Ninth Circuit Rules Officers May Use Deadly Force Against Advancing Armed Suspect Without Waiting to be Targeted

The United States Court of Appeals for the Ninth Circuit has issued a significant decision affirming the right of law enforcement officers to use deadly force based on an objectively reasonable perception of an immediate threat under the totality of the circumstances. In Handy v. Jones 2026 WL 2716416, the court held that four Anchorage police officers did not violate the Fourth Amendment when they fatally shot an armed suspect who refused repeated commands to drop his shotgun and continued advancing toward them while waving the weapon overhead. The panel rejected the notion that officers must wait until an armed suspect actually points or levels a firearm at them before responding in self defense. This ruling provides important clarification for California peace officers who frequently confront similar high-risk encounters.

On May 13, 2024, Anchorage police responded to a domestic disturbance involving Kristopher Handy. A neighbor reported hearing a woman screaming followed by a loud impact and what sounded like two gunshots. The neighbor also stated that Handy was outside waiting for police while holding a shotgun. Officers announced their presence and ordered Handy to exit his apartment. Handy emerged carrying the shotgun and repeatedly refused commands to raise his hands and drop the weapon. As he advanced toward the officers, Handy waved the shotgun over his head and cursed at them. Although Handy did not point the shotgun directly at the officers, four officers ultimately fired nine shots killing him. Handy's family filed a section 1983 action alleging excessive force and deprivation of the constitutional right to familial association. The district court denied the officers' motion to dismiss on qualified immunity grounds finding that a jury could potentially conclude that Handy did not present an immediate threat.

The Ninth Circuit vacated that denial and remanded with instructions to grant qualified immunity. The court explained that "an officer is not required to wait until a suspect actually aims a firearm at the officer before responding in self defense." Handy was suspected of committing a violent crime, was armed with a shotgun, refused repeated commands to drop it, acted belligerently and continued advancing toward the officers while waving the weapon. Although he did not point the shotgun directly at the officers, he could have immediately fired it from the hip. Under these circumstances, the officers reasonably perceived an immediate deadly threat. The court emphasized reliance on the totality of the circumstances rather than isolating the precise moment an officer perceives a threat citing Barnes v. Felix 605 U.S. 73. The decision also drew support from Napouk v. Las Vegas Metropolitan Police Department 123 F.4th 906 and Blanford v. Sacramento County 406 F.3d 1110 recognizing that an armed individual may present an immediate threat without actually pointing the weapon directly at an officer.

Even assuming a constitutional violation, the court held that no clearly established law required officers confronting an armed belligerent individual suspected of a violent crime to wait until the individual aimed his firearm at them. Accordingly the officers were entitled to qualified immunity. This holding reinforces that mere possession of a firearm does not justify deadly force. Rather the combined circumstances including the suspected violent crime, the suspect's refusal to disarm, his belligerent behavior, his advancement toward officers, and his ability to fire the shotgun without raising or aiming it supported the officers' actions.

For public safety unions and their members in California, this decision underscores the critical importance of thoroughly documenting the full set of circumstances surrounding any use of force. Reports, body worn camera footage, dispatch information, the commands given, the suspect's movements, and the distance between the suspect and officers may all prove decisive in defending a subsequent excessive force claim. Officers and agencies should ensure that these details are accurately captured and preserved. The ruling provides a strong foundation for qualified immunity in analogous situations involving armed suspects who refuse to comply and advance while capable of immediately employing a firearm.

This clarification from the Ninth Circuit should help protect California law enforcement officers from meritless litigation when they reasonably respond to imminent deadly threats. It aligns with longstanding principles that reasonableness is judged from the perspective of an officer on the scene facing tense uncertain and rapidly evolving circumstances. Unions may wish to incorporate these principles into training and policy discussions to better support their members facing potential civil rights actions.

