A Narrow Reading with Wide Consequences: The California Supreme Court Limits Leave Cashout Credit Under PEPRA

Every public safety professional who has banked unused leave across a long career understands the quiet promise embedded in that ledger. Those hours represent time not taken with family, shifts covered for colleagues, and holidays spent in uniform. The expectation has always been that those hours would count when the pension calculation finally arrived. On July 27, 2026, the California Supreme Court unsettled that expectation for legacy members of the state’s county retirement systems. In Ventura County Employees’ Retirement Ass'n v. Criminal Justice Attorneys Ass'n of Ventura County, No. S283978 (Cal. July 27, 2026) (“Ventura”), the Court held that the California Public Employees’ Pension Reform Act of 2013 (“PEPRA”) bars a retiring employee from counting leave cashouts above the annual limit fixed by the terms of employment, even when the employee designates a final compensation period that spans two calendar years. The decision affirms the Court of Appeal (see 98 Cal.App.5th 1119 (2024)), and it deserves the close attention of every association that negotiates leave and retirement terms on behalf of California’s peace officers, public sector attorneys, and other impacted public sector employees.

The Issue the Court Decided

The dispute turned on a single sentence in Government Code section 31461(b)(2). That provision excludes from compensation earnable any payment for unused leave “in an amount that exceeds that which may be earned and payable in each 12-month period during the final average salary period, regardless of when reported or paid.” (Cal. Gov’t Code § 31461(b)(2).) The retirement system read the phrase to incorporate the annual cashout cap set by an employee’s terms of employment, so that a member who may cash out 200 hours in a calendar year cannot inflate that figure by straddling two calendar years within a single final compensation window. The employee associations read the same phrase to permit inclusion of every hour cashed out during the elected final compensation period, subject only to what the period itself allowed. The Court adopted the retirement system’s reading and confirmed that section 31461(b)(2) caps includable cashouts at the annual allowance no matter how the final compensation period is drawn.

The facts illustrate the stakes with unusual clarity. The retired member accrued 368.16 hours of leave each year, and his terms of employment permitted him to cash out 200 hours in any single calendar year. He designated October 10, 2019 through October 10, 2020 as his final compensation period, and within that window he cashed out 40 hours in December 2019 and another 200 hours in February 2020, for a total of 240 hours. He asked the system to include all 240 hours in his final compensation. The system included only 200, and the Supreme Court agreed that the 40 additional hours fell outside compensation earnable because they exceeded the annual allowance that governed a single calendar year per the terms of his employment.

The Court Conceded Ambiguity and Then Resolved It Against the Member

The most consequential feature of the opinion is not the result but the route the Court traveled to reach it. The Court did not hold that the statute plainly compelled the retirement system’s position. It acknowledged instead that the system’s construction “may not be the most immediately obvious or intuitive reading of the statutory text,” and it described that construction as merely “plausible.” (Ventura, slip op. at p. 22.) Both the trial court and the Court of Appeal had likewise found the language ambiguous. Confronting genuine ambiguity, the Court turned to legislative purpose and concluded that “[c]onsiderations of statutory purpose conclusively resolve the issue” in the retirement system’s favor because the competing reading would reopen the door to the pension spiking that the Legislature enacted the statute to close. (Id. at p. 23.)

In a concurring opinion, Chief Justice Guerrero underscored the divergence from the actual text. She wrote to explain that the majority’s interpretation is not apparent on the face of the statute, that the ordinary use of the word “during” is inconsistent with the majority’s construction, and that the reading survives only because a latent ambiguity emerges once the statute’s anti-spiking purpose is considered. (Ventura, Guerrero, C.J., concurring op. at pp. 2-4.) Her concurrence is candid confirmation that the words the Legislature chose pointed one way while the result points another.

The Court’s analytical move carries real significance for public employees because it required the Court to set aside a rule that has long favored pensioners. For decades, California courts have construed pension statutes liberally and resolved ambiguities in favor of the applicant. (See Barrett v. Stanislaus Cnty. Emps. Ret. Ass'n (1987) 189 Cal.App.3d 1593, 1603.) The employee associations pressed that principle here, and it pointed squarely toward the broader reading. The Court answered that liberal construction “must be consistent with the clear language and purpose of the statute,” and it held that the pensioner favoring canon must yield here because it conflicts with the Legislature’s overarching anti-spiking design. (See Ventura Cnty. Deputy Sheriffs' Ass'n v. Bd. of Ret. (1997) 16 Cal.4th 483, 490.) In other words, the tie no longer runs to the employee once a court identifies a countervailing legislative purpose, and pension spiking supplies a purpose that a reviewing court can invoke across a wide range of compensation disputes.

