California Appellate Courts Further Expands the Reach of SB 1421

Two recent appellate court decisions further limited the privacy rights of peace officers when it comes to public records request for information in officers’ personnel files. Senate Bill No. 1421, which went into effect on January 1, 2019, amended Penal Code section 832.7 to allow disclosure under the California Public Records Act (CPRA) of records relating to officer-involved shootings, use of force resulting in great bodily injury, and sustained findings of sexual assault or dishonesty. Due the vague language and broad implications of SB 1421, there have been a number of lawsuits challenging its application. Two recent decisions from California appellate courts have confirmed that SB 1421 applies retroactively to allow disclosure of discipline that occurred prior to 2019 and that such records are still subject to disclosure even when the employee resigns prior to the completion of his or her administrative appeal.

Ventura County Deputy Sheriffs' Association v. County of Ventura (2021) 61 Cal.App.5th 585

In Ventura, the Deputy Sheriff’s Association (DSA) sued the county to enjoin SB 1421’s application to records involving peace officer conduct and incidents occurring before January 1, 2019. The trial court granted the DSA’s request and issued a preliminary injunction. While the case was still before the trial court, the First District Court of Appeals found that SB 1421 did apply retroactively to permit disclosure of records created prior to 2019. However, the trial court in Ventura disregarded this ruling and issued a permanent injunction against the county. The county appealed. The Second District Court of Appeals reversed the trial court’s decision, and held that SB 1421 applied retroactively.

In analyzing the retroactive affect of the statute, the court noted that “the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date.” They reasoned that although the records may have been created prior to 2019, the event necessary to “trigger application” of the new law—a request for records maintained by an agency—necessarily occurs after the law’s effective date. The court held that because SB 1421 does not attach new legal consequences or increase peace officers’ liability for misconduct but instead merely broadens the public access to records, it applies retroactively.

Further the court held that the retroactive application comported with the statute’s legislative intent. The court stated that the records subject to disclosure “involve instances of egregious peace officer misconduct,” and “the Legislature has determined the public’s right to discover such misconduct generally overrides privacy concerns.” Accordingly, the court aligned with the previous appellate courts in holding that the legislative intent was to apply SB 1421 broadly, and thus the records of police misconduct that occurred prior to 2019 are disclosable.  

This is the last in a line of cases challenging the retroactive application of SB 1421 and likely represents the final word on the issue.  However, the significance of this ruling will continue to resonate if SB 16 is signed into law.  SB 16 would significantly broaden the categories of force investigations subject to disclosure, as well as add new categories of sustained misconduct subject to disclosure.

Collondrez v. City of Rio Vista (Cal. Ct. App., Mar. 16, 2021, No. A159246) 2021 WL 973420

In Collondrez, the First District Court of Appeals held that the city’s disclosure of former officer John Collondrez’s personnel records was lawful. In 2017, Collondrez responded to a hit-and-run incident and allegedly falsified his report. After an internal affairs investigation, he was issued an intended notice of termination.  The city upheld Collondrez’s termination following his pre-disciplinary Skelly hearing, and Collondrez appealed the matter to arbitration. Prior to arbitration, the parties entered into a settlement agreement where Collondrez agreed to resign in-lieu of termination. One of the terms of the settlement agreement was that the city promised not to release Collondrez’s disciplinary records unless required to do so by law or court order.

In January 2019, multiple media outlets submitted CPRA requests to the city for records disclosable pursuant to SB 1421. The city provided Collondrez notice of some but not all of the requests and produced all responsive, disclosable records. Multiple media outlets reported on the information contained in Collondrez’s personnel file, and Collondrez’s was subsequently fired by his new employer due to the negative coverage. Collondrez filed a lawsuit against the city. In response, the city filed an anti-SLAPP motion alleging that Collondrez’s complaint was premised on the city’s protected speech and Collondrez failed to show a probability of prevailing on the merits as to any cause of action. The trial court held in favor of the city on the first prong – the gravamen of the entire complaint arose from the city’s protected activities, here, the disclosures to the news media. On the second prong, the trial court found that Collondrez had shown a probability of prevailing on the merits for breach of the settlement agreement and invasion of privacy. Therefore, the trial court denied the motion as to these causes of action and granted it as to the other two. All parties appealed.

The Court of Appeal concurred with the trial court in finding that the entire complaint was premised on protected activity and thus survived the first prong of the anti-SLAPP test. As to the second prong of the anti-SLAPP motion, the court held that Collondrez failed to show a probability of prevailing on the merits of any cause of action because the city’s release of Collondrez’s records was compelled by SB 1421.  The records pertained to a sustained finding of dishonesty. The court stated a “sustained finding” is where an officer is given “an opportunity” for appeal. He withdrew his appeal after his Skelly hearing.  The court reasoned that there is no requirement in law or the Legislature’s intent that an appeal be conducted or completed. The court noted to require otherwise “would render superfluous” the Legislature’s intent in SB 1421 and allow officers to thwart public disclosure by settling or abandoning the appeal. 