The Ninth Circuit Vindicates the Warnings PORAC Delivered on the No Vigilantes Act

When the Legislature advanced the No Vigilantes Act, the Peace Officers Research Association of California warned that the measure was constitutionally defective and would not survive judicial review. On October 14, 2026, the United States Court of Appeals for the Ninth Circuit confirmed that assessment. In a published opinion in United States v. State of California, No. 26-926 (9th Cir. Oct. 14, 2026), the panel reversed the district court and ordered entry of a preliminary injunction against enforcement of Section 10 of the No Vigilantes Act, S.B. 805, holding that the statute cannot be applied to the United States, its agencies, or its officers. The warning delivered in committee has now become the law of the circuit.

The unanimous panel, speaking through Judge Bennett, concluded that the United States is certain to succeed on the merits of its Supremacy Clause claim. After the district court declined to enjoin Section 10, the Ninth Circuit first entered a temporary administrative injunction on February 19, 2026, and then granted an injunction pending appeal on April 22, 2026, reported at United States v. California, 173 F.4th 1060 (9th Cir. 2026). The same panel has now resolved the merits, explaining that the United States was not merely likely to prevail but was in fact certain to succeed because Section 10 attempts to directly regulate the federal government in the performance of its governmental functions without authorization from Congress. Because the United States brought a facial challenge, it was required to show that no set of circumstances exists under which the Act would be valid, and the panel found that burden satisfied. The opinion fully adopts, for precedential purposes, the analysis from the earlier injunction pending appeal discussed in our prior post, Ninth Circuit Ruling Confirms Constitutional Limits on State Regulation of Federal Law Enforcement Operations, converting that temporary relief into a firm directive that the district court enter the preliminary injunction.

California enacted Senate Bill 805, known as the No Vigilantes Act, on September 20, 2025, in direct response to the United States’ expanded immigration enforcement efforts. The statute requires any law enforcement officer operating in California who is not in uniform to visibly display identification that includes the officer’s agency and either a name or badge number, or both, when performing enforcement duties. Willful and knowing violations are punishable as a misdemeanor. Senator Scott Wiener authored the companion measure, Senate Bill 627, known as the No Secret Police Act. While the concerns that prompted these bills are understandable, the Ninth Circuit’s decision is a timely reminder that performative politics cannot replace a deliberative legislative process that takes the United States Constitution and the concerns of stakeholders seriously in crafting balanced, enforceable legislation.

On September 11, 2025, David E. Mastagni testified before the Senate Public Safety Committee on behalf of PORAC in opposition to the related restrictions. The Legislature was warned that the measures would be struck down as applied to federal officers under the Supremacy Clause and the doctrine of intergovernmental immunity, yet the severability provisions would leave California officers who do not enforce immigration laws to bear the full weight of the poorly drafted requirements. The Ninth Circuit has confirmed the accuracy of those concerns.

The panel’s analysis rests on the doctrine of intergovernmental immunity. The court explained that under the intergovernmental immunity component of the Supremacy Clause, states may not directly regulate the Federal Government’s operations or property, quoting Blackburn v. United States, 100 F.3d 1426, 1435 (9th Cir. 1996). Section 10 explicitly overrides the federal government’s power to determine whether, how, and when to publicly identify its officers and therefore regulates the manner and conditions under which federal agents can enforce federal law. The opinion holds that if a state law directly regulates the governmental conduct of the United States without congressional authorization, it is void irrespective of whether the regulated activities are essential to federal functions or operations and irrespective of the degree to which the state law interferes with such functions or operations. There is no de minimis exception. Because the Act exclusively regulates law enforcement, the United States showed that no set of circumstances exists under which the Act would be valid as applied to federal officers.

As a result of this ruling, the identification requirements of the No Vigilantes Act will have no practical impact on federal immigration officers. The injunction prevents California from imposing these operational mandates on federal agencies and officers. The severability clauses ensure that the identification requirements continue to apply to California’s state and local peace officers. These officers already confront difficult conditions in severe weather, hazardous materials incidents, and tactical situations. The additional mandates make their jobs harder without enhancing accountability for federal operations. As PORAC warned, poorly drafted reactionary legislation once again missed its mark, granted the federal administration an easy victory, and saddled California officers with more bad law. Public safety unions and their members deserve legislation that accounts for their concerns rather than inflicting collateral damage on local officers who are not involved in immigration enforcement.

