Published Appellate Decision Confirms Make Whole Relief When Agencies Skip Effects Bargaining Over Pension Changes

On August 28, 2026, the Second District Court of Appeal, Division Seven, certified for publication its decision in City of Los Angeles v. American Federation of State, County and Municipal Employees, Nos. B336981 and B340065. The court affirmed an order of the City of Los Angeles Employee Relations Board requiring the City to bargain the effects of ending pension reciprocity and to make represented employees whole for reduced pensions and related losses until that bargaining obligation is satisfied. Publication converts a municipal labor dispute into statewide guidance under the Meyers-Milias-Brown Act.

BACKGROUND

From approximately 1980 until 2014, employees transferring between the Department of Water and Power and other City departments could carry pension service credit between the Water and Power Employees’ Retirement Plan and the Los Angeles City Employees’ Retirement System, with the result that the receiving plan treated the worker as if the entire career had been spent under that system. In 2010 the Water and Power Employees’ Retirement Plan Board commissioned a study that found net transfers had added approximately $183 million to that plan’s unfunded liability, and the Board voted to suspend reciprocity. The City thereafter adopted Ordinance No. 182824, effective January 1, 2014, and stopped counting prior Water and Power service when calculating Los Angeles City Employees’ Retirement System benefit amounts, except for the limited purpose of determining eligibility to retire.

The financial effect on employees who had moved between the two systems was substantial. A stipulated example established that a Senior Clerk Typist who spent fifteen years in each system would receive $16,195 less each year than the employee would have received under reciprocity, and an employee earning $100,000 who sought to purchase two years of lost service would have been required to pay $60,000. The Coalition of City Unions demanded that the City meet and confer over those consequences. The City refused formal bargaining and offered only to answer questions.

THE ERB’S FINDINGS

The Employee Relations Board found that the City had no duty to bargain the decision to end reciprocity. Administrative Code section 4.1095, subdivision (k), made complete portability dependent upon participation by the Water and Power Employees’ Retirement Plan, and once that plan withdrew the City was obligated to stop counting the transferred service for benefit amounts. The City nevertheless retained discretion over the manner in which the change would be implemented. Disability retirement calculations, recognition of prior service for benefit amounts, retiree health treatment after a transfer, protected leave return windows, transfer rules, and the price of buying back service credit were effects of the decision rather than the decision itself, and those subjects therefore had to be bargained.

DECISION BARGAINING VERSUS EFFECTS BARGAINING

The court recognized the controlling distinction between decision bargaining and effects bargaining under the Meyers-Milias-Brown Act. Decision bargaining applies when the employer’s action itself falls within the scope of representation because the action significantly affects wages, hours, or other terms and conditions of employment, and a successful decision bargaining case can support rescission of the policy and restoration of the prior rule. Effects bargaining applies when the underlying decision lies outside the scope of representation, yet the policy change has reasonably foreseeable impacts on bargainable subjects. Pensions, severance, vacation, and seniority are classic effects subjects. The employer may lawfully make the core decision, but it must still give notice and an opportunity to bargain the effects after the decision is firm and before implementation.

The court treated the controversy as an effects bargaining case because the City could lawfully end reciprocity once its partner plan withdrew. Residual discretion over implementation, rather than any vested right to the former formula, is what made bargaining mandatory. The court therefore did not order restoration of the reciprocal arrangement itself and instead required bargaining over the discretionary aspects of implementation.

THE REMEDY

The court recognized that the Board could not recreate the arrangement that existed before 2014 or compel a nonparty retirement plan to return to it, and that full restoration of the prior system was therefore unavailable. The court held that a proper effects remedy must include an order to bargain together with limited make whole relief that continues until the parties reach agreement, reach impasse and exhaust any procedures that follow impasse, or the exclusive representative fails to request bargaining or to bargain in good faith. Back pay in this setting must include pension losses and other benefit reductions, and doubts about the measure of that relief are resolved against the employer whose unlawful conduct created the uncertainty.

The City argued that the make whole order conflicted with American Federation of State, County and Municipal Employees v. City of Los Angeles (2025) 109 Cal.App.5th 179, which held that employees possessed no vested contractual right to continued reciprocity. The court refused to conflate the vested rights doctrine with the statutory duty to bargain under the Meyers-Milias-Brown Act. The absence of a vested right does not erase the duty to bargain effects. The employees were not awarded permanent restoration of reciprocity. They were instead restored, for a limited period, to the economic position they occupied when the bargaining duty attached.

