.  It was later copied and distributed to various people within the DEA.  The officer never learned how it was released publicly, but the video was widely viewed on the internet.

The officer brought claims under federal and Florida law, alleging a public disclosure of private facts.  While the court noted the DEA's conduct was"far from a model of agency treatment of private data," the court dismissed the claim, noting "[n]o liability attaches 'for giving further publicity to what [a] plaintiff himself leaves open to the public eye.'”

Federal Court Signals End for CDCR Receivership

The federal judge overseeing the federal receivership of California's state prison system announced today "the end of the Receivership appears to be in sight" after six years of federal intervention in California's prison system.  The federal court took control over parts of the state prison system after finding constitutional violations and appointed a receiver to oversee significant structural changes.  The state challenged the court's order, ultimately resulting in the United States Supreme Court case Brown v. Plata, which upheld the receivership.