Why the Reasoning Matters Beyond Leave Cashouts

The holding governs a discrete question about leave cashouts in a final compensation period that straddles two calendar years, yet its method reaches much further. PEPRA is a sprawling statute enacted quickly, and many of its provisions have given rise to disputes and are likely to continue doing so in the future. Every one of those provisions is now subject to interpretation under the framework this Ventura decision reaffirms, and that framework instructs courts to consult the anti-spiking purpose whenever the words admit more than one reasonable meaning. A retirement association that wishes to exclude a category of pay will attempt to frame inclusion as a potential avenue for spiking, and after this decision, that framing will carry substantial weight. Members should therefore expect systems to press expansive exclusions in future disputes over on-call pay, specialty premiums, uniform and equipment allowances, and other items whose treatment PEPRA did not spell out with precision.

The decision also weakens a tool that member advocates have relied upon for a generation. When a pension statute was ambiguous, the liberal construction canon gave employees a thumb on the scale, and it often proved decisive in close cases. This opinion subordinates that canon to legislative purpose and thereby shifts the balance of interpretive advantage toward the systems in exactly the situations where the statute is least clear. Associations litigating future ambiguities will need to build their arguments on text and structure rather than on the presumption that ambiguity favors the applicant, because the Court has now signaled that the presumption gives way whenever the anti-spiking rationale is available. 

The Signal to the Legislature

The opinion carries a further lesson for those who shape pension policy in Sacramento. The Court repeatedly grounded its reading in the practical concerns of plan administration and funding, observing that the retirement system’s interpretation allows counties to anticipate their obligations rather than absorb liabilities that swing between one hundred and two hundred percent of the annual cashout limit depending on how a member elects a final compensation period. (Ventura, slip op. at p. 24.) Legislation should be assessed against this backdrop in which courts will fill statutory gaps with cost containment and anti-spiking assumptions rather than with the older presumption favoring the pensioner. If the Legislature intends a benefit to be included, it will need to say so with precision, because ambiguity will no longer be construed generously in the member’s favor. Associations that seek legislative clarification of favorable treatment for particular pay items should draft proposed amendments with that reality in mind and should not assume that silence or generality will be read to their advantage.

What This Means for Your Members

The immediate practical consequence is straightforward. Legacy members who plan to cash out substantial accrued leave near retirement can no longer increase their final compensation by designating a final compensation period that reaches into a second calendar year in order to stack two annual allowances. The annual cap set by the terms of employment now controls the entire 12-month final compensation period regardless of when it falls in relation to calendar years. Associations should review their memoranda of understanding and their members’ retirement planning materials so that no member approaches retirement expecting credit for cashouts that this decision now excludes.

The larger consequence is strategic. This case reflects a determined and well-resourced effort to secure the broader reading for public employees. Nevertheless, that effort did not prevail before the state’s highest court despite thoughtful advocacy and a serious textual argument that even the Chief Justice found more faithful to the statute’s words. The outcome confirms that the interpretive terrain has shifted and that future gains for members will come from careful bargaining and precise legislative drafting rather than from favorable canons of construction. We stand ready to help our client associations reassess their leave and retirement provisions, to model the effect of this ruling on individual members nearing retirement, and to press for the statutory clarity that will protect the benefits our public safety professionals have earned through decades of service.

When the Verdict Second Guesses the Officer: Appellate Reversal Affirms Officers’ Right to Defend Themselves

Every officer who has ever cleared a doorway understands the arithmetic of a fraction of a second. The decision to use force is made in the moment, on the information then available, against a threat that does not pause to let anyone deliberate. California law honors that reality, yet officers know that courtrooms and juries are frequently invited to second-guess split-second decisions against a leisurely reconstruction that no officer on the scene ever had. A recent Texas reversal of a verdict against an officer illustrates the point. The court’s reasoning is a timely reminder of the constitutional and statutory protections that govern peace officers in California. Although the decision is not binding here, its reasoning is persuasive in holding that a conviction built on hindsight analysis cannot survive when the governing standard is properly applied.

