Federal Judge Permanently Enjoins California Fee-Shifting Law Against Plaintiffs Bringing Second Amendment Challenges

In a major victory for the First Amendment right to petition the courts to enforce Constitutional Rights, U.S. District Court Judge Roger Benitez permanently enjoined enforcement of California Code of Civil Procedure § 1021.11 which imposed attorney fee liability on any litigant and their lawyers who unsuccessfully challenge the Constitutionality of any California gun law.  Miller v. Bonta held the legislation was a naked attempt suppress judicial review and access to the courts.  The California law was modeled after a Texas statute restricting access to abortion.

The court applied California's objections to the Texas law equally to Section 1021.11: “‘It is cynical.’ ‘It is an abomination.’ ‘It is outrageous and objectionable.’ ‘There is no dispute that it raises serious constitutional questions.’”  Interestingly, Governor Newsome applauded the ruling despite signing the law.  “I want to thank Judge Benitez,” said Newsom. “We have been saying all along that Texas’ anti-abortion law is outrageous. Judge Benitez just confirmed it is also unconstitutional.”

The strongly worded ordered stated, “[a] state law that threatens its citizens for questioning the legitimacy of its firearms regulations may be familiar to autocratic and tyrannical governments, but not American government.”  The court criticized Section 1021.11 as threatening "a lopsided, unorthodox attorney’s fee-shifting scheme which ensures the citizen cannot win and may be forced to pay for the government’s attorney’s fees.” The First Amendment protects the right to petition the courts to challenge unconstitutional infringements of other Constitutional rights.  The court noted a long line of precedent holding “the right to sue and defend in the courts is the alternative to force.” The court concluded, “[b]y deterring citizens and coercing attorneys from accessing the courts for relief from constitutionally questionable laws, § 1021.11 severely chills both First Amendment rights and Second Amendment rights.” 

The court also held the fee-shifting provision violates the Supremacy Clause of the Constitution by attempting to nullify 42 U.S.C. § 1988, a civil rights statute that is intended to encourage the protection of constitutional rights by rewarding plaintiffs who successfully challenge constitutionally defective statutes.  The statute also prohibits the government from seeking fees against the plaintiff unless the claim was “vexatious, frivolous, or brought to harass or embarrass the defendant.”  The California law seeks to reverse 1988 by holding a prevailing plaintiff is never entitled to fees and the state is always entitled to fees when it prevails, even if the claims were not frivolous. 

This ruling removes a significant impediment for law enforcement organizations to Challenge threatened legislation that would impinge a host of Second Amendment rights, including erosion of officers' self-defense rights, imposition of strict liability for the use of firearms, and firearm insurance mandates.  

First Responder’s Workers’ Comp Rights Expanded in 2023

In a decisive victory for California’s first responders, Governor Gavin Newsom signed SB 1127 on September 29, 2022. This bill makes three improvements to the California workers’ compensation system. First, SB 1127 shortens the window for employers to determine liability on claims for injuries suffered by first responders from 90 days, to 75 days. This means that employers will have less time to accept or deny a presumptive injury claim for certain illnesses including cancer, hernias, heart trouble, pneumonia, blood-borne infections, meningitis, and tuberculosis. This shortened window also applies to low back injuries arising from duty belts worn by peace officers.  

Next, SB 1127 allows firefighters and peace officers to receive up to 240 weeks of temporary disability benefits for presumptive cancer claims, rather than the 104 weeks of temporary disability available to other injured workers. This change from 104 weeks of temporary disability within five years from the date of injury to a total of 240 weeks during the entire period of the claim means that temporary disability benefits do not have to be received within five years from the date of injury. This increase in temporary disability eligibility applies to Labor Code § 3212.1 cancer claims that arise on or after January 1, 2023.

Finally, this bill increases the penalty for employers who unreasonably deny any presumptive injury claim arising under California Labor Code §§ 3212 through 3213.2 from $10,000 to a maximum of $50,000. However, SB 1127 does not define what constitutes an “unreasonable denial,” so the Workers’ Compensation Appeals Board will determine the reasonableness of a denial in the context of each case.  