That approach is consistent with Boling v. Public Employment Relations Board (2019) 33 Cal.App.5th 376, which held that when a labor board cannot undo the underlying action, compensatory payments run until agreement or impasse. A permanent order would have functioned as a repeal of the 2013 Ordinance and would have exceeded the Board’s remedial authority. The court instead approved a bridge remedy that restores the economic status quo only until bargaining concludes and that does not compel the City Council to legislate.

THE BOARD’S AUTHORITY

The Board’s authority to award that relief was not confined to a prospective cease and desist order. The court relied on Ordinance section 4.810, subdivision (f)(12), which authorizes the Board to perform such other duties as may be necessary to carry out its responsibilities, and on Government Code section 3509, subdivision (d), which requires the Board to issue orders consistent with the policies of the Meyers-Milias-Brown Act. The Public Employment Relations Board has long treated retroactive make whole relief as standard relief for compensating harm, deterring unilateral action, and restoring bilateralism. The Employee Relations Board’s reading of its ordinance was therefore not clearly erroneous. Because the analysis rests on the Act rather than on a local peculiarity, the Public Employment Relations Board and other reviewing courts should be expected to follow it. The court also affirmed attorney fees under Code of Civil Procedure section 1021.5 and directed a further fee award on appeal.

TAKEAWAYS

The published opinion confirms that effects bargaining is not a lesser right. It identifies pension features that remain negotiable even after a lawful plan design decision, including disability calculations, service recognition for benefit amounts, retiree health treatment after a transfer, leave return windows, transfer rules, and the cost of buying prior service. An agency that implements first and bargains later can face make whole liability measured by the pension dollars members actually lost.

It is therefore advisable that exclusive representatives treat any announced change to reciprocal service credit, disability calculation, retiree medical eligibility, or service purchase terms as an event that at a minimum triggers an effects bargaining obligation. Notwithstanding an employer’s claim that plan design is reserved, the foreseeable impacts on pension amounts and related benefits remain inside the statutory duty. In light of the fee holding, successful enforcement of that duty can support an award under Code of Civil Procedure section 1021.5. The exclusive representative must request effects bargaining promptly and must participate in good faith, because a failure to do so can terminate the make whole remedy. For members who transfer, promote, or retire across systems, the opinion imposes a meaningful limitation on an employer’s ability to implement pension related changes unilaterally and to retain the resulting savings before the bargaining duty has been satisfied.

PORAC, CAHP, and CPRC Urge the US Supreme Court to Invalidate Semi-Automatic Rifle Bans

Mastagni Holstedt, APC was privileged to file an Amicus Curiae brief in the Supreme Court of the United States on behalf of the Peace Officers Research Association of California, the California Association of Highway Patrolmen, and the Crime Prevention Research Center in Viramontes v. Cook County, No. 25-238. The brief supports the petitioners’ challenge to Cook County’s semiautomatic rifle ordinance and to Illinois’s Protect Illinois Communities Act. Those restrictions track California’s assault weapon statutes. They also bear on pending Ninth Circuit challenges to the Unsafe Handgun Act’s feature-based ban on most modern handguns. PORAC and CAHP have filed a brief in that appeal challenging the constitutionality of the UHA. Viramontes will also determine whether California peace officers may retain, after retirement, the same commonly owned rifles they lawfully carried in public service.

The organizations speak from professional experience rather than from a partisan political perspective. PORAC and CAHP represent rank and file officers who enforce firearms laws every day, the men and women who run toward gunfire. CPRC conducts rigorous academic crime research. Their shared perspective supports sound public policy that disarms prohibited persons, confines violent offenders through firearm enhancements, and protects the self-defense rights of law-abiding citizens. They reject the approach of blaming the tools of self-defense while excusing the failure of state officials to enforce existing laws and to impose consequences on violent criminals.

Common Use Ends the Inquiry

The Second Amendment’s text covers the keeping and bearing of arms. Once that threshold is met, the government must demonstrate a historical tradition of comparable regulation. District of Columbia v. Heller, 554 U.S. 570 (2008); New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Arms “in common use” for lawful purposes may not be banned. That protection reaches even arms unknown at the founding, subject only to the limitation that “dangerous and unusual” weapons not “in common use” may be restricted.

