When the Verdict Second Guesses the Officer: Appellate Reversal Affirms Officers’ Right to Defend Themselves

Every officer who has ever cleared a doorway understands the arithmetic of a fraction of a second. The decision to use force is made in the moment, on the information then available, against a threat that does not pause to let anyone deliberate. California law honors that reality, yet officers know that courtrooms and juries are frequently invited to second-guess split-second decisions against a leisurely reconstruction that no officer on the scene ever had. A recent Texas reversal of a verdict against an officer illustrates the point. The court’s reasoning is a timely reminder of the constitutional and statutory protections that govern peace officers in California. Although the decision is not binding here, its reasoning is persuasive in holding that a conviction built on hindsight analysis cannot survive when the governing standard is properly applied.

A Dangerous Encounter

In an appeal decided by a Texas appellate court, a police officer had responded with three colleagues to a report that a man was roaming the halls of a downtown building with a knife held to his own throat and threatening suicide. The officers were told the man had a history of mental health crises and was on an upper floor with a large kitchen knife. When the officers reached that floor by elevator, the man was facing a mirror with the knife at his throat. When the doors opened, he turned toward the officers, reoriented the knife away from himself and toward them, and advanced in close quarters while ignoring the commands shouted at him. The officers fired, and the man died. The officer was convicted of a firearm offense and sentenced to prison, notwithstanding testimony from fellow officers that they would not have acted differently, expert testimony that the use of force was justified, and the conclusion of the department’s own investigators that the conduct did not warrant criminal charges. The appellate court reversed and rendered a judgment of acquittal, holding that the prosecution never carried its burden of disproving justification once the objective evidence was examined at the only moment that mattered. Taylor v. State, 729 S.W.3d 124 (Tex. App. 2025).

Reviewing the body worn camera footage, it found that the officers were confined with no meaningful avenue of retreat, that the man turned toward them and advanced with the knife oriented in their direction, and that this presented an immediate and potentially lethal threat. The prosecution’s theory, by contrast, rested almost entirely on what the officers supposedly should have done differently, including waiting, using the stairs, or relying on less lethal options.

The court held that this evidence, even if accepted in full, did not answer the dispositive question, because it showed at most that different decisions could have been made. As the court explained, could have, would have, and should have do not disprove justification, and tactical misjudgments or hindsight critiques do not render an otherwise reasonable belief in the necessity of deadly force unreasonable. The court further rejected the notion that a subject who advances with a weapon is demonstrating compliance, holding that the law does not require officers to treat such conduct as surrender or to wait until an attack is completed before responding. Finally, it observed that a mental health crisis is dynamic, so that a person who is a danger only to himself in one moment may become an immediate threat to others in the next, and that reasonableness is measured on what the officer perceived at the moment force was used rather than on earlier assurances or missed opportunities to de-escalate.

The California Framework

California officers enjoy the same core protection, secured by both the federal Constitution and state statute. As the Supreme Court held in Graham v. Connor, the reasonableness of a use of force must be judged from the perspective of a reasonable officer on the scene rather than with the twenty-twenty vision of hindsight, and the analysis must make allowance for the fact that officers are forced to make split second judgments in circumstances that are tense, uncertain, and rapidly evolving. That inquiry turns on whether the person confronting the officer posed an immediate threat to the safety of the officer or others.

The Legislature wrote these principles into Penal Code Section 835a, which states that the decision to use force be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and it expressly accounts for the reality that officers must sometimes make quick judgments about using force. The statute permits deadly force when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary to defend against an imminent threat of death or serious bodily injury. A threat is imminent when a reasonable officer would believe the person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury, a harm that must be instantly confronted rather than a mere fear of future harm. The same section confirms that an officer need not retreat and is not rendered an aggressor, nor deprived of the right of self-defense, by using objectively reasonable force.

