Tuesday, June 30, 2020

California Already Implemented #8CANTWAIT in AB 392 and SB 230

The killing of George Floyd sparked widespread demonstrations and calls for reform of police departments across the county. Campaign Zero, an activist group formed in 2015, launched a plan for reform called “#8CANTWAIT.” #8CANTWAIT proposes eight reform measures intended to reduce the frequency of officer involved shootings.  Leading the nation, law enforcement labor leaders, as well as Cal Chiefs, worked with the ACLU and our elected officials to enact a package of legislative reforms achieving these policies last legislative session.

The eight policies are:

1.    Require de-escalation
2.    Require a warning by officers before shooting
3.    Require comprehensive use of force reporting
4.    Require officers to intervene if excessive force is being used
5.    Ban chokeholds and strangleholds
6.    Establish and require "use of force continuum"
7.    Require exhaust alternatives before shooting
8.    Ban shooting at moving vehicles

California law enforcement leaders conducted a comprehensive review of laws, policies, and training that could be enacted to reduce the use of force in our communities and achieve better outcomes for everyone. Our office had the privilege of working with PORAC and other stakeholders  surveying best policies and practices nationwide and collecting input from legislators, the ACLU, our Attorney General, diverse experts, and impacted stakeholders. These efforts culminated with Governor Newsom signing AB 392 and SB 230 into law.

AB 392 changed the standard for lethal force by a peace officer to only justifiable “when necessary in defense of human life.” SB 230 established new statewide reporting requirements, higher training standards, uniform guidelines for when officers are authorized to use force, and specific policies across all law enforcement departments requiring de-escalation, an officer’s duty to intercede, rendering medical aid, proportional use of force and more. These two laws marked the most significant change in California’s use of force policies since 1872. Most importantly, AB 392 and SB 230, along with other measures adopted in California, have addressed all eight of the policies advocated by #8CANTWAIT:

1. De-Escalation 

SB 230 added section 7286 to the Government Code, which addressed law enforcement use of force policies. Section (b)(1) requires every law enforcement agency to maintain a policy that provides a minimum standard on the use of force. That policy must include: “[a] requirement that officers utilize deescalation techniques, crisis intervention tactics, and other alternatives to force when feasible.” Additionally, SB 230 added section 13519.10 to the Penal Code to require that the Police Officer Standards and Training Commission provide training for all officers in alternatives to deadly force and de-escalation techniques.  Moreover, AB 392 declared, "[i]n determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case, and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer." (Pen. Code § 835a(a)(2).)

2.  Require a Warning by Officers Before Shooting  

AB 392 amended the Penal Code to include the requirement that “where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.”  (Pen. Code § 835a(c)(1)(B).)

3.  Require Comprehensive Reporting of Use of Force Incidents

Pursuant to SB 230, Government Code section 7286(b)(12) requires “comprehensive and detailed requirements for prompt internal reporting and notification regarding a use of force incident, including reporting use of force incidents to the Department of Justice.” Additionally, SB 1421, enacted in 2018, made records pertaining to an incident of a discharge of a firearm by a peace officer and records pertaining to police use of force against a person resulting in death or great bodily injury publicly available under the California Public Records Act.

4. Require Officers to Intervene in the Event of Excessive Force

SB 230 also adds Government Code section 7286(b)(8), which requires agencies to set a “requirement that an officer intercede when present and observing another officer using force that is clearly beyond what is necessary.”  Section 7286(b)(3) further mandates that officers report to their supervisor when they witness another officer using excessive force.

5. Ban Chokeholds and Strangulations

On June 5, Governor Gavin Newsom ordered the state’s police training program to stop teaching officers how to use a neck hold that blocks the flow of blood to the brain. Many police agencies had already amended their policies to eliminate the use of the carotid control hold except as a last resort when deadly force is otherwise appropriate. Further, AB 1196 was introduced in the California Legislature on June 4 and would prohibit a law enforcement agency from authorizing the use of a carotid restraint.

6.  Require a Use of Force Continuum

SB 230 requires all law enforcement agencies to adopt use of force policies that include a "requirement that an officer may only use a level of force that they reasonably believe is proportional to the seriousness of the suspected offense or the reasonably perceived level of actual or threatened resistance." (Gov. Code 7286(b)(2).)  Additionally, AB 392 and SB 230 require officers to create space and separation in an attempt to utilize de-escalation techniques.

