Friday, June 24, 2022

U.S. Supreme Court's New Second Amendment Ruling Effectively Overturns Ninth Circuit Ruling Against Peace Officer Self-Defense Rights

This past week, the U.S. Supreme Court released several new opinions with immense impacts – one of which changes the game for California public safety officers’ right to use firearms for self-defense. In New York State Rifle & Pistol Ass'n, Inc. v. Bruen, the Supreme Court held that the Second and Fourteenth Amendments protect a person’s right to carry a handgun for self-defense outside the home. New York State Rifle & Pistol Association, Inc. v. Bruen (U.S., June 23, 2022, No. 20-843) 2022 WL 2251305. In analyzing self-defense rights, the Court held that circuit courts had been using an improper legal test. Through the Court’s new finding, several cases that support strict firearm regulations have now been overturned. One in particular is a Ninth Circuit case regarding police use of force policies.

Previously, several circuits applied two Supreme Court cases, Heller and McDonald, to justify a two-step test to determine whether a law infringed on Second Amendment rights. At the first step, the court asks whether the law burdens conduct protected by the Second Amendment. To answer, the court considers the history of firearm regulation. Some laws are supported by a long history of lawful regulation, like prohibitions on the possession of firearms by felons. Such laws do not burden conduct protected by the Second Amendment. However, if there is no analogous, historical firearm regulation, the new law burdens conduct protected by the Second Amendment. At the second step, the courts balanced safety with the costs and benefits of firearms restrictions. The courts also gave deference to the legislature’s governmental interests.

            The Ninth Circuit used this two-step test to justify their decision in Mahoney, in which Seattle police officers challenged a Use of Force Policy (“UOF Policy”) that applied to the use of firearms. Mahoney v. Sessions, 871 F.3d 873 (9th Cir. 2017). The UOF Policy provided a set of factors to determine whether use of a firearm was reasonable, necessary, and proportional to the threat at issue. However, the UOF Policy also required the police officers to use de-escalation tactics and to consider the firearm factors only when safe under the totality of circumstances. Although the Seattle police officers argued the UOF Policy was unconstitutional under the Second Amendment, the Ninth Circuit disagreed. Even though the Ninth Circuit reasoned that the UOF Policy burdened police officers’ self-defense conduct protected by the Second Amendment, the court found that the safety and benefits of the firearm restrictions outweighed the violation of police officers’ self-defense rights. Therefore, the Ninth Circuit upheld the UOF Policy because it passed at step two, regardless of the fact that it failed at step one.

However, in the recent New York State Rifle & Pistol Ass’n opinion, the Supreme Court found that Heller and McDonald do not support a two-step test. Heller and McDonald only support the first step: whether the law burdens conduct protected by the Second Amendment. Because Mahoney failed at step one (i.e., Seattle’s UOF Policy inhibited police officers’ Second Amendment rights to self-defense), the UOF Policy and every use of force policy that burdens conduct protected by the Second Amendment is unconstitutional. Now, the courts and legislature must only consider whether modern and historical regulations impose a comparable burden on the right of armed self-defense. A cost-benefit analysis of firearms restrictions and deference to government interests are no longer a judicial priority in analyzing violations of the Second Amendment.

The Supreme Court decision eliminates step two because the Second Amendment “‘is the very product of an interest balancing by the people,’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.” New York State Rifle & Pistol Ass'n, Inc. 2022 WL 2251305 at *2 (quoting D.C. v. Heller, 554 U.S. 570, 635 (2008)). 

The Court stated, “Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's ‘unqualified command.’” Id at *8.

David E. Mastagni will be testifying at the Assembly Judiciary Committee on June 28, 2022, against S.B. 505, which almost certainly runs afoul of this holding. S.B. 505 would make a person who owns a firearm strictly civilly liable for each incidence of property damage, bodily injury, or death resulting from the use of their firearm unless the owner of the firearm has reported their firearm to local law enforcement as lost or stolen prior to the damage, injury, or death. Additionally, S.B. 505 would require a person who owns a firearm to obtain and continuously maintain a homeowner's, renter's, auto, or gun liability insurance policy specifically covering losses or damages resulting from any negligent or accidental use of that firearm, including but not limited to, death, injury, or property damage.

Although intended to provide a means of recovery for victims of gun crimes, this bill is likely unconstitutional, only burdens the Constitutional rights of law-abiding citizens, and will have a discriminatory impact. First, the bill imposes strict liability on the exercise of a Constitutional right. As strict liability for the lawful use of firearms has never been permitted, it is not consistent with the historical traditional of firearm regulation. New York State Rifle & Pistol Ass'n, Inc. v. Bruen. Strict liability is not an available policy choice because it infringes on the Second Amendment. Second, strict liability on the use of a firearm necessarily extends strict liability to the lawful and justified use of a firearm in self-defense in violation of the California Constitution. Self-defense "is one of the inalienable rights guaranteed by the constitution of the state." People v. McDonnell (1917) 32 Cal.App. 694; Cal Cont. Art. 1, §1. Just as the state may not burden the exercise of the First Amendment with strict liability, California can't infringe the right of self-defense. "Central to the rights guaranteed by the Second Amendment is "the inherent right of self-defense." United States v. Torres (9th Cir. 2019) 911 F.3d 1253, 1257.

