Can Cops Smoke Weed? The Answer Remains Hazy

Effective January 1, 2024, AB 2188 amends Government Code section 12954 (Fair Employment and Housing Act “FEHA”) to prohibit an employer from discriminating against an employee or applicant for cannabis use off the job and away from work.  SB 700 further amends section 12954 to prohibit employers from requesting information from an applicant for employment relating to the applicant’s prior use of cannabis.  This legislation establishes enhanced protections for marijuana use by elevating its use to a protected status under FEHA, which protects the right and opportunity of all persons to seek, obtain, and hold employment without discrimination based upon protected statuses. This legislation has created uncertainty as to whether law enforcement officers and their employing agencies are covered by this legislation.  

The statutes cover state and local employees in California with no express exclusion of peace officers.  The only professions expressly excluded from the statute are employees in the building and construction trades. (Gov. Code, § 12954(c).) Thus, the exclusion of building and construction employees creates a presumption that peace officers are not excluded unless subject to the other exemptions related to federal legal requirements.

The bill also excludes applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense pursuant to Part 117 of Title 32 of the Code of Federal Regulations, or equivalent regulations applicable to other agencies. (Gov. Code, § 12954(e).) 

Some officers assigned to federal law enforcement task forces must undergo a federal government background investigation and are likely exempt, but most do not.  Before hiring an officer, Penal Code sections 1029(a)(3), (a)(11), (c), and 1031(c) require a search of the National Decertification Index of the International Association of Directors of Law Enforcement Standards and Training and, investigations of officers’ military discharge and local and nation criminal records fingerprint files.  However, none of these investigations appears to be “a federal government background investigation,” which is not defined in the statute. Ultimately, this question will have to be resolved by clean up legislation or the courts. 

The bill also provides that it does not preempt state or federal laws requiring employees to be tested for controlled substances, including laws requiring employees to be tested as a condition of receiving federal funding or federal licensing-related benefits.  However, state and federal law generally does not require California peace officers to be tested for cannabis. Further, any drug testing policy would have to be negotiated with the officers’ labor representatives. 

Officers may nevertheless be effectively excluded from the protections of these bills if they are required to lawfully possess a firearm as a condition of their employment. 18 U.S.C. section 922(g)(3) prohibits the receipt or possession of a firearm by anyone "who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)." Cannabis is classified by the federal government as a schedule I substance and therefore a user of cannabis is banned from possessing a firearm. However, possession of firearms issued by and for the use by a public entity are not covered by this federal law.  Thus, the Act covers officers who use their personal weapons on duty, but not firearms owned and issued by the employing agency.  

Further, when anyone buys a firearm from or through a firearms retailer, they are required to answer questions on the federal “4473” form. In California, there are other state forms that must also be completed, including the Dealer Record of Sale (DROS) form. The 4473 form specifically asks if the firearm purchaser is an “unlawful user” of marijuana. Even if marijuana use is legal in a particular state, it is still illegal under federal law. In order to be truthful, the individual must answer “yes” to this question if they use marijuana. The 4473 form must be signed under penalty of perjury. Committing perjury is a crime. Federal law also expressly prohibits knowingly making any false statement on the 4473. Doing so is punishable by up to ten years in prison and up to a $250,000 fine. 18 U.S.C. § 924(b).

The Ninth Circuit has held that the firearm prohibition on cannabis users is constitutional, even in the context of those with medical marijuana cards, explaining that “these laws will sometimes burden—albeit minimally and only incidentally—the Second Amendment rights of individuals who are reasonably, but erroneously, suspected of being unlawful drug users. However, the Constitution tolerates these modest collateral burdens in various contexts, and does so here as well.” Wilson v. Lynch (9th Cir. 2016) 835 F.3d 1083, 1094-95. 