The lesson of United States v. State of California is that good intentions do not save unconstitutional statutes. The surest way to protect both accountability and officer safety is to legislate with discipline, to respect the constitutional limits on state power, and to listen to the professionals who will have to carry the law into the field. California’s public safety officers deserve better. Mastagni Holstedt, APC remains committed to advancing sound policies on behalf of California’s public safety professionals.

PERB Holds That Rejecting a Tentative Agreement Without a Specific Explanation Is Per Se Bad Faith

On August 28, 2026, the Public Employment Relations Board issued United Teachers Los Angeles v. Alliance College-Ready Public Schools, PERB Decision No. 3054. After fifteen months of first contract bargaining, the parties reached tentative agreements for two charter units. The members ratified both agreements. The employer’s governing board then rejected them in July 2025 and again in September 2025. When the union asked why, the employer offered phrases such as “significant long term concerns” and a need for “financial flexibility.” PERB held those answers were not bargaining. They were a per se refusal to meet and negotiate in good faith.

The case turned on two related but distinct duties. First, the employer must stand behind a ratified tentative agreement. Second, if the governing body rejects the TA, it must give an explanation specific enough that the exclusive representative can return to the table and bargain over the stated objection. PERB treats those duties as separate violations.

BACKGROUND

Alliance College Ready Public Schools spent years contesting UTLA’s certification and then spent fifteen months at the table. The employer opened with a “One Alliance” proposal that would lock represented teachers to whatever Alliance later gave unrepresented staff and would waive any duty to bargain the decision or its effects. The union conceded compensation parity, health benefit parity, a one year term, and limited retroactivity to January 1, 2025. Those concessions produced full tentative agreements in March and April 2025. The units ratified them.

The board then canceled a scheduled June 11 ratification vote and told unit members, falsely, that UTLA had requested the postponement. On July 10 the board voted the agreements down. The next morning the employer’s negotiator wrote that Alliance would offer full year retroactivity “under conditions,” but defined no conditions and offered no formal proposal. Direct emails to members cited “significant long term concerns” and a side agreement while talks continued. The union asked why the board had rejected deals built on the employer’s own parity model, why money that Alliance called unaffordable in March had become available in July, and what had changed. The negotiator asked for private mediation and answered none of those questions.

REJECTION IS NOT A SILENT VETO

Alliance relied on City of Lincoln (2012) PERB Decision No. 2284-M and argued that a governing body may reject a tentative agreement without saying why. That reading does not survive. Twelve months after Lincoln, the Legislature amended Government Code section 3505.1. Under the Meyers Milias Brown Act, a governing body must vote to accept or reject a tentative agreement within thirty days of first considering it. A rejection “shall not bar” an unfair practice charge for failure to meet and confer in good faith. PERB has already held that this exposure covers regressive bargaining and a failure to vest negotiators with sufficient authority. Decision No. 3054 adds that it also covers a rejection with insufficient explanation to the union.

EERA contains no twin of section 3505.1. PERB refused to treat that omission as a license to renege. The California Supreme Court has instructed that EERA and the MMBA form one system of public employment relations law and that PERB should read them in harmony unless text and history compel a different result. AB 537 aligned the MMBA with existing unfair practice precedent. The Board therefore declined to let an EERA employer do what an MMBA employer may no longer do.

Alliance also argued that a party may forestall an agreement forever for good reasons, bad reasons, or no reason at all. PERB rejected that misreading of City of Placentia. A party may hold an inflexible position if it genuinely holds the position and can support it with reasons. It may not conceal a strategy to make bargaining futile. Hard bargaining still requires a reason the other side can test.

SPECIFICITY IS A SEPARATE DUTY

A board does not discharge the duty to explain by announcing “concerns.” PERB has long held that a party who withholds an explanation or substantiation for a position, when the information exists and the other side has requested it, both refuses to bargain and supplies an indicator of bad faith. If an argument is important enough to present at the table, it is important enough to require some proof of its accuracy.

