Mastagni Holstedt Gets PERB Complaint for Employer Refusal to Provide Information

Mastagni attorneys Kathleen Mastagni Storm and Chelsea Avent recently got a Public Employment Relations Board (“PERB”) Complaint issued against the County of Kern for refusing to provide relevant information to Kern County Fire Fighters Association, Local 1301. PERB concluded the County violated the Meyers-Milias-Brown Act by withholding the information from Local 1301.

For over a year, the County dragged its feet and engaged in bad faith bargaining. In July 2018, Local 1301 and the County began negotiations for a successor Memorandum of Understanding (“MOU”). The bargaining ended in a mediation and a fact finding hearing between the parties. Local 1301’s chief negotiator Robbie McCandlish and attorney Howard Liberman’s hard work during the hearing got a favorable fact finding report for Local 1301. The report noted the County had over $180 million in reserves, Local 1301 were the lowest paid personnel in the surveyed departments, and that members have seen minimal to no pay increases since 2008.

During bargaining, the County told Local 1301 it intended to cut approximately three million dollars from the Fire Department’s overall budget. The County insisted on concessions from Local 1301. Local 1301 decided to seek out alternative cost saving proposals in an effort to mitigate the harm a pay cut would have.

Beginning in October 2018, Local 1301 requested information regarding healthcare plans, member information, and claim details to obtain health care cost quotes from outside companies to formulate its proposals for group insurance plans during bargaining.

Between December and April 2019, the County slowly provided different variations of aggregate information for enrollment count, number of dependents, workers’ compensation claims, and annual medical claims. Local 1301 continued requesting the specific information and attempted to work with the County to find an agreeable way to provide the information that would not allow the identification of any members. It was not until April 2019 the County finally told Local 1301 it could not provide the information claiming it could violate health privacy laws.

PERB’s Complaint concluded the County refused to provide information relevant and necessary to Local 1301’s discharge of its duty to represent employees. Further, the County violated the MMBA by refusing to meet and confer in good faith over the requested information, interfering with members’ rights to be represented, and interfering with Local 1301’s right to represent members.

This decision confirms an employer’s duty to either supply relevant information or timely and adequately explain why it cannot provide the information. Even if the employer ultimately provides the requested information, it will not excuse an unreasonable delay.  An employer’s refusal to provide information amounts to bad faith bargaining in violation of the MMBA.

POST Issues New Video Providing Guidance AB 392 and Peace Officer Use of Force Standards

The Commission on Peace Officer Standards and Training ("POST") recently posted its legal analysis of A.B. 392 and its impacts on peace officer use of force standards.  The website inlcudes a link to a video available to the general public about use of force standards.  In the video, the Executive Director of POST Manuel Alvarez Jr., Riverside District Attorney Micahel Hestrin, and Santa Barbara District Attorney Joyce Dudley provide their insights and interpretations of A.B. 392, as well as a discuss of how they will apply the new law.

Any analysis of California's use of force standards should also include S.B. 230 which was Sponsored by PORAC and other law enforcment stakeholders. In addition to mandating minmum use of force standards and training, SB 230 also codifies important legal definitions that directly affect the application of A.B. 392, which utilizes the same terms (S.B. 230 was expressed coupled to the passage of A.B. 392.).  For example, “Feasible” is defined as "reasonably capable of being done or carried out under the circumstances to successfully achieve the arrest or lawful objective without increasing risk to the officer or another person." (emphasis added.)  This definition clarifies that tactics increasing the risk to officers are not "feasible."  The law also clarifies that policies and training shall not be considered as imposing a legal duty on officers to act in accordance with such policies and training.  Tellingly, the ACLU vigorously opposed S.B. 230.

WATCH the ACLU's objections to S.B. 230 here.

The Mastagni Holstedt, APC analysis of the use of force legislation is available here:Modernizing Use of Force on Our Terms.

Appellate Court Holds That Police Are Not Liable for Destruction of Family Home

A recent Federal Appellate case clarifies that significant damage to real property resulting from a valid police pursuit is covered under a state's police power and is not a government taking. 

The case stemmed from events occurring in June of 2015. At that time, Greenwood City Police officers responded to a burglar alarm at the home of the Lechs. The responding officers, quickly learned that an armed criminal suspect who was attempting to evade capture was inside. In order to prevent escape, the officers positioned their vehicles in the driveway of the Lechs' home. Upon seeing this, the suspect fired a bullet from inside the garage and struck an officer's car. The officers deemed the incident a high-risk, barricade situation. 