However, Wilson was decided before New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 142 S.Ct. 2111 and did not consider whether the ban was unconstitutional under our historical tradition of firearm regulation.  Rather, it proceeded under the now-defunct tiered-scrutiny approach that gave the government far more deference.  Notably, Hunter Biden's legal team cited Bruen defending against similar charges by arguing the framers of the U.S. Constitution were well aware of problems caused by intoxication but there is no history of preventing substance abusers from acquiring firearms.   Post-Bruen, the lower courts are invalidating these prohibitions, but until the Ninth Circuit reverses Wilson or the Supreme Court addresses the issue, the efficacy of the federal firearm prohibitions are uncertain at best.

In conclusion, the application of these laws to peace officers remains hazy.  Given the uncertain legal ramifications at stake, officers should exercise caution all until clean up legislation is enacted or the courts provide greater guidance.  If peace officers are determined to be covered, public safety unions cannot agree to waive FEHA protections for their members. This legislation goes far beyond legalization by elevating marijuana use to protected civil right. Ultimately, the employing agencies and individual officers must comply with all applicable laws.

Attorney General Bonta Clears Detective Tonn in the Shooting Death of Sean Monterrosa

Today California Attorney General Rob Bonta announced the California Department of Justice’s (DOJ) review of the shooting death of Sean Monterrosa cleared  Detective Jarett Tonn of any criminal wrongdoing. Detective Tonn appreciates the careful and thorough review of this incident conducted by Attorney General Bonta, which confirmed that Detective Tonn’s use of force was objectively reasonable under the totality of the circumstances. All human life is sacred and this incident was tragic for everyone involved.  

The investigation found that substantial evidence supported Tonn's claim of self-defense, and that none of the evidence, including video footage, or witness accounts "contradict[ed] the essential facts of Tonn’s account."  Report determined that the witness statements and the "video footage provide a largely uncontroverted account of the events" which is sufficient to establish self-defense even without Tonn's testimony.

The Report explained the objective reasonableness of Tonn's belief that deadly force was necessary. "California law requires consideration of all of the circumstances as they were known or appeared to Tonn. It is undisputed that six seconds prior to the shooting, Horton radioed the warning: 'It looks like they’re armed, possibly armed.' Horton’s words were qualified in nature, but Tonn, Wagoner, and Pittman all stated that they took this warning to mean that the subjects at the Walgreens were carrying firearms. ... [A] warning from an experienced senior officer that appeared to be based on personal observation would be taken very seriously by Tonn."

The Report noted the totality of the circumstances supported Tonn's belief that the suspect was armed with a firearm.  "First, the hammer that Monterrosa carried in his pocket would have had the same effect on his gait and body mechanics as he ran that carrying a firearm would. The hammer was 14.5 inches long, and the hammer head was 6 inches wide."  Tonn and other witnesses observed Monterrosa run in a manner that indicated he was holding something he did not want it to fall out of his waist band.

"Second, all of the witnesses who actually saw the shooting stated that Monterrosa was running away from the officers, suddenly stopped, and made a quick turn to face the officers’ truck immediately before the shooting." "[A]ll stated that Monterrosa had one of his hands in his torso or waist area when the shots were fired." In fact, a civilian witness stated that Monterrosa was fully facing Tonn at the time shots were fired.  No witnesses contradicted this testimony.  

The Report also noted that Tonn's decision to shoot from inside the vehicle corroborated his belief that he had to "shoot now or someone gets shot." This is because doing so is inherently dangerous for the officers in the vehicle. 

The report explained the importance of an officers' state of mind:

"Tonn’s knowledge and state of mind going into the incident must also be considered. In his statement, he discussed the facts that made him particularly concerned about encountering armed subjects on June 1, 2020. He was aware of reports of looters targeting gun stores in the days before June 1, 2020.  He was aware of multiple firearms-related calls on June 1, 2020. In particular, 911 calls had been made that evening regarding armed looters. He also was aware of intelligence reports warning of violence directed at law enforcement and that a law enforcement officer had been shot and killed several days earlier in a drive-by shooting in a nearby county."

