PERB Upholds the Bargaining Rights Over Telework & Return to Office Policies

On May 8, 2025, the Public Employment Relations Board (PERB) issued an important and timely decision in Professional Engineers in California Government v. State of California (Department of Transportation) (Case No. LA-CE-771-S), affirming that public sector employers must meet and confer in good faith over changes to telework policies. The ruling held that the California Department of Transportation (Caltrans) violated the Ralph C. Dills Act by unilaterally altering telework arrangements, reassigning employees to Sacramento headquarters, and eliminating travel reimbursements without negotiating with the Professional Engineers in California Government (PECG). This decision is a critical safeguard for workers’ rights amid California’s push to reduce telework, ensuring that such policy shifts are subject to collective bargaining.

 In a significant win for public employees, PECG successfully challenged Caltrans in this PERB case, exposing violations through unilateral policy changes, refusal to provide critical information, and bad-faith bargaining, underscoring the importance of protecting collective bargaining rights. In April 2024, Governor Gavin Newsom directed state agencies to transition from full telework, adopted during the COVID-19 pandemic, to hybrid programs requiring at least two in-person workdays per week, with provisions for exceptions. Caltrans, however, exceeded this directive, imposing severe changes that harmed PECG-represented engineers in Bargaining Unit 9. By reassigning employees living over 50 miles from Sacramento to headquarters, eliminating travel reimbursements, and ignoring prior remote work practices, Caltrans disrupted engineers’ lives, who had relied on job postings designating district offices as their work locations. PEGG filed an unfair practice charge to defend its members’ rights.

The PERB Administrative Law Judge found Caltrans committed multiple unfair labor practices, reflecting a deliberate disregard for its bargaining obligations. Caltrans unilaterally halted travel reimbursements, a long-standing practice confirmed by 83 approved Travel Expense Claims for at least 16 Unit 9 members between 2022 and June 2024, altering wages without notifying or negotiating with PECG, violating Dills Act Section 3519(c). Additionally, reassigning employees to Sacramento headquarters forced them to bear significant commuting costs or relocate, nullifying job postings designating district offices as headquarters and breaching the duty to bargain over telework policies. PECG’s request for TEC records to substantiate past practices was met with a four-month delay, with Caltrans offering misleading excuses about technical limitations despite possessing internal lists that could have expedited the process, hindering PECG’s representational role. Caltrans’ overall conduct, marked by false statements, unilateral actions, and rejection of PECG’s reasonable proposals, such as maintaining reimbursements or allowing local office reporting, amounted to surface bargaining, frustrating negotiations and undermining PECG’s authority. Each violation also interfered with employees’ protected rights and PECG’s representational duties, contravening Dills Act Sections 3519(a) and (b).

The human toll of Caltrans’ actions was profound, as evidenced by affected engineers’ testimonies. two members retired early, losing income and retirement benefits, while another incurred significant expenses after surrendering his San Diego apartment. One member struggled to balance work with an adoption process requiring Fresno residency. These hardships underscored PECG’s commitment to its members. From May 2024, PECG advocated tirelessly, requesting to meet and confer, proposing practical solutions, and filing the unfair practice charge in September, culminating in a robust PERB ruling validating its efforts.  The ALJ ordered Caltrans to cease unilateral changes, rescind reassignments, restore district office headquarters, resume TEC processing with 7% interest compensation, fulfill information requests, negotiate in good faith, and notify Unit 9 employees, including those who left since April 2024. Although PECG’s request for attorney’s fees was denied, the ruling sends a clear message: employers cannot evade bargaining duties without consequences.

This ruling is significant given California’s recent push to reduce or eliminate telework in the public sector. It reaffirms that employers must meet and confer in good faith over telework policies, particularly when reversing emergency measures like those adopted during the pandemic. As state agencies increasingly mandate in-person work, the decision clarifies that unilateral changes to telework arrangements, which affect wages, hours, and working conditions, require notice and negotiation. By upholding the duty to bargain, the ruling protects public sector workers from arbitrary policy shifts, ensuring their rights are respected in an evolving workplace landscape.

PERB Strengthens Employee Discovery Rights in Disciplinary Appeals

To successfully appeal a disciplinary action, access to all relevant or exculpatory information is often critical. Skelly materials are often inadequate, as the disclosures pertain to the employer's investigation and materials the employer relied upon to sustain the charges, not exculpatory or exonerating materials. While firefighters and peace officers have a statutory right to discovery under their respective bills of rights, the labor relations statutes also provide an underutilized right to obtain disciplinary discovery.   A recent ruling from the California Public Employment Relations Board (PERB) in Automotive Machinists Union Local 1414 v. City and County of San Francisco (San Francisco Municipal Transportation Agency) (49 PERC ¶ 181, 2025) provides a powerful precedent to ensure employers supply essential documents for your appeals.

The Automotive Machinists Union Local 1414 filed an unfair practice charge against the City and County of San Francisco for failing to fully respond to a request for information (RFI) related to a bargaining unit member’s discipline. The union requested notes from investigatory interviews and other documents tied to an investigation. The employer provided some notes but omitted key documents and failed to explain their absence, violating the Meyers-Milias-Brown Act (MMBA). PERB’s Administrative Law Judge ruled that this failure breached the duty to bargain in good faith and interfered with employees’ rights to union representation. The remedies included a cease-and-desist order, a directive to diligently seek and provide missing notes if requested, and a requirement to post a notice of compliance.

This ruling is a significant win for public employees, as it reinforces their right to obtain all necessary and relevant information for disciplinary appeals. It establishes that employers must promptly provide documents like investigatory notes, witness statements, or pre-written interview questions—or clearly explain why they cannot—to support your union’s representational duties. If an employer provides incomplete information without justification, the employees and their unions can bring an unfair labor practice charge before PERB arguing the agency violated MMBA Sections 3505 and 3506.5. These rights ensure assess to the full scope of evidence needed to build a strong appeal and better chances of success.

Murphy v. City of Petaluma: No Duty to Assess When Medical Aid is Refused

    On November 24, 2024, the court in Murphy v. City of Petaluma addressed a medical negligence claim against the City of Petaluma and its fire department paramedics. Following a head-on car collision, plaintiff Murphy sued, alleging that paramedics’ failure to assess her condition led to a stroke hours later, resulting in permanent brain damage, speech and language impairment, and paralysis. Despite her repeated refusals of treatment or transport, Murphy argued that the paramedics assumed a duty of care by interacting with her at the scene. The court disagreed, holding that merely offering medical care does not impose a duty to perform a comprehensive medical assessment. The judgment in favor of the defendants was affirmed. The Court discussed exceptions to this general rule that emergency personnel, such as paramedics, do not have a duty to perform a full medical assessment or provide medical care when an individual refuses treatment. This rule is grounded in the absence of a voluntary assumption of duty, lack of reliance by the individual, and no increase in the risk of harm caused by the responders' actions. These exceptions highlight that a duty is not automatic but depends on specific actions or reliance.   