On the same day, Governor Newsom also signed AB 1751, which represents another improvement in the workers’ compensation system for certain types of California’s public safety employees. This bill extends the presumption of injury for COVID-19 workplace outbreaks from January 1, 2023, to January 1, 2024; this presumption includes illness or death resulting from COVID-19 contracted during the course of employment. At the same time, AB 1751 expands the types of employees who qualify for the presumption to include active firefighting members of a fire department at: (1) the Department of State Hospitals; (2) the State Department of Developmental Services; (3) the Military Department; and (4) the Department of Veterans Affairs. Officers of a state hospital under the jurisdiction of the State Department of State hospitals and the State Department of Developmental Services are also included.   

Ultimately, SB 1127 demonstrates a public policy emphasis on quickly investigating and providing treatment for presumptive injury claims brought by California’s first responders. Expanding temporary disability benefits to 240 weeks, while limited to cancer claims, is a yet another positive shift in existing law. AB 1751 demonstrates that the state is still grappling with the effect of COVID-19 in the workplace and has now included additional types of public safety employees who qualify for the COVID-19 presumption.  

D.C. Circuit Rejects Police Union’s Challenge to Emergency Legislation Impairing the Right to Bargain over Discipline Procedures

A District of Columbia police union lost its appeal challenging a 2020 police reform measure which states "matters pertaining to the discipline of sworn law enforcement personnel shall be retained management and not be negotiable."  The new law breaks with decades of collective bargaining rights to negotiate over disciplinary procedures and due process for all represented employees.  In Fraternal Order of Police v. District of Columbia, 2022 WL 3568866, the Fraternal Order of Police, Metropolitan Police Union (“FOP”) raised Constitutional challenges alleging the Reform Act violated the Equal Protection, Bill of Attainder, Contract, and Fifth Amendment Due Process Clauses of the United States Constitution. 

Like in California, D.C. unions derive their bargaining rights from statute. D.C.’s Comprehensive Merit Personnel Act (“CMPA”) authorizes the Metropolitan Police Department to unionize and engage in collective bargaining. The CMPA provides “[a]ll matters shall be deemed negotiable,” except for rights reserved to management, including the right to “suspend, demote, discharge, or take other disciplinary action against employees for cause.” The CMPA gives management full discretion over disciplinary actions of officers, but allows for negotiations over the procedures for adjudicating such actions.

Metropolitan Police Department’s 2017 collective bargaining agreement (“2017 Agreement”) contained provisions on disciplinary procedures. Article 12 specified these provisions “shall be incorporated” into successor agreements unless modified by either a joint labor-management committee or an arbitration panel. Two months before the 2017 Agreement expired, the D.C. Council passed emergency legislation providing for police reform (“Reform Act”) in reaction to the death of George Floyd. Section 116 of the Reform Act temporarily amends the CMPA to eliminate the right of police unions to bargaining over disciplinary procedure. The amendment applies to “any collective bargaining agreement entered into with the [FOP] after September 30, 2020."

The FOP sued to enjoin enforcement of Section 116. The District Court dismissed the suit for failure to state a claim, and the D.C. Court of Appeal affirmed.

Equal Protection Challenge

The FOP first raised an equal protection challenge. The Equal Protection Clause provides, “[n]o State shall… deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. The FOP argued Section 116 violates equal protection because it irrationally discriminates between police officers and similarly situated government employees.

The court held a statute that covers some occupations but not others, if it neither burdens fundamental rights nor makes suspect classifications such as race, does not violate equal protection if the distinction is rationally related to a legitimate state interest. The court noted under rational basis review, classifications have a strong presumption of validity. The challenging party has the burden of negating every conceivable basis that might support the classification.

