New State Law Would Extend Social Media Password Rules to Public Sector

In September, Governor Brown signed a law making it illegal for employers to ask for employees social media passwords.  At the time, it was unclear whether the law would apply to the public sector. The new law, AB 25, would make it clear these protections apply to public sector employees too.
Assembly Bill 25

Ninth Circuit: Officers' Use of Taser 22 Times Was Justified, Despite Death of Suspect

In Marquez v. City of Phoenix (9th Cir. 2012) 693 F.3d 1167, the Ninth Circuit Court of Appeals held that officers’ repeated and prolonged use of a taser against the suspect, both in “probe mode” and in “drive-stun mode,” which resulted in the suspect’s death, did not amount to excessive force in violation of the Fourth Amendment.

The case started when two Phoenix, Arizona, police officers arrived at a suspect's family home. They learned that the male suspect was attempting to perform an exorcism on his three-year old granddaughter. Upon entering the bedroom, which had been barricaded, the officers found chaos. The walls and furniture were smeared with blood, the suspect was reclining on the bed with a silent and motionless victim in a choke-hold, and the suspect’s adult daughter was naked in the corner screaming with evidence on her face of a recent beating. One officer ordered the suspect to let the child go or he was going to be tased. The suspect did not comply and, the officer deployed his TASER X26 ECD in “probe mode.” The taser was ineffective and the suspect continued to actively resist arrest, even kicking one officer in the groin.

After the victim was removed, the suspect continued to resist. Officers were eventually able to wrestle Ronald into submission after using the taser multiple times. At that point, the officers found that he had a weak pulse. Despite resuscitation efforts, the suspect went into cardiac arrest and died. The cause of death was listed as “excited delirium” and records found that the suspect received nine five-second cycles from the X26; two while it was ineffectively deployed in “probe mode” and seven when it was deployed in “drive-stun mode.” In all, the officers pulled the X26's trigger a combined 22 times.

While the Court found that considerable force was used, the force was not excessive. Interestingly, the Court was “not convinced that the use of an X26 involves deadly force” but even if it did, under the totality of the circumstances, the force was reasonable. The Court highlighted the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain and rapidly evolving. In this situation, officers were responding to a domestic violence call in which the suspect would not release his granddaughter from a choke-hold and then struggled viciously in close quarters against the officers attempting to restrain him while his daughter, who had also been the victim of his attacks, remained in the room throughout.

CalPERS Challenges San Bernadino's "Sham" Bankruptcy

On December 14, 2012, CalPERS objected to the City of San Bernadino's bankruptcy. CalPERS bluntly called that city's bankruptcy a "sham", accusing the city of "criminal behavior" for withholding required CalPERS payments.  Read CalPERS' brief here.

Alameda County DSA Secures Stay to Stop Pension Changes

On December 12, 2012, the Alameda County DSA secured a stay to stop the Alameda County Employees' Retirement Association from implementing controversial changes to deputies' pension formulas.  ACERA announced it would change the formula to calculate deputies' retirements to exclude cashed-out vacation and sick leave accruals from "final compensation" because of its interpretation of AB 197, part of Governor's Brown's pension reform package.  The DSA quickly filed suit the block the changes and preserve members' bargained-for benefits.  The stay protects members benefits while the legal challenge proceeds.  Alameda County DSA is represented in the matter by Mastagni Law attorneys David E. Mastagni and Isaac S. Stevens.  See a copy of the stay here.

Michigan Governor Signs Law Allowing Union Free Riders

Michigan's Republican Governor, Rick Scott, signed that state's controversial anti-union laws yesterday.  There are two laws- one affecting the private sector and one affecting the public sector.  Both laws allow employees represented by a union to get the benefits of union membership without paying their fair share, hampering the ability of labor to fund representation.  The public sector law carves out police and firefighter unions, but the significance of the carve out is limited because public safety unions have much higher voluntary union membership rates.