S.B. 505 will have little impact on individuals who commit crimes with firearms and will unlawfully discriminate against those of modest means who will not be able to obtain or afford insurance as a precondition to the exercise of their Constitutional rights. The exercise of a Constitutional right cannot be conditioned upon a financial cost. Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 571. Furthermore, New York State Rifle & Pistol Ass'n, Inc. v. Bruen precludes the imposition of an insurance requirement on the exercise of Second Amendment rights, as such a precondition is not consistent with the historical tradition of firearm regulation.

"The constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees. We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant's right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense." New York State Rifle & Pistol Ass'n, Inc. v. Bruen at *34.

Tuesday, June 14, 2022

DMV Administrative Hearings Held Unconstitutional & Unfair for Californians

Individuals arrested for DUI in California face two separate legal processes following their arrest: A criminal case in the Superior Court and an Administrative Per Se hearing with the California DMV. When someone is arrested for DUI it is their responsibility to request an administrative hearing with the DMV within 10 days. If a hearing is not requested, after 30 days from the date of arrest their license will automatically be suspended for four months. If a hearing is requested within 10 days, no action will be taken against their license until the conclusion of that hearing.


On the criminal side of a DUI, if the case proceeded to trial the defendant would have their case decided by a jury of their peers, with the applicable “beyond a reasonable doubt" legal standard, which is the highest legal threshold in our justice system. In contrast, the DMV hearing process consists of a hearing where the presiding hearing officer is also a DMV employee and is tasked with being both the decision maker and an advocate for the DMV and its interests. Moreover, the standard of proof is the significantly lower “preponderance of the evidence” (more likely than not) standard and the hearing officer can also take great liberties with the admissibility of evidence, to include allowing in unsworn statements and relying on hearsay. Another unique feature of DMV hearings is the permissibility of ex parte communications amongst DMV employees. Most significantly, the DMV authorizes its managers to change the decision of the hearing officer or order the hearing officer to change their decision.

Attorneys defending their clients in DUI matters have long criticized and challenged the DMV process, claiming it violates the due process rights of clients by virtue of the dual role served by the hearing officer, the permissibility of ex parte communications, and the low legal standards applied at the hearing. The reality is, even if an individual is either not prosecuted or exonerated criminally, they can still have their license suspended or revoked by either failing to request an APS hearing or simply losing their hearing due to the lack of due process and substantially lower burden of proof compared to criminal proceedings.

These long-standing issues motivated DUI advocates to challenge the legality of the DMV hearing process by initiating the case of California DUI Lawyers Association et al. v. California Department of Motor Vehicles et al. The California DUI Lawyers Association (CDLA) originally filed the lawsuit in 2014 seeking injunctive and declaratory relief from the DMV and its director. CDLA alleged (1) violation of 42 United States Code section 1983 affecting due process rights under the Fourteenth Amendment to the United States Constitution; (2) violation of due process rights under article 1, section 7 of the California Constitution; and (3) “illegal expenditure of funds” under Code of Civil Procedure section 526a. In sum, CDLA claimed that the lack of a neutral hearing officer, and the ex parte communications between DMV managers and hearing officers, violate drivers’ rights to procedural due process under the California and United States Constitution.

The trial court concluded the DMV’s allowance for ex parte managerial communications and their meddling with the hearing officers’ decision-making violates due process under the California Constitution and constitutes waste under Code of Civil Procedure section 526a. The trial court judgment prohibited the DMV from maintaining or implementing a structure allowing managerial interference with hearing officers’ decision-making through “ex parte communications or command control.” It also found CDLA to be the prevailing party for purposes of an award of attorneys’ fees.

On appeal, the appellate court determined that the DMV’s hearing structure breached the minimum standards of due process under 42 U.S. Code section 1983 and under section 7 of Article I of California’s constitution, created an irreconcilable conflict, and amounted to an unacceptable risk of bias. The court of appeal noted that the DMV acknowledged it was a party to their hearings, that such hearings were adversarial, and that the hearing officer’s role involved both advocating on the DMV’s behalf and acting as a fact-finder. The trial court thus made an error when it denied the plaintiffs’ motion for summary adjudication of its section 1983 claim, given that the lack of neutral hearing officers at APS hearings breached the federal and state due process rights of drivers. The court of appeal also found that a party seeking injunctive relief against a state official in their official capacity does not need to show the official’s personal involvement in the claimed constitutional violation.