7. Require Officers to Exhaust Alternatives Before Shooting

AB 392 states, "it is the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life. In determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case, and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer." (Penal Code 835a(a)(2).)

SB 230 declares, "[l]aw enforcement officers shall be guided by the principle of reverence for human life in all investigative, enforcement, and other contacts between officers and members of the public. When officers are called upon to detain or arrest a suspect who is uncooperative or actively resisting, may attempt to flee, poses a danger to others, or poses a danger to themselves, they should consider tactics and techniques that may persuade the suspect to voluntarily comply or may mitigate the need to use a higher level of force to resolve the situation safely."

Finally, AB 392 redefined the legal standard for using deadly force to a "necessary" standard.  Government Code section 835a(c)(1) provides that “a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons: (A) To defend against an imminent threat of death or serious bodily injury to the officer or another person. (B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.”

8. Ban Shooting at Moving Vehicles

Although neither AB 392 and SB 320 contains a complete ban on shooting at moving vehicles, but a complete ban is not feasible. Instead, AB 392 and SB 230 require police to utilize de-escalation techniques and exhaust other options before shooting. These measures ensure that officers will not shoot at a moving vehicle unless it is absolutely necessary to preserve human life. 

Given the ability to use a vehicle as a weapon or shoot at civilians from a vehicle, the legislature appropriately recognized that a complete ban is contrary to public policy.  For example, officers must retain the ability to use deadly force to stop a driver from plowing through a crowd of civilians, or to prevent a terrorist from driving a car bomb into a crowded area, or to return fire at fleeing bank robbers in a getaway car.

In conclusion, California has demonstrated that meaningful change can be enacted as part of an inclusive process.  These new policies must be supported with robust funding for training (including scenario simulation) and education.  AB 392 and SB 230, and the collaborative process used to adopt them, should be a national model.

Monday, June 22, 2020

Court of Appeals Rules Probationary Employee Placed on Desk Duty During Lengthy Investigation Is Entitled to Skelly Rights

In a recent Court of Appeal decision, a probationary Deputy’s “desk assignment” counted toward his probationary period—which provide him with fully Skelly Rights after a lengthy administrative investigation.

Board of Veterans' Appeals Hearing Options - Perkins Studdard
The case involved,  Los Angeles County Sheriff Deputy Christopher Trejo. Deputy Trejo was involved in critical incident four months after he began his position as a deputy sheriff. During this four month period, he was considered a probationary employee. Rather than being placed on paid administrative leave, he was reassigned to desk job while his administrative investigation was conducted.

Approximately 18-months later, the Department terminated Deputy Trejo. The Department took the position that he remained a probationary employee because they claimed his probationary period was extended in the County rules. The Department’s termination letter also informed Deputy Trejo of certain appeal rights. However, because the Department did not consider him a permanent employee, Deputy Trejo was not notified of any rights to a Skelly hearing or other pre-termination safeguards available to permanent County employees.

Deputy Trejo filed a lawsuit challenging the practice of extending his probationary period while the County investigated the alleged misconduct.

The Appellate court found that under the language of the L.A. County Civil Service Rules, Deputy Trejo was engaged in “actual service” and, thus the department, was required to credit time spent on administrative duty toward completion of deputy’s probation period under the rule authorizing recalculation of probation period “on the basis of actual service exclusive of” any time away. Here it is important to note that the civil service rules explicitly provided that “actual service” strictly meant “time engaged in the performance of the duties” of a public employee’s “position or positions.” Moreover, the Court found that the County could have placed Trejo on administrative leave which would have counted as time away and allowed the County to extend the probationary period. However, since Deputy Trejo was in a position and engaged in ‘actual service’ he had fulfilled his probationary period approximately eight months after being reassigned. For that reason, the Court of appeal held that he should be afforded post disciplinary procedures provided to permanent employees.

This is a narrowly tailored decision. However, it is a reminder that depending on agency rules,  probationary status may not extended simply because one is given administrative duties.