New York Court Finds Post-Critical Incident Breathalyzer Legal Under Some Circumstances

In Palladino v. City of New York (S.D.N.Y., June 28, 2012, 07 CV 9246 GBD) 2012 WL 2497272, a federal court in New York decided NYPD’s policy of requiring a breathalyzer for officer who discharged firearms in critical incidents was constitutional under some circumstances. The case started after NYPD required all uniformed members involved in firearms discharges resulting in injury to or death of a person be subjected to Department administered alcohol testing. The stated purpose of the policy was to ensure the highest levels of integrity at the scene of officer involved shootings.

Law enforcement unions sued, arguing the policy was an unreasonable search in violation of the Fourth Amendment. However, the Court decided the primary purpose of the policy was to deter police officers from becoming intoxicated and discharging their weapon, which qualified as a “special need”. The Court decided NYPD officers carrying and discharging firearms had diminished expectations of privacy, the breathalyzer test was not an overly intrusive search, the policy was applied uniformly, and the policy was narrowly tailored to accomplish NYPD's goals of ensuring compliance with its policies regarding personnel management.  The ruling only addresses the constitutionality of the policy and not whether it would violate California state laws such as POBR.

Court of Appeal Gives Defendants Limited Access to Witness Statements in IA Files

In Rezek v. Superior Court (2012) 206 Cal. App. 4th 633, the California Court of Appeal, Fourth District, ruled witnesses statements in peace officers personnel files can be turned over to defendants in criminal cases under some circumstances. In this case, officers arrested a defendant for obstruction of justice. The defendant also filed a citizen complaint against the officers. IA investigated the complaint and took statements from witnesses. The DA charged the defendant who then filed a Pitchess motion for the witness statements.

The Fourth District decided defendants can get those statements if they submit a supporting declaration proposing a defense and articulate how the requested discovery may be admissible in support of the proposed defense, or how the requested discovery may lead to such evidence. The court disagreed with the city’s argument that Penal Code section 1045.1, which requires the prosecutor to disclose to the defense relevant witness statements, is the exclusive means by which a defendant may obtain such statements.

Supreme Court Leaves Controversial Eavesdropping Ruling In Place

In American Civil Liberties Union of Illinois v. Alvarez (7th Cir. 2012) 679 F.3d 583, the Court of Appeal decided Illinois’ eavesdropping statute is unconstitutional.  The law makes it a felony to audio record “all or any part of any conversation” unless all parties to the conversation give their consent.  Defendants can be sentenced to up to fifteen years if they record a peace officer. The statute does not prohibit taking silent videos of police officers performing their duties in public; turning on the microphone, however, is prohibited.

The American Civil Liberties Union (ACLU) challenged this statute as applied to the organization’s Chicago-area “police accountability program,” which included a plan to record police officers performing their duties in public places. The local police union defended the law because it prevents people from recording officers to release snippets out of context.  The Court, however, found that the statute “restricts far more speech than necessary to protect legitimate privacy interests” and “it likely violates the First Amendment’s free-speech and free-press guarantees” as applied to the alleged facts.

The Court of Appeals argued the statute “interferes with the gathering and dissemination of information about government officials performing their duties in public.” The Court was quick to point out, however, that their decision would not immunize “behavior that obstructs or interferes with effective law enforcement or the protection of public safety.”  On Monday, November 26, 2012, the United States Supreme Court declined to hear the State’s appeal and thus, the Seventh Circuit’s ruling was left in place.

Court of Appeal: Firefighter's Standby Pay Not Pensionable

In City of Pleasanton v. CalPERS (Nov. 29, 2012) 2012 WL 5984074, the Court of Appeal ruled "Standby Pay" does not count toward pension benefits.  The firefighter at the center of the case worked a 40-hour workweek.  However, he received 7.5% "Standby Pay" for being on call. At issue in the case was whether that 7.5% "Standby Pay" counts as pensionable earnings for his CalPERS retirement. The Fourth District found the "Standby Pay" was not pensionable because it was for services rendered outside of his normal working hours.  The Court said the payments could not be construed as holiday pay, shift differential pay, training premium pay, management incentive pay or off-salary-schedule pay because the 7.5% “Standby Pay” did not meet any of the definitions contained in CalPERS Regulation 571.