The court found the FOP did not meet that burden because the D.C. Council could rationally have concluded increasing management control furthers a legitimate interest in improving police accountability. It further noted the legislature’s lack of findings supporting its choice was not dispositive because the legislature’s actual motive in passing a statute is irrelevant. What matters is whether there are “plausible reasons to conclude that statutory classification furthers legitimate government interest.” That standard was met here. The court noted that the distinction between police officers and prison guards or protective services could rationally be supported by the belief that police are a more pressign concern because they deal directly with the public. 

Importantly, the rational basis standard applied by the court would not apply to a statute affecting a particular group’s fundamental right, such as the right to self-defense.

Bill of Attainder Challenge

The FOP next claimed Section 116 constitutes a bill of attainder. The Bill of Attainder Clause prohibits the passage of bills of attainder, which are laws that inflict punishment upon an identifiable group of people without the protections of a trial. U.S. Const. art. I, § 9, cl. 3. The FOP argued the amendment is a bill of attainder because it singles out “sworn law enforcement officers” for negative treatment, and mentions the FOP by name. The court disagreed.

To determine whether an alleged bill of attainder imposes punishment, the court analyzed whether 1) the challenged statute falls within the historical understanding of legislative punishment; 2) the statute reasonably furthers nonpunitive legislative purposes; and 3) the legislative record shows an intent to punish. The court found Section 116 does not fit within a historical meaning of legislative punishment, since bills of attainder were traditionally used to sentence specific individuals to death. Further, it found Section 116 was not so disproportionate to the stated goal of enhancing police accountability that it constituted punishment. Finally, the court rejected the FOP’s argument the record showed an intent to punish, since there was no “unmistakable evidence of punitive intent."

The court noted the amendment still left in place significant “protective measures” for officers, such as the right not to be “fired, demoted, or suspended without cause.” Further, Section 116 “lasts only temporarily.” Significantly, the court rejected the FOP’s argument that no real emergency existed, deferring to the Council’s determination that emergency legislation following the death of George Floyd was justified.

Contracts Clause Challenge

The FOP further argued Section 116 violates the Contract Clause, which provides “[n]o state shall… pass any… Law impairing the Obligation of Contracts.” U.S. Const. art. I, § 10, cl. 1. It applies only to laws with retrospective, and not prospective, effect. The court concluded there was no violation, since Section 116 has only a prospective effect because it applies to agreements created only after the FOP’s 2017 Agreement expired.

The court rejected the FOP’s argument that Article 12 of the 2017 Agreement prohibited the Council from enacting new rules governing future bargaining over successor agreements. The court noted that the Contracts Clause only applies to laws with retrospective, not prospective effect.  It noted a retrospective law violates the Contracts Clause only where it “substantially impair[s] existing contract rights.” The court stated that the FOP was really arguing that law impaired rights under the expired agreement based on a clause stating that the existing disciplinary procedure “shall be incorporated into any successor” agreement unless changed through a prescribed process.

Whether an impairment is “substantial” depends on the parties’ reasonable expectations. The court found the FOP could not have reasonably expected to insulate itself from changes to bargaining after the 2017 Agreement had expired.

Significantly, the court left unanswered whether a statute could be passed to impair existing bargaining agreement procedures involving discipline, such as binding arbitration.

Fifth Amendment Due Process Clause Challenge

Finally, the FOP claimed Section 116 violates the Due Process Clause of the Fifth Amendment, which provides, “[n]o person shall… be deprived of life, liberty, or property without due process of law.” U.S. Const. amend. V. The FOP challenged the amendment as violating substantive due process for “grave unfairness.” The court rejected this argument, finding Section 116 is not gravely unfair because it implicates no fundamental rights, imposes no punishment, and had only a “modest prospective effect” on past contracts.