Alliance’s phrases failed that test. “Significant long term concerns” and “financial flexibility” gave the union nothing it could answer with a proposal. They identified no cost, no term, no changed circumstance, and no conflict with another obligation. They did not explain why parity and limited retroactivity, which the employer had demanded for months and had never called financially unworkable except as to a longer retroactive period the union later dropped, suddenly became intolerable after the members voted yes. The Board held that those vague and perfunctory answers gave “no insights into its position with any specificity that UTLA could address through bargaining.”

An explanation that names the article, the dollar figure, or the operational constraint that moved the board invites further negotiation. An explanation that a board could paste onto any rejection of any contract is not an explanation. Reneging and silence are related because a silent rejection leaves the union with nothing to bargain. They remain separate violations. A board that rejects a ratified tentative agreement and then supplies a concrete reason may still face a regressive bargaining or authority charge if the reason is new and changed circumstances do not support it. A board that rejects rejects a TA and provides only generic explanations commits a separate violation.

THE REMEDY FOLLOWS THE BREACH

PERB ordered Alliance, upon request, to place the ratified articles back on the table, to meet weekly face to face, and to report progress to the Office of the General Counsel. Make whole relief runs from January 1, 2025. It measures the difference between what unit members would have received under the tentative agreements and what they received under the status quo, plus interest compounded daily, until the parties ratify a written agreement or the employer lawfully imposes terms after good faith negotiations and completed impasse procedures. The union may also recover bargaining costs and diverted resources caused in material part by the violations.

The Board emphasized that the parties were bargaining a first contract. Conduct that would wound an established relationship does more damage when the exclusive representative is still proving that a signed deal means something.

TAKEAWAYS

Unions should treat a governing body’s vote on a ratified tentative agreement as bargaining conduct, not as a civic ritual outside the labor statutes. The association should request the reasons in writing the same day as the vote, and the request should ask what changed, which terms the board found unacceptable, and what facts support that conclusion.

Public safety associations that bargain under the Meyers Milias Brown Act have an additional statutory hook. Section 3505.1 already exposes a rejection to unfair practice litigation and already imposes a thirty-day clock. PERB now requires the post-rejection explanation to be specific enough to restart negotiations on the basis of mutual understanding.

A Big Win for Proportionate Discipline in CHP Sergeant's Appeal

Mastagni Holstedt and the California Association of Highway Patrolmen secured a significant victory on September 11, 2026, when the San Bernardino County Superior Court denied the California Highway Patrol’s petition for a writ of mandate in California Highway Patrol v. California State Personnel Board (Case No. CIVSB2517865). Judge Lily L. Sinfield upheld the State Personnel Board’s decision to reject dismissal of Sergeant Daniel Howard and to impose a demotion to officer instead. The result is a big win for fairness and for the principle that serious work can include human error without ending a career. 

The night that produced the charges was unlike anything most highway patrol supervisors ever confront. On June 22, 2021, Raymond Loftin stole a Peterbilt tractor and drove it the wrong way on Inland Empire freeways at speeds of sixty to seventy five miles per hour. He evaded officers across multiple jurisdictions for about an hour and a half, blew through three traffic breaks, continued on a sparking rim after a spike strip, and struck a guardrail before meeting a roadblock on Interstate 10. A CHP lieutenant with nearly thirty years of service testified that he had never seen a big rig driven the wrong way on multiple freeways.  Howard, a combat veteran, had worn sergeant stripes for less than two months. He had not received specialized sergeant training and had not yet come to know the Rancho Cucamonga officers under his command. He found himself directing five officers in that unprecedented scene.

The Department sought to end Howard’s career for his conduct during the pursuit and the shooting that followed. Howard appealed. After a six day evidentiary hearing, Administrative Law Judge Gregory W. Brown sustained some allegations and rejected others. He found dismissal too harsh. The State Personnel Board adopted that proposed decision on November 4, 2024, and reduced the penalty to a demotion from sergeant to officer. The Department then asked the superior court to overturn the Board’s decision. The court refused.