AR-15 platform rifles satisfy that test because they are in common use. Americans own an estimated twenty to thirty million of them. They are lawful in forty-one States. Owners keep them for self-defense, target shooting, hunting, and pest control. Their ergonomics, modest recoil, and accuracy make them well suited to defense of the home. A firearm tens of millions of responsible citizens have chosen is not “dangerous and unusual.” Laws that treat these rifles as the functional equivalent of machine guns cannot be reconciled with Heller.

The Data on Gun Crime Refutes the Safety Rationale

The States defend these bans as necessary public safety measures. The empirical record does not support that claim. Criminals rarely obtain firearms through the lawful retail channels these statutes regulate. Bureau of Justice Statistics prisoner surveys show that most offenders who used a gun stole it, found it, or bought it on the street or in the underground market.

Rifles of every type account for a small and shrinking share of homicides. In 2025, of 16,091 murders in which the weapon was identified, only 494 involved a rifle or shotgun. That is fewer than 3.1 percent. The rifle share of firearm murders was 4.8 percent before the 1994 federal assault weapons ban, 4.9 percent while that ban was in effect, and 3.6 percent afterward, even as civilian ownership of AR-15s and similar platforms rose sharply.

Handguns, not rifles, are used in most felonious killings of officers. The rifle share did not fall during the decade of the federal ban.

National Institute of Justice evaluations of the 1994 ban found no discernible reduction in gun violence or in the lethality of gun crime. Independent state-level work controlling for preexisting differences and other gun laws reached the same conclusion. RAND’s synthesis and a 2005 systematic review in the American Journal of Preventive Medicine found no significant evidence that assault weapon restrictions reduce violent crime, homicide, or mass shootings. Mass public shooting data from 1998 through 2025 show that a majority of attacks used only handguns. Rifles of any type appeared in a minority of incidents. The deadliest attacks typically involved multiple weapon types rather than a single banned rifle.

Although the effectiveness of these rifle bans is not the historical test applied by the Court, the data is presented to refute the false premises used to enact these statutes.

California Extinguishes the Officer’s Right at Retirement

Peace officers and their families face reprisal risks that do not end with their shift or at retirement. California nevertheless treats possession of these arms as a revocable employment privilege. An officer may possess a registered “assault weapon” only while employed by a qualifying agency and only upon the agency head’s written certification of the specific firearm. Off-duty possession is confined to limited locations absent a Department of Justice permit. When employment ends, the right collapses. Cal. Penal Code §§ 30625, 30630(a), (b)(1)–(2), 30945(a)–(g), 31000(a)–(c).

Within ninety days the departing officer must permanently disable the rifle, sell it to a licensed dealer, obtain a difficult permit, or remove it from the State. Registered weapons may not be transferred to anyone in California except a licensed dealer. Weapons surrendered to law enforcement are forfeited for destruction. Cal. Penal Code §§ 30915(a)–(d), 30910, 30605. California thus forbids the officer simply to keep at home the rifle he or she lawfully acquired, registered, and carried for years of public service. Federal LEOSA grants qualified retired officers a nationwide concealed carry right, but it leaves the State’s possession ban intact. 18 U.S.C. §§ 926B, 926C.

The contradiction is dispositive of the safety rationale. If a trained, vetted, background-checked officer may carry the arm on duty for decades, there is no principled basis to treat that same officer as too dangerous to own it in retirement, or to deny it to any other law-abiding citizen.

Feature Bans Are Designed to Evade Heller

When a legislature cannot ban a common firearm by name, it bans ordinary commercial features instead. Those features include pistol grips, folding or telescoping stocks, flash suppressors, and detachable magazines. The feature prohibition does the work of banning the arm. California has carried that method furthest. It first applied the approach to rifles, then to standard capacity magazines, and then to most modern handguns through the UHA. Few, if any, California officers carry a handgun that meets the UHA requirements, even though they carry those same purportedly unsafe handguns on duty, when they are most likely to use them for self-defense. The result is a de facto freeze on new semiautomatic handguns even as agencies issue those same “unsafe” pistols for duty. Boland v. Bonta, 662 F. Supp. 3d 1077 (C.D. Cal. 2023). PORAC and CAHP filed a brief in the Ninth Circuit challenging the UHA in Boland.