Over the next several hours, negotiators attempted to resolve the situation. After these efforts proved unsuccessful, the officers released several rounds of gas munition into the house. They then breached the home's doors with a BearCat armored vehicle so they could send in a robot to deliver a "throw phone". They also used explosives to create sight lines and points of entry to the home. Eventually, officers used the BearCat to open multiple holes in the home and again deployed a tactical team to apprehend the suspect. Although the tactical team was successful, the Lech’s family home was rendered uninhabitable.

The City denied liability for the incident and declined to provide compensation to help rebuild the home. The Lechs then sued alleging the city violated the Takings Clause of both the United States and Colorado Constitutions by damaging the Lechs' home without providing just compensation.

The Appellate court, in an opinion that can only be cited for persuasive authority, held that the City did not have to compensate the Lechs. The court stated that the city was not responsible for the cost of rebuilding the home because (1) the law-enforcement actions fell within the scope of the police power; and (2) actions taken pursuant to the police power do not constitute a government taking since it is for the public good rather than public use.  However, this decision is not a blank check for the destruction of property during police pursuits. As the Court pointed out, police officers who willfully or wantonly destroy property may be responsible for civil damages. 

PORAC Opposes Federal Legislation Implementing New Use of Force Standard for Federal Officers

This month, U.S. Representative Ro Khanna’s  Police Exercising Absolute Care With Everyone Act of 2019 (H.R. 4359), was referred to the House Sub-committee on Crime, Terrorism and Homeland Security. On that same date, the Peace Officers Research Association of California’s Board of Directors sent Rep. Khanna a letter outlining PORAC’s opposition.  

Simply put, H.R. 439 would fundamentally alter the long standing use of force standard established by the United States Supreme Court in Connor v. Graham. As PORAC’s letter highlights, this proposed legislation would “criminalize the practice of public safety in our communities.”

You can read the entire letter below:

 

GOVERNOR NEWSOM VETOS BILL PROVIDING EQUAL BENEFITS TO SCHOOL DISTRICT POLICE OFFICERS

On Sunday, Governor Newsom vetoed A.B 346, which would have made minor changes to the states’ workers compensation system.  This minor change would have greatly benefited California school district police officers. Currently, state law provides that most peace officers and firefighters are entitled to a leave of absence without loss of salary when disabled by an on the job injury or illness. However, for a large number of police officers employed by school districts this is simply not the case. 

Assemblyman Jim Cooper

Assemblyman Jim Cooper sought to fix this glaring problem. His bill, which passed unanimously in both the California Assembly and Senate, would have added police officers employed by a school district, county office of education or community college to the list of public employees entitled to a full pay leave of absence if disabled through the course of employment.  

Despite the Governor’s Veto, Assemblyman Cooper is expected to  re-introduce the legislation next session. 

Governor Newsome Signed Law Enforcement Sponsored Use of Force Bill (S.B. 230) into Law

On September 12, 2019, Governor Gavin Newsom signed into law S.B. 230, which was introduced by Senator Anna Caballero (D-Salinas) on February 2, 2019.  S.B. 230 was sponsored by a law enforcement coalition, including PORAC, Cal Chiefs, and CAHP, to establish state-wide use of force policy and training standards. 

S.B. 230 will help achieve better outcomes for everybody by providing officers clear guidelines and training on use of force.  The bill establishes first-in-the-nation use of force policy requirements for departments, as well as standardized training for all California public safety officers on force scenarios, including de-escalation, intervention and medical aid.  “California will set a new national standard that every other state can look to as a model when updating their own use of force policies,” Senator Caballero said in a statement. 

S.B. 230 states that officers shall be guided by the principle of reverence for human life in all investigative, enforcement, and other contacts between officers and members of the public. S.B. 230  recognizes that officers are vested with the authority to use necessary force as determined by an objectively reasonable officer.   It also requires that an "officer may only use a level of force that they reasonably believe is proportional to the seriousness of the suspected offense or the reasonably perceived level of actual or threatened resistance."

Mastagni Holstedt attorneys David E. Mastagni, Kathleen Mastagni-Storm, and Josh Olander were privileged to assist PORAC in drafting this bill and lobbying for its enactment into law.

  

WATCH NOW: Annuitants Unavailable for Work—Courthouse Shutdown Results.

As covered by several media outlets, numerous per diem deputies in San Joaquin County did not report for work today. Per diem deputies are retirees that are routinely used to supplement Sheriff's Office staffing due to the inability to recruit and retain sufficient numbers of full time deputy sheriffs.