    Murphy cited several cases to argue that the paramedics “triggered a duty of care to render medical assistance.” The court analyzed and distinguished each: In Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, a paramedic conducted a cursory “60-second examination” on a fight victim, checking only for life-threatening injuries. The paramedic neither assessed the decedent’s mental capacity nor recommended hospital transport, advising only that the decedent “probably should see a doctor” before leaving. The decedent soon died from sickle cell anemia complications. Expert testimony indicated that checking pulse or blood pressure could have revealed shock, potentially averting the crisis. Unlike Murphy, the Wright paramedic’s inadequate assessment fell below the standard of care, but the court noted that the duty of care was presumed, not litigated, in Wright.

    In Zepeda v. City of Los Angeles (1990) 223 Cal.App.3d 232, paramedics delayed aid to a gunshot victim until police arrived, resulting in the victim’s death. The trial court found no duty to provide immediate care or even inquire about the victim’s status. The paramedics did not create the peril, assume a special duty, induce reliance, or increase the risk of harm. Thus, emergency personnel are not obligated to assist “whenever and wherever summoned,” reinforcing the absence of a general duty.

    In Camp v. State of California (2010) 184 Cal.App.4th 967, highway patrol officers, including a certified Emergency Medical Responder, responded to an accident. They found Camp lying near a car and asked if she was injured or needed an ambulance. Camp declined both. A friend later carried her to a car, and within hours, she was hospitalized with severe spinal cord injuries. The Court of Appeal held that the officer owed no duty, as no voluntary assumption of care occurred, and the officer’s actions did not increase the risk of harm. Liability requires either a voluntary duty or increased risk, neither of which applied.

Conclusion:

    The Murphy ruling clarifies that paramedics do not assume a duty to examine a patient who repeatedly refuses medical aid. The paramedics made no promises, ignored no requests, and left Murphy in the same position as before their arrival. However, this case underscores the importance of assessing and documenting a person’s cognitive capacity to refuse treatment. Had Murphy’s refusals been deemed uninformed or impaired, the outcome might have differed. Emergency responders should prioritize clear documentation to protect against liability while respecting patient autonomy.

Supreme Court Holds Officer’s Pre-Shooting Conduct Relevant but Not Determinative in Use-of-Force Cases, Consistent with California’s Totality Framework

    In a unanimous ruling on May 15, 2025, the U.S. Supreme Court revived a civil rights lawsuit against Houston-area traffic officer Roberto Felix Jr., who fatally shot 24-year-old Ashtian Barnes during a 2016 traffic stop. The Court overturned the Fifth Circuit’s dismissal of the case, which had relied on a narrow “moment-of-threat” doctrine, limiting review to the seconds before the shooting. Writing for the majority, Justice Elena Kagan emphasized that the Fourth Amendment requires courts to consider the “totality of circumstances,” including an officer’s actions leading up to the use of force, as established in the 1989 Graham v. Connor precedent. This ruling strengthens protections for evaluating California peace officers by establishing an analytical framework that balances the officer’s tactical decisions against the suspect’s threat, while affirming that a genuine and immediate threat can justify deadly force, even if the officer made errors in judgment.

    The Court’s opinion mirrors Penal Code § 835a(e)(3)’s requirement to include "the conduct of the peace officer and the subject leading up to the use of force." Both frameworks reject a narrow focus on the instant of force deployment and mandate a broader contextual analysis. Peace Officers Research Association of California (“PORAC”) and the California Association of Highway Patrolmen (“CAHP”) filed an amicus curiae brief arguing against adopting a rigid “provocation rule” that would automatically negate an officer’s self-defense rights based solely on their prior actions. The Court held that reckless or unreasonable actions (e.g., escalating a minor stop into a deadly encounter) could weigh against the reasonableness of force but do not automatically negate a justification defense. Courts must also consider the suspect’s actions, and the immediacy of the suspect’s threat is often the "most important and fact-intensive" factor.

    The case arose when Felix pulled Barnes over for unpaid tolls, and Barnes drove away. Standing on the doorsill of the vehicle as Barnes sped away, Felix shot him in self-defense. Barnes’ mother, Janice Barnes, sued under Section 1983, alleging excessive force. Lower courts dismissed the suit, citing the Fifth Circuit’s moment-of-threat analysis.

    The Supreme Court rejected this approach, finding it improperly narrowed Fourth Amendment protections. The ruling requires consideration of pre-shooting conduct of both the officer and the suspect in weighing the totality of the circumstances and sent the case back to the lower court for reconsideration. While the decision affirms the definition of totality of the circumstances set forth in AB 392 (Penal Code § 835a(e)(3)), the Court did not determine whether Felix’s alleged escalation of the danger negated the reasonableness of his use of deadly force in response to the threat posed by Barnes’s actions. Instead, it left this question for lower courts to address under the broader totality framework.

    While the decision arguably opens new avenues for police liability, consideration of whether an officer's actions prior to a shooting helped create the danger they later claim justified deadly force was held to be one of many reasonableness factors. Ultimately, the Court issued a narrow ruling about the “timing” of the totality of the circumstances and expressly declined to address the appropriateness of the “Provocation Rule” theory, which had been previously rejected in County of Los Angeles v. Mendez and which the California Legislature had also rejected in amending AB 392. The majority explained:

We do not address here the different question Felix raises about use-of-force cases: whether or how an officer's own “creation of a dangerous situation” factors into the reasonableness analysis. The courts below never confronted the issue, precisely because their inquiry was so time-bound. In looking at only the two seconds before the shot, they excluded from view any actions of the officer that allegedly created the danger necessitating deadly force. So, to use the obvious example, the courts below did not address the relevance, if any, of Felix stepping onto the doorsill of Barnes's car. And because they never considered that issue, it was not the basis of the petition for certiorari. The question presented to us was one of timing alone: whether to look only at the encounter's final two seconds, or also to consider earlier events serving to put those seconds in context. (Citations omitted.)

    Justice Kavanaugh’s concurrence, joined by Justices Thomas, Alito and Barrett, provided important guidance for assessing the reasonableness of an officer’s use of force in response to a fleeing vehicle. His concurrence elaborates on the inherent dangers of traffic stops for police officers, particularly when a driver flees, and emphasizes the need for courts to consider these risks when assessing the reasonableness of an officer’s use of force. Highlighting that traffic stops are “fraught with danger” for officers, he cited historical examples of officers killed or assaulted during such encounters, even for minor violations. He noted that drivers who flee, such as Barnes, amplify these risks by potentially endangering the officer, bystanders, and other drivers. Fleeing in the face of a minor violation may also indicate more serious criminal activity, such as possession of illegal drugs, weapons, or involvement in violent crimes, as illustrated by cases like Timothy McVeigh and Ted Bundy, who were apprehended after traffic stops.

    The concurrence outlines the limited and risky options available to an officer when a driver flees: (1) letting the driver go, which may embolden dangerous behavior and pose public safety risks; (2) pursuing the driver, which can lead to hazardous high-speed chases; (3) shooting at the vehicle’s tires, which is often ineffective and dangerous; or (4) physically intervening, as Felix did by jumping onto the vehicle. Kavanaugh stresses that none of these options are safe, requiring officers to make split-second decisions in “tense, uncertain, and rapidly evolving” circumstances. His concurrence underscores the need for judicial sensitivity to the real-world risks officers face, ensuring that the reasonableness analysis reflects the high-stakes nature of such encounters.

