Wednesday, March 27, 2019

Assembly Member McCarty Introduces New Use of Force Legislation

In addition to co-sponsoring A.B. 392, Assembly Member Kevin McCarty recently introduced A.B. 855 to require the Attorney General to promulgate a model use of force policy for law enforcement agencies by 2021 and provide an individualized review of any agency's use of force policy upon request after 2021.

Specifically, his sparse bill would require the Attorney General to convene a task force within the Civil Rights Enforcement Section of the Department of Justice to study officer-involved shootings throughout the state and to develop policy recommendations and a model written policy or general order for the use of deadly force by law enforcement officers, with the goal of promulgating best practices and reducing the number of deadly force incidents that are unjustified, unnecessary, or preventable.  The bill, which can be read here, appears to be modeled after the review the Attorney General conducted for the Sacramento Police Department. 

In contrast to the delayed impacts of A.B. 855, PORAC and other law enforcement groups have sponsored S.B. 230, which will immediately establish a uniform set of use-of-force best practices and mandate every California law enforcement agency to enact them.  S.B. 230 will help achieve better outcomes for everybody, including law enforcement, by providing officers clear guidelines and training on the circumstances when deadly force is authorized, utilizing de-escalation tactics, considering reasonably available alternatives to deadly force, proportionality, rendering medical aid, interceding to prevent excessive use of force, securing medical assistance, interacting with vulnerable populations, reporting requirements, and tactics. 

A.B. 855, like A.B. 392, appears to be predicated on the false assertion that police can currently use deadly force under circumstances where deadly force is not necessary.  Deadly force has always been judged under a necessary standard.  The difference is whether necessity is judged by the totality of the circumstances or redefined as the least possible amount of force. The latter is an inherently subjective inquiry that opens an officers’ split-second decision making in a life or death situation to second guessing as to whether there was a lesser level of force available to them.  Under A.B. 392 officers would be stripped of their constitutional right to self-defense anytime a critic can conjure up an alternative course of action, such as simply retreating. (See Art. I, Sect. 1, California Constitution.)  In fact, our Ninth Circuit expressly repudiated such a standard as unconstitutional, stating “(r)equiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment.” (Scott v. Henrich (9th Cir. 1994) 39 F.3d 912, 915.)  

Thursday, March 14, 2019

READ NOW: David E. Mastagni Quoted In Christian Science Monitor's Coverage of Pending Use of Force Legislation

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Today, the Christian Science Monitor published an in depth article discussing the two competing "Use of Force" bills currently before the California State Legislature. The article, entitled "In California two proposed laws with one aim: saving civilian lives" relies heavily on David E. Mastagni's analysis. As David explains in detail, "if you change the standard for use of force, you're only going to put [officers]  at higher risk of injury and death."

You can read the entire article here.

Friday, March 8, 2019

WATCH NOW: David E. Mastagni and Todd Henry of the California Peace Officers Association Interviewed by KCRA on AB 392

On March 7th, David E. Mastagni and Todd Henry of the California Peace Officers Association were interviewed as part of KCRA New's coverage of AB 392. As discussed in the broadcast, both David and Todd outline serious concerns  with the use of force standard proposed by the legislation.

Wednesday, March 6, 2019

LISTEN NOW: President Tim Davis of Sacramento Police Officers Association Discusses the Attorney General's Decision on Stephon Clark During NPR's Morning Edition.

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Today, Tim Davis--President of the Sacramento Police Officers Association, spoke with Steve Inskeep on National Public Radio regarding the recent decision by California Attorney General to not charge officers involved in the death of Stephon Clark. Listen to the entire interview here

Tuesday, March 5, 2019

Mastagni Holstedt, FUPOA, and Law Enforcement Associations Throughout the Nation Demand UC Davis Professor Be Terminated After Advocating the Murder of Police Officers

In an article first published on February 25, 2019, The California Aggie reporter Nick Irvin brought to light UC Davis professor Joshua Clover’s comments regarding, among other things, “cops need to be killed.” Here’s a link to the article:

UC Davis professor Joshua Clover, who is still employed by the University of California, has made the following unacceptable, vile, and repugnant statements regarding police officers:

 I am thankful that every living cop will one day be dead, some by their own hand, some by others, too many of old age #letsnotmakemore” – tweeted on Nov. 27, 2014.