A ban on a feature is, in operation, a ban on every common arm that bears it. Heller’s common-use test therefore resolves the question. Even if the Court proceeds to Bruen’s “how and why” inquiry, the bans fail. Reducing firearm misuse is a concern as old as the Republic. The Founders could have banned common arms and did not. No founding-era tradition supports prohibiting possession of arms in common use, whether the prohibition is labeled by model or by feature. United States v. Rahimi, 602 U.S. 680 (2024), confirms that the Nation’s tradition properly targets dangerous persons, not the common arms responsible citizens choose. PORAC and CAHP support Rahimi. A State cannot, however, erase Second Amendment rights through incremental hardware mandates. In the Court’s words, a right that can be erased in that manner is no constitutional guarantee at all. Heller, 554 U.S. at 635.

California Restricts the Law-Abiding While Relaxing Enforcement Against the Violent

California legislates aggressively against citizens who obey the law. At the same time, the State exhibits no equivalent zeal for keeping firearms from prohibited persons. It made once-mandatory firearm enhancements discretionary. It directed courts to dismiss enhancements in the furtherance of justice and to give great weight to circumstances favoring dismissal. It opened parole and resentencing pathways for certain individuals serving life without parole for serious, often firearm-related, offenses. The recent Glock ban was prompted by a Sacramento mass shooting committed by a violent felon released from prison six years early. Nevertheless, California tolerates widespread nonenforcement of laws already barring felons from possessing any firearm. Its Armed and Prohibited Persons System carries a backlog of approximately 24,000 individuals known to possess firearms unlawfully.

The cost is not hypothetical. On June 14, 2022, two El Monte police officers were murdered by a gang member who should have been imprisoned on a prior firearm possession arrest. He went free when the district attorney declined to enforce prohibited-persons laws.

A government serious about gun violence prosecutes armed felons. It does not ban common rifles from law-abiding people, and it does not disarm retired peace officers.

What a Favorable Ruling Would Mean for California Officers

A reversal would confirm that arms in common use may not be banned and that feature-based restrictions are measured by their burden rather than their label. The same principle would reach pending challenges to California’s assault weapon statutes, magazine limits, and the Unsafe Handgun Act. Officers who spent careers carrying these rifles would no longer be required to disable, sell, or exile them the day the badge comes off. Law-abiding citizens would regain access to the Nation’s most popular defensive rifles.

Amici ask the Court to hold that these statutes violate the Second Amendment. The brief reflects the work of David E. Mastagni  and Alexandra Holland of Mastagni Holstedt, APC, and Timothy K. Talbot and Michael A. Morguess of RLSSS. This blog will continue to report on the case as it develops. Our firm is proud to stand with amici on this case of national importance.

READ THE BRIEF HERE. 

California Supreme Court Halts the Appeals Board's Practice of Extending Its Own Reconsideration Deadline

A significant win for California public safety employees and the unions that represent them

By Mastagni Holstedt, APC Partner David E. Mastagni and Senior Associate Jonathan D. Char

The California Supreme Court has delivered a decision that strengthens the finality of workers' compensation awards for the firefighters, peace officers, and other public safety employees who depend on them. In Mayor v. Workers' Compensation Appeals Board, the Court held that the Workers' Compensation Appeals Board may not extend its own statutory deadline of sixty days to act on a petition for reconsideration, and it made clear that the Board's administrative delays cannot excuse that failure. Mayor v. Workers' Comp. Appeals Bd., No. S287261, 2026 WL 2470051 (Cal. Aug. 24, 2026) Public safety unions should welcome this ruling because it protects an injured member's hard-won award from administrative irregularity and from the Board’s own neglect and system systemic failure.

The dispute arose from an all-too-familiar pattern. Joseph Mayor suffered an industrial injury while working for the Ross Valley Sanitation District, and a workers' compensation judge found him permanently and totally disabled. The employer filed a timely petition for reconsideration, yet the petition never reached the Board within the 60-day window because the workers' compensation judge never acted on or transmitted it for reasons the record does not explain, and the Board did not grant reconsideration until roughly 144 days after the petition was filed. The Board justified this lengthy delay by invoking Shipley v. Workers' Compensation Appeals Board, and by asserting that an administrative irregularity had prevented it from receiving the petition on time. The Court rejected that justification and restored the certainty that the governing statute demands.