California courts have applied this framework with a clear eye toward the dangers of hindsight analysis. Applying AB 392, Koussaya v. City of Stockton, (2020) 54 Cal. App. 5th 909, confirmed that the reasonableness of force is still judged from the perspective of a reasonable officer on the scene rather than hindsight, and the standard provides deference to the split second decisions of an officer who, unlike a private citizen, is charged with acting affirmatively and using force. Critically, so long as an officer’s conduct falls within the range of conduct that is reasonable under the circumstances, there is no requirement that the officer choose the most reasonable available action or the conduct least likely to cause harm.

California decisions confronting the knife wielding advancer have reached the same conclusion the Texas court reached, holding that where deadly force is otherwise justified there is no constitutional duty to use less forceful or non-deadly alternatives first, and that the proper inquiry is whether the officer acted reasonably, not whether some less intrusive alternative was theoretically available. Martinez v. Cnty. of Los Angeles, 47 Cal. App. 4th 334, 54 Cal. Rptr. 2d 772 (1996). The focus remains on the vantage of the reasonable officer, not on the after the fact opinions of bystanders who did not perceive a threat.

Why a No Reasonable Alternative Standard Cannot Be Squared With the Constitution

This settled framework is the measure against which the earlier legislative proposals to rewrite California’s deadly force law must be judged. As those proposals were originally introduced, they would have gone considerably further than any jury in the case discussed above, restricting an officer’s use of deadly force to circumstances in which it was strictly necessary and in which no reasonable alternative existed. Such a standard would unreasonably invite the factfinder to convict an officer whenever some other course could later be described as available. Representing the Peace Officers Research Association of California (PORAC), our firm opposed that approach because it would have transformed the objective reasonable officer inquiry into an impossible mandate to exhaust every conceivable option before acting. In holding such a standard unconstitutional, our Ninth Circuit has recognized, “(r)equiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. Scott v. Henrich (9th Cir. 1994) 39 F.3d 912, 915.” Our firm was privileged to assist the law enforcement advocacythat ultimately helped secure the amendments to Assembly Bill 392 that removedthe most punitive features of the introduced language and preserved thereasonable officer standard in the law as enacted.  

The reversal of the Texas conviction reenforces the point that such a standard, had it been enacted in California as introduced, would be constitutionally infirm. A criminal conviction may rest only on evidence from which a rational factfinder could find every element beyond a reasonable doubt, and in a justification case that necessarily includes proof beyond a reasonable doubt that the officer did not reasonably believe force was necessary in the moment.

A no reasonable alternative standard collapses that inquiry. It permits conviction not because the officer’s real time perception was unreasonable, but because a prosecutor, working backward from a known outcome, can always describe another path not taken. The Texas court rejected this reasoning when it held that could have and should have do not disprove justification. It is also precisely what California law already forecloses, because there is no constitutional duty to resort to the least forceful alternative where deadly force is justified. An officer is not required to select the least harmful option to avoid liability. A statute or instruction that made the availability of a hypothetical alternative dispositive would nullify those protections and convert the reasonable officer standard into a strict liability regime, judged in the calm of a courtroom rather than from the position of the officer on the scene. Koussaya, supra. 

When jurors are told to ask whether any reasonable alternative existed, and to measure that question against a reconstruction assembled after the danger has passed, they are no longer deciding whether the officer’s belief was reasonable at the instant of the threat. They are grading the officer against an idealized response that the moment never permitted. That is the very danger the reasonable officer standard exists to prevent, because it refuses to let a sanitized reconstruction assembled after the fact displace the dangerous and rapidly evolving reality the officer actually confronted. An instruction that operationalizes hindsight in this way threatens the due process guarantee that a conviction rest on proof of an actual element of the offense, and it departs from the constitutional command of Graham that force be assessed from the perspective of a reasonable officer on the scene rather than hindsight.  