    Echoing PORAC and CAHP’s arguments, he urges courts to recognize the extraordinary dangers of traffic stops, especially when drivers flee, and to account for the suspect’s flight as a key factor in the “totality of the circumstances.” “The question when a driver flees, therefore, is not merely whether the underlying traffic violation ‘presents risks to public safety’—it is also ‘whether flight,’ and what that flight might indicate or enable, ‘does so.’” In other words, the “totality of the circumstances” inquiry includes not only the “severity of the crime” that prompted the stop but also takes into account the suspect's attempt “to evade” the officer “by flight.”

    In conclusion, the Supreme Court’s opinion in Barnes v. Felix largely conforms with the arguments raised in PORAC and CAHP’s amicus brief rejecting a rigid provocation rule and that holding the pre-shooting conduct of the officer is merely one factor in the calculus of reasonableness. By avoiding clear guidance on the weight such conduct should be afforded, the Opinion does open the door for continued scrutiny of tactical decisions. However, the concurrence strongly suggests that Felix’s tactics may have been within the range of reasonableness and cautions lower courts against both hindsight analysis and failing to apportion significant weight to the risk posed by a suspect fleeing in a vehicle. In sum, the Court confirmed that for a justification defense to be nullified, the officer’s conduct would need to be so egregious that it outweighs the immediacy of the suspect’s threat in the reasonableness calculus, aligning closely with California’s framework under Penal Code § 835a.

    David E. Mastagni was privileged to file the amicus curiae brief on behalf of PORAC and CAHP.   

AB 2561: New Amendments to the MMBA Bring Transparency to the Public Sector Vacancy Crisis

    AB 2561, signed into law in September 2024, amends the Meyers-Milias-Brown Act (MMBA) to address the persistent public sector vacancy crisis in California while significantly enhancing the role of public sector unions in collective bargaining. Staffing vacancies in local governments continue to be a problem plaguing public service and affecting a wide range of occupations, including critical services like public safety. These vacancies tend to negatively impact both the public service employees that pick up the extra work and the Californians who rely on these public service deliverables.

    AB 2561 seeks to address this growing vacancy crisis and gives unions an additional avenue to address vacancy concerns outside of the regular contract negotiations cycles. It requires agencies to essentially provide yearly presentations focused on vacancy issues and solutions, along with providing unions: (1) an opportunity to present at such hearings, (2) an ability to put pressure on governing bodies to fix vacancy rates, and (3) an ability to gain easy access to data useful for other collective bargaining purposes. By mandating transparency in staffing data and providing unions with structured opportunities to influence agency policies, the bill equips unions with powerful tools to advocate for better wages, working conditions, and staffing levels.

    The Peace Officers Research Association of California (PORAC) and the California Professional Firefighters (CPF) are two of the many labor organizations that supported AB 2561.  

How Did We Get Here & Legislative Intent:

    The Legislature’s adoption of the bill followed a series a legislative findings in which the Legislature noted that “[j]ob vacancies in local government are a widespread and significant problem for the public sector affecting occupations across wage levels and educational requirements.” High vacancies put pressure on current employees who are forced to handle heavier workloads, and understaffing leads to burnout and increased turnover, which further exacerbates staffing challenges. The problem compounds as public service workers increasingly move into the private sector as they seek other jobs with more predictable hours, manageable workloads, and competitive pay.

    High vacancy rates in local government agencies have strained public service delivery and employee morale. The Legislature, citing a University of California at Berkeley Labor Center report, noted that vacancies across various occupations increase workloads for existing staff, leading to burnout, turnover, and a growing reliance on temporary or contracted workers. An example of this alarming trend can be found in a recent report by the California State Auditor. For example, a California State Auditor report highlighted a backlog of 47,000 wage theft claims at the Labor Commissioner’s Office, with resolution times exceeding 854 days due to understaffing. These challenges drive public sector workers to the private sector for better pay and manageable workloads, further exacerbating the crisis.

What AB 2561 Does:

    AB 2561 amends section 3502.3 of the Meyers-Milias-Brown Act (MMBA) to require public agencies to present detailed vacancy and recruitment data at an annual public hearing before their governing board. It requires a public agency to present the status of vacancies and recruitment and retention efforts during a public hearing before its governing board at least once per fiscal year.

    AB 2561 also imposes additional requirements on the agency if the number of job vacancies within a single bargaining unit meets or exceeds 20% of the total number of full-time positions. In such cases, the public agency (upon the union’s request) must include the following information in its presentation:

1.      The total number of job vacancies within the bargaining unit

2.      The total number of applicants for vacant positions within the unit

3.      The average number of days to complete the hiring process

4.      Opportunities to improve compensation and other working conditions

    This transparency statute is intended to disclose obstacles to recruitment and retention by requiring that the agency’s presentation must identify any necessary changes to policies, procedures, and recruitment activities that may lead to obstacles in the hiring process.

    The bill grants unions the right to present at the annual public hearing, with no time limit on their presentation. This provision allows unions to directly address governing bodies, such as city councils, and highlight the impact of vacancies on employees and public services. The bill encourages collaboration between agencies and unions to develop vacancy reduction plans. This collaborative framework also fosters stronger employer-employee relations, which can lead to more productive negotiations. By presenting in a public forum, unions can advocate for public agencies to prioritize recruitment and retention strategies, including budget allocations for higher wages or additional positions.

    This public platform amplifies the workers’ voices, enabling them to influence budgetary policies outside of traditional bargaining sessions. AB 2561 mandates that the agency’s vacancy presentation occur before the adoption of the final budget. This timing enables unions to influence budgetary decisions related to staffing and compensation.            

Conclusion:

    AB 2561 has the potential to not only mitigate the public sector vacancy crisis but also reshape the landscape of public sector labor negotiations, fostering greater accountability and collaboration between agencies and their employees. The disclosure mandates provide unions with critical evidence of recruitment and retention challenges without the need for time-consuming Public Records Act (PRA) or MMBA requests. Unions can use this data to challenge agency costing models during contract negotiations, demonstrating the need for increased staffing, higher wages, or improved benefits. For instance, data showing prolonged hiring times or low applicant numbers can bolster union arguments for competitive compensation packages to attract and retain workers.

When Agency Heads Must Speak Up: PERB’s New Video Notice Remedy

 

If you’re a public safety employee in California, you know your job comes with high stakes and unique workplace challenges. You also have rights under state labor laws, enforced by the Public Employment Relations Board (PERB). In two recent cases involving school districts, PERB ordered an unusual remedy: the districts’ top officials must read a notice out loud, record it on video, and share it with employees. While these cases involve schools, they set a precedent that also applies under the MMBA, Dills Act, etc. This post explains why PERB ordered this extraordinary remedy, and what it means for your workplace rights.

Background

In these cases, PERB found that two school districts violated the Educational Employment Relations Act (EERA), a law that protects public employees’ rights to organize and speak out.

• Clovis Unified School District (PERB Decision No. 2904, October 2024): Clovis Unified illegally propped up an employee group called the Clovis Unified Faculty Senate, giving it money, special access, and preferential treatment over a competing union, the Association of Clovis Educators (ACE). This created a “company union” that wasn’t truly independent, undermining employees’ freedom to choose their representation.
• Hacienda La Puente Unified School District (PERB Decision No. 2930, November 2024): The district retaliated against Margarita Caldera, a union leader who spoke out about workplace safety and contract issues during the COVID-19 pandemic. They investigated her, accused her of breaking their “civility policy,” and ordered her to stay quiet, scaring her so much she stepped down as union president.