At the heart of the decision lies Labor Code section 5909. In the version that governed Mayor, a petition for reconsideration was deemed denied unless the Board acted within sixty days of filing. The Legislature has since amended the statute so that the sixty days now runs from the date the trial judge transmits the case to the Board. The Court agreed that this deadline is mandatory and that the Board possesses no authority to toll its own time to act. The Court explained that equitable tolling exists to allow litigants to pursue claims despite certain equitable circumstances, and it does not exist to rescue an agency from its own missed deadline. The Court further reasoned that the statute serves the essential purpose of ensuring that petitions do not languish, and it concluded that permitting the Board to toll the deadline because of its own inefficiency or neglect would defeat that purpose entirely. When the Board acts after the sixty-day period expires, it acts in excess of its jurisdiction, even though it does not lose fundamental jurisdiction over the matter.

The Court reserved particular scrutiny for the Board's habitual reliance on Shipley. It disapproved Shipley to the extent that the decision implied that every party enjoys a due process right to Board review of a petition after the sixty-day deadline has passed. The Court recognized that narrow circumstances may exist in which due process permits the Board to act late, yet it emphasized that the Board had transformed Shipley into a routine workaround for a recurring and systemic failure to receive petitions on time. The Court did not catalog those narrow circumstances, but it made clear where the floor lies. In footnote 7, it explained that "[m]ore is required to establish a due process violation resulting from the failure to timely rule on a petition for reconsideration than the simple filing of a reconsideration petition and the expiration of the statutory deadline to act." That systemic breakdown, the Court held, cannot justify a self-administered remedy that allows the Board to toll its own statutory deadline whenever it falls behind. This portion of the opinion forecloses the very rationale that agencies have used to keep contested awards open indefinitely. That said, Mayor does not eliminate every avenue for prolonging a case. Its holding reaches only untimely Board action, meaning action taken after the statutory deadline has run. If the Board acts within the sixty-day window, it may still grant reconsideration, including a grant for further study, and that timely order keeps the award from becoming final while reconsideration proceedings continue. Because no statutory clock comparable to section 5909 governs how long the Board may then take to issue its decision after reconsideration, a timely grant can leave an award unresolved for a substantial period. What Mayor forecloses is the Board's use of its own delay to manufacture more time after the deadline has already passed.

The practical value of this decision for unions and their members becomes clear when one considers what open ended delay actually costs an injured worker. Mayor won an award of total and permanent disability, yet he received no compensation for years while the reconsideration dispute remained unresolved, and the Court expressly noted that the Board's practice of tolling its own deadline opens the door to open ended extensions. A firefighter who suffers a career ending injury cannot afford to wait while an agency sits on a petition, and this ruling ensures that the statutory clock means what it says. By insisting on finality, the Court protects the reasonable expectation of every public safety employee that a favorable award will become enforceable on a predictable timeline. That predictability cuts both ways. The same sixty-day rule that finalizes a favorable award also runs against an injured worker whose own petition for reconsideration is deemed denied when the Board fails to act in time. In that situation, the worker cannot wait on the Board. Once the petition is denied by operation of law, the member’s only route is a timely petition for writ of review in the Court of Appeal, and that petition must be filed within forty-five days.

The decision provides tools to enforce the deadline rather than wait indefinitely for the Board to act. The Court confirmed that a petition for writ of mandate filed in the Court of Appeal is the proper mechanism for an affected party to compel the Board to honor section 5909. A union member who prevailed before the workers' compensation judge and who watches the Board blow past the statutory window now has a clear judicial path to protect the award. This remedy transforms the sixty-day deadline from an aspiration into an enforceable command, and it places meaningful leverage in the hands of the employees and advocates who invoke it. Which remedy applies depends on what the Board does once the sixty days run. If the Board simply fails to act and the petition is denied by operation of law, the adversely affected party must move quickly, because that finality holds unless the party timely seeks review. In that situation, the remedy is a petition for writ of review in the Court of Appeal, and it must be filed within forty-five days of the deemed denial. If instead the Board acts after the deadline has passed, the remedy is different. There, the party affected by the untimely order enforces the deadline through a petition for writ of mandate, which the Court held is the proper way to compel the Board to honor section 5909. Either way, the sixty-day deadline operates as a firm limit on the Board's power, but it protects only the party who tracks the deadlines and seeks the correct writ in time.