It is worth emphasizing that the deadly force statute the Legislature ultimately enacted, as shaped by the amendments described above, stopped far short of the standard the original proposals contemplated. Section 835a expresses the intent that officers use deadly force only when necessary in defense of human life and that they use other available resources and techniques, but it qualifies that expectation by requiring only what is reasonably safe and feasible to an objectively reasonable officer, and it preserves throughout the reasonable officer perspective and the rejection of hindsight. SB 230 also codifies the legal definition of "feasible” is defined as "reasonably capable of being done or carried out under the circumstances to successfully achieve the arrest or lawful objective without increasing risk to the officer or another person." (emphasis added.)  This definition clarifies that tactics increasing the risk to officers are not "feasible." 

In other words, the enacted law retains the constitutional anchor that the introduced version would have disgaurded. That distinction is the difference between a statute that channels officer discretion and one that would punish officers for failing to achieve a perfection the law has never demanded.

Practical Significance of Taylor for California Officers

For officers and the agencies that stand behind them, several lessons follow. Justification is assessed on the threat as it reasonably appeared at the instant of the decision, and neither a prosecutor nor a jury may substitute a menu of tactical alternatives for proof that the officer’s belief was unreasonable. A subject who advances with a weapon and disregards commands is not demonstrating compliance merely because no blow has yet landed, and officers are not required to absorb the first strike before responding. Prior information that a person is troubled or suicidal does not freeze the threat assessment, because the encounter is judged as it evolves. Where objective evidence such as body worn camera footage confirms the threat, that evidence can be decisive. And under existing California law, an officer who acts within the range of reasonable conduct has no separate duty to have chosen the least forceful option that a later critic might prefer.

Supreme Court Strikes Down Hawaii’s “Vampire Rule” in Major Victory for the Second Amendment

Today the Supreme Court vindicated the Second Amendment in Wolford v. Lopez, striking down Hawaii’s so-called “Vampire Rule” in a 6-3 decision authored by Justice Alito and joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. The Court held that Hawaii’s law criminalizing licensed concealed-carry on private property open to the public absent the owner’s express consent imposes an impermissible burden on the constitutional right to bear arms for self-defense.

Mastagni Holstedt, APC was privileged to file an amicus curiae brief in the Supreme Court on behalf of the Peace Officers Research Association of California (PORAC), the California Association of Highway Patrolmen (CAHP), and the Crime Prevention Research Center (CPRC) asking the Court to reverse the Ninth Circuit’s decision in Wolford v. Lopez. That brief supplied empirical support for the position the Court adopted today, demonstrating that “sensitive place” and default-prohibition regimes like Hawaii’s do not enhance public safety, that studies purporting to validate them are methodologically flawed (including failure to account for differences in permitting regimes), and that right-to-carry laws have not increased violent crime.   

This decision also blocks California from enacting its own version of Hawaii’s “Vampire Rule.” Our firm filed an amicus brief in the Ninth Circuit supporting the challenge to California’s stricter default restrictions in May v. Bonta, a case the court considered at the same time as Wolford. The Ninth Circuit struck down California’s more aggressive rule. Had the Supreme Court upheld Hawaii’s law, California would almost certainly have fixed the defects in its own restrictions simply by copying the Hawaii model. By rejecting Hawaii’s approach outright, Wolford eliminates that workaround for good.

Hawaii had inverted the longstanding common-law default: property open to the public welcomed armed citizens unless the owner affirmatively prohibited entry. By flipping that presumption solely for those exercising a constitutional right, the State imposed a novel and substantial burden unsupported by history. The Court rejected Hawaii’s proffered analogs, including its unbelievable reliance on a racist 1865 Louisiana Black Code statute enacted to disarm newly freed Americans, as inconsistent with our constitutional tradition.

The Holding

In an opinion that will shape carry rights across the nation for years to come, the Court held that Hawaii’s law forbidding licensed concealed carry permit holders from carrying handguns on private property open to the public, absent the express consent of the owner, violates the Second and Fourteenth Amendments. The Court reversed the Ninth Circuit and returned the case for further proceedings consistent with its decision. Given the Ninth Circuit's efforts to chip away at the right to bear arms one ruling at a time, the significance of that reversal cannot be overstated.