A Dangerous Encounter

In an appeal decided by a Texas appellate court, a police officer had responded with three colleagues to a report that a man was roaming the halls of a downtown building with a knife held to his own throat and threatening suicide. The officers were told the man had a history of mental health crises and was on an upper floor with a large kitchen knife. When the officers reached that floor by elevator, the man was facing a mirror with the knife at his throat. When the doors opened, he turned toward the officers, reoriented the knife away from himself and toward them, and advanced in close quarters while ignoring the commands shouted at him. The officers fired, and the man died. The officer was convicted of a firearm offense and sentenced to prison, notwithstanding testimony from fellow officers that they would not have acted differently, expert testimony that the use of force was justified, and the conclusion of the department’s own investigators that the conduct did not warrant criminal charges. The appellate court reversed and rendered a judgment of acquittal, holding that the prosecution never carried its burden of disproving justification once the objective evidence was examined at the only moment that mattered. Taylor v. State, 729 S.W.3d 124 (Tex. App. 2025).

Reviewing the body worn camera footage, it found that the officers were confined with no meaningful avenue of retreat, that the man turned toward them and advanced with the knife oriented in their direction, and that this presented an immediate and potentially lethal threat. The prosecution’s theory, by contrast, rested almost entirely on what the officers supposedly should have done differently, including waiting, using the stairs, or relying on less lethal options.

The court held that this evidence, even if accepted in full, did not answer the dispositive question, because it showed at most that different decisions could have been made. As the court explained, could have, would have, and should have do not disprove justification, and tactical misjudgments or hindsight critiques do not render an otherwise reasonable belief in the necessity of deadly force unreasonable. The court further rejected the notion that a subject who advances with a weapon is demonstrating compliance, holding that the law does not require officers to treat such conduct as surrender or to wait until an attack is completed before responding. Finally, it observed that a mental health crisis is dynamic, so that a person who is a danger only to himself in one moment may become an immediate threat to others in the next, and that reasonableness is measured on what the officer perceived at the moment force was used rather than on earlier assurances or missed opportunities to de-escalate.

The California Framework

California officers enjoy the same core protection, secured by both the federal Constitution and state statute. As the Supreme Court held in Graham v. Connor, the reasonableness of a use of force must be judged from the perspective of a reasonable officer on the scene rather than with the twenty-twenty vision of hindsight, and the analysis must make allowance for the fact that officers are forced to make split second judgments in circumstances that are tense, uncertain, and rapidly evolving. That inquiry turns on whether the person confronting the officer posed an immediate threat to the safety of the officer or others.

The Legislature wrote these principles into Penal Code Section 835a, which states that the decision to use force be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and it expressly accounts for the reality that officers must sometimes make quick judgments about using force. The statute permits deadly force when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary to defend against an imminent threat of death or serious bodily injury. A threat is imminent when a reasonable officer would believe the person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury, a harm that must be instantly confronted rather than a mere fear of future harm. The same section confirms that an officer need not retreat and is not rendered an aggressor, nor deprived of the right of self-defense, by using objectively reasonable force.

California courts have applied this framework with a clear eye toward the dangers of hindsight analysis. Applying AB 392, Koussaya v. City of Stockton, (2020) 54 Cal. App. 5th 909, confirmed that the reasonableness of force is still judged from the perspective of a reasonable officer on the scene rather than hindsight, and the standard provides deference to the split second decisions of an officer who, unlike a private citizen, is charged with acting affirmatively and using force. Critically, so long as an officer’s conduct falls within the range of conduct that is reasonable under the circumstances, there is no requirement that the officer choose the most reasonable available action or the conduct least likely to cause harm.

California decisions confronting the knife wielding advancer have reached the same conclusion the Texas court reached, holding that where deadly force is otherwise justified there is no constitutional duty to use less forceful or non-deadly alternatives first, and that the proper inquiry is whether the officer acted reasonably, not whether some less intrusive alternative was theoretically available. Martinez v. Cnty. of Los Angeles, 47 Cal. App. 4th 334, 54 Cal. Rptr. 2d 772 (1996). The focus remains on the vantage of the reasonable officer, not on the after the fact opinions of bystanders who did not perceive a threat.

Why a No Reasonable Alternative Standard Cannot Be Squared With the Constitution

This settled framework is the measure against which the earlier legislative proposals to rewrite California’s deadly force law must be judged. As those proposals were originally introduced, they would have gone considerably further than any jury in the case discussed above, restricting an officer’s use of deadly force to circumstances in which it was strictly necessary and in which no reasonable alternative existed. Such a standard would unreasonably invite the factfinder to convict an officer whenever some other course could later be described as available. Representing the Peace Officers Research Association of California (PORAC), our firm opposed that approach because it would have transformed the objective reasonable officer inquiry into an impossible mandate to exhaust every conceivable option before acting. In holding such a standard unconstitutional, our Ninth Circuit has recognized, “(r)equiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. Scott v. Henrich (9th Cir. 1994) 39 F.3d 912, 915.” Our firm was privileged to assist the law enforcement advocacythat ultimately helped secure the amendments to Assembly Bill 392 that removedthe most punitive features of the introduced language and preserved thereasonable officer standard in the law as enacted.  