Mayor is a reaffirmation that the workers' compensation system exists to deliver substantial justice expeditiously rather than to accommodate bureaucratic delay. Although the Legislature has since modified the statute so that the sixty-day period begins when the trial judge transmits the case to the Board, the principle that administrative problems must not leave injured workers and their benefits in legal limbo endures. Firefighters and peace officers accept extraordinary risks in the service of their communities, and this decision recognizes that the compensation they earn will not remain hostage to an agency's own missed deadlines.

California Supreme Court Clarifies Declaratory Relief Under the CPRA and Rejects an Implied Three-Year Retention Duty Under the CPRA

On January 15, 2026, the California Supreme Court issued its decision in City of Gilroy v. Superior Court, 19 Cal. 5th 38 (2026). Writing for a unanimous Court, Chief Justice Guerrero resolved two questions of first impression under the California Public Records Act, Cal. Gov’t Code § 7920.000 et seq. The Court considered whether declaratory relief remains available after an agency has produced all existing responsive and nonexempt records, and whether the Act itself imposes a three year retention obligation once an agency asserts a statutory exemption. The decision carries practical significance for every public safety agency that regularly receives requests for body worn camera footage and related enforcement records.

Background

The dispute arose from successive requests that the Law Foundation of Silicon Valley submitted to the City of Gilroy beginning in 2018. Those requests sought, among other materials, Gilroy Police Department body worn camera recordings related to homeless encampment cleanups. The City asserted that the footage fell within a statutory exemption, conducted a search that the trial court later found inadequate, and destroyed certain recordings under its ordinary retention schedule while the requests remained pending. After the City produced the nonexempt footage still in its possession, the Law Foundation sought both mandamus and declaratory relief. The superior court granted limited declaratory relief concerning the City’s search practices and exemption assertions, yet determined that the Act created no independent retention duty. The Court of Appeal then held that declaratory relief became unavailable once the City had disclosed all remaining nonexempt records and that the Act imposes no three-year preservation requirement. 

Holdings

The Supreme Court reversed in part and remanded for further proceedings, holding that Cal. Gov’t Code § 7923.000 authorizes declaratory relief in at least some circumstances even after disclosure of all existing responsive and nonexempt records. The statutory command that a court may enforce a requester’s right to inspect or receive public records does not confine that enforcement power to contemporaneous production orders. Declaratory relief remains proper where a declaration would resolve an ongoing controversy concerning the parties’ rights and obligations under the Act in a manner that has some likelihood of affecting future records requests or future agency conduct. The trial court’s declarations addressing the City’s inadequate search and its blanket assertion of exemption without review of the body camera footage met that standard, and those declarations therefore survive the subsequent production of remaining records. 

On the retention question the Court reached the opposite result and affirmed the Court of Appeal. It rejected the argument that the Act imposes a three year retention period commencing from the moment an agency invokes a statutory exemption, because nothing in the text of the Act creates such a duty. The Court noted that the Legislature expressly enacted retention requirements for certain records in otehr statutes, including body worn camera data under Cal. Penal Code § 832.18, yet did not include retnetion requirements in the CPRA. Inferring a broad preservation obligation from the availability of judicial review or from the constitutional policy favoring access would rewrite a detailed statute to add a requirement the Legislature did not address. The Court limited the opinion to the ordinary operation of routine retention schedules, leaving open questions that might arise from intentional destruction undertaken for improper purposes. 

Take-Aways

Agencies cannot assume that production of remaining records will automatically moot claims for declaratory relief concerning search adequacy, the propriety of exemption claims, or compliance with response timelines. A declaration that an agency failed to conduct a reasonable search or improperly asserted a categorical exemption without segregating nonexempt material may still issue and may support an award of attorney fees under section 7923.115 if the requester is deemed to have prevailed. Departments that receive recurring requests for body-worn camera footage of enforcement activity therefore have a continuing incentive to document search efforts carefully, review footage before asserting exemptions, and provide specific rather than boilerplate justifications for withholding.

