Federal Judge Cites PORAC President Brian Marvel's Declaration in Order Enjoining Unsafe Handgun Act

On March 20, 2023, Central District Judge Cormac J. Carney issued a preliminary injunction in Boland v. Bonta barring enforcement of the deceptively titled "California's Unsafe Handgun Act (UHA)," ruling "Californians have the constitutional right to acquire and use state-of-the-art handguns to protect themselves." This ruling is of particular importance to California Peace Officers, given the introduction of S.B. 377, which would eliminate the peace officer exemption from the UHA, thereby prohibiting officers from purchasing or selling the modern handguns they bear while on duty. Intuitively, peace officers should have access to the newest and safest equipment, including firearms.

 

On behalf of PORAC, David E. Mastagni assisted PORAC President Brian Marvel in submitting a declaration in support of the Plaintiffs, which was cited repeatedly by the Court in pointing out the hypocrisy of the state's rationale for the roster. The Court explained:

 

"The government cannot credibly argue that handguns without CLI, MDM, and microstamping features pose unacceptable public safety risks when virtually all handguns available on the Roster and sold in California today lack those features.

Similarly, if Off-Roster firearms were truly unsafe, California would not allow law enforcement to use them in the line of duty when the stakes are at their highest. But the substantial majority of California's law enforcement officers use Off-Roster handguns in the line of duty. (Dkt. 57-2 [Declaration of Brian R. Marvel, President of Peace Officers Research Association of California, hereinafter "Marvel Decl."] ¶ 5 ["Most agencies issue officers the latest models of either Glock or Sig Sauer handguns, which lack magazine safety disconnects, chamber load indicators, and of course, microstamping."]; see id. ¶ 7 ["For example, many officers are issued 4th or 5th-generation Glock pistols, which are off-roster and lack magazine safety disconnects, chamber load indicators, and of course microstamping."].) Indeed, the government's own witness, Special Agent Salvador Gonzalez, testified that he uses an Off-Roster duty handgun without a CLI, MDM, or microstamping capability. (Tr. at 243–44.) If CLIs and MDMs indeed increased a firearm's overall safety, law enforcement would surely use them. (Marvel Decl. ¶ 5.) But they do not. Instead, they use "newer, improved and safer generations of handguns" that are Off-Roster. (Id. ¶ 7.)"

In New York State Rifle & Pistol Ass'n, Inc. v. Bruen ("Bruen"), the Supreme Court vindicated the "constitutional right to bear arms in public for self-defense," a right which includes peace officers who place their selves in harm's way to protect members of the public. This ruling also affirmed the arguments we raised during the debate on the use of force legislation. The Court held under Bruen, "to be constitutional, regulations of Second Amendment rights must be 'consistent with this Nation's historical tradition of firearm regulation.'"  

 

The UHA barred the sale of handguns that don't contain certain so-called safety features, which since 2013 has included theoretical microstamping technology. Judge Cormac noted, "Since 2007, when the (loaded chamber indicator) and (magazine disconnect safety) requirements were introduced, very few new handguns have been introduced for sale in California with those features. Since 2013, when the microstamping requirement was introduced, not a single new semiautomatic handgun has been approved for sale in California."

 

The Court rejected the State's historical analogies, explaining that laws to ensure guns operate as advertised are not analogous to requiring the implementation of new safety features. "These regulations are having a devastating impact on Californians' ability to acquire and use new, state-of-the-art handguns," according to the Court.

 

This ruling should moot the S.B. 377 elimination of the peace officer exemption to the UHA by allowing all Californians access to state-of-the-art handguns for self-defense. The preliminary injunction is set to go into effect in two weeks, so the State can appeal the ruling to the Ninth Circuit Court of Appeals, which is particularly vital and affirmed PORAC's successful argument during the AB 392 debate that the State cannot impinge officers' right of self-defense.

 

 

 

PERB Sides with Corrections Officers in Overtime Dispute with Fresno County

A recent Public Employees Relations Board (PERB) decision makes clear an employer's obligation to bargain over proposed changes to overtime sign-up and payment policies. In Service Employees International Union Local 521(Union) v. County of Fresno (County), the Administrative Law Judge (ALJ) decided in favor of the Union, finding the County committed an Unfair Labor Practice (ULP) in violation of Meyers-Milias-Brown Act (MMBA) provisions when it unilaterally changed both the overtime sign-up procedure for supervising juvenile correctional officers (SJCOs) and how it paid SJCOs when they worked more than eight hours in a period of continuous work that began before and ended after midnight, and by refusing to arbitrate grievances concerning both issues. However, the ALJ concluded that the Union failed to show that the County violated the MMBA with regard to its request for information.