Thursday, June 18, 2020

Appellate Court Vindicates Third Party Privacy Rights Under 1421: Statutory Privileges and Most CPRA Exemptions (Including for Overly Burdensome Requests) May Be Asserted to Redact Records

In significant victory for third party privacy rights, Becerra v. Superior Court (2020) 44 Cal.App.5th 897 held that all CPRA exemptions (including exemptions for statutorily privileged records) other than the law enforcement investigation exemption (section 6254(k)) remain applicable to requests for records subject to SB 1421.  Of particular concern for agencies receiving requests for decades of force records, the appellate court held that SB 1421 records requests are subject to the public interest exemption from disclosure where the agency can show the the cost and burden of segregating the exempt and nonexempt information outweighed the public interest in disclosure.

Although the court found the Department of Justice failed to establish "a clear overbalance on the side of confidentiality," the applicability of the public interest exemption provides an important counterbalance to open-ended requests for use of force investigations that go back decades and require thousands of hours to locate, review and redact confidential information.

Attorney General Xavier Becerra and the California Department of Justice (Department) filed a petition for a writ of mandate seeking to overturn the trial court’s order that the Department did not meet their disclosure obligations under the California Public Records Act section 6255 section 832.7 (SB 1421). SB 1421 amended the CPRA to allow the public to know about incidents involving shootings by an officer, the use of force by an officer that resulted in death or great bodily injury, and sustained findings of sexual assault or dishonesty. First Amendment Coalition and KQED requested records subject to disclosure under SB 1421. The Department partially denied the requests, arguing that they were not the agency “maintaining the documents,” and that the request was overly burdensome under the public interest or "catch-all" exemption (section 6255). 

The phrase "[n]otwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law" in 832.7(b)(1) created significant confusion over whether CPRA exemptions other than those set forth in section 832.7(b)(5)-(7) applied to requests under SB 1421. Thankfully, the court found that all of the exemptions in the CPRA apply despite the SB 1421 amendment, since the language of SB 1421 can be harmonized with that of the CPRA.  832.7(b)(1) states the records are "nonconfidential notwithstanding the CPRA investigatory files exemption," then concludes they “shall be made available ... pursuant to the CPRA." By including these two CPRA references in one sentence, the court held the Legislature intended to eliminate confidentiality under the investigatory files exemption, but also that the CPRA is otherwise essential to section 832.7’s operation.

The appellate court concluded: “'Notwithstanding ... any other law'” cannot reasonably be read to do away with the entire CRPA. Nothing indicates CPRA as a whole was displaced by 832.7.”  The court’s opinion highlights the ability to redact as a demonstrated concern by the legislature for privacy interests. Through exceptions to the CPRA the legislature has made clear the importance of balancing the public’s interest in information and an officer’s interest in confidentiality.  

Records Created by Other Departments Must Be Disclosed

The court held that SB 1421 requires the disclosure of records in the Department’s possession even if such records concern officers who are not employed by the Department, or if such records were not created by the Department. Looking at statutory language, the court determined that under both SB 1421 and the CPRA, “public record” includes any writing prepared, owned, used, or retained by any agency. Had the legislature intended to limit disclosure amendments to records created by an agency, it could have. The legislative intent was to afford the public the right to know about serious police misconduct, regardless of which agency created the records.

The Public Interest Exemption

While recognizing the legislative intent for the public to know about serious police matters, the court evaluated the applicability of the CPRA catch-all or public interest exemption.  Under the catch-all exemption, agencies can refuse to provide a public record where it would be overly burdensome to sort nonexempt from exempt information in records where they are inextricably entwined. For example, many departments do not categorize occurrences of great bodily injury separate from confidential information, potentially making it overly burdensome to disclose incidents spanning several years. 

This exemption is a case-by-case balancing process that requires the proponent of nondisclosure to show a clear overbalance requiring nondisclosure/confidentiality. As a matter of statutory construction, this catchall exemption is applicable to requests for SB 1421 related records. The court's construction is based on the legislature’s express references to the CPRA. The court explained the CPRA is essential to SB 1421’s operation, and had the legislature intended for SB 1421 to override the CPRA catch-all exemption they could have explicitly said so. 

The trial court assumed the CPRA catch-all was available but determined the Department’s burden did not justify nondisclosure. The appellate court agreed the Department failed to establish a clear overbalance on the side of confidentiality. The appellate court held that the evidence provided by the Department was insufficient in detail to demonstrate the type of overwhelming burden the catch-all exemption required.  

