Attorney General Issues Vague Preservation Order In Wake of SB 1421

On January 3, 2019, the California Department of Justice, Division of Law Enforcement issued Information Bulletin 2019-DLE-01(“Bulletin”) instructing all California law enforcement agencies to preserve all records that may be subject to disclosure as a result of Senate Bill 1421. The Bulletin provides a specific list of applicable files that should be preserved, including but not limited to electronic communications regarding the potential destruction of covered information.

It should be noted that information bulletins are issued by the California Department of Justice to advise criminal justice and applicant agencies of changes in departmental regulations and policies. While informative, this Bulletin fails to address or cite to any controlling law that supports the instruction for law enforcement agencies to preserve all records that may be subject to disclosure as a result of Senate Bill 1421 when those records may otherwise be lawfully destroyed. California law permits Counties and Cities to destroy records according to lawfully established retention policies and procedures. Senate Bill 1421 does not create a new duty to retain records that may be lawfully destroyed. Accordingly, this Bulletin should be considered a reminder for law enforcement agencies to adhere to existing records retention policies that have been established according to California Law.

Supreme Court Clarifies That Qualified Immunity Attaches Unless An Officers’ Use of Force Clearly Violates Established Law

In City of Escondido v. Emmons, the Supreme Court examined if qualified immunity applied when two police officers forcibly apprehended a man at the scene of a reported domestic violence incident.

In April of 2013, Escondido police received a 911 call concerning a possible domestic disturbance at Maggie Emmons' apartment. Officer Houchin and Officer Robert Craig responded to the call. The entire event was captured on Body Worn Cameras (“BWC”).

Upon arriving at the scene, the two Officers knocked on the door of the apartment. No one answered. However, a side window was open. The two officers spoke with Maggie through that window. They were attempting to convince Maggie to open the door to her apartment so that they could conduct a welfare check. At the same time, a male inside the apartment began telling Maggie to back away from that window.

A few moments later, a man opened the apartment door and came outside. At that point, Officer Craig was standing alone just outside the door. Officer Craig told the man not to close the door, but the man closed the door and tried to brush past him. Officer Craig stopped the man, took him quickly to the ground, and handcuffed him.

Officer Craig did not hit the man, nor display any weapon. The BWC footage shows that the man was not in any visible or audible pain as a result of the takedown or while on the ground. Within a few minutes, the officers helped the man up and arrested him for a misdemeanor offense of resisting and delaying a police officer.

The man turned out to be Maggie Emmons' father, Marty Emmons. Marty Emmons later sued Officer Craig claiming excessive force.  

The Trial court rejected his claim. It noted that the "video shows that the officers acted professionally and respectfully.” Moreover, the trial court held that the officers were entitled to “qualified immunity” because the officers were responding to a domestic dispute, and that the encounter had escalated when the officers could not enter the apartment to conduct a welfare check. In fact, the trial court pointed out that when Marty Emmons exited the apartment, none of the officers knew whether he was armed or dangerous, or whether he had injured any individuals inside the apartment.

The Supreme Court agreed with the trial court. It held that “it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. Use of excessive force is an area of the law in which the result depends very much on the facts of each case, and thus police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.”

To that end, the Court stressed that “while there does not have to be a case directly on point, existing precedent must place the lawfulness of the particular [action] beyond debate. Accordingly, the Supreme Court remanded the case to the Court of Appeals “to properly analyze whether clearly established law barred Officer Craig from stopping and taking down Marty Emmons in this manner as he exited the apartment.” 

The California Supreme Court Requests Supplemental Briefing Regarding the Impact of SB 1421 on Brady Tips

On January 2, 2019, the California Supreme Court denied Petitions for Writ of Mandate and Requests for Stay filed by Crime Victims United of California and the Sacramento Police Officers Association challenging the the scope of the S.B. 1421 and by the San Bernardino County Sheriff’s Employees’ Benefit Association challenging its retroactive application.  The Court's denial of the writs did not address the merits of the challenges; Rather, the Court merely declined to decide the issues directly without a lower court record.  As a result, the application and scope of S.B. 1421 will be adjudicated piecemeal in trial courts throughout California.

However, the Supreme Court did order supplemental briefing regarding the scope of S.B. 1421 in Association for Los Angeles Deputy Sheriffs v. Superior Court (2017), a case currently pending before the Court.  The court of appeal had ruled that law enforcement agencies cannot provide a so-called "Brady Tip" to the District Attorney advising which officers' personnel files contain sustained allegations of misconduct involving moral turpitude.  The Court granted review on October 11, 2017.  Today's Supreme Court order stated: "The parties are directed to serve and file supplemental briefs addressing the following question: What bearing, if any, does SB 1421, signed into law on September 30, 2018, have on this court's examination of the question presented for review in the above-titled case?"

Presumably, the Court is examining the interplay between S.B. 1421's designation of certain sustained allegations of misconduct involving work-related dishonesty as subject to disclosure under the CPRA with the Brady disclosure obligations pertaining to credibility.

Public Employee Unions Entitled to Reasonable Leaves of Absence to Serve As Union Stewards or Officers

Starting January 1^st 2019, Section 3558.8 of the California Government Code goes into effect.   This much needed law ensures that public employees are able to take a leave of absence in order to represent their union without losing their job or benefits during time performing union duties.

Often referred to as “loss time,” this leave allows employees the ability to perform union duties without loss of pay or other employment benefits. Under the new law, a public employer is required to grant employees, after meeting-and-conferring, reasonable leaves of absence in order for those employees to serve as stewards or officers of their exclusive representative.  

It is important to note, the union must reimburses the employer for the costs of the employee’s salary and benefits while employers are permitted to utilize temporary employees to fill a union representative’s position while they are absent.

Other key elements of the new law include:

·         Reasonable Leave: Section 3558.8 requires that the public employer grant a “reasonable time.” Although “reasonable time” is not defined, the new law states that leave may be granted on a full-time, part-time, periodic, or intermittent basis.

·         Right to Reinstatement: At the conclusion of the leave, the employee is entitled to be reinstated to the same position and work location held prior to the leave. If that is unfeasible, the employee must be given a substantially similar position without loss of seniority, rank, or classification.

·         Right to Retirement Contributions: During any leave of absence, the public employer is required to continue paying the employee’s salary AND any contributions to the employee’s retirement fund under the applicable labor agreement.

Finally, the new law permits any union to reopen “negotiations to reach a mutual agreement concerning the grant of leave.”