The majority recognized that the right to carry a firearm for self defense does not evaporate the moment a person steps onto a sidewalk, into a store, or through the doors of any of the countless private places that the public freely enters every day. At the heart of the ruling is the framework the Court announced in New York State Rifle and Pistol Association v. Bruen. Under that framework a court first asks whether the conduct a person wishes to engage in falls within the plain text of the Second Amendment. The Court had little difficulty concluding that it does. Carrying a handgun for self defense is precisely the conduct the Amendment protects, and the people who hold valid permits are precisely the people the Amendment protects.

The Court then explained why Hawaii’s law imposes a new and substantial burden on that right. The common law had long followed a simple default rule. A member of the public was free to enter property open to the public unless the owner expressly forbade it. Hawaii inverted that rule for anyone carrying a firearm, forbidding entry unless the owner expressly allowed it. By flipping the default in this way, the State transformed a presumption of welcome into a presumption of exclusion, and it did so only for those exercising a constitutional right. That, the Court held, is a meaningful and modern burden that history does not support.

Why Hawaii’s History Failed

Because Hawaii could prevail only by pointing to a genuine historical tradition of comparable regulation, the State assembled a collection of old statutes and asked the Court to treat them as analogues. The Court found them wanting. Colonial laws aimed at poaching addressed a different problem in a different way and bore no meaningful resemblance to a sweeping prohibition on carry in modern commercial spaces. An Oregon statute from 1893 fared no better, both because it was far from clear that the law even reached property open to the public and because a lone statute enacted nearly a century after the Second Amendment, and well after the Fourteenth, tells us almost nothing about the original understanding of the right.

The most striking moment of the opinion came when the Court confronted Hawaii’s reliance on an 1865 Louisiana statute. That statute was part of Louisiana’s Black Code, one of the notorious laws enacted across the defeated Confederacy to keep newly freed Black Americans subjugated and defenseless. The Court refused to dignify it as evidence of our constitutional tradition. Drawing on its earlier decision in McDonald v. Chicago, the Court reminded the nation that the right to keep and bear arms was understood by the framers of the Fourteenth Amendment to be of critical importance to vulnerable Black citizens in the South after the Civil War, who needed firearms to protect themselves when no one else would. Against that backdrop the majority wrote that, in its words, “Unless we put history entirely out of our minds, Hawaii’s claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.”

That single sentence does a great deal of work. It confirms that the historical inquiry Bruen demands is a serious and disciplined one, not an exercise in which a State may pull any racist statute from the shelf and call it tradition. It signals that laws born of oppression will not be repurposed to justify modern disarmament. And it makes clear that the Court intends Bruen to be applied with rigor by the lower courts that have too often resisted it.

What This Means for California

Although Wolford arose in Hawaii, its consequences reach directly into California. For some time California has defended its own restrictions on where permit holders may carry, restrictions so far reaching that critics have fairly described them as a measure that drains the permit of its value in the very places people most need protection. California had reason to believe it might preserve those restrictions by pointing to the Hawaii approach the Ninth Circuit had blessed. That path is now closed. By reversing the Ninth Circuit and rejecting the historical case for laws of this kind, the Supreme Court has effectively foreclosed California’s effort to rescue its own regime by conforming it to a model the high court has now condemned.

The ruling carries a further benefit for those in law enforcement, including retired officers. For years, Ninth Circuit precedent had taken a narrower view of these rights. In Mahoney v. City of Seattle (2017), the court rejected officers’ self-defense claims in challenging overly restirct use of force policies, in part because “current case law does not support the existence of a freestanding fundamental right to self-defense outside of the the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Relying on that erroneous understanding of the Second Amendment, the Ninth Circuit upheld restrictions on officers’ use of firearms in self-defense under intermediate scrutiny and the government-as-employer doctrine. The Seattle law at issue in Mahoney was silimar to early version of AB 931 and AB 392 in California.