Finally, the court found that the city was not required to redact information from Collondrez’s personnel file relating to the 2017 incident that did not directly pertain to the dishonesty allegation (e.g., details related to the illegal entry, use of force, failure to provide aid investigation). The court narrowly interpreted the redaction requirements of SB 1421 and held that the information could be disclosed because it related to a sustained finding of dishonesty.  The court's interpretation of "relating to" arguably broadens the scope of disclosable information to evidence pertaining to other confidential investigations outside the scope of SB 1421.  The court's narrow reading of the officer's right to redactions also appears to conflict with Becerra v. Superior Court (2020) 44 Cal.App.5th 897 (holding that SB 1421 cover records are no longer confidential under the CPRA's investigatory files exemption but that the other CPRA exemptions still apply.)

Conclusion

The Ventura and Collondrez decisions further chip away at officers’ privacy rights. SB 1421 and the subsequent rulings broadening its application give officers little incentive to resign in-lieu of termination. Several pending bills, including SB 16 (Skinner) and SB 2 (Bradford), will further erode peace officer privacy rights in their personnel records.  Officers facing disciplinary actions should consider the impacts of SB 1421, and that judicial and legislative expansions are likely to apply retroactively. 

 

CA Negligence Law is Broader than Federal 4th Amendment Law in Interpreting Officer’s Use of Lethal Force

On February 17, 2021, the Ninth Circuit Court of Appeals reversed the district court’s grant of summary judgement for the City of Huntington Beach Police Department in a lawsuit involving the fatal shooting of Dillian Tabares by a Huntington Beach Police Officer. (Tabares v. City of Huntington Beach (9th Cir. 2021) 988 F.3d 1119.) Even though the suspect had launched a serious physical attack upon the officer, the Ninth Circuit ruled that the officer’s “pre-shooting decisions” may be considered unreasonable under the totality of circumstances pursuant to California’s negligence law.

 The case stemmed from a violent encounter between Huntington Beach Police Officer Eric Esparza and Dillian Tabares. While on patrol, Officer Esparza observed Tabares standing in front of a convenience store. Esparza noticed that Tabares was wearing a sweater on a very warm day, he was walking abnormally, he kept making fidgeting, flinching movements with his hands, and he looked in Esparza’s direction several times.  In light of the fact that there were people coming in and out of the store, Officer Esparza asked to speak with Tabares. Tabares refused and began to walk away. Esparza gave Tabares multiple commands to stop walking. Suddenly, Tabares turned towards Esparza and began to speak “loudly and aggressively.” Tabares advanced on Esparza in a “confrontational manner with his fist clenched.”  Esparza began to retreat and ordered Tabares to stop.  Esparza utilized his taser, but it had no visible effect on Tabares.  Tabares then punched Esparza in the face.  A full-fledged fight occurred between the two involving multiple hand strikes and restraint holds.  At one point during the fight, Tabares had his hand on Esparza’s gun and on his duty belt in an attempt to gain access to Esparza’s possessions (knife, flashlight, ammo magazines, pepper spray, etc).  Esparza loudly yelled for Tabares “to get his hand off of his gun.”  Eventually, Tabares was able to get something off of Esparza’s duty belt.  Esparza believed it to be a knife he carried on his belt (it was later determined to be Esparza’s flashlight).  Esparza immediately retreated about fifteen feet from Tabares and ordered him to get down as he pointed his duty weapon at him.  Esparza then fired at Tabares seven times; Tabares ultimately died from these gunshot wounds.  Most of the encounter was video recorded by several people nearby.   

 Tabares’ mother sued the City of Huntington Beach alleging both California law claims of negligence and civil rights under violations under the Bane Act as well as federal civil rights violations under 42 U.S.C § 1983. The district court granted the City of Huntington Beach’s motion for summary judgement, finding that the application of force by Esparza was reasonable in light of the fact that Esparza attempted to utilize less lethal force during a protracted fight, and with no other viable option, used his firearm to stop the continuing threat of the suspect.  Tabares’ family appealed to the Ninth Circuit. The only issue before the appellate court was the plaintiff’s negligence claim under state law. 
Watch the oral argument here.

The Ninth Circuit found that the district court made three errors in reaching its conclusion to grant the City’s motion for summary judgement: 1) the district court inaccurately concluded that the plaintiff did not produce any evidence that Tabares was “exhibiting symptoms of mental illness”; 2) the court conflated Fourth Amendment excessive force standards with California negligence law; and 3) Officer Esparza’s decision to shoot Tabares seven times without providing a warning could be found by a jury to be unreasonable.

 The Ninth Circuit explained that the district court incorrectly conflated Fourth Amendment excessive force standards with California negligence law.  The court explained that California negligence law is overall much broader than federal Fourth Amendment law in excessive force cased, and the officer’s pre-engagement actions needed to be part of the negligence analysis. The court found that a reasonable jury could find that Officer Esparza should have suspected Tabares had mental health issues and acted unreasonably when dealing with a potentially mentally ill person before using force, and therefore he acted negligently. The §1983 claim was dismissed because, under Fourth Amendment law, the focus was on the moment Esparza fired his weapon, which was immediately after he had escaped a violent attack by Tabares, who was then facing him while holding a potential weapon (police flashlight). However, the negligence claim should proceed to a jury because, using California law, a jury could find that Esparza was negligent in interacting with Tabares before calling for back-up and failed to use de-escalation techniques from the start.

