President Biden to Sign Executive Order Regarding "Accountable Policing"

Today, President Biden will sign a historic executive order regarding police accountability.  The EO mandates measures for all Federal law enforcement agencies, and is advisory for state and local agencies. Watch Biden's press conference.  The use of force standards set forth in the EO largely follow the lead of California, adopting a necessary standard (consistent with Graham v. Connor) and the de-escalation policies set forth in S.B. 230.  On behalf of PORAC, David E. Mastagni worked with PORAC's leadership to develop recommendations for consideration in the order.     

In a press release, PORAC President Brian Marvel noted, “After several months of advocating for necessary changes to President Biden’s draft Executive Order, we are pleased to see that his Administration valued PORAC’s expertise and incorporated many of our proposed changes into today’s Executive Order."  Marvel also expressed, "PORAC is also proud that many of the policies included in President Biden’s Executive Order mirror those that we’ve already enacted here in California, and we look forward to continuing to serve as a resource for how California’s smart public safety policies can be implemented at the federal level.”

Notably, the EO orders all Federal LEAs to adopt use of force policies with requirements that meet or exceed those in the Department of Justice’s updated use-of-force policy.  The DOJ's use of force policy takes effect July 19, 2022.

The DOJ policy authorizes force only when no reasonably effective, safe, and feasible alternative appears to exist.  The force policies bans the use of choke-holds and carotid restraints unless deadly force is authorized.  It also restricts the use of no-knock entries to limited circumstances, such as when an announced entry would pose an imminent threat of physical violence.  Like the law enforcement sponsored SB 230, the policy also imposes a duty to intervene to stop excessive force and a duty to render medical aid. 

One notable concern with the DOJ policy is the ambiguity it creates regarding the continued applicability of Tennessee v. Garner, which permits deadly force to prevent the escape of violent fleeing felons who are a threat to the public if not immediately apprehended.  The policy purports to uphold the standards set forth in Graham and Garner, yet also states "deadly force may not be used solely to prevent the escape of a fleeing suspect."  Its unclear if the "solely" limitation is intended to bar ever using deadly force to prevent any escape, rather than limiting force used to prevent the escape of non-violent suspects.

Garner adopted the California Supreme Court's requirement that “police may use deadly force to arrest only if the crime for which the arrest is sought was ‘a forcible and atrocious one which threatens death or serious bodily harm,’ or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed.”  Tennessee v. Garner (1985) 471 U.S. 1, 1, FN 15 (citing People v. Ceballos, 12 Cal.3d 470, 477.)  A.B. 392 codified these restrictions by limiting use of deadly against a fleeing suspect of a "felony that threatened or resulted in death or serious bodily injury" where "the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended."

California struck the proper balance in permitting deadly force only to prevent the escape of suspects posing a serious threat to cause death or serious bodily harm if his apprehension is delayed.  California's policy recognizes that in limited circumstances officers might have to use deadly force to prevent the escape of a terrorist or mass shooter likely to kill or injure other members of the public if allowed to escape.  Hopefully, the final version of Biden's EO will retain this important public safety measure. 

The EO orders the Attorney General to establish a National Law Enforcement Accountability Database of records of officer misconduct (including convictions, terminations, de-certifications, civil judgments, resignations and retirements while under investigation for serious misconduct, and sustained complaints or records of disciplinary actions for serious misconduct), as well as commendations and awards.  The EO also requires Federal agencies to adopt measures to promote thorough investigations and preservation of evidence after incidents involving the use of deadly force or deaths in custody, as well as to prevent unnecessary delays and ensure appropriate administration of discipline.

The EO mandates all federal agencies to use body worn cameras and publicly post body-worn camera policies that mandate activation of cameras during activities like arrests and searches.  Similar to California's SB 1421, the EO also provides for the expedited public release of footage following incidents involving serious bodily injury or deaths in custody. 

Additionally, the EO requires development of an evidence-informed training module for law enforcement on implicit bias and avoiding improper profiling based on the actual or perceived race, ethnicity, national origin, limited English proficiency, religion, sex (including sexual orientation and gender identity), or disability of individuals.The order also establishes a committee to produce a strategic plan that advances front-end diversion, alternatives to incarceration, rehabilitation, and reentry.  The order directs the Attorney General to fully implement the FIRST STEP Act.

President Biden's "fact sheet" outlining the new EO can be viewed here.

 

Ninth Circuit Holds that Certain Per Diem Payments Must Be Included in Employees’ “Regular Rate”

The Ninth Circuit Court of Appeals held that a weekly per diem paid to clinicians employed by a healthcare staffing agency needed to be included in the regular rate used to calculate clinicians’ overtime pay. (Clarke v. AMN Services, LLC (9th Cir., Feb. 8, 2021, No. 19-55784) 2021 WL 419473.) The court held that because the per diem functioned as compensation for work performed rather than as reimbursement for work-related expenses, it was improperly excluded from the calculation of clinicians’ “regular rate of pay” for overtime purposes under the Fair Labor Standards Act (FLSA).