The DOJ's expert "opined that the use of the deadly force against the 'unarmed, but perceived to be armed and dangerous, Sean Monterrosa was consistent with generally accepted policing best practices and VPD’s Use of Force Policy.'”  The DOJ's expert "concluded that Detective Tonn’s actions, during the time when he believed that Mr. Monterrosa was armed and posed an immediate threat to him and others, 'were reasonable, necessary and proportional to any imminent threat he may have perceived and comported with law enforcement training with respect to using deadly force.'” 

Noting that an officers' conduct cannot be considered with the benefit of hindsight and taking into account that officers are often forced to make quick judgments, the Report stated Tonn's tactics in the moments preceding the shooting were objectively reasonable.

The Attorney General concluded, "[b]ased on the totality of circumstances, a reasonable officer could have believed that Monterrosa was armed and reaching for a firearm." These findings affirm prior determinations that Tonn acted lawfully in self-defense and defense of others.

Detective Tonn was represented by Joshua Olander from Mastagni Holstedt, APC.

The full Report on the Investigation issued by the DOJ today can be found here.

New RIPA Regulations Violate DFEH Laws By Requiring Peace Officers to Disclose Their Gender Identity

New regulations adopted by Department of Justice (DOJ) regarding RIPA, the California Racial and Identity Profiling Act of 2015, reporting requirements conflict with anti-discrimination protections afforded to all California employees. RIPA was enacted to address concerns of bias and discrimination through racial and identity profiling within law enforcement agencies. RIPA requires officers to report their perception of personal characteristics of the individuals stopped (e.g., age, gender identity, sexual orientation, race/ethnicity) along with the reasons for the detention/search, additional actions taken by the officer, and the outcomes of the stop.  Officers submit this information to their employing agency, who then submits the data to the DOJ without the name or other unique identifying information of the peace officer involved. (Gov. Code § 12525.5.)  The data submitted to the DOJ ultimately becomes a public record.

The RIPA statute also authorizes the Attorney General to issue regulations for the collection and reporting of data that specify all data to be reported, and provide standards, definitions, and technical specifications to ensure uniform reporting practices across all reporting agencies.  AG Bonta has enacted new regulations that require officers to report personal information about themselves, including their own gender identity beginning January 1, 2024.  

However, under the California Fair Employment and Housing Act (FEHA) regulations, it is illegal for an officers' employing agency to require an employee to disclose that information.  As a result, the RIPA regulation should likely have been rejected by the Office of Administrative Law (OAL) for failing the “consistency” standard, which requires “being in harmony with, and not in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law.” (Gov. Code § 11349(d).) The OAL is required to return any regulation that “conflicts with an existing state regulation and the agency has not identified the manner in which the conflict may be resolved.” (Gov. Code § 11349.1(d)(4).)  

New Regulation

The new regulations were purportedly enacted to “enable the Board to determine whether there is a link between officer’s race and/or gender and (1) racial and identity profiling and/or (2) the decision making of the officer.”  Paradoxically, the new regulations will force the most vulnerable officers to disclose their gender identity to their public employers.  Under the regulation, “‘Gender of Officer’ refers to the officer’s identified gender. When reporting this data element, the officer shall select all applicable data values set forth in section 999.226, subdivision (a)(6)(A).” 

1. Cisgender man/boy

2. Cisgender woman/girl

3. Transgender man/boy

4. Transgender woman/girl

5. Nonbinary person

Conflict with DFEH Employee Protections

Once that amendment becomes operative, there will be conflict between RIPA and FEHA. In 2017, amendments were made to FEHA regulations that prohibited employers from asking employees about their gender. Under FEHA, Cal. Code Regs. tit. 2 § 11034 Terms, Conditions, and Privileges of Employment:

“(i) Additional Rights

(1) It is unlawful for employers and other covered entities to inquire about or require documentation or proof of an individual's sex, gender, gender identity, or gender expression as a condition of employment.”