Fresno County's Probation Department runs the Juvenile Justice Campus, a 24-hour residential facility for juvenile offenders. The sworn staff includes Juvenile Corrections Officers (JCOs), Senior Juvenile Corrections Officers (Sr. JCOs), Supervising Juvenile Corrections Officers (SJCOs), and Deputy Probation Officers (DPOs). SJCOs manage JCOs, schedule shifts, act as watch commanders at the Juvenile Justice Campus, and are represented by the Union.

From 2014 to 2018, a standing practice regarding priority for overtime opportunities was memorialized in a 2014 email from the then Assistant Director of the Juvenile Justice Campus. When the need for overtime in JCO and Sr. JCO shifts was known in advance, JCOs and Sr. JCOs had a window to volunteer for the shifts before SJCOs could reserve the remaining spots. Emails announcing overtime opportunities were typically sent out 21 days before the overtime shift, resulting in SJCOs having about 18 days to decide whether they wanted to take the overtime shift and make personal arrangements for that purpose. In May 2018, a memo was distributed by the Chief Probation Officer to the various corrections officers at the Juvenile Justice Campus modifying the overtime sign-up practices, resulting in SJCOs losing the ability to sign up for overtime until the day of. In effect, SJCOs no longer had advance notice to make personal arrangements to accommodate the overtime shift, and the amount of overtime worked by SJCOs decreased. The Chief Probation Officer failed to provide notice to the Union before distributing the memo based on the advice he received from a human resources employee working for Fresno County that interpreted the MOU's language to provide the unilateral ability to make such a change based on the management rights clause present in the MOU and the County's interpretation of the word "day" in the MOU to mean a period of time beginning at 12:01 a.m. and ending at 12:00 a.m.

Additionally, as it pertains to overtime, the MOU states, "Overtime is authorized work performed by employees in excess of eight hours a day or over 40 hours in a work week." The longstanding practice adhered to by the parties was to pay SJCOs overtime for all time in excess of eight hours in a continuous period of work, even if part of the work occurred before midnight and part occurred after midnight. However, on June 8, 2018, a SJCO worked a double shift, beginning at 4:00 p.m. on June 8th and ending at 8:00 a.m. on June 9th, for a total of 16 hours. The SJCO claimed the second eight hours as overtime, per the terms of the MOU. When the SJCO was paid for that period, the County paid the second eight hours as regular time. When the Union questioned this practice, the County reiterated the SJCO was not entitled to overtime due to the SJCO working eight hours on June 8th and another eight hours on June 9th, which the County deemed to be two separate shifts on two separate days, rather than one continuous shift where the time in excess of eight hours would be categorized as overtime.

In light of these two issues, the Union filed separate grievances on behalf of the SJCOs. Regarding the overtime sign-up grievance, following the Step 3 grievance proceedings, the Union asserted that the parties agreed to stay the grievance. At the same time, the involved personnel attempted to remedy the situation amongst themselves. Following the passage of 10 working days, the County moved to close the file claiming the Union failed to advance the grievance to Step 4 in a timely manner.

As it pertains to the consecutive hours/overtime grievance, following Step 4 of the grievance process, the Union requested to move the grievance to arbitration. The County, however, claimed the Union failed to contact State Mediation for a list of arbitrators in a timely manner. Thus, their request exceeded the stated deadline, resulting in the County's refusal to arbitrate the matter.

In support of the consecutive hours/overtime grievance, the Union sent the County an information request seeking records, policies, and documents regarding payroll and overtime encompassing the previous five years, to be produced within 30 days. The County acknowledged the request and indicated the day before they were required to produce the documents that, the volume and specificity of the information sought would require the County to collaborate with other departments and review extensive amounts of data, which required additional time. After approximately two months, the County produced a flash drive with the responsive information to the Union. The Union did not indicate if they were dissatisfied with the County's production. However, at some point during the hearing, the Union requested additional information specific to the SJCO's overtime payroll records. On the third day of the hearing, the County produced the requested records, which were subsequently introduced as exhibits. At that time, the Union indicated that their request was fully satisfied.