The case involved AMN Services, a healthcare staffing company that places hourly workers on short-term assignments throughout the country. AMN paid traveling clinicians a per diem intended to reimburse them for costs such as meals, incidentals, and housing while working away from home. The clinicians were not required to provide proof of these costs, but rather received the per diem whenever their work assignment was further than 50 miles from their residence. Clinicians were required to work three 12-hour shifts per week. If a clinician worked less, their per diem was reduced. However, they could “bank” excess hours from previous weeks, which would then off-set any missed shifts. Local clinicians also received per diem payments, but for those employees, the per diems were included as part of their wages for overtime purposes. The district court granted summary judgment for AMN, and the Ninth Circuit reversed.  

In coming to this conclusion, the Ninth Circuit stated that the relevant test, the “function” test, requires a case-specific inquiry based on the particular formula used to determine the amount of the per diem benefits. Other relevant, but not dispositive, factors include whether (i) the payments increase or decrease based on the time worked, (ii) payments occur irrespective of incurring any actual costs, (iii) the employer requires any attestation that costs were incurred, and (iv) payments are tethered to days or periods spent away from home or instead occur without regard to whether the employee is away from home.

In applying these factors in the present case, the Ninth Circuit noted that the employer made pro rata deductions in the per diem payments that were unconnected to whether the employee remained away from home incurring expenses for its benefit (such as for clinicians who were too ill to work), which indicated that the deductions were connected to the amount paid for hours worked while away from home. Further, the Ninth Circuit found it relevant that the clinicians were permitted to offset missed or incomplete shifts with hours they “banked” on days or weeks in which they worked more than the minimum required hours. The court noted that there was no plausible connection between working extra hours one week and incurring greater expenses the next. Finally, the Ninth Circuit held that the strongest indicator that the payments were in fact compensation for hours worked was that the company paid local clinicians and traveling clinicians the same per diem payments and considered the local clinician’s per diem payments as wages. In sum, the court found that the per diem was not tied to the actual expenses each employee incurred and therefore could be construed as “supplemental compensation” which should be included in the employee’s “regular rate of pay.”

The ruling marks a significant win for hourly workers and confirms that courts must consider the function and purpose of per diem payments rather than defer to the employer’s categorization. Further, although the case was decided under the FLSA, the Ninth Circuit stated its understanding that the same general analysis applied under the California Labor Code. 

SIGN UP: 30hr POST "Navigating Police Reforms and New Legal Standards: Everything a Peace Officer Must Know in 2022"

 If you missed our first round of 30hr POST accredited online classes this week, we're offering a second round. We want to make sure as many officers benefit and are informed.

These classes will familiarize students with an overview of national standards for licensing peace officers and grounds for decertification with a focus on the current legislative fight in California over SB 2.

Discussion of how SB 2, as originally drafted, vests power with a politically charged panel to strip officers of ability to work as a peace officer despite contrary determinations from their employing agency or the disciplinary appeal process. 

We'll compare key aspects of SB 2 with other states’ decertification programs, including the composition licensing authority, due process rights, and grounds for decertification. 

Learn cutting edge insights into California’s newest effort to erode peace officers’ basic due process rights to their continued employment and service to their communities.

SIGN UP!

Monday, May 9 - 10 hours

7:30am - 10:30am      Association Management and Procedures on IA

10:30am - 1:00pm      The Injured Officer - What are my Options?

2:00pm - 4:30pm        Critical Updates on SB 1421 & 16: Peace Officer Privacy Under Fire

4:45pm - 6:45pm        Legal Updates and the New Use of Force Standards

 

Friday, May 20 - 10 hours

7:30am - 12:30pm      Everything You Need to Know About POBR

1:30pm - 4:30pm        You’ve Been in a Critical Incident: What Happens Next

4:45pm - 6:45pm        Break Out Role Playing and Review

 

Monday, May 23 - 10 hours

7:30am - 10:30am      Legal Update on Peace Officer Liability and Licensing Under S.B. 2

10:30am - 1:00pm      Understanding the Impact of the CPRA on Law Enforcement

2:00pm - 4:00pm        Fitness, Health and Wellness of the Tactical Athlete

4:15pm - 6:45pm        MMBA Protections and the Right to Representation 

Thank you, and we'll see you soon!

Watch: David E. Mastagni Testifies Against Bill to Limit POBR Remedies (SB 1088, Bradford)

On April 26, David E. Mastagni testified in front of the Senate Public Safety Committee in opposition of S.B. 1088.  The Bill is modeled after recommendations to weaken peace officer due process rights issued by Ronald Yank and Barry Winograd, David's Labor Law professor at U.C. Berkeley School of Law.  In essence, SB 1088 would create a balancing testing which would deny officers a remedy for POBR violations if the seriousness of the allegations outweighs the significance of the POBR violation.  David pointed out that most POBR remedies are simply to exclude improperly obtained evidence or provide officers access to improperly withheld materials.  Ironically, the Bill would incentivize IA investigators to cut corners and violate procedural rights by eliminating agency accountability. 