UC Davis Professor Joshua Clover 

I mean, it’s easier to shoot cops when their backs are turned, no?” – tweeted on Dec. 27, 2014.

People think that cops need to be reformed. They need to be killed.” – published in an interview on Jan. 31, 2016.

To say that we were shocked, disgusted, and infuriated would be an understatement. What was truly inconceivable was that the University of California, after having been made aware of Clover’s comments, chose to keep Clover in their employment. As you all know, we are staunch advocates of employees’ free speech rights pursuant to the First Amendment to the United States Constitution (“First Amendment”). In fact, we have often waged many battles on our clients’ behalf in order to protect their free speech rights pursuant to the First Amendment. In this case, however, this is not about UC Davis professor Joshua Clover’s ability to enjoy free speech rights pursuant to the First Amendment. Rather, it is about professor Joshua Clover’s call for murdering police officers and advising the easiest way to do it while maintaining a job at the UC Davis campus where he may continue to spew his filth to young minds eager to learn. Under no circumstances should the University of California nor UC Davis professor Joshua Clover attempt to justify his perverse comments by using the First Amendment as a shield or by suggesting that professors may say whatever they believe for the purpose of maintaining unrestrained academic freedom.

On February 28, 2019, we sent the University of California a letter condemning UC Davis professor Joshua Clover’s statements, demanding that they reconsider their decision to keep him employed, and demanding an investigation into his “on-duty” activities while teaching at the University of California, Davis. A copy of the letter may be found here. 

Since then, we have been made aware that numerous law enforcement associations have also sent letters to the University of California highlighting their concerns with the UC, the plight of law enforcement, the statistics concerning the recent uptick in ambush-style murders of law enforcement.

On March 4, 2019, UC Davis released a statement advising, in relevant part, that since their original statement was released:

continued interest from the broader public requires further clarification. Members of the public have been questioning why this professor continues to be employed by UC Davis. Only the UC Board of Regents can dismiss a tenured faculty member…The status of complaints lodged against faculty members are confidential personnel matters, so we are unable to publicly comment on the action steps we are taking at this time…The public expression of opinions, even those opinions considered controversial or abhorrent, enjoy a high level of protection under the First Amendment, and tenured faculty at the University of California enjoy significant employment protections, particularly around speech…Chancellor Gary S. May has asked the campus legal team to review the professor’s conduct and provide advice on the application of federal and state constitutional protections for freedom of expression.

I can’t help but wonder if UC Davis Professor Joshua Clover would still be employed if he had advocated the murder of any other group of professionals or group of people. We are hopeful that the University of California will ultimately do the right thing – sever all employment ties with UC Davis professor Joshua Clover. We are also hopeful that members of the public will continue to reach out to the University of California concerning their shock, disgust, and concerns with UC Davis professor Joshua Clover’s statements.

California Supreme Court Upholds Elimination of Air Time in Latest Vested Rights Case

The California Supreme Court issued its eagerly awaited ruling in Cal Fire Local 2881 v. California Public Employees’ Retirement System (“Cal Fire”), which challenged the elimination of public employee’s right to purchase additional retirement service credit (also known as “air time.”) The case presented the Court with two issues: (1) whether employees had a vested right to purchase air time; and (2) whether the Legislature’s elimination of the right to purchase airtime unconstitutionally impaired that right. The Court decided the case on the first issue, determining that employees did not have a vested right to purchase air time. As a result, it did not decide the second issue – likely deferring its discussion of what constitutes an unconstitutional impairment of pension rights for one of the two other major pension right cases pending before it, Alameda County Deputy Sheriffs’ Association v. Alameda County Employees’ Retirement Association (“ACDSA”) or Marin Association of Public Employees v. Marin County Employees Retirement Association (“MAPE”).

Because the Court did not reach the issue of whether eliminating air time purchases unconstitutionally impaired a vested right, it did not address the state’s assertion that the “California Rule” governing pension benefits did not require detrimental changes to be offset by new advantages to pass constitutional scrutiny.  However, the Court’s brief characterization of the parties’ arguments about the California Rule seems to indicate the Court may ultimately reject the state’s position. The Court described the state’s position as seeking to “reduce the protection afforded pension rights by modifying or abandoning the California Rule,” seemingly implying the state’s analysis of the California Rule conflicts with the Court’s precedent. We will have to wait until the Court decides the ACDSA or MAPE appeals to get its full analysis of the issue, but the fact that it sees the state’s position as seeking to modify or abandon the California Rule is certainly encouraging.  