The reversal of the Texas conviction reenforces the point that such a standard, had it been enacted in California as introduced, would be constitutionally infirm. A criminal conviction may rest only on evidence from which a rational factfinder could find every element beyond a reasonable doubt, and in a justification case that necessarily includes proof beyond a reasonable doubt that the officer did not reasonably believe force was necessary in the moment.

A no reasonable alternative standard collapses that inquiry. It permits conviction not because the officer’s real time perception was unreasonable, but because a prosecutor, working backward from a known outcome, can always describe another path not taken. The Texas court rejected this reasoning when it held that could have and should have do not disprove justification. It is also precisely what California law already forecloses, because there is no constitutional duty to resort to the least forceful alternative where deadly force is justified. An officer is not required to select the least harmful option to avoid liability. A statute or instruction that made the availability of a hypothetical alternative dispositive would nullify those protections and convert the reasonable officer standard into a strict liability regime, judged in the calm of a courtroom rather than from the position of the officer on the scene. Koussaya, supra. 

When jurors are told to ask whether any reasonable alternative existed, and to measure that question against a reconstruction assembled after the danger has passed, they are no longer deciding whether the officer’s belief was reasonable at the instant of the threat. They are grading the officer against an idealized response that the moment never permitted. That is the very danger the reasonable officer standard exists to prevent, because it refuses to let a sanitized reconstruction assembled after the fact displace the dangerous and rapidly evolving reality the officer actually confronted. An instruction that operationalizes hindsight in this way threatens the due process guarantee that a conviction rest on proof of an actual element of the offense, and it departs from the constitutional command of Graham that force be assessed from the perspective of a reasonable officer on the scene rather than hindsight.  

It is worth emphasizing that the deadly force statute the Legislature ultimately enacted, as shaped by the amendments described above, stopped far short of the standard the original proposals contemplated. Section 835a expresses the intent that officers use deadly force only when necessary in defense of human life and that they use other available resources and techniques, but it qualifies that expectation by requiring only what is reasonably safe and feasible to an objectively reasonable officer, and it preserves throughout the reasonable officer perspective and the rejection of hindsight. SB 230 also codifies the legal definition of "feasible” is defined as "reasonably capable of being done or carried out under the circumstances to successfully achieve the arrest or lawful objective without increasing risk to the officer or another person." (emphasis added.)  This definition clarifies that tactics increasing the risk to officers are not "feasible." 

In other words, the enacted law retains the constitutional anchor that the introduced version would have disgaurded. That distinction is the difference between a statute that channels officer discretion and one that would punish officers for failing to achieve a perfection the law has never demanded.

Practical Significance of Taylor for California Officers

For officers and the agencies that stand behind them, several lessons follow. Justification is assessed on the threat as it reasonably appeared at the instant of the decision, and neither a prosecutor nor a jury may substitute a menu of tactical alternatives for proof that the officer’s belief was unreasonable. A subject who advances with a weapon and disregards commands is not demonstrating compliance merely because no blow has yet landed, and officers are not required to absorb the first strike before responding. Prior information that a person is troubled or suicidal does not freeze the threat assessment, because the encounter is judged as it evolves. Where objective evidence such as body worn camera footage confirms the threat, that evidence can be decisive. And under existing California law, an officer who acts within the range of reasonable conduct has no separate duty to have chosen the least forceful option that a later critic might prefer.

Supreme Court Strikes Down Hawaii’s “Vampire Rule” in Major Victory for the Second Amendment

Today the Supreme Court vindicated the Second Amendment in Wolford v. Lopez, striking down Hawaii’s so-called “Vampire Rule” in a 6-3 decision authored by Justice Alito and joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. The Court held that Hawaii’s law criminalizing licensed concealed-carry on private property open to the public absent the owner’s express consent imposes an impermissible burden on the constitutional right to bear arms for self-defense.

Mastagni Holstedt, APC was privileged to file an amicus curiae brief in the Supreme Court on behalf of the Peace Officers Research Association of California (PORAC), the California Association of Highway Patrolmen (CAHP), and the Crime Prevention Research Center (CPRC) asking the Court to reverse the Ninth Circuit’s decision in Wolford v. Lopez. That brief supplied empirical support for the position the Court adopted today, demonstrating that “sensitive place” and default-prohibition regimes like Hawaii’s do not enhance public safety, that studies purporting to validate them are methodologically flawed (including failure to account for differences in permitting regimes), and that right-to-carry laws have not increased violent crime.   