At the moment, San Joaquin Deputy Sheriff's have gone more than four years without a contract. There is currently a crisis of low staffing levels and high mandatory overtime rates. This has led to burn out and attrition problems.

Stockton, Manteca Courthouses and Juvenile Hall Partially Closed Due to Sick Calls

For entire complete media coverage, click here. 

The California Supreme Court Upholds the Legality of Brady Tips by Law Enforcement Agencies to District Attorneys

As predicted, in an opinion authored by Chief Justice Cantil-Sakauye, the California Supreme Court upheld the legality of “Brady tips” by law enforcement agencies to prosecutors when an officer is potential witness in a pending prosecution. It must be noted, however, that the Court’s decision did not change the fact that when an officer’s identifying information (i.e. name) is placed on a Brady list, that fact and information as to why the officer was placed on the Brady list is confidential by law under Penal Code section 832.7(a).

The long-awaited, unanimous decision was issued today and answered the question of whether a law enforcement agency may disclose to the prosecution the name and identifying number of an officer and that the officer may have relevant exonerating and impeaching material in that officer’s confidential personnel file. The Court ultimately held that a law enforcement agency does not violate Penal Code section 832.7(a) if they advise the prosecution that a pending, peace officer prosecution witness may have relevant exonerating or impeachment material in that officer’s confidential personnel file.

The Court’s decision is rooted in the Fourteenth Amendment to the United States Constitution that prohibits the states from denying any person due process of law. Based on the Fourteenth Amendment’s guarantee of the right to a fair trial, the United States Supreme Court in Brady v. Maryland (1963) 373 U.S. 83, held that prosecutors must disclose to the defense evidence that is “favorable” to the accused and “material” to guilt or punishment. Thus, if the evidence helps the defense or hurts the prosecution (i.e. it impeaches a prosecution witness) and if there is a reasonable probability that the failure to disclose such evidence could affect the result of the trial, the prosecution team has a constitutional obligation to provide that evidence to the defense.

This case began in 2016 when the Los Angeles County Sheriff’s Department advised approximately 300 deputies that the Department was going to provide their names to the Los Angeles County District Attorney’s Office because their personnel files contained potential exculpatory and/or impeachment material. The Association for Los Angles Deputy Sheriffs (“ALADS”) filed a writ of mandate and a complaint seeking preliminary and permanent injunctive relief to prohibit the Department from disclosing the names of its members. The trial court held that although the identifying information of officers is confidential, the Department is not barred from disclosing that an individual is on the Department’s Brady list when that deputy is a potential witness in a pending criminal prosecution. After ALADS appealed the trial court’s decision, the Court of Appeal held that absent a Pitchess motion the Department cannot even disclose to a prosecutor the name of an officer who may have Brady material in their personnel file.

The crux of the problem with the Court of Appeal decision was that without Brady tips a prosecutor would be unable to fulfill their constitutional Brady obligation to defendants. In fact, in their previous decision regarding confidentiality in peace officer personnel files, the same California Supreme Court praised Brady tips as a method of accomplish a workable balance between the confidentiality of peace officer personnel records and the fundamental due process rights of defendants.  

Mastagni Holstedt and the Berry Wilkinson Law Group were honored to file an amicus brief in this appeal on behalf of PORAC and the PORAC Legal Defense Fund asking the Court to detemine whether S.B. 1421 should be applied retroactively.  Unfortunately, the Court declined to address the retroactivity of SB 1421, the California Public Records Act exception to Pitchess which has been codified in Penal Code section 832.7(b).

Watch San Joaquin County Sheriff Pat Withrow Speak Out In Support of Fair Pay and Benefits for His Deputies

Relying Heavily on Mastagni Holstedt Case Law, PERB Clarifies That Peace Officer Unions Fall Under Its Jurisdiction

In 2016, the Association of Orange County Deputy Sheriffs (“Association”) filed an unfair practice charge against the County of Orange (“County”) alleging that the County violated their duty to meet and confer in good faith when they unilaterally made changes to the Office of Independent Review (“OIR”).  The County attempted to dismiss the case by arguing that PERB did not have jurisdiction over cases brought by peace officer organizations, citing a 2000 amendment to the MMBA that excluded peace officers from PERB’s jurisdiction.

The ALJ ultimately held that PERB has primary jurisdiction over cases brought by employee organizations that solely represent sworn peace officers, following precedent set in County of Santa Clara (2015) PERB Decision No.  2431-M.  A case Mastagni Holstedt successfully argued. The Board affirmed, relying heavily on Mastagni Holstedt’s arguments, adding that the plain language and legislative intent of the 2000 MMBA amendment could lead to no other conclusion.