These violations aren’t unique to schools. Peace officers, firefighters, and public attorneys often face similar issues: management favoring one union, punishing union leaders for speaking out, or interfering with your right to organize. PERB’s new remedy of a spoken notice read aloud and recorded sends a strong message to management.

What’s a Spoken Notice, and Why Video?

Normally, PERB orders employers to post a written notice, like on a break room bulletin board, promising to follow labor laws. But in these cases, PERB upped the ante:

• Clovis Unified: The superintendent must read PERB’s notice aloud on video, and the video must be shown at staff meetings across all 50+ schools during the school year, ensuring everyone hears it.
• Hacienda La Puente: The superintendent must read the notice aloud at meetings with employees in Caldera’s bargaining unit, designed to reach as many workers as possible. A union representative can attend to ensure it’s done properly. While not explicitly requiring a video, the formal reading is meant to maximize impact.

Why did PERB order the top boss to read it aloud and record it? A written notice can be ignored in a busy workplace like a police station, firehouse, or the courthouse. Hearing your agency’s leader admit they broke the law, in their own voice, is harder to miss. This remedy:

• Shows Accountability: When the head of your agency reads the notice, it proves they’re taking the violation seriously and committing to change.
• Reaches Everyone: Your work is often spread across precincts, stations, or offices. Videos or live readings ensure the message gets to you, whether you’re on shift or in a meeting.
• Restores Confidence: If you’ve felt pressured to avoid a union or silenced for raising concerns, this public act reassures you that your rights are protected.

Why These Cases Matter to You

The violations in these cases hit close to home for public safety employees. In Clovis, the district controlled the Faculty Senate with money and influence, making it hard for employees to pick a union that truly represented them. Imagine your agency retaliating against your representatives for demanding better safety gear, less mandatory overtime, or fair disciplinary investigations. In Hacienda La Puente, Caldera was punished for raising safety issues, which scared others from speaking up. If you’re calling out unsafe equipment, unfair promotions, or contract violations, your agency can’t retaliate to silence you.

PERB ordered spoken notices because these violations were serious and widespread. Clovis Unified has a history of favoring one group, going back to 1984. Hacienda La Puente’s actions chilled free speech across the workplace. This remedy signals that PERB won’t let agencies undermine your rights to engage in concerted action, whether it’s understaffing, excessive overtime, or budget cuts.

What’s Next?

In Clovis, the district must record the superintendent reading the notice within 60 days of the decision being final (no more appeals) and show the video at staff meetings. In Hacienda La Puente, the superintendent must read the notice at employee meetings within 60 days or at the semester’s start, if the union prefers. Both districts also have to post written notices and take other steps, like stopping illegal actions and clearing Caldera’s disciplinary records.

These spoken notices are a wake-up call and a reminder that PERB has your back. When labor organization file unfair practice charges, they should consider requesting recorded readings of the notice. PERB can’t award remedies that the union does not request.

The President Signs the "Strengthening and Unleashing America’s Law Enforcement to Pursue Criminals and Protect Innocent Citizens" Executive Order

President Donald J. Trump, signed an Executive Order dated April 28, 2025, titled "Strengthening and Unleashing America’s Law Enforcement to Pursue Criminals and Protect Innocent Citizens." The order focuses on empowering state and local law enforcement by providing legal protections, increasing resources (e.g., military assets, training, and pay), revising federal oversight such as consent decrees, and holding officials accountable for obstructing law enforcement. It emphasizes proactive policing and rejects policies that the administration views as hindering public safety. Below is a concise summary of its key provisions:

1. Purpose and Policy: The order aims to empower state and local law enforcement to combat crime aggressively, protect citizens, and reject policies prioritizing race- or sex-based "equity." It emphasizes supporting police, establishing best practices, defending officers from unjust accusations, and surging resources to law enforcement.
2. Legal Defense for Officers: The Attorney General is directed to create a mechanism, including private-sector pro bono assistance, to provide legal resources and indemnification for officers facing unjust expenses or liabilities from actions taken in their official duties.
3. Empowering State and Local Law Enforcement: Federal resources will be maximized to:
• Develop best practices for aggressive policing.
• Enhance training, pay, and benefits for officers.
• Strengthen legal protections and seek harsher sentences for crimes against officers.
• Invest in prison security and crime data collection.
• Within 60 days, the Attorney General must review and modify or rescind federal consent decrees and agreements that hinder law enforcement.
4. Using National Security Assets: Within 90 days, the Attorney General and Secretary of Defense, with input from the Secretary of Homeland Security, will:
• Provide excess military and national security assets to local law enforcement.
• Determine how military assets, training, and personnel can prevent crime.
5. Holding Officials Accountable: The Attorney General will pursue legal remedies against state and local officials who:
• Obstruct criminal law enforcement unlawfully.
• Engage in discriminatory practices under "diversity, equity, and inclusion" initiatives that restrict policing or endanger citizens.
6. Homeland Security Task Forces: The Attorney General and Secretary of Homeland Security will use existing Homeland Security Task Forces (per Executive Order 14159) to advance this order’s objectives.
7. General Provisions: The order does not impair existing agency authority, is subject to applicable law and appropriations, and does not create enforceable rights against the U.S. government.  

The Executive Order provides significant benefits to peace officers through legal protections, increased pay, better training, access to advanced equipment, and enhanced safety measures. It also strengthens Association advocacy by aligning federal policy with their goals, boosting their bargaining power, and offering resources to protect and support members. These measures address key union priorities like officer safety, compensation, and operational support.

Recent PERB Decision Shows Us Why You Shouldn't Waive Your Right to a Skelly Hearing

On February 26, 2025, the Public Employment Relations Board (“PERB”) issued a decision to reverse a PERB Administrative Law Judge’s (ALJ) ruling that the City of California City failed to follow disciplinary procedures when issuing Notices of Termination for three police officers represented by the California City Police Officers Association (“Association”).  Mastagni Holstedt partner Kathleen Mastagni Storm and associate attorneys Taylor Davies-Mahaffey and Spencer Shure litigated one of the PERB cases (County of Sonoma (2023) PERB Decision No. 2772Ma) that this decision cites to.

Scope of Representation

Under the Meyers-Milias-Brown Act (MMBA), a public employer cannot unilaterally change the terms and conditions of employment without affording the Association advanced notice and an opportunity to bargain. PERB has historically held that a decision is within the scope of representation if the decision has “a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees” that “arises from the implementation of a fundamental managerial or policy decision.”

In County of Sonoma (2023) PERB Decision 2772Ma, PERB held that the County of Sonoma violated the MMBA and PERB regulations by placing a measure that dealt with peace officer disciplinary procedures on a November 2020 ballot without providing the exclusive representatives of its non-managerial peace officers (SCLEA and Sonoma DSA), notice or an opportunity to meet and confer over the measure and its effects. In this decision, PERB held that since the measure increased the potential for discipline and altered the discipline process, the measure significantly and adversely affected the employees’ working conditions and thus fell under the scope of representation. This decision highlights the fact that changes in disciplinary procedures are within the scope of representation.