This decision also blocks California from enacting its own version of Hawaii’s “Vampire Rule.” Our firm filed an amicus brief in the Ninth Circuit supporting the challenge to California’s stricter default restrictions in May v. Bonta, a case the court considered at the same time as Wolford. The Ninth Circuit struck down California’s more aggressive rule. Had the Supreme Court upheld Hawaii’s law, California would almost certainly have fixed the defects in its own restrictions simply by copying the Hawaii model. By rejecting Hawaii’s approach outright, Wolford eliminates that workaround for good.

Hawaii had inverted the longstanding common-law default: property open to the public welcomed armed citizens unless the owner affirmatively prohibited entry. By flipping that presumption solely for those exercising a constitutional right, the State imposed a novel and substantial burden unsupported by history. The Court rejected Hawaii’s proffered analogs, including its unbelievable reliance on a racist 1865 Louisiana Black Code statute enacted to disarm newly freed Americans, as inconsistent with our constitutional tradition.

The Holding

In an opinion that will shape carry rights across the nation for years to come, the Court held that Hawaii’s law forbidding licensed concealed carry permit holders from carrying handguns on private property open to the public, absent the express consent of the owner, violates the Second and Fourteenth Amendments. The Court reversed the Ninth Circuit and returned the case for further proceedings consistent with its decision. Given the Ninth Circuit's efforts to chip away at the right to bear arms one ruling at a time, the significance of that reversal cannot be overstated.

The majority recognized that the right to carry a firearm for self defense does not evaporate the moment a person steps onto a sidewalk, into a store, or through the doors of any of the countless private places that the public freely enters every day. At the heart of the ruling is the framework the Court announced in New York State Rifle and Pistol Association v. Bruen. Under that framework a court first asks whether the conduct a person wishes to engage in falls within the plain text of the Second Amendment. The Court had little difficulty concluding that it does. Carrying a handgun for self defense is precisely the conduct the Amendment protects, and the people who hold valid permits are precisely the people the Amendment protects.

The Court then explained why Hawaii’s law imposes a new and substantial burden on that right. The common law had long followed a simple default rule. A member of the public was free to enter property open to the public unless the owner expressly forbade it. Hawaii inverted that rule for anyone carrying a firearm, forbidding entry unless the owner expressly allowed it. By flipping the default in this way, the State transformed a presumption of welcome into a presumption of exclusion, and it did so only for those exercising a constitutional right. That, the Court held, is a meaningful and modern burden that history does not support.

Why Hawaii’s History Failed

Because Hawaii could prevail only by pointing to a genuine historical tradition of comparable regulation, the State assembled a collection of old statutes and asked the Court to treat them as analogues. The Court found them wanting. Colonial laws aimed at poaching addressed a different problem in a different way and bore no meaningful resemblance to a sweeping prohibition on carry in modern commercial spaces. An Oregon statute from 1893 fared no better, both because it was far from clear that the law even reached property open to the public and because a lone statute enacted nearly a century after the Second Amendment, and well after the Fourteenth, tells us almost nothing about the original understanding of the right.

The most striking moment of the opinion came when the Court confronted Hawaii’s reliance on an 1865 Louisiana statute. That statute was part of Louisiana’s Black Code, one of the notorious laws enacted across the defeated Confederacy to keep newly freed Black Americans subjugated and defenseless. The Court refused to dignify it as evidence of our constitutional tradition. Drawing on its earlier decision in McDonald v. Chicago, the Court reminded the nation that the right to keep and bear arms was understood by the framers of the Fourteenth Amendment to be of critical importance to vulnerable Black citizens in the South after the Civil War, who needed firearms to protect themselves when no one else would. Against that backdrop the majority wrote that, in its words, “Unless we put history entirely out of our minds, Hawaii’s claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.”

That single sentence does a great deal of work. It confirms that the historical inquiry Bruen demands is a serious and disciplined one, not an exercise in which a State may pull any racist statute from the shelf and call it tradition. It signals that laws born of oppression will not be repurposed to justify modern disarmament. And it makes clear that the Court intends Bruen to be applied with rigor by the lower courts that have too often resisted it.