It all started in 2016, when the County implemented changes to the OIR that included imposing new staff requirements, granting additional access to confidential records, changing how the County selects OIR’s executive director, and changing how OIR staff advise County personnel.  The County made these changes without meeting and conferring with the Association.  The Association filed an unfair labor practice claim with PERB, alleging that the County violated the MMBA when it changed the ordinance without giving the Association an opportunity to meet and confer over the decision or its effects. 

The County responded by arguing that PERB did not have jurisdiction over the claim because the Association represented peace officers and thus fell within an exception established by Government Code § 3511.  A 2000 amendment to the MMBA, Government Code § 3509, states that PERB has initial jurisdiction over MMBA violations.  (Gov. Code § 3509.)  Government Code § 3511 provided an exception to this rule, stating that § 3509 did not apply to “persons who are peace officers as defined in § 830.1 of the Penal Code.”  (Gov. Code § 3511.)  In Coachella Valley Mosquito & Vector Control Dist. v. California PERB (2005) 35 Cal.4th 1072, the California Supreme Court acknowledged this exception, stating explicitly that peace officers are exempt from PERB’s jurisdiction pursuant to Gov. Code § 3511.  Subsequent cases such as Paulsen v. Local No. 856 of Internat. Bhd. Of Teamsters (2011) 193 Cal.App.4th 823 addressed this issue and likewise affirmed that peace officers are exempt from PERB’s jurisdiction. 

The County argued that the above California Supreme Court cases establish that § 3511 deprives PERB of jurisdiction over claims “impacting” peace officers, including claims brought by organizations representing peace officers.  They also pointed out that courts have heard disputes brought by employee organizations that represent peace officers, which demonstrates that courts, and not PERB, have jurisdiction over such cases. 

The ALJ rejected the County’s argument, stating explicitly that PERB has jurisdiction over claims brought by employee organizations, including those representing peace officers.  In doing so, the ALJ followed precedent set in Santa Clara (2015) PERB Decision No. 2431-M.  In Santa Clara, the Board held that PERB has authority to hear charges brought by employee organizations, “including employee organizations representing or seeking to represent units including persons who are peace officers.” 

The Board affirmed the ALJ’s holding, stating again that PERB has primary jurisdiction over claims brought by employee organizations covered by the MMBA, including those that represent bargaining units composed partially or entirely of peace officers.

In its reasoning, the Board conducted a thorough statutory interpretation analysis of Government Code § 3511.  The plain language of § 3511 clearly states that § 3509 “shall not apply to persons who are peace officers.”  The Board emphasized that this reference to “persons” clearly means natural persons rather than associations or organizations, as the MMBA frequently articulates the difference between people and organizations, and thus would have done so here if both were intended to be included.  Further, whether the complainant is a person or an organization is dispositive when it comes to PERB standing, so the Legislature would have mentioned both if that was their intent.  Previous drafts of § 3511 referenced “any recognized employee organization representing persons who are peace officers” instead of “persons who are peace officers,” demonstrating that the Legislature was aware of the difference between the two and intentionally changed it to exclude organizations. 

The Board also pointed out that accepting the County’s argument would lead to absurd results when it comes to the use of factfinding panels to aid in the resolution of bargaining disputes between employee organizations and public agencies.  When public employers and employee organizations are unable to reach agreement, they may request that their differences be submitted to a factfinding panel.  PERB is required to be involved in these factfinding panels by selecting a neutral chairperson.  This process is available to all public employee organizations without regard to whether the employee organization represents peace officers.  Thus, if the County’s interpretation was correct, PERB would be involved in factfinding panels for employee organizations representing peace officers, but would not have the jurisdiction to otherwise be involved.

Finally, in addressing the County’s arguments, the Board soundly rejected the idea that § 3511 meant to exclude all cases “impacting” peace officers.  The Board held that the County had placed too much weight on a footnote in Association v. County of El Dorado (2016) 244 Cal.App.4th 950, which cited § 3511 as authority for the statement that “labor disputes relating to peace officers… are not subject to PERB jurisdiction.”  The Board argued that this footnote was an unnecessary explanatory comment not related to the issue of that case, and thus was merely dicta with no binding authority. 