Ultimately, there were three issues evaluated in the case at hand. 1) Did the County violate the MMBA when it changed a) the overtime sign-up procedure and/or b) when it changed how it paid SJCOs for work performed after midnight in a continuous period of work greater than eight hours? 2) Did the County violate the MMBA by refusing to arbitrate the Union's grievances on procedural grounds? 3) Did the County violate the MMBA by failing or refusing to respond to the Union's request for information? The County argued that the Union's complaint was barred by the statute of limitations and additionally asserted two waiver arguments, specifically claiming that the contents of the MOU prevailed over the alleged practice and that the changes implemented by the County were permitted under the management rights clause provided in the MOU.

 With respect to the statute of limitations argument, a charging party must generally file an unfair practice charge for violations of the MMBA within six months from when the charging party knew or should have known of the violation. The County contended that the Union's charge was untimely due to the filing occurring beyond the six-month threshold and that they failed to advance the two grievances to Step 5, thus barring their claims for untimeliness. The ALJ found that the Union's claims were equitably tolled due to the parties engaging in the interactive grievance process at the time, which was a contractually obligated attempt to remedy the situation before pursuing litigation. Further, the ALJ held that as it pertains to the overtime sign-up procedure grievance, the Union credibly proved that the parties agreed to suspend the timeline following Step 3 to attempt to resolve the issue. Therefore, the County's claim that they failed to advance the grievance to Step 4 promptly failed and that the statute of limitations for that charge was also equitably tolled.

 The County's waiver arguments were similarly unpersuasive. The ALJ held that the County's belief that the MOU's language trumped the alleged practice was improper, given that the MOU did not specifically define the word "day." The County unreasonably relied on its salary resolution language, which defines a "day" as a period of time beginning at 12:01 a.m. and ending at 12:00 a.m. More specifically, the ALJ provided that the MOU's language did not clearly and unmistakably waive the County's duty to give the Union notice and an opportunity to bargain before changing what counted as a "day" for purposes of calculating overtime.

Shifting to the County's refusal to arbitrate the grievances, the decision provides that the Union failed to show that the County's refusal to process the grievances was a change from prior policy or practice. Yet, it was determined that the County had a duty to present its procedural arguments about the grievance to an arbitrator, and its refusal to do so violated section 3505.8 of the MMBA, which governs the enforceability of an MOU's arbitration agreement. It provides in pertinent part, "An assertion that the arbitration claim is untimely or otherwise barred because the party seeking arbitration has failed to satisfy the procedural prerequisites to arbitration shall not be a basis for refusing to submit the dispute to arbitration. All procedural defenses shall be presented to the arbitrator for resolution."

However, the ALJ found against the Union in its request for information claim. The holding provides that when a union requests relevant information, the employer must supply it timely and explain its reasons for not doing so. A failure to provide the necessary and relevant information absent a valid defense constitutes a per se violation of the duty to negotiate in good faith. Here, it was found that the County engaged with the Union and communicated the burdensome nature of the information request and that it was doing its due diligence to obtain the requested information. Moreover, the County provided information responsive to the Union's request. If that information was deemed to be unsatisfactory to the Union, the Union had an obligation to express its dissatisfaction, which it failed to do. The County was also responsive to the Union's request for additional, more specific information regarding the SJCO's overtime payroll records on the third day of the hearing, thus, satisfying its requirement to produce relevant information and its duty to negotiate in good faith.

Ultimately, the ALJ's proposed order required the County to rescind the 2018 memo and return to the overtime sign-up practices consistent with the 2014 email authored by the then Assistant Director of the Juvenile Justice Campus that provided SJCOs with advance notice of overtime opportunities. The County was also ordered to make the SJCOs whole by paying them for any overtime opportunities they lost as a result of the unlawful change and to resume paying overtime premiums to SJCOs for work after eight hours in a continuous period of work, even if that period of work crosses midnight, to include double shifts. Lastly, the County was required to pay the SJCOs backpay equal to the overtime premium for work after eight hours in a continuous period of work, including double shifts, with interest included at seven percent per annum.