The new RIPA regulations effectively force an officer to disclose their gender to their employer, in violation of FEHA. The California Department of Justice (DOJ) justifies this requirement reasoning that Government Code section 12525.5, subdivision (e) authorizes the Attorney General to issue regulations to “specify all data to be reported” under RIPA. However, that provision does not give the Attorney General authority the nullify employee protections under FEHA by requiring disclosure of otherwise private information. FEHA clearly states, “[a]ny state law that purports to require or permit any action that would be an unlawful practice under this part shall to that extent be invalid.” 

During RIPA’s Proposed Rulemaking Action comment period, concerns were raised about the conflict between RIPA and FEHA in requiring gender self-identification. The DOJ oddly responded addressing race and ethnicity, but not gender: “the Department has not identified any provision within the FEHA or within its implementing regulations that would prohibit the collection of race or ethnicity of an officer for purposes of stop data or other types of data.”  (Emphasis added.) (The DOJ either misinterpreted or dodged another comment asking: “What if the officer does not identify with these limited categories?” The DOJ’s response discussed the requirement of reporting the perceived gender of the person stopped rather than of the officer. )

Furthermore, the collection of such data is easily distinguishable from forced disclosure. This conflict between an employer’s reporting requirements and an employee’s privacy rights arises in other contexts. For example, when employers must request information related to gender for legally required reporting, such as federal EEO-1 Reports, employee disclosure of that information must be voluntary. Employees can be asked to self-identify their gender, but if they decline to do so, federal law requires employers to identify the employee’s gender based on employment records or other reliable information.  Similarly, here, an officer’s self-identification should be voluntary.

In support of its position that the California Legislature has required employers to provide demographic information to the state, the DOJ references California Government Code section 12999 which obligates “private employers of 100 or more employees to report to Department of Fair Employment and Housing pay and hours-worked data by job category and by sex, race, and ethnicity.” The California Civil Rights Department (CRD) states that “[e]mployee self-identification is the preferred method of identifying sex information. If an employee declines to state their sex, employers must* still report the employee according to one of the three sex categories, using current employment records or other reliable records or information, such as an employee’s self-identified pronouns.”  

It is likely that RIPA could legally impose the same practice. However, as currently written, RIPA requires the employee to “select all applicable data values” and leaves no option for other methods of data collection.

Moreover, according to the CRD, “[u]nder the Gender Recognition Act of 2017 (Senate Bill 179), California officially recognizes three genders: female, male, and non-binary. Therefore, employers should report employees’ sex according to these three categories.”  Accordingly, the RIPA data collection should not go beyond these categories.

The recent RIPA amendments added another data point requiring the self-identification of an officer’s race or ethnicity.  However, there is no FEHA regulation related to race or ethnicity that is analogous to Cal. Code Regs. tit. 2 § 11034(i)(1) which prohibits any inquiry into an individual’s gender. 

Still, the above-mentioned state and federal regulations related to pay data follow the practice of encouraging employee-self-identification, but, if that is not voluntarily provided, allowing the employer to identify the employee’s race or ethnicity based on employment records or other reliable information. Nevertheless, because there is no specific prohibition on inquiring about race or ethnicity, it is likely that RIPA could require such self-identification by an officer.

Conclusion

If an officer declines to voluntarily self-identify their gender to their employing agency, the agency could comply with the RIPA regulations by reporting based on employment records or other reliable information, as is the practice with state and federal pay data reporting requirements. However, uncertainty exists regarding whether the RIPA statute and regulations are permit such an arrangement.  Thus, compliance with these regulations by ordering officers to disclose their gender identity creates significant potential liability for local agencies under California's antidiscrimination statutes.  Public safety unions may wish to meet and confer with their employing agency regarding whether such disclosures are voluntary or mandatory.