 

 

 

SB 1088 Background

SB 1088 was introduced by Senator Bradford and is an act to add Section 3309.6 to the Government Code which relates to public employment and law enforcement labor relations. The bill provides:

3309.6. (a) A procedural violation of this chapter that an administrative hearing officer, board, or arbitrator, acting pursuant to their appropriate authority, deems to be without a substantive effect shall not be the basis for reversing or modifying discipline of a public safety officer.

(b) For purposes of this section, “without a substantive effect” includes, but is not limited to, the following:

(1) Procedural errors, including the admission or exclusion of evidence, unless the error adversely affects the substantial rights of the public safety officer to an extent that constitutes fundamental unfairness.

(2) Harmless errors, including technical errors, that are not so damaging and prejudicial as to change the outcome of an investigation or a decision.

(3) With consideration of the totality of the dispute, evidence of misconduct is significant enough to outweigh a claim that an error was substantial enough to justify a change in discipline.

April 26, 2022, Senate Testimony

Senator Bradford introduced the bill, stating existing law, the Public Safety Officers Procedural Bill of Rights Act, grants a variety of employment rights and protections to public safety officers, as defined, including with respect to investigations, interrogations, and disciplinary procedures. "This bill would prohibit a procedural violation of the act deemed to be without substantive effect, as specified, from being the basis for reversing or modifying discipline of a public safety officer," Bradford explains.

Former police union lawyer Ron Yank and U.C. Berkeley Labor Law professor and arbitrator Barry Winograd testified in favor of S.B. 1088, which was modeled after their recommendations for curtailing POBR rights.  Both are members of the Law Enforcement Study Group.  They co-authored a California Law Review in August of 2020 titled "Reforming Law Enforcement Labor Labor Relations", containing a host of infringements on officers' labor rights.

Ronald Yank testified, “When a peace officer gets off on a technicality it looks horrible to the public.  After George Floyd and other atrocious incidents there was a back lash against arbitration … and when an officer gets off on a technicality it looks like holy heck to the public.”  Yank focused his criticisms on the statute of limitations in POBR.  Ironically, the statute of limitations, which runs one year from when an agency receives a citizen complaint, actually promotes accountability by forcing agencies to complete investigations rather than allowing unresolved allegations of misconduct to linger indefinitely. 

Similarly, Barry Winograd, an arbitrator and mediator, testified that "after George Floyd was killed we thought what could we do." Referring to S.B. 1088 as a harmless error bill, he thanked Senator Bradford for giving consideration to their proposal.  He stated the Bill would "fill the gap" in enforcement when POBR is presented in arbitration by barring reinstatement for procedural violations where there is no loss of a substantial right and prevents "burying wrongdoing", i.e. excluding improperly obtained evidence, behind procedural technicalities. 

In his testimony, David E. Mastagni refuted the claim POBR allows officers to get away with misconduct on a technicality and provided a more accurate picture of what POBR does.  He explained that POBR primarily provides procedural rights during an investigation that mirror union rights, e.g.  notice, right to a representative, and the right to record, access to documents, etc. He explained that the existing remedies are already limited primarily to suppression of ill-gotten statements/evidence (i.e. the exclusionary rule) and access to exculpatory materials wrongfully withheld by the investigators.  He described prior PORB cases where the court suppressed improperly obtained statements but otherwise allowed the cases to proceed, and a published case, Sacramento POA v. Venegas, in which he won access to negative comments in an officers' personnel file.

He explained that SB 1088 is unnecessary because the Supreme Court already established that its an abuse of discretion to overturn discipline or even suppress an officer’s statement over a minor violation of the POBR.  Williams v. City of Los Angeles (1988) 47 Cal.3d 195.  The Court applied a “but for” analysis when considering the violation, ie would the agency reach the same decision without the violation.  The court also held that even suppression is not appropriate when the officer whose right was violated was not prejudiced, but suppression could be an appropriate remedy in some cases as an effective deterrent.

David explained, SB 1088 goes much further than Williams by prevent a trier of fact from remedying POBR violations whenever evidence of misconduct is significant enough to outweigh a claim that an error was substantial enough to justify a change in discipline.”  Williams looked at the effect of violation, not a balancing of the significance of the misconduct against the magnitude of the POBR violation.  The balancing is new and would create a perverse “ends justify the means” incentive for investigators that would be unacceptable in any other context.  No one would support allowing police investigators to violate Miranda or 4th Amendment rights just because investigators believed a suspect committed a serious crime. 

The more serious the matter, the more important it is for investigators follow the rules and afford people their rights.  He stated, "The more serious the matter, the more important it is for investigators follow the rules and afford people their rights. This bill goes too far." Eliminating the trier of facts ability to exclude improper evidence will incentivize interrogation violations by eliminating agency accountability.  "We should not be encouraging any law enforcement investigators to cut corners and violate rights in any context.  The Legislature should foster a police culture of respecting people’s rights." 

Finally, David addressed Senator Bradford directly, pointing out he already enacted SB 2 to decertify officers found to have committed serious misconduct and SB 2 does not afford officers any POBR rights.  As such, POBR should not be diluted with a balancing test. 

Watch entire hearing over SB 1088 below: