Wednesday, December 26, 2018

Crime Victims United of California & the Sacramento Police Officers Association Seek a Stay of SB 1421 in the California Supreme Court

On December 21, 2018, our office filed an extraordinary writ of mandamus seeking to stay enforcement of Senate Bill 1421 on behalf of Crime Victims United of California and the Sacramento Police Officers Association.  By classifying peace officer personnel records and investigative files as not confidential notwithstanding Penal Code section 832.7(a) and Government Code section 6254 (f) “or any other law,” SB 1421 infringes on the privacy rights granted crime victims in the California Constitution.  Our writ seeks to deny SB 1421 its broad construction that would cause its disclosure requirements to supersede existing Constitutional and statutory protections from disclosure, such as the protections set forth in Marsy’s Law, the California Victims' Bill of Rights Act of 2008.(Cal. Const. Art. I, § 28(b)(4).) 

Largely written by the ACLU, the bill mandates disclosure of certain sustained disciplinary actions and critical incident investigations, including any incident wherein an officer discharges a firearm or deploys force that results in great bodily injury or death.   SB 1421 provides that these categories of records are not exempt from disclosure as confidential personnel records defined in Penal Code Section 832.7 or as law enforcement investigations pursuant to Government Code Section 6254(f). The poorly drafted bill has caused significant concern and uncertainty.  In particular, the bill was drafted to severely limit law enforcement agencies’ ability to redact sensitive information, such as victim information, and is silent as to retroactivity. 

The investigations, findings, and reports covered by SB 1421 contain multiple categories of information that are independently confidential or exempt from disclosure under the California Constitution and other state laws.  Critical incident investigations contain thousands of pages of documents, as well video recordings of the incident (if available) and of witnesses and victims.  One of the reasons the investigations are so comprehensive is that the investigations necessarily encompass the underlying crimes that caused law enforcement to respond.  Often, the suspect survives the use of force encounter and is subject to prosecution both for the underlying crime(s) and crimes against the officer that prompted his or her use of deadly force in self-defense.  In these circumstances, the officer is considered a victim as well under Marsy's Law.

SB 1421 requires the release of information that would otherwise be protected from disclosure pursuant to Article I, section 28 of the California Constitution or existing statutes, other than Penal Code section 832.7 or Government Code section 6254(f). SB 1421 eliminated 76 express exemptions in the CPRA, including Section 6254(k) which exempts records that are otherwise exempt from disclosure by state or federal statutes.  These exemptions permit agencies to redact confidential or sensitive information from the records, such as autopsy images, the personal information of victims, juvenile records, attorney-client work product, etc..  

SB 1421 provides only 5 very limited grounds for redaction, and narrows the protections of subsection (k) to material that is confidential under federal statutes, i.e. it eliminates the ability to redact information confidential under California law. SB 1421 deprives victims and peace officers of their privacy rights and negates Constitutional and statutory protections that would otherwise exempt crime victim information from disclosure, simply because the information is included in an investigation or record subject to disclosure under SB 1421.  A copy of the writ is attached here.

Crime Victims United of California and the Sacramento Police Officers Association are represented by David E. Mastagni and Isaac Stevens of Mastagni Holstedt, APC, and Nina Salarno-Besselman, who helped win the fight in 2008 to pass Marsy's Law.

Monday, December 10, 2018

Listen to the Daily Journal Podcast Interview of David E. Mastagni Regarding the California Supreme Court Pension Cases

The California Supreme Court heard oral arguments in Cal Fire, the first of a series of pension cases before the court on December 5, 2018.  The Daily Journal's Brian Cardile interviewed Mastagni Holstedt partner David E. Mastagni on December 6th regarding the California Rule and whether "air time" is a vested right.  David filed an amicus brief in support of Cal Fire and represents the Alameda County Deputy Sheriff's Association in another pension case before the California Supreme Court.  Offering an opposing view on whether the State can reduce pension benefits is Gibson Dunn Partner Daniel M. Kolkey.  Listen to the Daily Journal podcast.  Alternative links are on Soundcloud and iTunes

Wednesday, December 5, 2018

Update on Supreme Court Oral Arguments in the Cal Fire Pension Case

The California Supreme Court heard oral arguments today in Cal Fire Local 2881, et al. v. California Public Employees’ Retirement System,  one of the three major cases in the California Supreme Court challenging the constitutionality of the Public Employees’ Pension Reform Act (“PEPRA”).  The Court has not yet scheduled oral arguments in the other two cases, Marin Association of Public Employees v. MCERA (“Marin”) and Alameda County Deputy Sheriffs’ Association v. ACERA (“ACDSA”).  Cal Fire challenged PEPRA’s elimination of “air time,” which is additional service credit employees could purchase in lieu of working. The issues before the Court were: (1) was the option to purchase additional service credit a vested pension benefit of public employees enrolled in PERS?; and (2) if so, did the Legislature’s withdrawal of this right violate the contracts clauses of the California and U.S. Constitutions?