Facts & Procedural History of California City

On September 14, 2019, three California City police officers were involved in a use of force incident during an arrest. After the investigation, the Police Chief issued a Notice of Termination to the three officers.

On February 5, 2021, the Association filed an unfair practice charge against the City, alleging that the City failed to follow disciplinary procedures when the Division Commander did not review the investigation and provide a recommendation regarding discipline. A PERB ALJ ruled that the City violated policy and ordered the City to rescind the termination notices.

On November 5, 2021, the City reinstated the police officers and subsequently placed them on administrative leave while the Division Commander reviewed the investigations. On January 18, 2022, after considering the Division Commander’ s recommendations, the Chief issued each officer a Notice of Intent to Terminate. On February 2, 2022, the officers informed the City that they waived their Skelly rights and wished to proceed directly to an appeal of their terminations.

On June 7, 2022, two of the officers filed a lawsuit in state court, alleging that the City violated rights afforded by the Public Safety Officers Procedural Bill of Rights Act (“POBR”). A jury found that the City did not violate the officers’ rights under POBR. The City Manager then issued each officer a Notice of Termination.

In response, the Association filed an unfair practice charge alleging that the City made an unlawful unilateral change to disciplinary procedures when the City Manager issued the Notices of Termination instead of the Chief of Police, as is prescribed in the Police Department Policy Manual. The ALJ held that the City violated the MMBA when it deviated from the Department Policy Manual by having the City Manager issue the officers’ Notices of Termination. The City filed exceptions asking PERB to reverse the proposed decision. The City essentially argued that the decision from the City Manager to terminate the officers was not under the scope of representation under the MMBA. The City reasoned that the City Manager’s decision did not have a significant and adverse effect on the officers’ terms and conditions of employment because it was highly likely the officers were going to be terminated by the City after waiving their Skelly rights. PERB agreed with the City.

PERB’S Reasoning for Their Decision

PERB held that the ALJ used the correct standard, but PERB did not agree that the change had a significant and adverse effect on wages, hours, or working conditions for this specific case. Here, after the City issued the Notices of Intent to Terminate, the officers’ waiver of Skelly rights meant it was exceedingly likely that Notices of Termination would follow. The Chief evaluated the investigation and the Division Commander’ s recommendations and issued the Notices of Intent to Terminate on January 18, 2022. When the officers waived Skelly rights, under department policy, there was no other information for the City to consider. A new Chief of Police or the City Manager’ s issuance of the Notices of Termination does not alter the underlying determination already made by the chief in the Notices of Intent to Terminate. Thus, the officers’ Skelly waiver left them without any pre-termination basis to challenge the Notices of Intent to Terminate.

Lesson Learned from California City

    It is important to note that this case is non-precedential, which means that PERB’s decision applies only to the parties involved in the case. This case shows us how important it is to never waive your right to a Skelly hearing even if the odds of success are low. Skelly hearings are an opportunity to address the allegations and provide mitigating information to the Skelly Officer. In this case, had the officers presented their claims in a Skelly hearing, the Chief of the Department would have been required to consider all information received regarding the recommended discipline. Therefore, the decision to terminate the officers from the City Manager would undeniably be a deviation from the established Skelly procedure. PERB even states in California City that had the officers not waived their Skelly hearing, their decision would have likely been different.

You can read the Sonoma PERB decision referenced above and handled by Mastagni by clicking here. 

Watch: David E. Mastagni Testifies In Support of Bill Prohibiting Employers from Questioning Union Representatives About Confidential Communications with Unit Employees

    On March 19, 2025, Partner Attorney David E. Mastagni testified before the State Assembly Public Employment and Retirement Committee in support of AB 340 on behalf of the Peace Officers’ Research Association of California (PORAC). AB 340 would prohibit a public agency employer from asking any employee or their union representative about communications concerning workplace matters that are made in confidence between the employee and their representative. 

    The bill safeguards public employees’ union representation by prohibiting invasive employer questioning and compelled disclosures that undermine confidential union communications. It ensures workers – whether peace officers, firefighters, or teachers – can discuss critical issues like safety concerns, overtime grievances, or discipline appeals with their union representatives without fear of employer interference.

Strengthening Union Representation Rights and Codifies PERB Precedent 

    Current state law does not explicitly prohibit employers from compelling employees or their union representatives to disclose what they discussed in private. AB 340 would codify existing Public Employment Relations Board (PERB) decisions, which have long held it's “beyond dispute that an employer’s inquiries into discussions between employees and their union representatives have a tendency to chill the protected activities of both the employees and the representatives.” County of Merced (PERB Dec. No. 2361-M). Merced further held that compelling such disclosure “restrains employees in their willingness to candidly discuss matters with their chosen…representatives” and “prohibits stewards from obtaining the needed information from employees.”

    William S. Hart (PERB Dec. No. 2595) held a District’s questioning of a shop steward about complaints received from bargaining unit members about another member violated the steward’s protected rights and the union’s ability to effectively represent its bargaining unit. PERB noted that “[a]n employer’s legitimate investigation into alleged wrongdoing cannot include quizzing the shop steward about…communications between employees and their union representatives, thereby deputizing the union as the employer’s agent for conducting disciplinary investigations.”

    The bill levels the playing field for public employees by making this protection universal across all public employers under PERB’s jurisdiction. When employees discuss workplace matters, like grievances or adverse actions, with their representatives, they often believe that these conversations are confidential. Keeping these communications confidential remains essential to fostering trust and ensuring effective representation for unit employees. If employees begin to question the confidentiality of their communications with union agents, such fears undermine the core functions of the union and may deter future employees from coming forward with claims of workplace misconduct or other concerted issues. 

    AB 340 enshrines the union representative’s ability to properly discharge its duty because effective representation hinges on privacy; when employers extract details about union communications, they undermine the union’s ability to advocate for its members. Such questioning chills open communications, discourages whistleblowers, provides employers an unfair insight into the union, and can be used to target union leaders.

    Bill opponents argue that the bill creates an evidentiary privilege regarding employee-union communications. The bill is modest and balanced. No such privilege is created. The bill does not alter the evidence code. Rather, it codifies a limited protection against employer compelled disclosures regarding communications made in confidence between a public employee and the representative in connection with representation relating to any matter within the scope of the recognized employee organization’s representation. It is only enforceable through PERB as an unfair practice charge against the employer.

    The bill does not limit the ability of local agencies to conduct thorough investigations, as it has no application to the questioning of percipient witnesses, including union representatives, to the underlying matters under investigation. Only confidential union communications are off-limits. There is also no limitation on questioning a representative who is a witness to the underlying events that are the focus of the inquiry. The bill excludes any application to criminal investigations, and incorporates portions of the Peace Officers’ Procedural Bill of Rights precluding peace officer representatives from being “a person subject to the same investigation.”

    In sum, AB 340 ensures public employees can turn to their unions without employer shadows looming over every conversation. Codifying this protection is a modest but powerful step. California has long led the nation in protecting workers’ rights, and AB 340 enshrines those representational rights into law.