After making the determination that PERB indeed had jurisdiction over the case, the Board turned to examine whether the County had committed an unfair labor practice.  Ultimately, both the ALJ and Board dismissed the Association’s claim on its merits, stating that the changes the County made to OIR policy fell outside the scope of representation and was inadequate to support a claim that the County made an unlawful unilateral change. 

This case serves an important reminder that while Government Code § 3511 excludes from PERB’s jurisdiction claims brought by Penal Code § 830.1 peace officers, PERB has primary jurisdiction over claims brought by employee organizations covered by the MMBA, including those that represent peace officers. This includes organizations that represent or seek to represent bargaining units composed partially or entirely of § 830.1 peace officers.

ACLU Opposes SB 230 Arguing Officers Should Be Mandated to Subject Themselves to Additional Risk to Avoid Using Force

While AB 392 reaches the Governor's desk, the ACLU is seeking to prevent SB 230 from also becoming state law.

Law Enforcement stakeholders dropped their opposition to AB 392 when it was amended to eliminate the provisions that would have denied officers' the right of self-defense if any alternative tactics could be conjured up after the fact.  Instead the bill authorizes deadly force where necessary to defend against an imminent threat of death or serious bodily injury to the officer or to another person or toapprehend a fleeing felon who poses imminent threat unless immediately apprehended.

SB 230, which mandates minimum standards and training beyond the requirements of the Penal Code, was unanimously approved by the Assembly Committee on Public Safety over the objections of the ACLU.  Tellingly, the ACLU's opposition to SB 230 directly contradicts one of the purported objectives of AB 392--making officers safer.  Dr. Weber agreed, stating “I kept saying this bill will make it safe behind and in front of the badge.”  ACLU attorney Peter Bibring argues that SB 230 conflicts with AB 392 because the SB 230 defines alternatives to force as being "feasible" only when such tactics do not increase the risks to officers, who are already subjected to a dangerous situation.

Despite the fact that SB 230 has long contained this definition (AB 392 has never defined feasible), the ACLU raised last-minute demands to amend SB 230 to require officers to accept additional risks to their own safety in order to avoid using force against the suspect who is placing them and/or citizens in danger. Bebring claims, “Both bills direct officers to de-escalate or use other tactics besides deadly force when it’s feasible to do so. But the definition of ‘feasible’ in this bill is so strict, by requiring no increase in risk to officers — even a reasonable increase — that it makes that requirement in this bill very weak and would undermine the requirement in AB 392.” 

PORAC and Cal Chief's, as well as Senator Caballero have refused these ACLU amendments.  At the Public Safety Committee hearing, Chair Reggie Jones-Sawyer conveyed his displeasure with the ACLU's untimely, last-minute objections and urged unanimous support from the Committee--which he received.

WATCH the Committee hearing here.

Governor Newsom Eliminates Critical Ambiguity for Public Records Requests

Last week, Governor Newsom signed into law SB 94 as part of the new State Budget. SB 94 cleans up ambiguity found in amendments to the California Public Records Act (“CPRA”) which are set to go into effect today.

Starting today (July 1, 2019) government agencies must begin disclosing audio and video recordings from use of forces and officer involved shootings. Under the original amendments to the CPRA, an agency may withhold a recording if the disclosure would violate the privacy interest of a person depicted in the recording. However, the agency must disclose the recording to the person whose privacy is being protected.

At the same time, the original amendments allowed disclosure of the recordings to be delayed for up to a year if such a disclosure would undermine an active criminal or administrative investigation. This created an obvious ambiguity. For example, if a certain public records request was made an agency would could have been required to disclose the video to a person whose privacy is being protected even if that agency wished to delay disclosure due to a criminal or administrative investigation. SB 94 corrects this ambiguity. Due to SB 94 being signed into law, the agency must now only provide an estimated date for the disclosure of the video or audio recording to the person whose privacy is being implicated if it would interfere with a criminal or administrative investigation.

Court of Appeals Clarifies that Denial of Promotion Based on Behavior Occurring Prior to a Probationary Promotion Does Not Trigger Appeal Rights Under POBRA.

A recently published case from the Second District Court of Appeals, clarifies when a probationary employees is entitled to appeal rights under the Public Safety Officers Procedural Bill of Rights (“POBRA”). In Conger v. County of Los Angeles, the Los Angeles County Sheriff’s Department rescinded Thomas Conger’s probationary promotion to lieutenant based on investigatory findings that he had failed to report a use of force occurring several months before his probationary promotion.

Conger argued that rescinding his promotion based on alleged conduct occurring before he was elevated to his probationary position constituted a demotion or a “denial of promotion on grounds other than merit,” thus entitling him to an administrative appeal under POBRA.  However, the appellate court disagreed. It held that the Department’s decision to deny him a promotion was in fact “merit-based.” Specifically, the court noted that Conger did not dispute that the Department concluded he had failed to document a use of force. For that reason, the Court found that the reason was in fact “merit-based.” Thus, under the language of the statute, Conger was not entitled to an administrative appeal even if the Department deliberately chose to deny his promotion as a substitute for punitive action. Here it is also important to note that the Court clarified that Conger did not yet have a “vested property interest” in his promoted position, thus POBRA’s appeal rights would also not apply.

Lastly, the Court made a specific finding that Conger has failed to show that the written evaluation detailing his unreported use of force would impact his career adversely in the future apart from the loss of his probationary position.

The entire case can be read here.

CalPERS Board of Administration Cracks Down on Employers and Third-Party Independent Contractor Agreements.

In a recent published decision by the CalPERS Board of Administration, a warning shot was fired to third party contractors attempting to skirt CalPERS contributions.  The case, Fuller v. Cambria Services began in early 2014 after Cambria Community Services District’s (“CCSD”) long-time Finance Manager gave a 30-day notice that he was retiring.

The notice came at a time when CCSD was starting an emergency water project requiring the immediate assistance of another skilled financial manager. Tracy Fuller was hired CCSD to fill that role. However, she was hired through Regional Government Services (RGS) as an interim replacement. RGS provides individuals, mostly professionals, to small and midsize public agencies to perform work.

RGS itself is not a CalPERS covered agency. RGS classifies individuals as employees of RGS and itself as an independent contractor of the CalPERS covered agencies, thereby seeking to avoid the application of CalPERS pension laws to the individuals' work assignments. RGS currently provides individuals to about 100 public agencies, and has served about 225 public agencies since it started operating in January 2002.

CCSD treated her as an employee of RGS and did not offer her membership in CalPERS or any other retirement or health benefits. CCSD also did not require Fuller to complete its standard new employee documentation or give her a typical new employee orientation. She was given an office, phone, access to some CCSD computer systems, and a CCSD email address, but no laptop computer unlike other CCSD management personnel.

In July 2015, CalPERS sent CCSD a draft audit report stating that Fuller should have been enrolled in CalPERS as an eligible employee under the "common law test of employment." CCSD responded that Fuller was not an employee of CCSD, but of RGS.

After examining all the evidence, the CalPERS Review Board determined Fuller was an employee of CCSD who should have been enrolled into CalPERS membership when she worked as CCSD's Interim Finance Manager. In a well drafted 14-page decision, the Board clearly established that Fuller was CCSD's employee for purposes of membership in CalPERS and should have been enrolled.

Specifically, the evidence established that CCSD had the right to control the manner and means by which Fuller accomplished the result desired, which is the principal test of an employment relationship. In fact, CCSD explicitly chose Fuller for the assignment, and RGS lacked the authority to reassign Fuller without CCSD's consent. At the same time, CCSD could end Fuller's services at any time by requesting a reassignment or terminating its agreement with RGS.

Finally, CCSD should have reasonably been expected to have known of the enrollment requirement since it was filling a longtime employee position, albeit on an interim basis. Accordingly, CCSD was ordered to pay arrears costs for member contributions and administrative costs of $500 due to the error.

U.S. Supreme Court Rules Probable Cause Will Generally Defeat A Claim of Retaliatory Arrest

On May 28th, the U.S Supreme Court released it much anticipated ruling in the case of Nieves v. Bartlett. The case arrived before the Supreme Court after Bartlett was arrested in 2014 by police Officers Luis Nieves and Bryce Weight. He was arrested based on probable cause for harassment, disorderly conduct, and resisting arrest. The arrest came after Bartlett allegedly interfered with officers investigating a case of suspected underage drinking. The details are disputed, including whether, after handcuffing Bartlett, Officer Nieves said: “Bet you wish you would have talked to me now.”

Although the charges against Bartlett were eventually dropped, he filed suit against both officers. He claimed his free speech rights were violated. The 9th Circuit in San Francisco ruled that the lawsuit could go forward despite the fact that there was probable cause to make an arrest. Specifically, the lower court ruled that based on Sergeant Nieves’s alleged statement to of “bet you wish you would have talked to me now,” a reasonable jury could find both officers arrested Bartlett in retaliation for his refusal to answer Sergeant Nieves’s questions earlier in the evening. The case was appealed to the Supreme Court.