Appellate Court Clarifies Meaning of "Sustained" Under SB 1421 to Trigger CPRA Release

Prior to January 2019, access to peace officer records was only permitted through a Pitchess motion. Then Senate Bill No. 1421 amended Penal Code sections 832.7 and 832.8 to require disclosure of certain serious misconduct records under the California Public Records Act ("CPRA"), if they have been sustained after opportunity to appeal.  The legislation did not address circumstances wherein an officer resigns prior to the completion of an investigation.  Effective January 1, 2021, Senate Bill 16 expanded the definitions of serious misconduct, and also required the disclosure of such records if the officer resigns prior to the completion of the investigation. 

The recent decision in Wyatt v., Kern High School addressed the novel issue of whether sustained findings of misconduct must he disclosed where the sustained findings were issued after the officer resigned, thus denying him an opportunity to appeal the findings.  

Kern High School District (KHSD) police officer Jerald Wyatt left the department while an internal affairs investigation was pending.  Subsequently in 2017, Wyatt discovered sustained findings for misuse of CLETS and dishonesty had been placed in his personnel file without notice or an opportunity to contest the findings.  In 2019, KHSD received several CPRA record requests from various news agencies and others seeking personnel records of KHSD officers pertaining to:

    (1) the discharge of a firearm at a person by an officer; 

    (2) the use of force by an officer resulting in death or great bodily injury;

    (3) sustained findings an officer engaged in sexual assault involving a member of the public; and

    (4) sustained findings of dishonesty-related misconduct by an officer.

Wyatt was notified that KHSD intended to disclose his sustained findings in response to the CPRA requests. Officer Wyatt filed suit to restrain KHSD from disclosing the records.  He asserted the records were not "sustained" within the meaning of Penal Code section 832.8(b) because he was never notified of the findings or afforded an “opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code.” KHSD argued that Officer Wyatt was not entitled to notice and appeal rights under the POBR once he resigned.  As such his opportunity for appeal was exhausted and the records could be disclosed.  The Superior Court ultimately sided with the officer and prohibited KHSD from releasing his records.  An appeal was filed.

The appellate court focused on whether the department's sustained findings met the definition in Penal Code section 832.8(b), which would trigger a disclosure. SB 1421 provides: "'Sustained' means a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code, that the actions of the peace officer or custodial officer were found to violate law or department policy."

The appellate court noted that the Legislature failed to address this circumstance and that it was equally plausible that the Legislature intended for such sustained records to be disclosed or that the officers' privacy interests should prevail given that he was not afforded due process.  Refusing to speculate over the Legislative intent, the court found the records were not subject to disclosure under SB 1421.  In short, the officer was not provided an opportunity to appeal the findings so they could not be sustained within the meaning of SB 1421.  Thus, the records were not subject to disclosure at the time of the request in 2019.

The court expressly declined to issue an opinion as to whether or not the records would be disclosable pursuant to a request submitted after December 31, 2021, when SB 16 took effect.  SB 16 added Penal Code section 832.7(b)(3), which states, in part: "Records that shall be released pursuant to this subdivision also include records relating to an incident specified in paragraph (1) in which the peace officer or custodial officer resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident."

As the court declined to opine beyond the issues appealed, open issues remain regarding resignations during pending investigations of serious misconduct.  SB 16 addresses circumstances wherein an officer resigned prior to the conclusion of an investigation, but seems to assume the investigation won't be concluded.  However SB 2 mandates completion of allegations of serious misconduct, effective January 1, 2023.  The statutes do not clearly address the situation wherein an officer transfers to another agency while an investigation of serious misconduct is ongoing, but later determined to be not sustained.   The not sustained finding and resignation trigger conflicting requirements.

Governor Newsom Signs Several New Firearm Restrictions Despite the Recent Supreme Court Ruling on the Second Amendment

     Following the SCOTUS New York State Rifle & Pistol Ass'n, Inc. v. Bruen decision, Governor Newsom signed four new bills concerning gun restrictions and safety: AB 1594, AB 2571, AB 1621, and SB 1327. Generally, these bills are intended to allow civil suit against gun-makers, restrict marketing to minors, restrict ghost guns, and limit the spread of assault weapons.  However, these laws are certain to be challenged under the legal standard in Bruen, which held "only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's ‘unqualified command.’”