The Union also sought attorney's fees, which PERB awards only if the charge is both without arguable merit and pursued in bad faith. It was determined that while the County's primary positions lacked arguable merit, they were reasonably relied upon and not put forth in bad faith. Therefore, the Union's request for attorney's fees was denied.

There are a number of practical implications from this decision. The failure to specifically define what constitutes a "day" is something that various employers may more stringently address in future collective bargaining, given the MOU's vagueness around that word in this particular matter and the County's reliance on that word to its own detriment. Moreover, when an employer attempts to change a standing practice to assign or sign-up for overtime, the need to bargain over such proposed changes seems like an explicit requirement based on this holding. Finally, suppose an employee's workday is going to pass midnight and exceed whatever the defined hours of a day are for that particular agency. In that case, employers should be particularly aware of such a scenario and ensure overtime is appropriately paid for the time worked in excess of the defined workday, consistent with its MOU, or they too can be held liable and required to pay a significant monetary penalty.

Ninth Circuit Provides Guidance on First Amendment Protections Afforrded Controversial Public Safety Social Media Posts

The phenomenon that is social media is not new nor novel in today's society. Yet, social media's impact on speech and its overlap with the First Amendment continues to evolve and present the American legal system with unique challenges and fact patterns that are separate and unique from more historical speech matters, particularly in the context of an individual's employment.

In Hernandez v. City of Phoenix, the Ninth Circuit Court of Appeals issued an opinion addressing the types of posts that involve matters of public concern and therefore are protected by the First Amendment. Hernandez provides important guidance on what type of speech is protected under the First Amendment and how government agencies/employers can implement social media policies that are in compliance with the First Amendment.

In 2013 and 2014, Sergeant Juan Hernandez of the Phoenix Police Department made a series of social media posts that denigrated Muslims and Islam. The posts were made off-duty, and Sgt. Hernandez did not directly create a nexus to his employment as a member of the Phoenix Police Department; however, other posts on his account did depict him in uniform. The posts did not create any controversy until 2019, when an organization called the Plain View Project obtained the posts and drew public and media attention to them. The Plain View Project monitors and collects certain law enforcement organizations' social media activity to create oversight and dialogue related to what they deem potentially problematic social media activity.

Following the release of these posts by the Plain View Project and the subsequent backlash received from the public, the Department conducted an internal affairs investigation and determined that Sgt. Hernandez violated its social media policy, specifically finding his posts "potentially reduced or contributed to the erosion of public trust, were inflammatory to certain groups, and/or created dissension in the community by promoting hate, violence, racism, bias, or beliefs inconsistent with the Phoenix Police Department's Purpose Statement and Guiding Values." Before discipline could be imposed, Sgt. Hernandez sued in federal court because the Department retaliated against him for his First Amendment-protected speech and that the Department's social media policy was unconstitutional as it was drafted in an overbroad and vague manner.

The federal district court granted the City of Phoenix's motion to dismiss, holding that the City of Phoenix did not retaliate against Sgt. Hernandez was in violation of the First Amendment because his speech did not constitute a matter of public concern. Additionally, the court concluded that the Department's social media policy was not overbroad or vague; Sgt. Hernandez then appealed to the Ninth Circuit.

The Ninth Circuit reversed in part, finding the district court erred in its dismissal of Sgt. Hernandez's First Amendment retaliation claim. Here, the Court employed the Pickering balancing test, where the government employee bears the initial burden of showing that he spoke on a matter of public concern in their capacity as a private citizen. If the employee successfully proves that requirement, the speech is entitled to constitutional protection, and the possibility of a First Amendment claim arises. Then, the burden shifts to the government employer to show that it had the justification for disciplining the employee for their speech. In order to sustain its burden, the employer must show that its legitimate interests in performing its mission outweigh the employee's right to speak freely.

The Ninth Circuit determined that Sgt. Hernandez's posts were, in fact, a matter of public concern, specifically holding that Sgt. Hernandez's posts "addressed matters of social or political concern that would be of interest to others outside of the Phoenix Police Department. Even if only 'a relatively small segment of the general public' might have been interested in the subject of Hernandez's posts, that is sufficient." Moreover, Sgt. Hernandez's posts were made on his own time, on his personal Facebook page, outside the workplace, and with an intended audience not just limited to fellow employees but the general public as a whole.