What This Means for California

Although Wolford arose in Hawaii, its consequences reach directly into California. For some time California has defended its own restrictions on where permit holders may carry, restrictions so far reaching that critics have fairly described them as a measure that drains the permit of its value in the very places people most need protection. California had reason to believe it might preserve those restrictions by pointing to the Hawaii approach the Ninth Circuit had blessed. That path is now closed. By reversing the Ninth Circuit and rejecting the historical case for laws of this kind, the Supreme Court has effectively foreclosed California’s effort to rescue its own regime by conforming it to a model the high court has now condemned.

The ruling carries a further benefit for those in law enforcement, including retired officers. For years, Ninth Circuit precedent had taken a narrower view of these rights. In Mahoney v. City of Seattle (2017), the court rejected officers’ self-defense claims in challenging overly restirct use of force policies, in part because “current case law does not support the existence of a freestanding fundamental right to self-defense outside of the the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Relying on that erroneous understanding of the Second Amendment, the Ninth Circuit upheld restrictions on officers’ use of firearms in self-defense under intermediate scrutiny and the government-as-employer doctrine. The Seattle law at issue in Mahoney was silimar to early version of AB 931 and AB 392 in California.

Wolford decisively rejects this cramped analysis of Second Amendment and self-defense rights. By reaffirming that the Second Amendment protects the carrying of arms for self-defense as law-abiding citizens move through public spaces and private property open to the public the Supreme Court undercuts the reasoning in Mahoney. The Court unequivically held that such restriction are subject to a rigorous history-and-tradition test rather than deferential balancing. This ruling provides peace officers with significantly stronger constitutional footing to challenge restrictive California laws that impinge on their fundamental right to bear arms for protection, both on and off duty. For the retirees, the ruling sets a high floor on carry restrictions for those who must confront the lingering risks of a career in public safety. 

The Road Ahead

The lasting importance of Wolford lies in the uniform national standard it reinforces. The Second Amendment means the same thing in Honolulu, in Sacramento, and in every community in between, and the historical test that governs its application will be applied with discipline rather than evaded. Restrictive carry regimes that purport to honor the right while quietly disarming permit holders in the spaces the public routinely accesses now stand on far weaker ground. Litigation will continue, particularly within the Ninth Circuit, and not every question is settled. The Court has drawn a clear line in favor of the law abiding citizens, the sworn officers, and the retirees who simply wish to protect themselves and their families.

We will continue to monitor how the lower courts apply this decision.

SB 747 Risks ‘Watered Down’ Qualified Immunity for CA Officers

During the Assembly Judiciary Committee hearing held on June 9, 2026, David E. Mastagni appeared on behalf of the Peace Officers Research Association of California with Jonathan Feldman on behalf of the California Police Chiefs Association to address Senate Bill 747, the legislation known as the No Kings Act. They delivered a clear message: California peace officers support accountability for every government official who violates constitutional rights, yet the bill’s current language creates dangerous uncertainty that lawmakers must fix.

Although proponents introduced the bill to remedy overreach by federal agents, the legislation establishes a new state cause of action that materially increases liability exposure for every California state and local public employee when acting under color of law. The bill establishes a new state cause of action modeled on federal Section 1983, yet its operative language merely permits a defendant to assert qualified immunity without expressly tethering that defense to the well-developed body of federal precedent that governs Section 1983 claims.  The statute risks spawning a separate, potentially diluted California standard for qualified immunity. Feldman stated the core concern plainly: “Our concern is not with accountability. Our concern is with creating a brand new California cause of action that introduces significant legal uncertainty.” Mastagni followed immediately and reinforced the point with precision, explaining that the statute merely states a defendant “may assert qualified immunity” without any language that ties the defense to federal standards. Mastagni warned, “The concerns that both our clients have is that we don’t have a watered down dual definition of qualified immunity.” He continued, “We have offered amendments... so that, again, everybody knows what the law is and that there’s not a California standard of qualified immunity as well as a federal standard.”

Feldman emphasized that proponents repeatedly claim the bill mirrors federal Section 1983 liability and preserves qualified immunity exactly as it exists today, so “If that truly is the intent, the bill should expressly say so.” Nevertheless, the measure as drafted introduces troubling ambiguities that could undermine the predictability and protections essential to effective policing across California. 

The law enforcement amendments require the bill to tether qualified immunity expressly to the identical federal standards and precedents that govern Section 1983 claims. Officers receive rigorous training based on that established federal jurisprudence. The amendments therefore eliminate any risk of conflicting rulings in the same case, spare agencies massive retraining costs, and maintain the predictability officers need when they make split-second decisions in dangerous situations.