Lastly, the court of appeal’s also issued a permanent injunction regarding ex parte communications. The DMV is permanently enjoined and restrained from having its APS hearing officers function as advocates for the position of the DMV while also being fact-finders in the same adversarial proceedings.

It is difficult to ascertain what the lasting impact of this decision will be; however, the DMV is now proceeding with two separate employees for hearings. One as the DMV’s advocate and the other as the decision maker. What affect this new approach will have on the outcome of the hearings is yet to be seen, but the fact still remains that both individuals are still employees of the DMV. Thus, one can reasonably assume that the hearings will likely be more of the same.

Wednesday, May 25, 2022

President Biden to Sign Executive Order Regarding "Accountable Policing"

Today, President Biden will sign a historic executive order regarding police accountability.  The EO mandates measures for all Federal law enforcement agencies, and is advisory for state and local agencies. Watch Biden's press conference.  The use of force standards set forth in the EO largely follow the lead of California, adopting a necessary standard (consistent with Graham v. Connor) and the de-escalation policies set forth in S.B. 230.  On behalf of PORAC, David E. Mastagni worked with PORAC's leadership to develop recommendations for consideration in the order.     

In a press release, PORAC President Brian Marvel noted, “After several months of advocating for necessary changes to President Biden’s draft Executive Order, we are pleased to see that his Administration valued PORAC’s expertise and incorporated many of our proposed changes into today’s Executive Order."  Marvel also expressed, "PORAC is also proud that many of the policies included in President Biden’s Executive Order mirror those that we’ve already enacted here in California, and we look forward to continuing to serve as a resource for how California’s smart public safety policies can be implemented at the federal level.”

Notably, the EO orders all Federal LEAs to adopt use of force policies with requirements that meet or exceed those in the Department of Justice’s updated use-of-force policy.  The DOJ's use of force policy takes effect July 19, 2022.

The DOJ policy authorizes force only when no reasonably effective, safe, and feasible alternative appears to exist.  The force policies bans the use of choke-holds and carotid restraints unless deadly force is authorized.  It also restricts the use of no-knock entries to limited circumstances, such as when an announced entry would pose an imminent threat of physical violence.  Like the law enforcement sponsored SB 230, the policy also imposes a duty to intervene to stop excessive force and a duty to render medical aid. 

One notable concern with the DOJ policy is the ambiguity it creates regarding the continued applicability of Tennessee v. Garner, which permits deadly force to prevent the escape of violent fleeing felons who are a threat to the public if not immediately apprehended.  The policy purports to uphold the standards set forth in Graham and Garner, yet also states "deadly force may not be used solely to prevent the escape of a fleeing suspect."  Its unclear if the "solely" limitation is intended to bar ever using deadly force to prevent any escape, rather than limiting force used to prevent the escape of non-violent suspects.

Garner adopted the California Supreme Court's requirement that “police may use deadly force to arrest only if the crime for which the arrest is sought was ‘a forcible and atrocious one which threatens death or serious bodily harm,’ or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed.”  Tennessee v. Garner (1985) 471 U.S. 1, 1, FN 15 (citing People v. Ceballos, 12 Cal.3d 470, 477.)  A.B. 392 codified these restrictions by limiting use of deadly against a fleeing suspect of a "felony that threatened or resulted in death or serious bodily injury" where "the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended."

California struck the proper balance in permitting deadly force only to prevent the escape of suspects posing a serious threat to cause death or serious bodily harm if his apprehension is delayed.  California's policy recognizes that in limited circumstances officers might have to use deadly force to prevent the escape of a terrorist or mass shooter likely to kill or injure other members of the public if allowed to escape.  Hopefully, the final version of Biden's EO will retain this important public safety measure. 

The EO orders the Attorney General to establish a National Law Enforcement Accountability Database of records of officer misconduct (including convictions, terminations, de-certifications, civil judgments, resignations and retirements while under investigation for serious misconduct, and sustained complaints or records of disciplinary actions for serious misconduct), as well as commendations and awards.  The EO also requires Federal agencies to adopt measures to promote thorough investigations and preservation of evidence after incidents involving the use of deadly force or deaths in custody, as well as to prevent unnecessary delays and ensure appropriate administration of discipline.

The EO mandates all federal agencies to use body worn cameras and publicly post body-worn camera policies that mandate activation of cameras during activities like arrests and searches.  Similar to California's SB 1421, the EO also provides for the expedited public release of footage following incidents involving serious bodily injury or deaths in custody. 

Additionally, the EO requires development of an evidence-informed training module for law enforcement on implicit bias and avoiding improper profiling based on the actual or perceived race, ethnicity, national origin, limited English proficiency, religion, sex (including sexual orientation and gender identity), or disability of individuals.The order also establishes a committee to produce a strategic plan that advances front-end diversion, alternatives to incarceration, rehabilitation, and reentry.  The order directs the Attorney General to fully implement the FIRST STEP Act.

President Biden's "fact sheet" outlining the new EO can be viewed here.