With the Pickering balancing test in mind and the Court establishing that Sgt. Hernandez's social media posts constituted a matter of public concern; rather than analyzing the remaining steps of the balancing test, the Ninth Circuit remanded the case back to the district court due to it dismissing Sgt. Hernandez's First Amendment retaliation claim at the motion to dismiss phase.

In its decision to remand, the Ninth Circuit provided the following guidance in regard to the content and value of Sgt. Hernandez's speech and the interests of law enforcement agencies' necessity to discipline an employee's speech in certain situations (citations omitted):

In remanding the case, we do not mean to suggest that the Department will face a particularly onerous burden to justify disciplining Hernandez for his posts, given the comparatively low value of his speech. Government employee speech that exposes wrongdoing or corruption within the employee's own agency lies at "the apex of the First Amendment" in this context. Needless to say, Hernandez's Facebook posts occupy a much lower rung on the First Amendment hierarchy, and indeed they touched on matters of public concern "in only a most limited sense." On the other side of the scale, a police department's determination that an officer's speech warrants discipline is afforded considerable deference and police departments may permissibly consider the special status officers occupy in the community when deciding what limitations to place on officers' off-duty speech. Speech by a police officer that suggests bias against racial or religious minorities can hinder that officer's ability to effectively perform his or her job duties and undermine the department's ability to effectively carry out its mission.

Regarding Sgt. Hernandez's challenge to the Department's social media policy, the Ninth Circuit agreed with most of the district court's decision as it relates to the Department's social media policy. The Court found the district court appropriately rejected Sgt. Hernandez's argument that the Department's social media policy was overbroad and/or vague by prohibiting posts that are "detrimental to the mission and functions of the Department,"; "Undermine the goals and mission of the Department or City,"; or "Undermine respect of public confidence in the Department." However, the Ninth Circuit found that the following provisions overbroad, "Employees are prohibited from using social media in a manner that would cause embarrassment to or discredit the Department in any way," as well as "Department personnel may not divulge information gained while in the performance of their official duties."

Under the Ninth Circuit's "public concern" analysis, social media posts public agencies consider problematic may nevertheless be First Amendment protected speech.  Public agencies must prove how specific social media posts impact and disrupt the agency's ability to operate effectively and interact with the public due to the protections associated with such speech. The Court did indicate hateful/bigoted speech receives a lesser degree of First Amendment protection and employers have an easier burden to prove disruption.  However, agencies that fail to narrowly draft their social media polices may be barred from enforcing the policies through discipline and may also be subject to liability for civil rights violations.

Make-Whole Remedy Includes "Direct and Foreseeable" Financial Losses In Addition to Back Pay

    On December 13, 2022, the National Labor Relations Board (“Board”) expanded the available remedies for unfair labor practices (ULP) based on discrimination or retaliation.  The International Brotherhood of Electrical Workers, Local 1269 (“Union”) filed a ULP against Thryv, Inc. (“Thryv”) over the imposition of layoffs without providing requested information and satisfying its bargaining obligations. In Thryv, Inc., Case 20-CA-250250, the Board held that as part of the make-whole remedy, employers must provide make-whole relief for "direct or foreseeable" monetary harms resulting from the ULP, such as reasonable search for work and interim employment expenses.  These damages must be provided in addition to, and deducted from back pay, interest must be provided and the employer must bear any adverse tax consequences from a lump sum award and report those earnings over the calendar years the wages would have been earned.  

     Thryv began the process of laying off all of its New Business Advisors in the Northern Californian Region in July of 2019 when it transferred two New Business Advisors to a different division so that they could be kept on after the layoffs. On August 21, 2019, Thryv emailed the Union stating it would lay off six New Business Advisors effective September 20. The following day, the parties agreed to meet and confer on September 11 and 12. However, on September 5 Thryv informed the Union it would inform the employees of their termination the following day, which it did.

    During the meet and confer process, the Union made multiple information requests regarding the affected employees’ accounts. The ALJ, and the Board, determined the information to be presumptively necessary, and Thryv committed an unfair labor practice by refusing to disclose it in violation of the National Labor Relations Act (“Act”). Moreover, because the Union needed the information to effectively bargain, it did not waive its rights by not presenting counter-proposals. The Board further found Thryv also violated the Act by unilaterally laying off six employees while presenting its proposal to the Union as a fait accompli, and while in the process of negotiating a new collective bargaining agreement. 