1.            Background

Before January 1, 2013, PERS members with at least 5 years of service credit with a PERS contracting agency could purchase service credit towards their PERS retirement. To buy air time, a member had to pay PERS an amount “equal to the increase in employer liability” for the additional service time. This practice was meant to provide employees a way to make up for time they spent away from public employment, without imposing additional costs on the retirement system. In 2012, however, the Legislature enacted the Public Employees’ Pension Reform Act (“PEPRA”), which – among other things – eliminated the right to purchase air time after December 31, 2012.

Cal Fire, Local 2881 sued PERS, claiming PEPRA’s elimination of air time impaired its members’ vested rights to purchase air time. Cal Fire alleged its members had a vested right to purchase air time, acquired by working the requisite five years.  Cal Fire claimed the Legislature violated the Contracts Clause of the U.S. and California Constitution because it eliminated a vested right to purchase air time without providing a comparable new advantage. The trial court ruled against Cal Fire, finding there was no vested right to purchase air time and, even if there was, its elimination was permissible, because it was materially related to the successful operation of a pension system. The Court of Appeal affirmed the ruling on both grounds.

Cal Fire petitioned the Court for review, claiming in part that the lower courts erred by upholding the elimination of air time even though the change was not offset by a corresponding new advantage.

2.            The Court’s Analysis

In evaluating whether Cal Fire could show there was a vested right to purchase air time, the California Supreme Court recognized two exceptions to the general rule allowing the Legislature to modify terms and conditions of public employment.  First, terms and conditions of employment can be constitutionally protected from changes when the statute or ordinance creating a benefit clearly evinces a legislative intent to create contractual rights. Second, certain benefits of employment can be constitutionally protected by implication, even if there is no clear evidence the legislature intended them to be protected. If either exception applied to the right to purchase air time, then the Contracts Clause of the U.S. and California Constitution would restrict the Legislature’s power to modify that right.

The Court found the first exception did not apply, because there was no evidence the Legislature intended to create a contractual right to buy air time. According to the Court, nothing in the pre-PEPRA law indicated the Legislature promised not to modify or eliminate the right to buy air time in the future.

The Court found the second exception did not apply, because the right to buy air time was not a type of benefit that would be entitled to an implied contractual protection.  In reaching this conclusion, the Court acknowledged that many pension benefits are impliedly contractual in nature, and thus protected by the Contracts Clause of the Constitution, because they represent a form of deferred compensation.

As the Court explained, pension benefits are a “classic example of deferred compensation,” because they flow directly from a public employee’s service, and their magnitude is roughly proportional to the time of that service.  By contrast, the right to purchase air time was made available at the option of each employee, and expired as soon as the employee retired or terminated employment. The amount of the employee’s service was irrelevant to whether he or she could purchase air time, once the five-year service time requirement was met.

Finding that neither exception applied to the right to purchase air time, the Court held there was no vested right to purchase air time.  The Legislature was therefore free to eliminate the right to purchase air time without implicating the Contracts Clause.

3.            Final Thoughts

The Court’s decision only addressed whether there was a vested right to purchase air time, not whether the California Rule allows the government to reduce a vested benefit without providing an offsetting new advantage. The Court will likely take up the latter issue when it decides the ACDSA and MAPE appeals, which are currently before it.  Given the Court’s brief remarks about the parties’ positions with respect to the California Rule, we are cautiously optimistic the Court will ultimately affirm its precedent and continue requiring detrimental changes to pension benefits be offset by comparable new advantages to survive constitutional scrutiny.

Friday, March 1, 2019

ABA Journal Quotes David E. Mastagni and PORAC President Brian Marvel In SB 1421 Coverage

David E. Mastagni and PORAC President Brian Marvel critique S.B. 1421 in the American Bar Association’s recent ABA Journal.  As discussed in the article, SB 1421 circumvents the balanced "Pitches" process for disclosure of relevant personnel information to litigants without unnecessarily disrupting a victim's or a police officer's right to privacy.