KFBK Talk Radio Host John McGinness Interviews David E. Mastagni on AB 931

KFBK Talk Radio Host John McGinness interviewed Mastagni Holstedt partner David E. Mastagni on August 30, 2018 about AB 931, the proposed state law that would have radically changed officer use of force standards.  The bill stalled in the State Assembly yesterday when Speaker Toni Atkins shelved the bill for this legislative session. 

McGinness introduced Mastagni as, "a well-known member of a prominent law firm family," and explained he shared law enforcement concerns about the bill, saying, "We recognize the tremendous flawed changed of what had been proposed and celebrate the fact that at least for now it didn’t happen and I also understand that a significant amount of the work that was done on this is credited to you."  David explained, "I wouldn’t take all the credit on this; I worked with a great team.  From the President of PORAC and their lobbyist to the Cal Chiefs, a long with a lot of other law enforcement stakeholders."

McGinness asked about the constitutional issues about AB 931.  David explained, "We would have been headed to a massive constitutional challenge on this.  The California Constitution, in article 1, section 1, expressly provides every citizen of California the right of self-defense and the defense of property.  And what this bill would have done is it would have held officers to an impossible standard that was much higher than you and I and every other citizen of this state and treated them differently because of their status as a peace officer, which raises another serious constitutional question under the 14th amendment and that’s equal protection."

They also discussed the immediate impacts to officer and public safety.  David explained, "I think [AB 931] would incentivize officers not to do anything and we’ve seen this happen back east.  Baltimore is a great example."

"As a citizen and a father it is of great concern to me as well.  What this kind of legislation really does is it creates a huge disincentive for officers to engage in proactive policing.  Proactive policing and community policing over the last couple of decades is where we’ve seen the best results in reducing crime."

"And it’s going to incentive officers to wait for a call for service and respond only to that call because the feeling will be you can’t second guess me for going where you ordered me to go but if I engage in proactive policing and something happens that controversial I’m going to get second guessed; I’m going to get second guessed from this impossible standard that the Ninth Circuit has even said that would require super human judgement.”

You can listen the whole interview here.

Federal Court Confirms Officer’s Use of Deadly Force Justified in Order to Prevent Escape

A recently published federal court case underlines that if officers have probable cause to believe a suspect poses a threat of serious physical harm to themselves or others, they are justified in using deadly force to prevent escape. A warning is only required if feasible.

In Horton v. Pobjecky (2018), an unarmed off-duty police officer was waiting for food in a  pizzeria. The officer—Frank Pobjecky, was sitting in the break area with the restaurant manager—Vincenzo Tarara. Suddenly, four young men entered the front door. One of the men held a revolver. Two of the men entered the break room while a third went around the counter toward the cash register. The fourth man, Michael Sago (“Sago”), acted as a lookout. Sago stood in the entrance holding the front door open.

One of the men pointed a gun at Tarara and demanded money. Tarara told him to get out of his restaurant. Tarra then slamed the man against a cooler and reached for the man’s gun. While Tarara and the man struggled for control of the gun, Pobjecky, who knew that Tarara carried a concealed handgun on his hip under his shirt, grabbed Tarara’s gun.

Sago approached the break area. As he approached, Pobjecky gained possession of Tarara’s gun. Simultaneously, Tarara won the struggle for the other gun.  Pobjecky began shooting. He never identified himself as a police officer or gave any verbal warnings or commands.

With Tarara’s gun, Pobjecky engaged each suspect as they moved around the restaurant. Pobjecky shot and wounded all three men. Sago was shot three times from behind in the lower back as he crawled away toward the door. After Sago crawled out of the restaurant, Pobjecky locked the front door and called 911. Approximately 11 minutes later paramedics arrived. Sago died shortly thereafter.
James Horton, representing Sago’s estate, sued Pobjecky alleging that he used excessive force and failed to provide medical care in violation of 42 U.S.C. § 1983

In dismissing Horton’s case, the Court noted that as long as the assailants were moving inside the pizzeria, they posed a threat. The Court ruled that given the circumstances no reasonable juror could conclude that he should have stopped to identify himself as a police officer or warn each assailants before defending himself.

As to the failure to provide medical care, the Court ruled that it was “unreasonable to demand Pobjecky venture into the night with an empty gun, risking further onslaught, braving the hazards [Sago] and the other assailants created, to administer treatment to [Sago]”

Sacramento Bee Turns To David E. Mastagni For Insight On Recent California Supreme Court Ruling

On Tuesday, the Sacramento Bee published an article discussing the new California Supreme Court ruling in Boling v. Public Employment Relations Board. The article, entitled "California unions win another pension lawsuit. Will their streak continue?," provides valuable insight and analysis into a recent court victory for California Public Unions.

As outlined in the Sacramento Bee article, as well as a previous Mastagni Law Blog post, the California Supreme Court recently rejected the Mayor of San Diego's attempt to legislatively deny new municipal employees pension benefits without first meeting-and-conferring with existing unions.

As David E. Mastagni states in the Sacramento Bee, "You can't avoid bargaining obligations by going to legislation. It's an old trick that some public officials had come up with."