On the other hand, the rejection of an implied three-year hold provides agencies a significant win. The Act does not require public safety agencies to freeze every record once an official claims an exemption. Retention continues to turn on the agency’s adopted schedules and on any specialized statutes that govern particular media, including body worn camera recordings. Agencies should implement litigation holds when they reasonably anticipate litigation, as they already must under generally applicable preservation duties. The Act, however, does not convert every exemption claim into a three year preservation mandate of its own force.

Justice Groban filed a concurrence, which Justices Corrigan and Kruger joined, that supplies a useful limiting principle. In his view the Act does not authorize declaratory relief solely to pronounce that an agency’s past conduct violated the statute where the requester offers no evidence of a pattern or practice of violations and where the agency does not dispute its legal obligations. Broader use of the remedy, he warned, could incentivize requests pursued principally for fee recovery and could discourage agencies from reconsidering initial withholding decisions. That guidance should help courts and agencies distinguish controversies capable of guiding future conduct from isolated or technical disputes that warrant no declaration.

Conclusion

City of Gilroy therefore confirms that the Act remains a potent instrument for enforcing transparency while making equally plain that the statute is not a general records retention code. In light of the Court’s willingness to declare past practices unlawful even after production is complete, agencies will likely examine existing search protocols and exemption procedures now rather than await the next recurring request.  

The Supreme Court Says Cannabis Use Alone Cannot Disarm You. What Does that Mean for California Cops?

California peace officers now stand at the intersection of two bodies of law that pull in opposite directions. State law shields their right to use cannabis when they are not on duty, while federal law forbids anyone who uses cannabis from possessing the very firearm that their profession demands. The Supreme Court has just unsettled the federal side of that equation in United States v. Hemani, and its decision invites a fresh look at whether an officer who lawfully uses cannabis away from work may still be denied the badge and the gun. United States v. Hemani, 146 S. Ct. 1677 (2026) The answer is not yet clear, and the competing arguments deserve careful attention.

The Legislature spoke plainly when it enacted Assembly Bill 2188 and Senate Bill 700, which amended Government Code section 12954 and took effect on January 1, 2024. That statute makes it an unlawful employment practice for an employer to penalize a worker for using cannabis off the job and away from the workplace, and it forbids reliance on a drug test that detects only the nonpsychoactive cannabis metabolites that linger in the body long after any effect has passed. Gov Code § 12954. The Legislature exempted only employees in the building and construction trades, and it said nothing at all about peace officers. Because the Legislature expressly excluded one occupation and left every other unmentioned, officers possess a legitimate argument that the omission of their profession was deliberate and that the new protection reaches them. The statute therefore begins from a position that appears to favor the officer who uses cannabis on personal time.

That favorable starting point gives way, however, to several exemptions that may prove decisive for law enforcement. Section 12954 does not permit an employee to use or to be impaired by cannabis on the job, it preserves an employer's authority to maintain a drug free workplace, and it expressly leaves intact any other rights or obligations that state or federal law places on the employer. The statute also declines to preempt any state or federal law that requires controlled substance testing as a condition of employment, and it removes from its protection any position that requires a federal government background investigation or security clearance. The difficulty is that the ordinary municipal or county officer completes a state background investigation for good moral character under Government Code section 1031, not the federal investigation that the exemption describes, and Government Code section 1029 disqualifies only those convicted of a felony rather than those who use cannabis. Whether these provisions carve officers out of the statute or leave them comfortably within it remains genuinely uncertain.

The sharpest tension arises not from the employment statute but from the firearm that every sworn officer must carry. Federal law makes it unlawful for any person who is an unlawful user of a controlled substance to possess a firearm, and cannabis remains a Schedule I controlled substance under federal law no matter how completely California has legalized it. An officer who uses cannabis therefore appears, at least on the face of the statute, to be a person whom Congress has forbidden to hold a tool that the job requires. That same officer who buys a personal weapon must attest truthfully on the federal firearms transaction record that he is not an unlawful user of marijuana, and a false answer carries federal criminal exposure. The firearm requirement, far more than anything in the employment code, is what has long threatened to place cannabis-using officers outside the protection that Assembly Bill 2188 seems to promise.