The Board’s reasoning, which the court accepted, recognized he faced a difficult incident that required a balanced penalty. Howard had fourteen years of service and generally positive performance reviews. He had earned promotion to sergeant and had received commendations. His history demonstrated an established record of public service rather than a pattern of disregard for duty. The Board also credited the extraordinary setting. Howard faced a unique, tricky, and high stakes problem without the training and local familiarity that a more seasoned sergeant would have brought to the same roadblock. He put his own life at risk in an effort to protect others. The administrative law judge found that his actions may have saved innocent motorists or fellow officers.

At the hearing Howard took responsibility for his actions and recognition of the seriousness of the incident. He broke down in tears over the loss of life that occurred in the course of his duties. The administrative law judge found that this response spoke well of his moral character and of his capacity to learn. The evidence supported affording him the opportunity to continue serving.

The evidence and testimony at hearing did not support the CHP’s depiction of his conduct and alleged inconsistent statements. The administrative law judge found that the evidence painted a more complex picture than a simple policy violation, and the court agreed that this was a reasonable reading of the record. Howard explained that his priority was to stop the truck and arrest the occupants. He screamed at the truck to stop as he stepped onto the roadway. On the shooting itself the Department agreed at the hearing that Howard believed the truck was going to hit him. The parties did not contest that Howard fired because he believed he was in imminent danger. Consideration of a proper penalty based on tactical judgments must take into account his reasonable beliefs. The court held that substantial evidence supported the finding that Howard discharged his firearm on that honest perception of imminent harm. The Department’s later argument that he created his own danger by leaving cover did not erase that core fact.

On the claim that he failed to take command after the shots, the record showed chaos ensued, rather than an abandonment of his duty. Another officer warned of possible crossfire in a span of frantic moments. Howard testified that he immediately broadcasted that he had fired, though the transmission may have been muffled by other radio traffic that witnesses described as fast and furious. The court concluded that the Department had not proved by a preponderance of the evidence that Howard failed to advise dispatch that shots had been fired. The record also did not support allegations he lost composure, rather it established he was working through an unfolding crisis with incomplete information and competing radio traffic.

The administrative law judge concluded that demotion would correct the command and safety protocol problems without destroying a fourteen year career. That is proportionate discipline. Employees, including peace officers, make mistakes. The question is whether the penalty matches the person, the circumstances, and the likelihood that the same failure will be repeated. The SPB imposed a measured reduction in rank that keeps the officer in service while removing him from a supervisory role.

Review under Code of Civil Procedure section 1094.5 asks whether the Board stayed within its authority, whether the hearing was fair, and whether the findings and the penalty rest on substantial evidence and reasoned judgment. Generally, a court will afford great deference to the SPB’s determination unless the Board acted arbitrarily or beyond the bounds of reason. See Fisher v. State Personnel Board (2018) 25 Cal.App.5th 1. If reasonable minds can differ on the penalty, the Board’s choice stands. See Department of California Highway Patrol v. State Personnel Board (2026) 122 Cal.App.5th 418.  

Although unpublished, the ruling confirms that a long and generally positive work history is central to any penalty analysis. It also confirms that isolated scrutiny of an imperfect command in an unprecedented pursuit does not render an officer unfit for duty. Howard faced an imminent threat of death or serious bodily injury and his decision-making must be considered in light of his work history, gaps in his training, his commendations, and genuine remorse.

AB 692 Limits New Training Cost Charges When Officers Transfer

 California’s stay or pay statute, Assembly Bill 692, was enacted to stop employers from charging workers a debt, fee, or training cost because they leave a job. The law adds Business and Professions Code section 16608 and Labor Code section 926. Public safety members face a narrower question. Does the statute change the cases that allowed some departments to bill officers who transfer after the academy?