In a nearly unanimous decision, the Supreme Court held that “if there was probable cause to make the arrest, that generally will be enough to keep a lawsuit from moving forward...otherwise...policing certain events like an unruly protest would pose overwhelming litigation risks…any in artful turn of phrase or perceived slight during a legitimate arrest could land an officer in years of litigation.”

AB 392 Amended to Remove Unconstitutional Definition of Necessary

On May 23, 2019, Dr. Weber amended A.B. 392 to remove the provisions greatest concern to law enforcement.  For the last year, we’ve been working on behalf of PORAC with legislators, the ACLU, experts and stakeholders from around the state to develop comprehensive legislation to minimize the use of force in California.  As a result, informed and thoughtful amendments were made to both SB 230 and AB 392 to resolve conflicts and create a unified solution that all Californians can champion proudly. Together, AB 392 and SB 230 create a legislative package that will do more than any other state legislation to achieve better outcomes and minimize the use of force in our communities.

Law enforcement appreciates Dr. Weber and the ACLU's agreement to remove the definition of “necessary” that required officers to exhaust all reasonable alternatives before using deadly force and eroded an officer’s right to self-defense. Under the Bill, force is necessary if it is objectively reasonable under the totality of the circumstance.  The amendments also restore the longstanding principle that an officer attempting to make an arrest need not retreat or desist from their efforts or lose their right of self-defense in the face of resistance so long as the force used is objectively reasonable.  The amendments also eliminate the attempted criminalization of tactical mistakes occurring prior to the encounter.  As a result of the amendments, law enforcement’s concerns regarding the original AB 392 language have been addressed.

The newly amended AB 392 will strengthen the state’s current standard for authorizing the use of force.  SB 230 provides officers with the tools and training they need to implement the updated legal standard put forth by AB 392, including de-escalation tactics, interacting with vulnerable populations and alternatives to use of force. The best public policies are not made in a vacuum; law enforcement worked with all stakeholders to develop an effective solutions that protect all Californians.  This precedent-setting legislative package will make California a national leader in protecting our communities and our officers as they uphold their commitment to serve and protect.

WATCH NOW: KTVU Highlights Alameda County Deputy Sheriff’s Association’s Demand to Fully Inspect Possible Cause of Cancer

FOX KTVU recently covered an ongoing investigation prompted by the Alameda County Deputy Sheriff’s Association into a substation possibly causing cancer. The news story, as well as the initial inquire, began after Steve Welty of Mastagni Holstedt  sent a letter last September to Alameda County Undersheriff Richard Lucia demanding the county lay out steps to ensure the substation’s safety. Watch the entire news coverage below. .

LISTEN NOW: David P. Mastagni Joins Panel Discussion on SB 1421

On Monday, David P. Mastagni—partner at  Mastagni Holstedt,  joined a panel discussion sponsored by The First Amendment Coalition and CALmatters. The panel, which included State Senator Nancy Skinner, discussed the current legislative landscape surrounding SB 1421 and public access to police personnel files.

Listen to the entire discussion here: https://podcasts.calmatters.org/force-of-law/

For further coverage of SB 1421, please check out previous blog posts here.

Attend Cal Matters Forum where David P. Mastagni will discuss the impacts and concerns regarding S.B. 1421 with the Bill's Author Senator Skinner

David P. Mastagni will join Senator Nancy Skinner (SB 1421's author), David Synder from the First Amendment Coalition and reporter Thomas Peele at a forum to discuss the policies, the legal battles and the perspectives raised by S.B. 1421. 

David P. Mastagni is the founder and managing partner of Mastagni Holstedt, APC, where he practices primarily in the areas of civil litigation and labor law. Mastagni labor and employment attorneys located throughout California provide representation in all disciplinary matters, from the administrative investigation through any administrative appeal, including matters involving suspension, demotion, or dismissal.  His son, David E. Mastagni represented PORAC in negotiations with Senator Skinner over S.B. 1421 and filed an extraordinary writ of mandate with the California Supreme Court on behalf of Crime Victims United and the Sacramento Police Officers Association seeking clarification of third party and officer privacy rights under S.B. 1421.  Although the court declined to review the issues raised, it did request supplemental briefing on the impacts of S.B. 1421 on another matter before the Court involving Brady tips.  The Mastagni and Wilkinson firms subsequently filed an Amicus Curiae brief brief with the Court on behalf of PORAC.  The Supreme Court will likely soon determine whether S.B. 1421 has retroactive application in the still pending Brady tip appeal.