For years the governing federal authority in California cut sharply against the officer. The Ninth Circuit in Wilson v. Lynch, 835 F.3d 1083 (9th Cir. 2016) applied a two-step inquiry and intermediate scrutiny and upheld the federal restrictions that keep marijuana users, including the holders of a state medical marijuana card, from acquiring firearms. The court reasoned that these laws burden the Second Amendment only minimally and incidentally, and it concluded that the Constitution tolerates such modest collateral burdens. Wilson supplied a straightforward answer that a cannabis user could be kept from the firearm and therefore from the job. That answer, however, rested on the Ninth Circuit’s Second Amendment analysis that the Supreme Court has rejected.

The ground shifted when the Supreme Court decided New York State Rifle and Pistol Association v. Bruen and directed courts to measure firearm regulations against the Nation's historical tradition rather than against tiers of scrutiny. United States v. Hemani, 146 S. Ct. 1677 (2026), decided on June 18, 2026, applied that framework to the very statute at issue here. Ali Hemani used marijuana a few times a week, and the government sought to imprison and permanently disarm him on that basis alone, without any claim that he was an addict, that he was intoxicated while armed, or that he had ever posed a danger to anyone. The Court held that the prosecution could not stand, because the historical laws the government invoked, the old regimes that restrained habitual drunkards through vagrancy, civil commitment, and surety bonds, targeted persons whose intoxication left them incapacitated and operated only after some form of legal process. Section 922(g)(3), by contrast, automatically disarms any regular user of any controlled substance without proof of incapacity, intoxication, or dangerousness, and the Court concluded that this automatic and status driven ban does not fit within the Nation's historical tradition of firearm regulation. Applying the statute to Hemani on those facts therefore violated the Second Amendment.

The Court took evident care to confine its ruling. It did not decide whether Congress may disarm those who are addicted or presently intoxicated, it did not disturb the separate prohibition on firearm possession by convicted felons, and, most importantly for officers, it did not resolve whether the government may proceed under the statute when it offers individualized proof that a person's drug use renders him a danger to himself or others. The holding thus dismantles one categorical justification for disarming cannabis users while expressly preserving room for a narrower approach that rests on individualized findings.

Arguably, if the federal firearm ban cannot constitutionally reach a person merely because he uses cannabis, then an agency can no longer prohibit marijuana use based on the contention that such an officer is legally incapable of possessing their duty weapon. Under this argument, the exemptions from section 12954 may not apply, because they preserve only employer obligations that federal law genuinely imposes, and under Hemani federal law may not impose a firearm disability based on cannabis use alone. The earlier Ninth Circuit rule in Wilson, resting on a repudiated legal framework, looks increasingly invalid after Hemani. Thus, an officer disciplined solely because he or she uses cannabis may run afoul of the categorical prohibition that the Supreme Court has now rejected. Read together, Assembly Bill 2188 and Hemani suggest the officer may be protected from discipline.

However, the application of Assembly Bill 2188 to peace officers remains unclear. Hemani decided only an as applied challenge that turned on the complete absence of any individualized showing, and the Court pointedly left open a prosecution supported by individualized proof of dangerousness. An agency may contend that an officer who carries a loaded firearm in public every single day presents exactly the individualized safety concern that the Court declined to reach, so that the reasoning of Hemani may provide officers no shelter at all.

Section 12954 independently preserves the employer's right to maintain a drug free workplace and to honor any obligation that federal law and regulation impose, and Government Code section 1031 must be read and applied consistently with federal law. Cannabis also remains unlawful under federal law even where a prosecution under section 922(g)(3) would fail, and the officer who purchases a personal firearm still confronts the sworn federal form and the criminal exposure that a false answer invites. 18 U.S.C.A. § 922. Wilson, while legally suspect, remains binding in the Ninth Circuit until that appellate court or the Supreme Court squarely overrules it, and an agency may reasonably continue to rely upon it.  

The honest conclusion is that the law has not settled and that officers and their employers alike should proceed with caution. Hemani has weakened the categorical federal bar that once made this analysis simple, yet it has deliberately left open the individualized path to enforcement. More importantly, the California exemptions remain untested in any court.

Public safety unions should resist any suggestion that their members must surrender the protections that the Legislature extended, and they should insist that any adverse action rest on an individualized assessment of fitness and risk rather than on cannabis using status alone. Officers, for their part, should remember that cannabis remains unlawful under federal law and should weigh that stubborn reality before they place their careers in the hands of an unsettled disciplinary dispute. Until the Legislature or the courts clarify this issue, prudent officers should tread lightly regarding off-duty cannabis use.