Public Employment Relations Board Reinforces Peace Officer Confidentiality in Personnel Records and Applicability of Pitchess Procedures in Administrative Hearings

On January 31, 2025, the Public Employment Relations Board (“PERB”) issued a decision upholding the dismissal of the California State University Employees Union’s (“CSUEU”) unfair practice charge filed against the Trustees of the California State University – Stanislaus (“CSU”) seeking the disclosure of peace officer personnel records outside of the Pitchess process. On behalf of the Statewide University Police Association (“SUPA”), Mastagni Holstedt partner Kathleen Mastagni Storm filed an informational brief in support of denying the appeal. PERB upheld the dismissal of the charge without leave to amend.

Facts

    CSUEU represented an employee who submitted a formal complaint alleging a peace officer in the SUPA bargaining unit engaged in harassment, disparate treatment, and created a hostile work environment. At CSU’s request, the Stanislaus County Sheriff’s Department (“SCSD”) conducted an independent investigation and created a report. SCSD provided the investigative report to the CSU Stanislaus Chief of Police, and thereafter the Chief of Police forwarded it to CSU human resources representatives. The complaining employee was then given notice that her allegations were not sustained.

    Several months later, CSUEU submitted a request for information to CSU seeking, among other things, a copy of the investigation report. CSU responded to the request stating that “per California Penal Code Section 832.7, [the University] is precluded from distributing copies of SCSD’s report on the matter, absent a court order.” Thereafter, CSUEU asserted that CSU must meet and confer with CSUEU over the confidentiality concerns involved in providing the report and that a failure to do so would provide the basis for an unfair practice charge. After a series of responses from CSU and CSUEU, in which both parties reaffirmed their initial positions, CSUEU filed an unfair practice charge with PERB alleging CSU violated the Higher Education Employer-Employee Relations Act (“HEERA”) when it refused to disclose the investigative report or meet and confer with CSUEU to address its confidentiality concerns.

    The PERB Office of the General Counsel (“OGC”) dismissed the charge for failure to state a prima facie case. PERB’s OGC determined that the report was confidential pursuant to Penal Code section 832.7, and that the report could only be provided through the discovery process described in Evidence Code sections 1043 and 1046. CSUEU appealed the dismissal. In its review of the appeal, PERB concluded that CSU did not violate HEERA by refusing to provide the investigative report to CSUEU.

A Union’s Right to Information

    An exclusive representative is presumptively entitled to information that is necessary and relevant in discharging its representational duties or exercising its right to represent bargaining unit employees regarding terms and conditions of employment within the scope of representation. (Contra Costa Community College District (2019) PERB Decision No. 2652, pp. 16-17; Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 17.) PERB has held that investigatory reports relating to hostile work environment claims impacting bargaining unit members are presumptively relevant. However, if such reports contain private information of third parties, PERB applies a balancing test that weighs a union’s need and interest in obtaining the information against the employer or third party’s privacy and confidentiality interest. Typically, an employer may not outright refuse to furnish information based on privacy concern. Instead, the parties must meet and confer in good faith to reach accommodation such as redactions, limiting use of materials, and prohibiting public disclosure.

    Yet, this right to information is further limited if such requested information is protected by the confidentiality of California Penal Code Section 832.7. Such records are “confidential” and “may not be disclosed” save for the procedures outline in the Pitchess statutory scheme. The Pitchess statutes reflected the state Legislature’s intent to balance the discovery of requested information with an officer’s confidentiality interest.

    Penal Code Section 832.7 provides that the personnel records of peace officers…and records…or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except for discovery pursuant to Section 1043 and 1046 of the Evidence Code. (Pen. Code, § 832.7(a).) This statute establishes a general condition of confidentiality that applies beyond criminal and civil proceedings and cannot be circumvented by third parties invoking the California Public Records Act. (Copley Press v. Superior Court (2006) 39 Cal.4th 1272, 1286.)

    According to Penal Code Section 832.7, such confidential information may only be subject to discovery pursuant to Evidence Code Sections 1043 and 1045. The statutes establish procedures for discovery which require a party seeking the records to follow the Pitchess procedures. Such procedures include, among other things, a noticed motion, identification of the proceeding in which disclosure is sought, a description of the records, a time and place at which the motion for disclosure shall be heard, and affidavits showing good cause for the discovery sought. If the court finds “good cause” for the disclosure of the records, the court ruling on the motion must examine the records in camera and determine whether there are portions of the record to be excluded from disclosure.

CSUEU Attempted to Circumvent the Pitchess Procedures for Disclosure

    CSUEU refused to follow the Pitchess procedures; instead insisting the report be disclosed under HEERA and that CSU meet and confer over any privacy concerns.  PERB rejected the argument, explaining that because the peace officer personnel records are confidential pursuant to Penal Code 832.7, the requirement for CSU to meet and confer over privacy interests does not apply. PERB went on to find that on the facts of this case, meeting and conferring over CSUEU’s request for information would have been futile.

    Penal Code Section 832.7 and Evidence Code Sections 1043 and 1045 only permit discovery in the context of a pending hearing. CSUEU did not request the investigation report in the context of any pending action. Rather, it sought the report for the general purpose to better represent its members in future matters. The Supreme Court and PERB find that Penal Code Section 832.7 would be circumvented if it did not apply in the context of a pre-dispute information request. Therefore, CSUEU would need to comply with the Pitchess statutes to obtain a copy of the report. 

    PERB noted that a peace officer personnel record’s exemption from disclosure under CPRA does not render it entirely privileged under HEERA. However, the procedures for disclosure under HEERA must maintain the balance that the Legislature intended with the Pitchess statutes. Still, compliance is not possible without a pending proceeding in which the requesting party may file a motion to establish good cause to receive the records and a hearing officer can conduct an in-camera review prior to disclosure. 

    PERB concluded that an exclusive representative is not entitled to receive records covered by Penal Code Section 832.7 absent compliance with the Pitchess procedures. Given that CSUEU did not adhere to the requisite procedures and there was no pending hearing, the dismissal of the unfair practice charge was upheld. An exclusive representative may only obtain records deemed confidential under Penal Code Section 832.7 by invoking Evidence Code section 1043 in any hearing or arbitration where they are material. 

    This decision upholds the protections of Penal Code section 832.7 and prevents an exclusive representative or employee from undermining the Pitchess procedures through a request for information submitted before any action was pending before a hearing officer. PERB was firm in its refusal to issue a “…complaint alleging failure to provide information merely as a mechanism to assign an ALJ and allow a Pitchess motion to be filed; [finding] such bootstrapping falls outside the substantive and procedural boundaries of the confidentiality exception explained in the above-referenced jurisprudence.”  (California State University Employees Union v. Trustees of the California State University (Stanislaus) (2025) PERB Decision No. 2940-H at p. 16.)

SCOTUS Update: Law Enforcement Groups Again File Brief in Support of Petition for Certiorari to the U.S. Supreme Court to Review Excessive CCW Carry Restrictions

 On February 18, 2025, the Peace Officers’ Research Association of California, the California Association of Highway Patrolmen, the California State Sheriffs' Association and the Crime Prevention Research Center (CPPC) filed an amicus brief in support of a Petition for Certiorari to review the constitutionality of New York’s new concealed carry law, which severely restricts the places CCW permit holders may carry concealed handguns much like California’s Senate Bill 2 (SB 2).  