 It is important to note that this case is the court’s ruling on a motion for summary judgement and not the result of a full-blown trial. However, regrettably, in this opinion the Ninth Circuit has entered into the realm of providing tactical guidance to officers even though they have been warned more than once by the U.S. Supreme Court to not do so.  Tactical options and what is practical in these dynamic encounters is best left to the “boots in the field” and not the robes on a bench.  Overall, the court’s decision does not provide much practical guidance for the patrol units except to “slow your roll” and hope that the suspect does not harm himself, other individuals, or the officer himself while the officer “de-escalates” the sometimes “tense, uncertain, and rapidly evolving” situation.

Further, the Ninth Circuit’s ruling undermines the supposed justification for Senate Bill 2. SB 2, introduced in December of 2020, would change the standard needed to sue an officer under the Bane Act by replacing the specific intent to violate a civil right with general intent to perform the act that is the subject of litigation. Such legislation is problematic in light of the ruling in Tabares. Given the ruling in Tabares, if SB 2 is passed, officers could be held personally liable under a mere negligence standard. 

Federal Court Case Ask Whether or Not an Employee Can be Terminated for Refusing to Take a COVID-19 Vaccine Approved For Emergency Use.

A recently filed federal case may provide guidance on whether or not an employee can be terminated for refusing to take a COVID-19 vaccination because it was approved only for emergency use authorization (“EUA”) by the FDA. The New Mexico court’s decision may provide guidance for future decisions.  

The case, Legaretta v. Macias, No. 21-CV-179 MV/GBW, 2021 WL 833390, involves Detention Officer Isaac Legarreta. While at work, he was written-up and threatened with termination if he failed to comply with a memo mandating that employees get vaccinated. The memo in question made it clear that, “being vaccinated is a requirement and a condition of ongoing employment with the County due to the significant health and safety risks posed by contracting or spreading COVID-19”

As a general rule, it is lawful for employers to mandate employees receive vaccines as a condition of employment. However, this rule is subject to two very important exceptions. Under Title VII of the Civil Rights Act of 1964, employers are required to provide “reasonable accommodations” to employees whose sincerely held religious beliefs prevent them from getting a vaccine. Likewise, the Americans with Disabilities Act (ADA) requires employers to provide “reasonable accommodations” to employees who have an underlying disability that prevents them from being vaccinated.

However, the way in which COVID-19 vaccines were approved by the FDA creates new questions for this general rule. Specifically, the three currently approved COVID-19 vaccines were not approved through the traditional FDA approval process. All were authorized by the FDA through an emergency use authorization (EUA). Here, it is important to note that when the FDA authorizes a drug through an EUA, federal law requires that the drug must be accompanied by information on the right of individuals to refuse the drug and the consequences of such refusal. Currently, there is no law specifying that an employer is required to provide a reasonable accommodation when an employees is refusing to take a vaccine based on EUA. However, the Legaretta  case will likely answer two key questions: 1) if an employer is required to provide notice that an employee will be terminated for refusing to take an EUA vaccine; and 2) if that subsequent termination is in violation of public policy.

Mastagni Holstedt will be monitoring this important New Mexico case in order to keep our California clients informed.

PERB and California Appellate Court Highlight Termination Over Minor Policy Violations Can Indicate Retaliatory Motive

 Recently, a California Court of Appeals upheld a PERB decision overturning a disciplinary decision to terminate a firefighter who allegedly misused his sick leave.  The case, City of South Pasadena v PERB (2020) PERB Case No. 2692-M; Court of Appeal Case No. B304596, highlights that a disciplinary decision, valid or not, will be overturned if the primary motive of the discipline is retaliation.

The firefighter in question was an active Union President. Due to an existing back injury he was on a six-week sick leave beginning December 2015. However, in January 2016 the firefighter participated in the California Spartan Race, which is an eight-mile run including many physical obstacles. He was later terminated for his participation in the race. Although management was aware he participated in the race at the time, an investigation was not initiated until months later. During that period , the fire fighter as Union President approved the filing of an unfair practice charge on behalf of the association. It was at that time that the City and Management decided to investigate the fire fighter’s participation in the Spartan Race. 

In rescinding  the termination, PERB noted the timing of the investigation was a major indicator of improper punishment. In fact, PERB specifically noted that saving the investigation for later conveys other motives behind the action. Additionally, the fact that a normal disciplinary action for similar circumstances would have been informal counseling rather than a “death penalty that would eradicate any prospects of working for the Fire Department again.”  Such disproportionate punishment clearly suggests improper retaliation rather than fair discipline. This important case clarifies that  public safety employees are protected from pretextual disciplines because management cannot use minor violations as excuses to punish the employees for engaging in protected union activities.