AB 1594 is the Firearm Industry Responsibility Act. (Civ. Code, §§ 3273.50-3273.55). It creates a right of action to sue firearm industry members for injunctive relief, damages, and attorney’s fees and costs, as well as creating a firearm industry standard of conduct. According to the declaration, the Act will increase accountability for manufacturing, selling, distributing, and marketing products such as unserialized ghost gun build kits, bump stocks, and bullet button assault weapons. The provisions are modeled after other products liability laws and industry standards which prevent foreseeable and unreasonable risk to the public. Therefore, firearm-related products cannot be “abnormally dangerous and likely to create an unreasonable risk of harm,” such as having a design that is “most suitable for assaultive purposes” or promote illegal firearm conversion. An industry member must also reasonably prevent sales to anyone with which the industry member has “cause to believe is at substantial risk of using a firearm-related product to harm themselves or another” (i.e., straw purchasers, firearm traffickers, etc.). In addition, an industry member must prevent loss or theft. The indirect effect to consumers will likely be an increase in the cost of firearms and ammunition, because the firearm industry members will protect themselves financially by spreading the cost of insurance and litigation to consumers.

AB 2571 prohibits advertising firearm-related products to minors. (Bus. & Prof. Code, § 22949.80). Although advertising is usually protected under the First Amendment, existing laws restrict the content and placement of alcohol, cannabis, and tobacco advertisements to protect minors. The legislature used the same logic to justify restricting firearm marketing. The restrictions prohibit advertising of a firearm-related product in a way that is attractive to minors. Courts will consider the totality of the circumstances, including whether the ads use cartoons, offer brand-name merchandise for minors, sell products in sizes, colors, or designs for minors, use images of minors, or are placed in a publication created for an audience composed of minors.   This bill has already been applied to prohibit advertisement of youth shooting sports and caused the California State high School Clay Target League to fold.  In addition to the Second Amendment, this bill may also violate the First Amendment.

AB 1621 broadens restrictions of unserialized firearms, also known as “ghost guns.” (Pen. Code*). The restrictions redefine a firearm precursor part as “any forging, casting, printing, extrusion, machined body or similar article that has reached a stage in manufacture where it may readily be completed, assembled or converted to be used as the frame or receiver of a functional firearm.” This bill also creates a process for firearm users to apply for a determination of whether an item is a firearm precursor part. Owners of unserialized firearms must apply for a mark of identification before 2024. In addition, the bill includes the following changes to existing law: a person can only buy one completed frame, receiver, handgun, semiautomatic, or precursor part in a 30-day period, and a person convicted of manufacturing an unserialized firearm may not possess a firearm for 10 years.

SB 1327 creates a private right of action to sue various possessors in the firearm trade. (Bus. And Prof. Code §§ 22949.60-22949.71). Any person in the state can sue anyone who (1) manufactures, distributes, sells, or transports an unserialized firearm, an assault weapon, or a .50 BMG rifle; (2) purchases, sells, or transfers a precursor part that is not federally regulated; or (3) is a licensed dealer who sells or gives a firearm to anyone under 21. The requirements of SB 1327 can only be enforced through private civil actions.

Seeking to insulate these Constitutionally dubious laws for judicial review, SB 1327 provides that any person who unsuccessfully challenges the Constitutionality of any firearm regulation is jointly and severally liable to pay attorney’s fees and costs. (Code Civ. Proc. § 1021.11)  By affording attorney's fees and costs only against parties who sue to prevent enforcement of firearm regulations (and not for litigants who successfully prevent enforcement of unconstitutional firearm regulations), this section itself is subject to Constitutional challenge.  Ordinarily, a prevailing defendant can only recover attorney's fees where the suit is vexatious, frivolous or brought to harass the defendant.