 The brief is in connection to the U.S. Supreme Court case of Ivan Antonyuk, et al. v. Steven James, the Acting Superintendent of the New York State Police, et al. The case challenges New York’s Concealed Carry Improvement Act (CCIA), a revised gun law adopted in New York in July 2022 – only days after the Supreme Court’s landmark ruling in New York State Rifle & Pistol Association Inc. v. Bruen (Bruen). These law enforcement Amici had previously filed a similar brief in support of review on March 25^th, 2024, as well as an Amici Curiae brief in the United States Court of Appeals for the Ninth Circuit regarding a  California law, Senate Bill 2.

The Second Circuit issued a new opinion upholding most of New York’s “Concealed Carry Improvement Act” in an opinion issued after remand, which is nearly identical to the opinion vacated in light of United States v. Rahimi, 602 U.S. 680 (2024). Both the Second Circuit and the Ninth Circuit opinions upheld the majority of the respective restrictions on carry locations, disregarding the U.S. Supreme Court's warning against “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement” and “effectively declar[ing] the island of Manhattan a ‘sensitive place.’” Bruen at 2134.  

Bruen 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.’” Id. at 2126. This Court identified “settled” sensitive places, such as “legislative assemblies, polling places, and courthouses,” where the carrying of firearms may be prohibited and directed lower courts to “use analogies to those historical regulations” to determine if new sensitive places restrictions are constitutionally permissible. Id. at 2133. Defying these Constitutional commands, New York and California expanded longstanding sensitive place definitions to encompass nearly their entire states, other than some streets and sidewalks. 

The Amici have an important interest in the Supreme Court correcting the Second Circuit Opinion to promote judicial economy, ensure a uniform interpretation of the Second Amendment, and uphold the principle of equal treatment under the law. The Ninth Circuit issued a consolidated opinion addressing SB 2 in Wolford v. Lopez, 116 F.4th 959, 970 (9th Cir. 2024), which upheld more restrictive California and Hawaii laws modeled after the NY law. The Ninth Circuit created a split from the Second Circuit and every other district court by upholding the reversal of the consent presumption that permit-holders may carry on private property. This restriction is commonly know as the vampire rule, wherein CCW permit holders cannot carry on private property without advance permission.  

The issues presented in this appeal are of national concern. The constitutionality of restrictions on where concealed carry may be prohibited is a serious national concern, particularly for the Sheriffs who issue the permits and the officers that must enforce constitutionally suspect laws.  Forcing officers to potentially violate citizens’ civil rights will subject officers to section 1983 liability and damages public confidence in law enforcement. Moreover, officers have a direct interest in protecting their own right to self-defense and concealed carry in their retirement. 

Attorneys David E. Mastagni, Taylor Davies-Mahaffey, and Timothy Talbot authored the brief. 

Ninth Circuit Ruling Prompts Refusal to Respond to Mental Health Calls

Because of a new ruling from the Ninth Circuit Court of Appeals, some firefighters and other first responders are finding themselves left without police backup as more and more departments are saying that they will no longer dispatch officers to certain 911 calls. The Sacramento County Sheriff announced Tuesday his deputies will no longer respond to mental health calls where a crime is not being committed. The shift in policy comes, Sheriff Jim Cooper said, after a 2024 ruling by the Ninth Circuit Court of Appeals in Scott v. Smith, 109 F.4th 1215 (2024).

Such circumstances create a dilemma for firefighters and medical providers: people need their help urgently but now, without law enforcement to secure the scene, they must potentially risk working in an unsafe environment.  But why is this happening? The source of this particular issue stems from the Ninth Circuit Court of Appeals ruling that expands officers' potential liability when restraining a subject suffering from a mental health crisis.

The Facts

Roy Scott dialed 911 on March 3, 2019, claiming people were outside his apartment with a saw. Police officers Kyle Smith and Theodore Huntsman were the first to arrive, with dispatch alerting them that Scott was mentally ill. When they arrived at the apartment, they knocked and identified themselves, remaining outside despite Scott’s urgings for them to “break the door down.” After a few minutes they came to the conclusion that Scott was indeed suffering from a mental illness. After about 7 minutes from their arrival, Scott opened the door holding a metal pipe.

The officers retreated from Scott and ordered him to drop the pipe, which he did. Scott was clearly disoriented. The officers ordered him to stand by the wall and asked if he had any more weapons. Scott complied and produced a knife, apologizing whilst he did so, and handed it handle-first to Huntsman without making any threatening gestures. At this point Scott informed the officers that he had paranoid schizophrenia. Scott repeatedly insisted he was not fine and requested to be put in the patrol car. The officers at this point knew that Scott was clearly distressed and qualified for a “medical hold.”

The officers then pulled Scott to the ground, while Scott yelled and struggled, he was rolled onto his stomach with his arms restrained behind his back. Then, Huntsman put his body weight on Scott’s back and neck for about 1-2 minutes while Smith put his weight on Scott’s lower body. After handcuffing and rolling him over, Scott’s face was bloody from thrashing against the ground, and he stopped yelling. He did not respond to the officers’ attempts to wake him up and was soon pronounced dead from restraint asphyxia.

Scott’s daughter sued under the Fourth Amendment for violating Scott’s right to be free from excessive force and the Fourteenth Amendment for violating her right to familial association (basically depriving her of a family member). This blog’s focus is on the Fourth Amendment.

Fourth Amendment Claim – Excessive Force

The Fourth Amendment states that police may only use force that is objectively reasonable under the circumstances. In order to decide what is “objectively reasonable” courts look to 3 different factors to see whether, from the perspective of a reasonable officer in that moment (and not using hindsight), the actions were reasonable. The 3 factors are (1) how badly did the use of force violate the Fourth Amendment (2) did the government have a good reason for using this force (for example, were the police trying to stop an active crime), and (3) a balancing act between the first two factors, namely, how badly the Fourth Amendment was violated versus how important it was that the government use that force. 

Factor One: Type and amount of force used and how badly that violated the Fourth Amendment

In order to decide if the force used by the police was okay, the court looked at both the level of risk that physical contact would cause harm as well as the actual harm that was actually inflicted. Here, they found that the police officers used deadly force because bodyweight compression was applied to Scott’s back and neck for 1-2 minutes while Scott became increasingly breathless. This is in line with a prior case, Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056–57 (9th Cir. 2003), where officers went too far when putting their weight on someone’s neck while they were restrained on the ground.

Factor Two: Did the government have a good reason to use this force

The court here looked to, among other things, whether a crime was being committed, whether the suspect was trying to escape or resist arrest, and whether the suspect was a danger to police officers or anybody else. Espinosa v. City and County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010). The court also stated that when dealing with someone with only mental health issues, the government’s interest is going to automatically be limited because they are not dealing with a criminal. Even if the person with mental health issues is acting out. 

The court found that the government did not have a good reason for using force because Scott was not suspected of committing a crime, he listened to officer instructions, and, even though he had two weapons, he did not brandish them and instantly handed them over and submitted to police control. The court also said his struggles were not considered resisting arrest because he did not threaten to or attempt to attack the police. Lastly, because the court thought less intrusive alternatives to bodyweight force were available, they did not believe the police had a good reason to use the level of force that they did. 

