Wednesday, July 20, 2016

Dash Camera Video Not Part of Officer’s Personnel Record, Court Rules

A California appeals court ruled this week that dash camera footage is not part of an officer’s confidential personnel record, even though it was used in an internal affairs investigation against the officer. The Court of Appeal ruled in City of Eureka v. Superior Court (Thadeus Greenson) (1st Dist., July 19, 2016) that Pitchess statutes do not protect this kind of video footage from being released to the public.

Eureka Police Sergeant Adam Laird and other officers arrested a juvenile suspected of gang activity. After the incident, the Eureka Police Department opened an internal affairs investigation into Sergeant Laird’s conduct, eventually deciding to fire him. And the Humboldt County District Attorney’s Office charged Laird with misdemeanor assault by a police officer without lawful authority and making a false police report. Both investigations alleged that Laird used excessive force against the suspect, including pushing him to the ground and then kicking or stomping on him repeatedly.

A key piece of evidence in both of these investigations was the video recorded by the dash camera in another officer’s vehicle. This video apparently recorded the whole interaction between Sergeant Laird and the juvenile suspect. Experts hired by both the prosecution and Laird’s defense attorney determined Laird’s use of force was justified under the circumstances. The prosecution dropped the charges and the Department halted its termination of Laird.

However, a local newspaper reporter then filed requests for the video footage. The reporter claimed the video was a public record. A trial judge in Humboldt County agreed and ordered the City of Eureka to release the video. The City appealed the judge’s order, arguing the video was part of Laird’s confidential personnel file and could only be released through the procedures required by the Pitchess statutes.

The Court of Appeal rejected the City’s argument and affirmed the order to release the video. The Court ruled that because the video was recorded before any investigation had begun, it was an independent record and was not part of Laird’s personnel file. Because the video was merely considered during the investigation and was not generated by it, the video was not a record related to “employee advancement, appraisal, or discipline.”

The Court relied on the major decision by the California Supreme Court two years ago in Long Beach Police Officers Association v. City of Long Beach (2014). In that case, the Supreme Court ruled that Long Beach could not withhold the identity of a police officer who had been involved in a shooting, but must disclose it to requesting newspapers. Here, the Court of Appeal ruled that dash camera footage is similar to an officer’s identity and must be released to the public.

The Court of Appeal’s decision is a serious setback to the privacy interests of peace officers across the state. Under the ruling, potentially all dash camera and body camera footage could be subject to public release.

Monday, July 18, 2016

Court of Appeal Holds Public Employer Can Refuse to Indemnify Officers Where Malice Found

In David Chang et al., v. County of Los Angeles, --- Cal.App.2d --- (July 1, 2016) 2016 WL 3574063, Sheriff's deputies brought action against the County seeking indemnification of a judgement against them under Government Code section 825.  The County had provided a defense for three employees under a reservation of rights, then refused to pay the resulting judgment for battery and civil rights violations on the ground that the employees acted with actual malice.

The deputies were sued by an inmate for battery and violation of civil rights. On September 9, 2010, following a jury trial, the jury found the deputies violated Franco's federal civil rights, causing injury or harm to him. The jury also found each of the deputies acted with malice, oppression or reckless disregard in violating the inmate's civil rights, and that they acted with malice, oppression, or fraud in committing battery on Franco.

Against each deputy, the jury awarded compensatory damages of $85,000 and punitive damages of $50,000. The total compensatory damage award was $255,000. The deputies were jointly and severally liable for an award of costs of $6,754.80 and attorney fees of $189,331.67. The employees sought indemnification from their employer under Government Code section 825. The trial court granted summary judgment in favor of the employees.  The appellate court reversed.

The deputies signed agreements with the County of Los Angeles setting forth the terms and conditions under which the County would defend them. The first paragraph of each agreement listed circumstances under which the County might withdraw from defending a deputy, including if the deputy did not act within the scope of his employment or he acted or failed to act because of actual fraud, corruption, or actual malice.

On appeal, the public entity contended that because the defense was conducted under a reservation of rights, the deputies had to satisfy the requirements of section 825.2 for indemnification.  The court agreed, holding by implication the County had reserved the right not to indemnify the deputies for acts within the course and scope of their employment that were taken with actual malice. The court pointed out the County showed the jury had acted with malice or at the very least, a triable issue of fact existed as to whether the deputies acted with malice.

By implication, the court found the County reserved the right not to indemnify the deputies for acts within the course and scope of their employment that were taken with actual malice. Having reserved that right, the County could invoke section 825.2 in seeking to deny indemnification.

Federal Appeals Court Vindicates First Responder Regulation in Ordering Overtime for Fire Captains

In Morrison v. County of Fairfax, VA, --- F.3d --- (4th Cir. June 21, 2016, No. 14-2308) 2016 WL 3409651, the Fourth Circuit Court of Appeals enforced Fire Captains' right to overtime under the First Responder Regulations of the Fair Labor Standards Act (FLSA).  

Under the FLSA employees who work overtime generally are entitled to overtime pay.  However, public entities that fail to properly pay overtime often argue Fire Captains and Police Sergeants are exempt from the overtime requirements of the FLSA.  The FLSA does provide an an exception, which must be narrowly construed, for certain “executive” and “administrative” employees whose primary job duties are management-related.

The district court erroneously held that Fairfax County fire captains were exempt executives, and entered summary judgment for Fairfax County.  On appeal, the County doubled down arguing some of the Captains are exempt executives while others are exempt administrators.

However, under the First Responder Regulations of the FLSA, the executive and administrative exemptions to the FLSA overtime requirements did not apply to certain firefighters regardless of rank or pay level unless their primary duty was management or directly related to management, applied to fire captains employed by county fire department.

The Department of Labor applies four factors in determining whether exempt duties constitute the primary duty of an employee: [1] relative importance of the exempt duties as compared with other types of duties; [2] the amount of time spent performing exempt work; [3] the employee’s relative freedom from direct supervision; and [4] the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. 

The Court ruled that the evidence failed to show that the captains’ primary duty was management related and instead was to respond to emergency calls. First, fire fighting is clearly the more important job when compared to the captains’ exempt duties. Emergency calls take priority and captains do not have discretion to disregard the duty. Second, while captains do have some tasks that are distinct from their first-responder duties, these duties take at most 25 hours out of the working year. Third, the captains’ role is to carry out their supervisors’ orders and are thus in constant contact with their supervisors. And lastly, there was nothing evidencing a significant pay gap between the captains and non-exempt lieutenants just below them. Therefore, the court ruled Fire Captains are entitled to overtime compensation under the FLSA. 


Hopefully this decision will put to rest the boilerplate defense raised in public sector FLSA cases that Fire Captains and Police Sergeants are exempt from the FLSA's overtime protections.  Public safety employees whose primary duty is to investigate crimes or fight fires are not exempt merely because they also direct the work of other employees in the conduct of an investigation or fighting a fire.