As expected, gun-rights groups are already seeking legal recourse to limit the effect of these laws in light of Bruen. For example, Junior Sports Magazines and other youth-centric associations and businesses already filed a complaint against Attorney General Bonta regarding the new prohibition on advertising to minors. The complaint alleges several constitutional violations, including infringement on free speech, the right to association, and equal protection. As the law stands today, youth hunting clubs, school skeet shooting teams, and other sporting groups in rural areas are unable to fully promote their organizations.  Further, the California Rifle and Pistol Association recently commenced a federal action challenging the Unsafe Handgun Act which severely limits the number and type of handguns available for sale in California.

Considering the legal issues now surfacing and the current wave of lawsuits in response, you can expect to see more push-back in the coming months.

* Amendments, repeals, and additions to the Penal Code §§ 16515, 16517, 16519, 16520, 16531, 16532, 17312, 18010, 23910, 23920, 23925, 26835, 27510, 27530, 27535, 27540, 29180, 29181, 29182, 29185, 29805, 30400, 30401, 30405, 30406, 30412, 30414, 30420, 30442, 30470, 30485

Smile, You’re on Camera: The First Amendment Protects Recording the Police

On Monday, July 11th, the Tenth Circuit Court of Appeals denied qualified immunity to an officer sued for First Amendment retaliation based on allegations that the officer obstructed the filming of a traffic stop by standing in front of the plaintiff and shining his flashlight into the camera. Irizarry v. Yehia, No. 21-1247, 2022 WL 2659462 fn. 10 (10th Cir. July 11, 2022). The appellate court recognized a constitutional right to photograph and video record police officers performing their duties, which including the Ninth Circuit, brings a total of seven circuits holding an officer’s violation of this right could result in liability under 42 U.S.C. § 1983.

The Tenth Circuit held that the creation of speech, including photographing and filming, is just as protected under the First Amendment as the dissemination of free speech. Irizarry 2022 WL 2659462 at *3. A major purpose of the First Amendment is to protect open conversation about politics and public affairs. Therefore, the First Amendment also protects news gathering through any lawful means. Considering these priorities, the Court concluded that “[f]ilming the police and other public officials as they perform their official duties acts as ‘a watchdog of government activity’” and is a constitutional right. Id. (quoting Leathers v. Medlock, 499 U.S. 439 (1991).

Under the Tenth Circuit’s recent holding, an officer violates a person’s First Amendment right to film if he or she retaliates by “chill[ing] a person of ordinary firmness from continuing to film.” Id. at *6. “Physical and verbal intimidation can chill speech.” Id. In Irizarry, YouTube journalist Irizarry was filming a DUI traffic stop when Officer Yehia stood in front of Irizarry and shined a flashlight into his camera to obstruct his view. This act alone was a violation of Irizarry’s First Amendment right because such an action “would chill a person…from continuing to film the traffic stop.” Id. Officer Yehia then drove his police cruiser directly toward Irizarry and his colleague, “gunning” at him. Physically hindering filming and driving directly at the two men served no law enforcement purpose. It was obvious that these acts were a retaliation against Irizarry, and therefore, Officer Yehia is not entitled to qualified immunity under § 1983. Id. at *12.

The Ninth Circuit determined this constitutional question back in 1995 with the Fordyce decision. In Fordyce, the Ninth Circuit reversed the lower court’s summary judgment due to evidence of an assault by an officer who tried to dissuade a man from exercising his First Amendment right. Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). The officer tried to prevent the man from filming officers who were controlling a protest. The officer smashed the front of the man’s camera. Due to this evidence, the Court reversed summary judgment and remanded the §1983 claim for trial. Id. at 443. The Ninth Circuit also held and reiterated in several decisions that “[t]he First Amendment protects the right to photograph and record matters of public interest. This includes the right to record law enforcement officers engaged in the exercise of their official duties in public places.” Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018).