Factor Three: Balancing Interests

Lastly, the court looks to see whether the amount of force used by the police officers was necessary. The court here quickly concludes that the bodyweight hold was not necessary because they said that deadly force is not needed to restrain a person with mental health issues so that they can be put into a mental health hold.

Because Scott’s Fourth Amendment Rights were violated, and the police officers had good reason to know that these actions would violate Scott’s rights based off of the existing caselaw, the court ultimately held that qualified immunity does not apply here.

Conclusions

Scott v. Smith imposes a regrettable restraint on first responders’ ability to act. As a result of this decision, law enforcement agencies and officers are now faced with bad choices when responding to people with mental health issues. They can attempt to restrain the subject and secure the scene and risk losing qualified immunity, or direct officers not to respond. 

With qualified immunity now able to be stripped away on a case-by-case basis, agencies are understandably hesitant to secure the scene for firefighters and other first responders to do their work safely and efficiently even when there is no crime or threat of violence. Sacramento Metropolitan Fire Department spokesperson Parker Wilbourn expressed his desire for “either a legislative effort or the courts to make a decision.”  Hopefully, this decision will be reversed.  

Chief of Police Forced Out After Sending Racially-Charged Private Messages: Ninth Circuit Finds No First Amendment Violation by the County as Chief's Speech Not Protected by the First Amendment

    In September of 2024, the Ninth Circuit Court of Appeals ruled that a public employee’s private text messages were not protected under the First Amendment. A former California Chief of Police appealed after the  district court dismissed her  First Amendment retaliation and derivative conspiracy claims. Prior to becoming the Police Chief, , she engaged in a private text conversation in 2013 with a then-friend and coworker in which she shared two images that she received from an undisclosed source. Along with the images, she shared the message “Some rude racist just sent this!!” The images contained a racist epithet and slur. That same day, she forwarded the images to another coworker and then-friend. The messages were not disclosed nor made readily discoverable by the general public. It was clear that the messages were intended for a purely private audience in the context of private conversational exchanges. Several years passed before one of the recipients of the images reported the exchange in retaliation of disciplinary action taken against them by the chief. The Chief was pressured to and did ultimately resign..

    In 2022, she filed suit claiming, among other things, deprivation of the right to free speech under the First Amendment and First Amendment conspiracy. The district court dismissed her complaint for failure to state a claim of a First Amendment violation, holding that Adam’s speech was not a matter of public concern.

First Amendment Analysis

    Public employees do not surrender their First Amendment rights merely by virtue of their position. The First Amendment prohibits government officials from disciplining public employees for having engaged in protected speech. In analyzing whether a public employee’s speech is protected under the First Amendment, courts employ a balancing test established by the United States Supreme Court in Pickering v. Board of Education (1986) 391 U.S. 563. Under Pickering, a plaintiff claiming a violation of their First Amendment rights must establish that: (1) she spoke on a matter of public concern, (2) she spoke as a private citizen rather than a public employee, and (3) the relevant speech was a substantial or motivating factor in the adverse employment action. If the public employee meets this burden, the employer must then demonstrate that it had an adequate justification for treating the employe differently than other members of the general public and that it would have disciplined the employee even absent the protected speech. In short, to show that one’s speech is protected by the First Amendment, a public employee must prove that they spoke as a private citizen on a matter of public concern. The public employee must then prove that the public’s collective interest in the speech outweighs the governmental interest in avoiding disruption to its operations that could or would be caused by that speech.

    In this case, the Court framed the threshold question as whether the statements substantially addressed a matter of public concern. If speech does not do so, there is no actionable cause under the First Amendment. To determine whether a public employee’s speech is a matter of public concern, the court considers the “content, form, and context of a given statement as revealed by the whole record.” (Connick v. Meyers (1983) 461 U.S. 138, 147-48.) Speech involves a matter of public concern when it can be fairly considered to relate to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest. (Lane v. Franks (2014) 573 U.S. 228, 241.) The content of the communication must be of broad societal concern. If the speech concerns only personal or private interest, an action based on a violation of the employee’s First Amendment rights is not the appropriate method of challenging agency discipline. Restricting speech on purely private matters does not implicate constitutional concerns.

    Speech regarding matters of race, religion, or other such topics are a matter of public concern when they involve the public’s interest in governmental conduct that affects society as a whole. (Alpha Energy Savers, Inc. v. Hansen (9th Cir. 2004) 381 F.3d 917, 926-27.) Conversely, speech that complains of private, out-of-work, offensive individual contact by unknown parties, as is in this case, is not of public concern. Additionally, inappropriate or controversial character of a statement is irrelevant to the Pickering analysis.

    The Court determined that the text messages were of private interest, not of public concern. The text messages and distribution of the images expressed only her opinion on being sent the messages, which is a purely private matter. The messages did not discuss generally applicable policies and practices, nor did she suggest that her receipt of the messages was connected to wrongful governmental action. When addressing why she made the speech, the court concluded she intended the messages to be entirely private, conversational in nature, and only meant to convey a personal grievance about receiving offensive images. As such, the district court’s dismissal was affirmed. The court acknowledged dismissal may be unfair, but it cannot be challenged as a violation of her freedom of speech.

    Conversely, the Civil Service Commission of Massachusetts determined that an off-duty Boston Police Officer’s private tweets regarding the January 6^th, 2021, rally in Washington D.C. were protected and the disciplinary action taken against the officer on the basis of the tweets was actionable under the First Amendment. (Abasciano v. Boston Police Department (December 24, 2024) Civ. Serv. Comm. D1-23-033.) The plaintiff in this case was discharged by the Boston Police Department for tweets published from an anonymous twitter while attending the rally. The tweets were sent while the officer was off-duty, from a private account, and they did not identify the plaintiff or his employment with the Boston Police Department.

    The rules and procedures of the Department permitted employees to express political opinions and attend political conventions and rallies. Throughout a series of tweets, the officer publicly commented on the rally, shared his opinions on various political figures and authorities, and generally called for patriotism. Following Pickering, the commission determined that because the tweets were sent as a private citizen, there was nothing to indicate that the plaintiff was acting in his official capacity as a police officer, and the tweets were matters of public concern as they pertained to broad commentary on politics, they were protected. As such the Department was then required to provide justification to restrict the speech. This aspect of the Pickering balancing test is comprised of two prongs: (1) the inflammatory nature of the speech, and (2) whether the speech could reasonably be expected to interfere with Department functions. Several officers testified affirming that it was unlikely that the content and nature of the tweets would interfere with his ability to perform his official duties. As such, the commission ruled in favor of the plaintiff officer and deemed his discharge to be in violation of his First Amendment rights.

    In sum, public employees must be conscious of speech made both in private and in public. Private speech is not protected by the First Amendment but may nonetheless provide the basis for administrative discipline. Alternatively, public speech by a public employee is protected by the First Amendment only when it is clear the speech is made by the officer in their personal, not official, capacity; the speech regards a matter of broad public concern; and the employing agency does not have a greater interest in preventing the speech for the sake of administrative efficiency.