The Court focused on the first issue when questioning Cal Fire's attorney. Chief Justice Cantil-Sakauye and Justice Liu inquired into whether pension benefits should be treated differently than other public employment benefits, such as health benefits and vacation accruals. The justices indicated that pension benefits are distinguishable from other employment benefits as deferred compensation.  The Justices asked whether the right to purchase air time was a form of deferred compensation, which employees became entitled to upon accepting public employment, or more akin to other benefits, which were subject to modification or elimination during an employees’ employment, like vacation accrual rates, or salaries. The tenor of the justices' questions suggested that the Court was seeking to establishing a limiting principle to distinguish deferred compensation  from other employment benefits and how to treat "air time."

The Court’s questions for the State’s attorney focused largely on the second issue, discussing the California Rule, as well as the differing rules the First District laid out in the ACDSA and Marin cases. Under the California Rule, vested pension benefits may only be modified if the change is related to the theory of a pension and any detrimental changes are offset by comparable new advantages. By contrast, the court in Marin ruled the State could reduce pension benefits without providing offsetting new advantages, so long as a reasonable benefit remained. During oral arguments, Justice Liu asked the State’s attorney if he believed the State had the power to reduce employees’ future pension benefit accruals. At first, the State’s attorney said the State could reduce benefits, so long as they left a reasonable benefit. When Justice Cuellar pushed him on the question of what a “reasonable” benefit would be, the State’s attorney admitted the State believed it had the power to completely eliminate employees’ future pension benefits without providing any offsetting advantages.  The justices appeared skeptical of the State's extreme contention that the Legislature could reduce or eliminate the formula for current employees' future pension accruals.

The Court could issue a broad ruling addressing the California Rule or decide the Cal Fire appeal solely on the issue of whether employees had a vested right to purchase air time. If the Court determines that no vested right existed, the Court may delay  deciding the fate of the California Rule, i.e. any reductions in pension benefits be offset by new advantages, until it decides the ACDSA appeal.

David Mastagni and Issac Stevens, lead attorneys for ACDSA, attended the arguments in Los Angeles.

Appellate Court Reiterates POBRA’s Tolling Provisions Do Not Expire Until The Entire Criminal Investigation Is Concluded.

In a recently published decision, an Appellate Court held that the criminal tolling period within POBRA does not end for any involved officer unless, and until, all officers are officially cleared of criminal jeopardy.  In other words, the entire criminal investigation must be concluded before POBRA’s tolling provisions expire.

In Bacilio v. City of Los Angeles. et al., several officers were called to a domestic disturbance which led to the arrest of a husband.  Following the arrest, Officers Edgar Bacilio and Nestor Escobar returned to the apartment  in order to conduct a “welfare check.”  They spent nearly two hours on-scene.

Over 4 months later, on August 4, 2011, the arrestee’s wife lodged a complaint with the LAPD alleging that Officer Escobar remained in her apartment for 90 minutes, and during that time kissed her and groped her breasts and genitals.  She selected Escobar out of a photographic montage, stating that she was “60-70 percent” sure Escobar was her assailant.

The LAPD’s Internal Affairs Division commenced an internal investigation of Bacilio, Escobar, and a third Officer.  At the same time, a parallel criminal investigation was launched. Due to the criminal nature of the allegations, the officers were not interviewed until 2013.

On August 6, 2013 the deputy district attorney interviewed the alleged victim.  The lead internal affairs investigator attended the interview as well. Shortly after the interview, the deputy district attorney discussed the likelihood of criminal charges with the lead internal affairs investigator.  Although what was actually said during their discussion was disputed, it was clear that the deputy district attorney told the LAPD’s investigator that it was “okay to do the admin[istrative] interviews” of Bacilio and the third officer, as she would not be filing charges against either for aiding-and-abetting, but was still “working on the case.”  Impliedly, the District Attorney’s Office was still considering charges against Escobar.

On September 27, 2013 Bacilio was interviewed by LAPD internal investigators.  He was also interviewed again on February 17, 2014. On October 3, 2013 the District Attorney’s Office sent written notice to the LAPD (a “Charge Evaluation Worksheet”) that it was declining to file charges against any of the three officers, including Escobar.

On September 10, 2014 the LAPD served Bacilio with notice that it sought to officially reprimand him.  Bacilio challenged the findings arguing  that the deputy district attorney’s oral representation to the internal investigator that no criminal charges would be filed (on or about 8/6/13) triggered the end of the tolling period. Hence, the September notice was untimely under POBRA’s one year statute of limitations.

In rejecting Bacilio’s arguments, the Appellate Court reiterated that tolling in multi-officer cases will remained tolled as to all so long as any officer remains under investigation or pending final disposition (guilty / not-guilty / dismissed with prejudice) of a criminal charge.