There are two general exceptions to this rule. First, a person does not have a right to photograph or film if it impedes officers from performing their duties. See Irizarry v. Yehia, No. 21-1247, 2022 WL 2659462 fn. 10 (10th Cir. July 11, 2022). Second, there is no constitutional right to film police activity in a private forum; for example, there is no right to record in a sheriff’s office within a courthouse. Anthony v. Oliva, No. ED CV 12-1369-FMO SH, 2013 WL 1127104 (C.D. Cal. Jan. 29, 2013).

The takeaway from these decisions is this: officers performing their duties in public should not threaten or intimidate anyone photographing or filming them. Expect to be filmed! Unless the situation falls into one of the two exceptions, our best advice to clients is to ignore people who have their phones or cameras out and to maintain a professional demeanor.

New SCOTUS Decision Protects Police From Civil Liability For Miranda Violations

    According to the recent United States Supreme Court decision, criminal suspects cannot sue police officers who fail to give Miranda warnings before custodial interrogations. Vega v. Tekoh, No. 21-499, 2022 WL 2251304 (U.S. June 23, 2022). SCOTUS reversed the Ninth Circuit’s decision, maintaining the standard that a violation of Miranda is not necessarily a violation of the Fifth Amendment.

    Terence Tekoh, a medical worker accused of sexually assaulting a patient, signed a confession during an interrogation conducted by LA County Sheriff’s Deputy Carlos Vega. Vega did not inform Tekoh of his rights under Miranda v. Arizona, 384 U.S. 436. During Tekoh’s trial, his signed confession was admitted against him, but the jury returned a verdict of not guilty. Tekoh then sued Deputy Vega under 42 U.S.C. § 1983 for violating his constitutional rights.

    42 U.S.C. § 1983 states that a person acting under color of state law who “subjects… any citizen of the United States… to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law…” Tekoh argued that a violation of Miranda constituted a violation of the Fifth Amendment right against compelled self-incrimination. In agreement with Tekoh, the Ninth Circuit held that the use of an un-Mirandized statement in a criminal proceeding may support a § 1983 claim against the officer who obtained the statement. However, the United States Supreme Court disagreed and reversed the Ninth Circuit’s ruling.

    In the years following the Miranda decision, the Court has characterized Miranda rules as “prophylactic,” meaning that they are a tool used to safeguard a person’s constitutional Fifth Amendment right. The Miranda rules are not themselves a constitutional right. “Miranda did not hold that a violation of the rules it established necessarily constitute a Fifth Amendment violation. That makes sense, as an un-Mirandized suspect in custody may make self-incriminating statements without any hint of compulsion.” Id. at *1.

    Failing to provide a Miranda admonishment legally differs from violating the Fifth Amendment. The biggest difference between treatment of Miranda violations and Fifth Amendment violations are that the Miranda cases involve a cost-benefit analysis to define the scope of Miranda. For example, an un-Mirandized statement can be used to impeach a defendant’s testimony, but an involuntary statement in violation of the Fifth Amendment cannot. Harris v. New York, 401 U.S. 222, 224-226 (1971). Similarly, an error in administering Miranda is not “irremediable” in the same way that police infringement of the Fifth Amendment is. Oregon v. Elstad, 470 U.S. 298, 309 (1985) (holding that the Fifth Amendment does not require the suppression of a confession made after Miranda warnings, solely because the police had obtained an earlier unwarned admission). The cost-benefit analysis also determines the limit of the Miranda rules’ scope. For instance, courts do not allow post-warning silence as evidence against defendants who invoke their Fifth Amendment rights. Overall, suppression of evidence due to violations of Miranda should occur only when its benefits outweigh its costs, whereas suppression of evidence due to violations of the Fifth Amendment always applies.

    The Court found that the benefit of allowing Miranda claims under § 1983 does not outweigh the substantial costs. Such claims would impair judicial economy because it would require a federal judge to determine whether there was a Miranda violation after a state court had already determined that fact. This type of double-adjudication would also create procedural issues between federal and state court systems. Therefore, the negative impact to the court system is too great to justify the extra civil proceedings.