The forum hosted by Cal Matters and moderated by Laurel Rosenhall will be held:

Date And Time
Mon, May 13, 2019

12:00 PM – 1:15 PM PDT

Add to Calendar

Location
Capitol Event Center, Main Room
1020 11th Street
Sacramento, CA 95814

Register here.

WATCH NOW: On Tuesday April 23rd, Brian Marvel, President of PORAC, Ron Lawrence, President of California Police Chiefs Association and Kathleen Mastagni Storm, Partner at Mastagni Holstedt, APC testified before the California Senate Public Safety Committee in support of SB 230

This critical piece of legislation leaves current use of force standards in place while creating uniform use of force policies and training standards throughout California. This bill was widely supported by law enforcement and passed out of the Public Safety Committee. 

https://www.mastagni.com/attorneys/partners/kathleen-n-mastagni-storm/

READ NOW: The Sacramento Bee Publishes Compelling Personal Account On How AB 392 Will Endanger The Lives of Police Officers

Wednesday, the Sacramento Bee published a gut-wrenching special by Julie Robertson,  a Sacramento County Sheriff's Deputy who survived a "split-second" encounter in which she was shot and her partner was killed. It is a must read to understand why AB 392 must be opposed.

The entire story can be read here: 

https://www.sacbee.com/opinion/op-ed/article229339124.html

Read PORAC Law Enforcement News: "Modernizing Use of Force on Our Terms" by David E. Mastagni

The April 2019 edition of the PORAC Law Enforcement News published David E. Mastagni's article explaining why A.B. 392 is a threat to safe communities and would unconstitutionally impair peace officers' right of self-defense and defense of others.  The article titled, "Modernizing Use of Force on Our Terms" details how the ACLU's strident desire to criminalize law enforcement derailed discussions over consensus legislation and prompted law enforcement leaders to sponsor S.B. 230 to bring California police standards and training into the 21st century.

California Law Enforcement and SB 230 Author Senator Anna Caballero Announce Major Amendments to California Use of Force Bill

Precedent-Setting Legislation Reflects Input from Attorney General, Community Leaders
Sacramento, CA – California law enforcement and Senator Anna Caballero (D – Salinas) yesterday announced sweeping amendments to SB 230 – the California use of force bill that will set a national precedent by requiring consistent policies and mandatory training standards for all 500 California law enforcement agencies.

“California has an opportunity and an obligation to protect our families, officers and communities,” said Senator Caballero. “Collaboration is key to developing the most effective and comprehensive use of force policy that results in change. These amendments reflect input and feedback from impacted parties throughout the state. As a result, this legislation will truly set an example the rest of the nation can follow.”


READ THE AMENDED BILL HERE.


"AB 392 is a deeply flawed and unconstitutional bill. SB 230 will help achieve better outcomes for everybody by providing officers clear guidelines and training on deescalation and alternative tactics," said David E. Mastagni.

The new amendments to the bill have been in the works for some time now, as the bill’s author and supporters have been working with the Attorney General, legislators and community leaders from throughout the state to implement the feedback they have received. With these amendments, SB 230 now:
• Establishes the first statewide guidelines to clearly define when officers are authorized to use force.
• Requires that every California law enforcement officer receive the most robust training in the nation strictly designed to minimize the use of force.
• Sets specific policy requirements on de-escalation, rendering medical aid, proportional use of force and more. 
• Sets forth detailed, standardized requirements for reporting all instances when force is used in our communities.
• Specifies that use of force policies and training are considered in legal proceedings.
• Strengthens the California Penal Code’s definition of justifiable homicide for peace officers.

Law enforcement leaders throughout the state expressed strong support for S.B. 230 as amended. 

“SB 230 will establish the nation’s most comprehensive legislative solution to one of the most important issues facing America,” said Brian Marvel, President of the Peace Officers Research Association of California (PORAC). “As law enforcement officers, we know we can improve – we need to do everything in our power to minimize the use of force. The country is watching. They are counting on California to lead.”

“These substantive amendments are a testament to California law enforcement’s commitment to achieving meaningful change through collaboration,” said Ron Lawrence, President of the California Police Chiefs Association (CPCA). “We surveyed all of the proven best practices from around the country and incorporated them into one piece of legislation that will modernize and update California’s use of force policies.”

“California’s use of force policies must be updated, not only to reflect best practices, but to reflect our shared knowledge and expectations for what it means to enforce the law in our communities,” said Carrie Lane, CEO of the California Association of Highway Patrolmen (CAHP). “SB 230 is a bill we can all get behind.”