    Importantly, the Board clarified its practice of ordering relief that ensures affected employees are made whole for the consequences of an employer’s unlawful conduct. It concluded that all orders for make-whole relief going forward will expressly order the employer compensate affected employees for all direct or foreseeable pecuniary harms suffered as a result of the unfair labor practice. It clarified that all harms must be specifically calculated and requires the General Counsel to present evidence demonstrating the amount of harm, the direct or foreseeable nature of the harm, and why the harm is due to the unfair labor practice. Moreover, the employer will then have the opportunity to present evidence challenging the amount of money claimed, the direct or foreseeable nature of the harm, or argue that it would have occurred regardless of the unfair labor practice.

    The Board supported its expansion of its standard make-whole remedy by citing its broad discretionary authority to “take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act.” (29 U.S.C. § 160(c).) It noted that the Board in the past has awarded relief for pecuniary harms resulting from an unfair labor practice. The Board concluded that standardizing its make-whole remedy to expressly include the direct or foreseeable pecuniary harms suffered by affected employees was necessary to better effectuate the make-whole purposes of the Act. 

    Although NLRB decisions are not binding on California public employees, PERB and the California courts give great weight to NLRB decisions as persuasive authority, as California's labor statutes are modeled after the NLRA.  This expanded definition of the remedy for employee wrongfully separated from employment also has application to disciplinary appeals where reinstated employees not only lost wages, but also suffered out of pocket medical expenses, travel expenses, tax account refiling costs, interest on credit card debt, etc.  This ruling provides important analysis of the scope of make-whole labor remedies.    

Federal Judge Permanently Enjoins California Fee-Shifting Law Against Plaintiffs Bringing Second Amendment Challenges

In a major victory for the First Amendment right to petition the courts to enforce Constitutional Rights, U.S. District Court Judge Roger Benitez permanently enjoined enforcement of California Code of Civil Procedure § 1021.11 which imposed attorney fee liability on any litigant and their lawyers who unsuccessfully challenge the Constitutionality of any California gun law.  Miller v. Bonta held the legislation was a naked attempt suppress judicial review and access to the courts.  The California law was modeled after a Texas statute restricting access to abortion.

The court applied California's objections to the Texas law equally to Section 1021.11: “‘It is cynical.’ ‘It is an abomination.’ ‘It is outrageous and objectionable.’ ‘There is no dispute that it raises serious constitutional questions.’”  Interestingly, Governor Newsome applauded the ruling despite signing the law.  “I want to thank Judge Benitez,” said Newsom. “We have been saying all along that Texas’ anti-abortion law is outrageous. Judge Benitez just confirmed it is also unconstitutional.”

The strongly worded ordered stated, “[a] state law that threatens its citizens for questioning the legitimacy of its firearms regulations may be familiar to autocratic and tyrannical governments, but not American government.”  The court criticized Section 1021.11 as threatening "a lopsided, unorthodox attorney’s fee-shifting scheme which ensures the citizen cannot win and may be forced to pay for the government’s attorney’s fees.” The First Amendment protects the right to petition the courts to challenge unconstitutional infringements of other Constitutional rights.  The court noted a long line of precedent holding “the right to sue and defend in the courts is the alternative to force.” The court concluded, “[b]y deterring citizens and coercing attorneys from accessing the courts for relief from constitutionally questionable laws, § 1021.11 severely chills both First Amendment rights and Second Amendment rights.” 

The court also held the fee-shifting provision violates the Supremacy Clause of the Constitution by attempting to nullify 42 U.S.C. § 1988, a civil rights statute that is intended to encourage the protection of constitutional rights by rewarding plaintiffs who successfully challenge constitutionally defective statutes.  The statute also prohibits the government from seeking fees against the plaintiff unless the claim was “vexatious, frivolous, or brought to harass or embarrass the defendant.”  The California law seeks to reverse 1988 by holding a prevailing plaintiff is never entitled to fees and the state is always entitled to fees when it prevails, even if the claims were not frivolous. 

This ruling removes a significant impediment for law enforcement organizations to Challenge threatened legislation that would impinge a host of Second Amendment rights, including erosion of officers' self-defense rights, imposition of strict liability for the use of firearms, and firearm insurance mandates.