Chair Ash Kalra’s remarks during the hearing underscore the very danger these amendments are designed to prevent. The Chair voiced reluctance to link the state defense directly to federal law, citing perceived biases in current United States Supreme Court decisions and suggesting instead a preference for defining qualified immunity according to “ordinary circumstances” under California standards. In light of that perspective, the risk of inconsistent rulings between state and federal courts becomes all too real, particularly where officers face concurrent claims arising from the same incident. 

Importantly, several supporters of the bill openly recognized the legitimacy of law enforcement’s concerns and directed the author to continue working directly with opposition representatives. Assemblymember Blanca Pacheco stated, “I also understand the concerns of the opposition... I would like to see further conversations because I think we can perfect this bill even further... I think there is a pathway.” Assemblymember Rebecca Bauer-Kahan added that the opposition’s points on qualified immunity and retroactivity “seem like ones that... I’m hopeful you guys will continue... to work on and that we can get to a good place.” Assemblymember Diane Papan thanked both the author and the opposition and urged, “Let’s get it over the finish line.” Senator Scott Wiener himself confirmed, “We’ve been in ongoing conversations... I’m hopeful that there is a path... we’re gonna continue those conversations, and we’re committed to those conversations.”

If the bill advances without these refinements, the consequences could prove far-reaching. Officers confronting split-second decisions in volatile situations would labor under uncertainty about the differences in clear established law under federal and California standards. Litigation exposure would expand dramatically, with local governments facing increased defense and settlement costs ultimately borne by taxpayers. Recruitment and retention challenges already confronting law enforcement agencies will likely intensify, and public safety could suffer as proactive policing gives way to hesitation born of legal ambiguity. Retroactivity provisions and attorney-fee exposure compound these difficulties, raising fundamental fairness questions for California employees who have relied on long-settled federal defenses.

Law enforcement therefore urges lawmakers to adopt the amendments now so the bill achieves accountability for federal agents without eroding protections for the 80,000 California officers who protect our communities every day.

Public safety professionals and their unions are encouraged to remain engaged as the bill proceeds. Clarity in the law is not merely a technical preference; it is the foundation that permits officers to protect communities without fear of unpredictable personal liability.

Watch the full hearing here:

DOL Issues New Opinion Letters: Major Wins for Employees on Off-the-Clock FLSA Claims

On May 28, 2026, the U.S. Department of Labor’s Wage and Hour Division issued a significant opinion letter, FLSA2026-8, that delivers clear, practical guidance on one of the most frequent sources of wage-and-hour disputes: off-the-clock work performed before and after paid shifts.

For California workers who must don and doff protective gear or perform integral safety-related tasks each day, this letter is a powerful new tool. It reinforces that employers cannot simply ignore minutes of required work simply because they fall outside the official shift schedule.

The opinion letter arose from a hospital setting but applies directly to any workplace where employees perform essential pre- and post-shift activities. The DOL reached three key conclusions:

• Integral and indispensable pre-shift activities are compensable. Equipment preparation, safety checks, gear donning, briefings, and similar tasks that are intrinsic to performing the job safely and effectively must be counted as hours worked.
• Regular, predictable short periods of work are not “de minimis.” Employers may not rely on the de minimis doctrine to avoid paying for daily, recurring time that, while brief on an individual level, becomes substantial when aggregated across the workforce.
• Rounding policies must actually be neutral. Any timekeeping practice that systematically favors the employer—such as rounding early clock-ins to the scheduled start time while employees are already performing compensable work—violates the FLSA.

Strong Support for Compensibility of Public Safety Employees' Pre and Post Shift Activitie

Public safety employees who perform pre-shift equipment and vehicle checks, participate in shift exchanges and information handoffs, or complete report writing now have fresh authority confirming that this time is compensable. The same holds true for post-shift activities such as washing and storing gear and equipment. This letter sports the position that these tasks are not incidental, but rather essential to the safe and effective performance of public safety duties.

The letter is equally important for private-sector employees in industries that require the donning and doffing of personal protective equipment (PPE) or similar pre- and post-shift preparations. Workers in refineries, manufacturing, processing, construction, and other danagerous environments routinely spend several minutes each shift on these integral activities. FLSA2026-8 directly supports claims that this time must be compensated and undermines common employer defenses based on de minimis time or one-sided rounding policies.

Practical Implications for Unions and Members

This opinion letter is an official agency interpretation which are often given persuasive weight by the courts. The Opinion provides support for claims challenging:

• Unpaid pre- and post-shift donning/doffing time;
• Rounding practices that systematically reduce compensable hours; and
• Employer attempts to dismiss recurring short periods of required work as insignificant.

