Court Grants Temporary Restraining Order Halting Forced Gender Identification Requirements for California Peace Officers

On January 1, 2024, new California Racial and Identity Profiling Act (RIPA) regulations went into effect, forcing police officers to disclose their own gender identity any time they submit a RIPA report to their employing agency.  The new regulations required, among other new disclosures, that an officer disclose whether they are cisgender, transgender, or nonbinary on a form that is reviewable by other department employees.  This aspect of the regulation not only violates employees’ right to privacy in their gender identity, but also places law enforcement agencies in the untenable position of choosing between incompatible laws.  On January 23, 2024, Sacramento Superior Court Judge Christopher E. Kruger issued a Temporary Restraining Order (TRO) restraining the Department of Justice (DOJ) from requiring officers to disclose their gender identity and from enforcing that disclosure subsection of the new regulation. 

Compliance with RIPA is a condition of employment for California peace officers and all of the RIPA reporting information must be submitted by officers to their employing agency, which must review, approve, anonymize, and then submit the information to the DOJ.  The privacy safeguards in RIPA only allow agencies to remove the reporting officers' identifying information from the data reported to DOJ.  Nothing safeguards the privacy of the officer's reporting to their employers when submitting RIPA reports.

As such, the gender identity disclosure requirement directly conflicts with the California Fair Employment and Housing Act (FEHA) anti-discrimination laws and officers’ right privacy under the California and United States Constitutions. FEHA states, “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.” (Cal. Code Regs. tit. 2, § 11034(i)(1).) The Attorney General has openly admitted Californians possess a right to privacy in their gender identity.  In a recent legal alert regarding gender identity privacy rights, the Attorney General stated, "forced disclosure policies violate students’ California constitutional right to privacy" and that "an individual has a constitutionally protected privacy interest in their sexual orientation or gender identity."  Paradoxically, his DOJ refused to afford peace officers these same privacy rights by enacting this regulation over objections.  

PORAC, the California Association of Highway Patrolmen, the California Police Chiefs Association, and the California State Sheriffs’ Association filed a legal action seeking a TRO against the California DOJ to stop Attorney General Rob Bonta’s implementation of these forced identification regulations. David E. Mastagni and Timothy K. Talbot appeared in Sacramento Superior Court on January 22, 2024 to request the TRO.  Today the Court issued its order granting the TRO and halting the DOJ's enforcement of the gender disclosure requirements pending a hearing set for March 19 on the issuance of a preliminary injunction. 

“PORAC remains committed to protecting the rights of all our members to live as they wish, identify as they see fit, and to share that identity on their own terms,” said PORAC President Brian R. Marvel. “It is not fair or right to put officers in the untenable position of disclosing their gender identity before they are ready to do so and as a condition of employment.” Read PORAC's press release here. 

The San Francisco Chronicle issued an article on January 23, 2024 covering the case and quoting David Mastagni. You can read the full article on their website here.  Similar coverage on the case can also be found on Officer.com here. 

Ninth Circuit Reinstates Injunction Against S.B. 2's Ban on Licensed CCW Authorization in Almost All Public Places

On January 6, 2024, a three-judge panel on the Ninth Circuit Court of Appeals dissolved a stay of a district court’s injunction against Senate Bill 2’s near-total ban on CCW gun carry in the state. In so doing, the Ninth Circuit has largely restored the status quo prior to the SB 2 ban on licensed concealed carry in nearly all public places.  Moreover, PORAC President Brian Marvel has been actively supporting the litigation, Mays v. Bonta, that obtained the issuance of an injunction against the carry restrictions in SB 2.

By SB 2’s plain terms openly admit “[i]t is the intent of the Legislature to enact legislation to address the United States Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen (2022)”, which held that the Second and Fourteenth Amendments protect a private citizen’s right to carry a handgun for self-defense outside the home. SB 2 amends or creates thirty separate sections of the penal code in regards to firearms possessions and the process for private citizens to obtain CCW permits. 

Prior to January 1, 2024, many private citizens vetted by a rigorous background check process and licensed by the state, regularly carried a firearm for personal protection. Some had done so for years.  SB 2 uprooted longstanding rights of CCW holders to carry in the places now designated as “sensitive” and thus off-limits. In what has been termed the “Vampire Rule”, SB 2 even prohibits CCW holders from carrying on private property open to the public, unless the owner first posts permission. In short, SB 2 designates nearly every public place a sensitive area where carrying is prohibited.  

The new statute and the implementing regulations also increased the costs and training requirements for obtaining a CCW, severely limiting the pool of eligible CCW instructors. 

Although SB 2 currently has minimal impact on active or retired peace officers, PORAC President Marvel remains concerned that the Legislature will eventually extend these restrictions to retired officers. The Legislature has recently began clawing back peace officer exemptions to gun laws such as the Unsafe Hand Gun Act (SB 377) and outright refusing to exempt peace officers from other noxious gun legislation, such as SB 505 which would have imposed strict liability even on the justified use of a firearm in self-defense and required firearm insurance. President Marvel filed a declaration in support of the injunction against SB 2, just as he had done previously in Boland v. Bonta to support an injunction against the Unsafe Handgun Act. (PORAC also filed an Amicus Curiae brief in the Ninth Circuit supporting the Boland injunction. The Ninth Circuit ruling on this appeal will be issued soon.)  

   

On December 20, 2023, Judge Carney enjoined SB 2's overly expansive sensitive places definitions banning carrying.  The Order describing SB 2 as “sweeping, repugnant to the Second Amendment, and openly defiant of the Supreme Court.” The preliminary injunction essentially maintained the status quo with respect to the pre-SB2 “gun-free zones” such as courts and government buildings. President Marvel’s declaration was cited repeatedly in the Order, which explained that criminals will not abide the restrictions imposed on highly vetted CCW holders. Marvel advised that if the State is serious about addressing gun violence, the Attorney General should fulfill his Constitutional duties to ensure enforcement of gun crime enhancements and prohibitions on firearm possession by prohibited persons in jurisdictions where progressive prosecutors are nullifying gun laws that actually enhance public safety. 

The Ninth Circuit Court of Appeals initially issued a stay that allowed the state’s new “gun-free zones,” which cover most public places and even private stores, to go into effect while that appeal is being heard. Thankfully, on January 6, 2024, the Stay was dissolved and the injunction is now restored while the Attorney General appeals the ruling. Although SB 2 currently exempts peace officers, the outcome of Mays will likely establish the outer limit of restrictions the Legislature can constitutionally impose on retired peace officers.