You can read the entire Sacramento Bee article here: "California unions win another pension lawsuit. Will their streak continue?,

California Supreme Court Rules San Diego Violated MMBA by Refusing to Bargain Over Pension Initiative

In a severe setback to a recent scheme to unilaterally erode public pensions, on Thursday the California Supreme Court held that the city of San Diego was required to meet-and-confer with unions over a mayoral sponsored citizen initiative that eliminated defined benefit pensions for new municipal employees. 

In Boling v. Public Employment Relations Board, the high court evaluated whether a ballot initiative transferring newly hired city workers to a 401(k)-style retirement savings plan, in lieu of a traditional pension plan, required the city to meet-and-confer with various unions.  Since 1984 our Supreme Court has held that a charter amendment proposed by the governing body of a public agency is subject to the MMBA's bargaining requirements prior to its submission to the voters if it adversely impact compensation or benefits. (People ex rel. Seal Beach Police Officers Assn. v City of Seal Beach).  Mayor Sanders's sought to evade Seal Beach through the artifice of spearheading a voter initiative.  Until this week, the Supreme Court had not determined whether voter initiatives are subject to meet and confer;    

This seminal case involved Proposition B, a ballot measure placed on the June 2012 ballot by a group called San Diegans for Pension Reform to amend the San Diego city charter to provide 401(k)-style retirement benefits instead of defined benefit pensions to newly hired employees.  However, San Diego Mayor Jerry Sanders was instrumental with the measure passing. The Mayor proposed the initiative in November 2010 and even spoke of his support for it at his State of the City address on January 2011. In fact, Mayor Sanders met with community groups but refused to meet with unions representing municipal employees, deputy city attorneys, and firefighters. The initiative passed with 65.81 percent of the vote.

After Proposition B passed, union members filed suit alleging that Mayor Sanders improperly placed the initiative on the ballot without first bargaining with affected unions as required under the Meyers-Milias-Brown Act (“MMBA”). In response, the City argued that the Mayors’ support was “merely that of a private citizen.”

In rejecting the City’s argument, the California Supreme Court ruled that: “allowing public officials to purposefully evade the meet-and-confer requirements [of MMBA] by officially sponsoring a citizens’ initiative would seriously undermine the policies served by the statute: fostering full communication between public employers and employees, as well as improving personnel management and employer-employee relations.”  The Supreme Court remanded the case to lower courts to determine the appropriate remedy.

Here, the San Diego Mayor tried to have it both ways acting on behalf on the City to push an initiative to divert pension obligations to other spending priorities, while claiming to do so as a private citizen in order to avoid long-standing bargaining requirements.  Had the Court ruled otherwise, public officials would have been incentivized to circumvent their obligation to negotiate over pension initiatives through the contrivance of acting as a private citizen while exploiting the advantages of their elected office.  

Sacramento Magazine Turns to Expert Judith Odbert on the Statute of Limitations, DNA

Sacramento Magazine's annual Top Lawyer list features Mastagni Holstedt Senior Associate Judith Odbert on the Statute of Limitations and DNA Evidence.  Odbert is a seasoned criminal attorney who has more than 25 years of experience in litigation and trials including homicides, sexual assaults, aggravated assaults, domestic violence and general felony practice.

The Firm also wishes to congratulate our 14 attorneys recognized on this year's list: Michael Amick (Workers Compensation), Ken Bacon (Legal Malpractice & Professional Malpractice), Jeffrey R. A. Edwards (Employment and Labor), John Holstedt (Workers' Compensation), Craig Johnsen (Workers' Compensation), David E Mastagni (Employment and Labor), David P. Mastagni (Personal Injury), Phillip R.A. Mastagni (Personal Injury), Judith Odbert (Criminal Defense), Josh Olander (Criminal Defense), Daniel Rainsbury (Medical Malpractice), Kathleen N. Mastagni Storm (Employment and Labor), and Stuart Woo (Workers' Compensation).

9th Circuit: 2nd Amendment Protects Right to Carry Firearms in Public For Self-Defense

In a recent appellate court decision, the 9th Circuit weighed in on how much the Second Amendment protects, or does not protect, carrying of firearms outside of the home.

In Young v. Hawaii, an individual challenged the constitutionality of a Hawai'i law requiring gun owners to keep their firearms at either their place of business or at home. The law provides an exception. Residents can apply to carry a firearm, either concealed or openly, with the local chief of police. However, the applicants must demonstrate a need to protect “person or property.”

George Young wished to carry a firearm publicly for self-defense. He applied twice with the County of Hawai'i’s Chief of Police. The Chief denied his application twice.  In fact, no one other than a security guard had ever been issued an open carry license. After his second application was denied, Mr. Young challenged the constitutionality of the law.

In a lengthy majority opinion, which examined the history and language of the Second Amendment, the Court held the Constitutional right to “bear arms” necessarily “implies some level of public carry in case of confrontation.” Accordingly, the Court ruled that the Hawaiian law unnecessarily restricts Mr. Young’s right to carry a firearm openly.

The Court specifically noted that restricting open carry to those who job entails protecting life and/or property restricts open carry to a “small and insulated” subset of law-abiding citizens. For that reason, the Court stated that the Hawai'i law “violated the core of the Second Amendment.”  

Currently, there is a split among several federal courts on these issues. Accordingly, this case may move forward to the Supreme Court.