The court held that a mere declaration estimating that compliance would require review of over 135,000 records and 4,460 attorney hours was not sufficient evidence to support the exemption.  The court explained that since officer-related records were exempt from disclosure before the passage of SB 1421, "the nature and scope of responsive records in the Department’s possession are relatively unknown to litigants and the courts, and the burden of making such records available for inspection must, at this juncture, be established through expert testimony, or at the very least, with a more thorough showing that substantiates the Department’s burden."

Thursday, May 28, 2020

California Supreme Court Clarifies That Local Governments Are Responsible for Redaction Cost of Electronic Records Requested Under the California Public Records Act.

Today, in a critical decision, the California Supreme Court ruled that the government entities are responsible for redaction cost when producing electronic records under the California Public Records Act.

Redacted: What is redaction and why are some documents censored ...
In National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, et al. (2020) 2020 WL 2761057, the State’s highest court examined the costs provisions of the California Public Records Act (CPRA).  Under the CPRA, a person who requests a copy of a government record must pay only the costs of duplicating the record, and no other additional costs, such as the costs of redacting material that is statutorily exempt from public disclosure. However, there is a special cost provision that is specific to electronic records. That provision, (Government Code Section 6253.9(b)(2)) says that in addition to paying for duplication costs, requesters must pay for the costs of producing copies of electronic records if producing the copies “would require data compilation, extraction, or programming.”
Using that provision, the City of Hayward sought to charge the National Lawyers Guild of San Francisco for approximately 40 hours its employees spent editing out exempt material from digital police body camera footage requested by the Guild. The City claimed that these costs were chargeable as costs of data “extraction” under Government Code Section 6253.9(b)(2)).

However, the Supreme Court made it clear that “extraction” was not synonymous with “redaction.” After a lengthy historical discussion of the term “extraction,” the Supreme Court held that “as a practical matter, reading section 6253.9(b)(2) to cover the costs of redacting electronic records would create peculiar distinctions between paper records and electronic ones. It would mean, for example, that an agency could charge for the time spent redacting an electronic version of a document even though it could not charge for time spent redacting a hard copy of the very same document. Given that section 6253.9 was enacted in large part to provide a less expensive alternative to paper production, an interpretation that would allow agencies routinely to charge requesters more for the electronic version seems unlikely.”

Here it is important to note that the City of Hayward argued that requests for body camera footage present unique concerns for government agencies with limited resources. Although the Court admitted that redacting exempt footage can be time-consuming and costly, it concluded the “unique burdens associated with producing body camera footage warrant special funding mechanisms is a question only the Legislature can decide.” However, the Court did leave open the possibility that agencies with limited resources could recover their costs when a third-party is charged with the task of data compilation. These third-party costs could be considerable for requestors such as the National Lawyers Guild

Tuesday, May 19, 2020

Watch David E. Mastagni Argue Over Vested Pension Rights Before The California Supreme Court


On May 5, 2020, the California Supreme Court heard oral arguments via video-conference in the much anticipated appeal over whether promised pension benefits are vested rights protected by the U.S. and California Contracts Clauses.  (Alameda County Deputy Sheriffs' Association et al. v.Alameda County Employees' Retirement Association et al., S247095

Arguing on behalf of the Alameda County Deputy Sheriffs’ Association, David E. Mastagni explained how the County of Alameda recruited deputies by promising that if the deputies devoted 30 years of service in law enforcement, the County would provide them substantial deferred compensation in the form of a pension calculated as a percentage of their "compensation earnable."  The County promised to apply the definition of "compensation earnable" that was established by a court approved settlement order in 1999.  In 2012, Governor Brown signed into law PEPRA, which reduced this promised pension formula by over 15%.

David detailed how the Contracts Clause was enacted after the Revolutionary War to protect Americans from legislatures changing the rules after the fact and to promote stability of contracts.  He argued the federal and California Contracts Clauses are as relevant now as they were in the eighteenth and nineteenth centuries, as shifting political opinions and policy goals can make it seem attractive to raid pre-existing, long-term financial obligations whenever the state wants to spend money on priorities.