    “Because a violation of Miranda is not itself a violation of the Fifth Amendment, and because we see no justification for expanding Miranda to confer a right to sue under § 1983, the judgment of the [Ninth Circuit] Court of Appeals is reversed.” Vega 2022 WL 2251304 at *10. Thus, police officers are not civilly liable for damages that criminal suspects sustain due to Miranda violations.

Watch David E. Mastagni Testify Against S.B. 505 (Strict Liability & Insurance for Firearms) on Behalf of PORAC & CAHP

   On June 28, 2022, David E. Mastagni testified on behalf of PORAC and CAHP against S.B. 505 (Skinner) which if enacted would erect new barrios for the exercise of Californians' Second Amendment rights.  Watch his testimony below.

 

           The bill would make a person who owns a firearm strictly civilly liable for each incidence of property damage, bodily injury, or death resulting from the use of their firearm unless the owner of the firearm has reported their firearm to local law enforcement as lost or stolen prior to the damage, injury, or death. Additionally, S.B. 505 would require a person who owns a firearm to obtain and continuously maintain a homeowner's, renter's, auto, or gun liability insurance policy specifically covering losses or damages resulting from any negligent or accidental use of that firearm, including but not limited to, death, injury, or property damage.

 

            David testified that his law enforcement clients understand first-hand the scourge of gun violence.  Unfortunately, S.B. 505 will have little impact on individuals who commit crimes with guns, but will impose significant burdens on the Constitutional rights of law-abiding citizens. SB 505 cannot withstand the standard set forth in New York State Rifle & Pistol Ass'n, Inc. v. Bruen (June 23, 2022) 2022 WL 2251305, which held: 

“To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation."

 

            He explained that the bill unconstitutionally imposes strict liability on the exercise of the Second Amendment, a restriction for which no historical tradition exists.  To the contrary, California courts have consistently rejected the strict liability standard for the lawful use of firearms. Further, our Supreme Court has held the First Amendment precludes application of strict liability to defamation claims.  As the Supreme Court held the Second Amendment standard mirrors the First Amendment, strict liability is not an available policy option. 

 

Additionally, strict liability on the use of a firearm necessarily extends strict liability to the justified use of a firearm in self-defense.  This violates both the inherent right to self-defense in the US Constitution and the express right in the California Constitution. ("Self-defense 'is one of the inalienable rights guaranteed by the constitution of the state." People v. McDonnell (1917) 32 Cal.App. 694; Cal Cont. Art. 1, §1. "Central to the rights guaranteed by the Second Amendment is "the inherent right of self-defense." United States v. Torres (9th Cir. 2019) 911 F.3d 1253, 1257.) 

 

Finally, requiring insurance is plainly unconstitutional because no historical tradition exists for this first in the nation regulation.  The financial and regulatory burden will discriminate against the less affluent, who will not be able to afford or obtain insurance, and have a disparate impact on underrepresented and vulnerable populations.    

 

 David urged the Committee to reconsider firearm legislation in light of this new standard, rather than invite an immediately legal challenge. The Legislature should focus on gun legislation expressly permitted by the U.S. Supreme Court, keeping guns out of the hands of prohibited persons and imposing consequences on individuals who commit crimes with guns.

 

Undaunted, the Assembly Judiciary Committee voted 8 to 3 to move the bill forward.  This bill poses a significant liability risk when Californians use a firearm in self-defense as it imposes strict liability for any "bodily injury, or death resulting from the use of a firearm", without any exception of justified use of a firearm in self-defense.  If signed into law, an immediate Second Amendment challenge is likely to follow.  If upheld as Constitutional, this bill will greatly expand the liability faced by peace officers for simply performing their duties, as well as citizens who exercise their Constitutional rights.  Peace officer unions should also consider negotiating employer provided insurance coverage for all their members' firearms, including those personally owned.

 

 The full hearing can be viewed below.