Wolford decisively rejects this cramped analysis of Second Amendment and self-defense rights. By reaffirming that the Second Amendment protects the carrying of arms for self-defense as law-abiding citizens move through public spaces and private property open to the public the Supreme Court undercuts the reasoning in Mahoney. The Court unequivically held that such restriction are subject to a rigorous history-and-tradition test rather than deferential balancing. This ruling provides peace officers with significantly stronger constitutional footing to challenge restrictive California laws that impinge on their fundamental right to bear arms for protection, both on and off duty. For the retirees, the ruling sets a high floor on carry restrictions for those who must confront the lingering risks of a career in public safety. 

The Road Ahead

The lasting importance of Wolford lies in the uniform national standard it reinforces. The Second Amendment means the same thing in Honolulu, in Sacramento, and in every community in between, and the historical test that governs its application will be applied with discipline rather than evaded. Restrictive carry regimes that purport to honor the right while quietly disarming permit holders in the spaces the public routinely accesses now stand on far weaker ground. Litigation will continue, particularly within the Ninth Circuit, and not every question is settled. The Court has drawn a clear line in favor of the law abiding citizens, the sworn officers, and the retirees who simply wish to protect themselves and their families.

We will continue to monitor how the lower courts apply this decision.

SB 747 Risks ‘Watered Down’ Qualified Immunity for CA Officers

During the Assembly Judiciary Committee hearing held on June 9, 2026, David E. Mastagni appeared on behalf of the Peace Officers Research Association of California with Jonathan Feldman on behalf of the California Police Chiefs Association to address Senate Bill 747, the legislation known as the No Kings Act. They delivered a clear message: California peace officers support accountability for every government official who violates constitutional rights, yet the bill’s current language creates dangerous uncertainty that lawmakers must fix.

Although proponents introduced the bill to remedy overreach by federal agents, the legislation establishes a new state cause of action that materially increases liability exposure for every California state and local public employee when acting under color of law. The bill establishes a new state cause of action modeled on federal Section 1983, yet its operative language merely permits a defendant to assert qualified immunity without expressly tethering that defense to the well-developed body of federal precedent that governs Section 1983 claims.  The statute risks spawning a separate, potentially diluted California standard for qualified immunity. Feldman stated the core concern plainly: “Our concern is not with accountability. Our concern is with creating a brand new California cause of action that introduces significant legal uncertainty.” Mastagni followed immediately and reinforced the point with precision, explaining that the statute merely states a defendant “may assert qualified immunity” without any language that ties the defense to federal standards. Mastagni warned, “The concerns that both our clients have is that we don’t have a watered down dual definition of qualified immunity.” He continued, “We have offered amendments... so that, again, everybody knows what the law is and that there’s not a California standard of qualified immunity as well as a federal standard.”

Feldman emphasized that proponents repeatedly claim the bill mirrors federal Section 1983 liability and preserves qualified immunity exactly as it exists today, so “If that truly is the intent, the bill should expressly say so.” Nevertheless, the measure as drafted introduces troubling ambiguities that could undermine the predictability and protections essential to effective policing across California. 

The law enforcement amendments require the bill to tether qualified immunity expressly to the identical federal standards and precedents that govern Section 1983 claims. Officers receive rigorous training based on that established federal jurisprudence. The amendments therefore eliminate any risk of conflicting rulings in the same case, spare agencies massive retraining costs, and maintain the predictability officers need when they make split-second decisions in dangerous situations.

Chair Ash Kalra’s remarks during the hearing underscore the very danger these amendments are designed to prevent. The Chair voiced reluctance to link the state defense directly to federal law, citing perceived biases in current United States Supreme Court decisions and suggesting instead a preference for defining qualified immunity according to “ordinary circumstances” under California standards. In light of that perspective, the risk of inconsistent rulings between state and federal courts becomes all too real, particularly where officers face concurrent claims arising from the same incident. 

