Monday, November 16, 2015

Supreme Court Shoots Down Excessive Force Case

On November 9, 2015, the Supreme Court ruled that qualified immunity protected a state trooper who shot and killed a dangerous driver in Mullenix v. Luna.

On March 23, 2010, Sergeant Randy Baker of the Texas Police Department followed Israel Leija to a drive-in restaurant with a warrant for his arrest. When Sergeant Baker approached Leija's vehicle and told him he was under arrest, Leija sped off and a high speed chase ensued. During the case, Leija called dispatch and threatened to shoot any officer he saw if they did not abandon pursuit. Leija was also intoxicated.

State Trooper Chandrin Mullenix also responded to the call. While other officers set up three sets of spike strips in hopes of disabling Leija's vehicle, Mullenix called dispatch to propose shooting to stop Leija's car. Mullenix's supervisor instructed him to "stand by" and "see if the spike strips worked first." However, it was unclear whether Mullenix heard his supervisor's command.

Once Mullenix spotted Leija's vehicle coming up the overpass, Mullenix fired six shots. Four bullets hit Leija in his upper body, killing him.

The issue for the Court was whether Mullenix violated clearly established law. Qualified immunity protects "all but the plainly incompetent and those who knowingly violate the law." The Court found no clearly established law barred Mullenix from claiming qualified immunity. As such, Mullenix was entitled to summary judgment against plaintiffs' claim of excessive force in violation of the Fourth Amendment.

In the sole dissent, Justice Sotomayor argued Mullenix should have waited to see if the spike strips worked before shooting. The majority of the Court was not persuaded. The Court emphasized that spike strips don't always work and officers manning those strips are vulnerable to gunfire. According to the majority, Sotomayor's reasoning was in error. Namely, it is not for the courts to decide whether an officer should use one tactic over another.

Although the Court refrained from considering what tactics and officer should use, many agencies' use of force policies do. Some agencies are now moving toward banning the practice of shooting at cars to disable the vehicle. In such cases, an officer may be immune from civil liability, but can still be punished by the department for insubordination or violation of policy.

Monday, November 9, 2015

Peace Officer's Employer May Not Condition Reinstatement From Disability Retirement

A peace officer who recovers from the injury that led to their industrial disability retirement is entitled to reinstatement without any conditions, according to the recent court ruling in Department of Justice v. CalPERS.

Angelita Resendez was employed by the California Department of Justice as a peace officer until her industrial disability retirement in December 2008. She developed a spine condition as a result of several on-the-job injuries. But in September 2009 she applied to CalPERS for reinstatement. Based on a medical evaluation of Resendez, CalPERS notified her in 2010 that she was eligible for reinstatement. DOJ then offered Resendez reinstatement on the condition that she complete medical and psychological exams and submit to a background check. Resendez rejected DOJ’s offer.

Next, DOJ made multiple appeals to overturn CalPERS' determination about Resendez. But these appeals were denied. The Superior Court also ordered DOJ to provide Resendez backpay to 2010 when CalPERS determined she was eligible for reinstatement. DOJ then appealed to the Court of Appeal.

On October 13, 2015, the Court of Appeal ruled in favor of CalPERS and Resendez. CalPERS was correct to limit its analysis to whether Resendez had recovered from the injury that caused her disability. The law requires CalPERS to order a medical exam and then determine if the employee is fit to return to duty. And Government Code section 1031 sets the minimum standards for peace officers. But CalPERS is not authorized to identify new conditions that might disqualify the employee; it must stick to the original disability.

The court also ruled that Government Code section 21193 creates a two-step process for reinstatement. First, CalPERS must determine the employee is fit to return to duty. Second, the employee's former employer must offer reinstatement.

Here, CalPERS properly determined Resendez was fit to return to duty. So DOJ had a mandatory duty to offer Resendez reinstatement. It had no authority to condition her reinstatement on medical exams and background checks. However, once DOJ has reinstated Resendez it may terminate, demote, or transfer her for failing to meet the minimum standards set by Government Code section 1031.

This ruling provides strong protections for peace officers who have been forced into disability retirement by on-the-job injuries. Once a peace officer recovers from such an injury they are entitled to reinstatement with their former employer. An employer has a mandatory duty to offer reinstatement and may not put conditions on the offer.