AB 692 does not overrule those decisions. It sits on top of them. Agreements already signed remain subject to the older authorities. Agreements executed after the statute’s operative date face a prohibition those authorities never supplied.

BACKGROUND

Agencies long tried to slow lateral movement by making academy graduates repay a share of training costs if they left before a set term of service. Oakland used a prorated figure tied to five years and placed the term in the memorandum of understanding and the conditional offer. The First District in City of Oakland v. Hassey (2008) 163 Cal.App.4th 1477 held that such a clause was not an unlawful restraint under Business and Professions Code section 16600 because the officer remained free to work elsewhere. The court treated the obligation as contractual reimbursement rather than a covenant not to compete. It refused to decide Labor Code section 2802 because the issue arrived too late, and it barred collection through the final paycheck.

The Fourth District later reached the section 2802 question Hassey left open. In In re Acknowledgment Cases (2015) 239 Cal.App.4th 1498, Los Angeles required every recruit to attend its academy and repay prorated costs after an early departure to another agency. The court drew a disticntion. Basic POST certification is a statewide licensure prerequisite obtainable from more than one provider, so those hours are not standing alone an expense of discharging the duties of employment with a particular city. Department specific hours that the agency itself requires and delivers are expenses covered by section 2802 . A contract that waives that protection is void under Labor Code section 2804. Because Los Angeles bundled both categories and offered no apportionment, the entire acknowledgment failed.

The First District in USS POSCO Industries v. Case (2016) 244 Cal.App.4th 197 later upheld repayment of a voluntary and transferable private training program. That opinion helps optional coursework. It is a poor fit for a required police academy. The Ninth Circuit in Gordon v. City of Oakland (9th Cir. 2010) 627 F.3d 913 separately held that Oakland’s arrangement was not an FLSA kickback if the officer received at least the minimum wage in the final workweek. That federal holding does not control section 2802 or section 16608.

THE STATUTE

AB 692 makes it unlawful, for contracts entered on or after its operative date, to require payment of a debt if the relationship ends, to authorize collection upon termination, or to impose any penalty, fee, or cost because the relationship ends. Debt is defined broadly enough to reach education related costs. A violating term is treated as void under section 16600. A worker may sue for actual damages or five thousand dollars per worker, whichever is greater, together with fees and injunctive relief. The remedies are cumulative and expressly preserve section 2802 and the Unfair Competition Law.

The transferable credential exception reaches tuition for a degree from an accredited third party institution that is not required for the current job and that meets strict separate contract, cost cap, and proration conditions. POST basic training is a statutory prerequisite to exercising peace officer powers. Attendance is ordinarily a condition of hire. A classic in house academy clause does not fit the exception.

AB 1697, enrolled and presented to the Governor on September 3, 2026, would move the contract date from January 1, 2026 to January 1, 2027. Until the Governor acts, the original date remains on the books. If the delay is signed, 2026 contracts fall back under the pre statute cases.

WHAT CHANGES AND WHAT DOES NOT

Hassey held that a separation triggered academy repayment was not an unlawful restraint under section 16600. AB 692 reaches the opposite result by statute for new contracts. After the operative date, a department cannot rest a new acknowledgment on Hassey’s section 16600 reasoning. Optional college coursework that actually meets the transferable credential conditions may still be structured. A required academy cannot be rescued by calling it a loan.

The statute is prospective. Legacy papers signed before the operative date remain governed by Hassey, the Acknowledgment Cases, and USS POSCO. Recovery that isolates documented POST basic costs from an officer who leaves voluntarily may still be argued on those older instruments. Recovery that reaches academy wages or department mandated hours beyond POST remains barred by sections 2802 and 2804. Collection through the final paycheck remains independently unlawful. Because AB 692’s remedies are cumulative with section 2802, the 2015 decision continues to invalidate the department specific slice of any clause, old or new.

The statute speaks of an “employer” in general terms. The leading cases all involved municipal departments, which supports coverage. AB 1697 discusses collective bargaining calendars as a reason for delay. It does not enact a general memorandum of understanding exemption.