Importantly, several supporters of the bill openly recognized the legitimacy of law enforcement’s concerns and directed the author to continue working directly with opposition representatives. Assemblymember Blanca Pacheco stated, “I also understand the concerns of the opposition... I would like to see further conversations because I think we can perfect this bill even further... I think there is a pathway.” Assemblymember Rebecca Bauer-Kahan added that the opposition’s points on qualified immunity and retroactivity “seem like ones that... I’m hopeful you guys will continue... to work on and that we can get to a good place.” Assemblymember Diane Papan thanked both the author and the opposition and urged, “Let’s get it over the finish line.” Senator Scott Wiener himself confirmed, “We’ve been in ongoing conversations... I’m hopeful that there is a path... we’re gonna continue those conversations, and we’re committed to those conversations.”

If the bill advances without these refinements, the consequences could prove far-reaching. Officers confronting split-second decisions in volatile situations would labor under uncertainty about the differences in clear established law under federal and California standards. Litigation exposure would expand dramatically, with local governments facing increased defense and settlement costs ultimately borne by taxpayers. Recruitment and retention challenges already confronting law enforcement agencies will likely intensify, and public safety could suffer as proactive policing gives way to hesitation born of legal ambiguity. Retroactivity provisions and attorney-fee exposure compound these difficulties, raising fundamental fairness questions for California employees who have relied on long-settled federal defenses.

Law enforcement therefore urges lawmakers to adopt the amendments now so the bill achieves accountability for federal agents without eroding protections for the 80,000 California officers who protect our communities every day.

Public safety professionals and their unions are encouraged to remain engaged as the bill proceeds. Clarity in the law is not merely a technical preference; it is the foundation that permits officers to protect communities without fear of unpredictable personal liability.

Watch the full hearing here:

DOL Issues New Opinion Letters: Major Wins for Employees on Off-the-Clock FLSA Claims

On May 28, 2026, the U.S. Department of Labor’s Wage and Hour Division issued a significant opinion letter, FLSA2026-8, that delivers clear, practical guidance on one of the most frequent sources of wage-and-hour disputes: off-the-clock work performed before and after paid shifts.

For California workers who must don and doff protective gear or perform integral safety-related tasks each day, this letter is a powerful new tool. It reinforces that employers cannot simply ignore minutes of required work simply because they fall outside the official shift schedule.

The opinion letter arose from a hospital setting but applies directly to any workplace where employees perform essential pre- and post-shift activities. The DOL reached three key conclusions:

• Integral and indispensable pre-shift activities are compensable. Equipment preparation, safety checks, gear donning, briefings, and similar tasks that are intrinsic to performing the job safely and effectively must be counted as hours worked.
• Regular, predictable short periods of work are not “de minimis.” Employers may not rely on the de minimis doctrine to avoid paying for daily, recurring time that, while brief on an individual level, becomes substantial when aggregated across the workforce.
• Rounding policies must actually be neutral. Any timekeeping practice that systematically favors the employer—such as rounding early clock-ins to the scheduled start time while employees are already performing compensable work—violates the FLSA.

Strong Support for Compensibility of Public Safety Employees' Pre and Post Shift Activitie

Public safety employees who perform pre-shift equipment and vehicle checks, participate in shift exchanges and information handoffs, or complete report writing now have fresh authority confirming that this time is compensable. The same holds true for post-shift activities such as washing and storing gear and equipment. This letter sports the position that these tasks are not incidental, but rather essential to the safe and effective performance of public safety duties.

The letter is equally important for private-sector employees in industries that require the donning and doffing of personal protective equipment (PPE) or similar pre- and post-shift preparations. Workers in refineries, manufacturing, processing, construction, and other danagerous environments routinely spend several minutes each shift on these integral activities. FLSA2026-8 directly supports claims that this time must be compensated and undermines common employer defenses based on de minimis time or one-sided rounding policies.

Practical Implications for Unions and Members

This opinion letter is an official agency interpretation which are often given persuasive weight by the courts. The Opinion provides support for claims challenging:

• Unpaid pre- and post-shift donning/doffing time;
• Rounding practices that systematically reduce compensable hours; and
• Employer attempts to dismiss recurring short periods of required work as insignificant.

If a department or workplace uses automated time clocks, early-arrival buffers, or expects “voluntary” pre-shift preparation, it is worth reviewing those practices against the standards articulated in FLSA2026-8.

Third Circuit Limits FLSA “Gap Time” Claims for Straight Time Pay

Public safety unions and their members have long relied on the Fair Labor Standards Act to recover unpaid straight-time wages, often called “gap time”, in weeks when officers or firefighters work overtime. Last week’s Third Circuit decision in Secretary of Labor v. Comprehensive Healthcare Management Services LLC, No. 24-2842 (3d Cir. June 4, 2026), changes the landscape in that circuit. It does not, however, close the door for California’s law enforcement and fire professionals. In fact, Ninth Circuit precedent and California wage-and-hour laws continue to provide a pathway for pursuing gap time claims.

The Third Circuit Ruling

In a 2-1 decision, the Third Circuit ruled that the FLSA provides no private right of action for “overtime gap time” claims, i.e. unpaid straight-time hours worked below the 40-hour threshold in weeks that also include overtime. The court joined the Second Circuit in holding that the FLSA’s text addresses only minimum-wage violations and overtime premiums. It does not create a standalone federal remedy for unpaid straight-time wages in overtime weeks, even though the Department of Labor’s interpretive guidance (29 C.F.R. § 778.315) suggests otherwise. The panel majority emphasized statutory silence: Congress spoke clearly on minimum wage and overtime but remained silent on gap time.

The practical effect outside the Fourth Circuit, which reached the opposite conclusion in 2022, is a narrowing of federal damages. Plaintiffs in the Third and Second Circuits will increasingly turn to state wage-payment laws, exactly as the Third Circuit itself acknowledged.

How This Ruling Contrasts With Ninth Circuit Authority 

California public safety officers and firefighters operate under the Ninth Circuit’s precedent in Adair v. City of Kirkland, 185 F.3d 1055 (9th Cir. 1999), and its unpublished 2001 memorandum decision. In Adair, the court expressly noted that it was “not clear that a gap time claim may be asserted under the FLSA” standing alone, but it simultaneously held that the FLSA requires all straight-time compensation due for non-overtime hours to be paid before any overtime premium can be considered properly calculated. The court directly cited 29 C.F.R. § 778.315 for that proposition.

Crucially, the 2001 memorandum decision clarified that the officers’ overtime gap time claims were not waived or barred by the earlier ruling on pure gap time. The Ninth Circuit left those claims open, in stark contrast to the Third Circuit’s definitive rejection.

This distinction is crucial. When an officer or firefighter brings an off-the-clock claim in the Ninth Circuit, counsel can still argue that unpaid straight-time hours in overtime weeks render the employer’s overtime premium non-compliant under the FLSA’s regular-rate requirements. That argument remains viable here depsite the Third Circuit’s decision.

California State-Law Protections Provide Additional, Often Stronger, Safeguards

Public employees in California also enjoy robust protections that operate independently of the FLSA:

• California Minimum Wage Claims. CA Public employees may pursue unpaid straight-time wages as violations of the California minimum wage (currently $16.50 per hour for most employers, with local variations). These claims are not subject to the same federal limitations the Third Circuit imposed.
• Collective Bargaining and Interest Arbitration. In the public labor relations context, many Memoranda of Understanding (MOUs) contain “pay all hours worked” or “no off-the-clock work” provisions. These contractual obligations are routinely enforced through grievance arbitration and can be leveraged in interest arbitration to secure stronger wage-recovery language.

California overtime claims under state law remain difficult for most public employees because of exemptions. That reality only increases the difficulty of preserving straight-time gap claims, whether framed as a precureser to full payment of FLSA overtime or under California's minimum-wage statutes.