If a department or workplace uses automated time clocks, early-arrival buffers, or expects “voluntary” pre-shift preparation, it is worth reviewing those practices against the standards articulated in FLSA2026-8.

Third Circuit Limits FLSA “Gap Time” Claims for Straight Time Pay

Public safety unions and their members have long relied on the Fair Labor Standards Act to recover unpaid straight-time wages, often called “gap time”, in weeks when officers or firefighters work overtime. Last week’s Third Circuit decision in Secretary of Labor v. Comprehensive Healthcare Management Services LLC, No. 24-2842 (3d Cir. June 4, 2026), changes the landscape in that circuit. It does not, however, close the door for California’s law enforcement and fire professionals. In fact, Ninth Circuit precedent and California wage-and-hour laws continue to provide a pathway for pursuing gap time claims.

The Third Circuit Ruling

In a 2-1 decision, the Third Circuit ruled that the FLSA provides no private right of action for “overtime gap time” claims, i.e. unpaid straight-time hours worked below the 40-hour threshold in weeks that also include overtime. The court joined the Second Circuit in holding that the FLSA’s text addresses only minimum-wage violations and overtime premiums. It does not create a standalone federal remedy for unpaid straight-time wages in overtime weeks, even though the Department of Labor’s interpretive guidance (29 C.F.R. § 778.315) suggests otherwise. The panel majority emphasized statutory silence: Congress spoke clearly on minimum wage and overtime but remained silent on gap time.

The practical effect outside the Fourth Circuit, which reached the opposite conclusion in 2022, is a narrowing of federal damages. Plaintiffs in the Third and Second Circuits will increasingly turn to state wage-payment laws, exactly as the Third Circuit itself acknowledged.

How This Ruling Contrasts With Ninth Circuit Authority 

California public safety officers and firefighters operate under the Ninth Circuit’s precedent in Adair v. City of Kirkland, 185 F.3d 1055 (9th Cir. 1999), and its unpublished 2001 memorandum decision. In Adair, the court expressly noted that it was “not clear that a gap time claim may be asserted under the FLSA” standing alone, but it simultaneously held that the FLSA requires all straight-time compensation due for non-overtime hours to be paid before any overtime premium can be considered properly calculated. The court directly cited 29 C.F.R. § 778.315 for that proposition.

Crucially, the 2001 memorandum decision clarified that the officers’ overtime gap time claims were not waived or barred by the earlier ruling on pure gap time. The Ninth Circuit left those claims open, in stark contrast to the Third Circuit’s definitive rejection.

This distinction is crucial. When an officer or firefighter brings an off-the-clock claim in the Ninth Circuit, counsel can still argue that unpaid straight-time hours in overtime weeks render the employer’s overtime premium non-compliant under the FLSA’s regular-rate requirements. That argument remains viable here depsite the Third Circuit’s decision.

California State-Law Protections Provide Additional, Often Stronger, Safeguards

Public employees in California also enjoy robust protections that operate independently of the FLSA:

• California Minimum Wage Claims. CA Public employees may pursue unpaid straight-time wages as violations of the California minimum wage (currently $16.50 per hour for most employers, with local variations). These claims are not subject to the same federal limitations the Third Circuit imposed.
• Collective Bargaining and Interest Arbitration. In the public labor relations context, many Memoranda of Understanding (MOUs) contain “pay all hours worked” or “no off-the-clock work” provisions. These contractual obligations are routinely enforced through grievance arbitration and can be leveraged in interest arbitration to secure stronger wage-recovery language.

California overtime claims under state law remain difficult for most public employees because of exemptions. That reality only increases the difficulty of preserving straight-time gap claims, whether framed as a precureser to full payment of FLSA overtime or under California's minimum-wage statutes.

NY Holds Law Enforcement Agencies Must Meet and Confer Over Advance Notice and Opportunity to Be Heard Before Releasing Personnel Records

In a decision carrying substantial weight for California public safety employers, the New York Public Employment Relations Board has ruled that municipalities violated their duty to bargain when they refused to negotiate procedures providing officers with advance notice of records requests and a meaningful opportunity to review and object prior to disclosure. In the Matter of Albany Police Supervisors’ Association, Inc. v. City of Albany, 58 PERB ¶ 3037 (2025). Although arising under New York’s Freedom of Information Law following the repeal of Civil Rights Law § 50-a, the holding offers persuasive authority regarding the parallel obligations imposed on California agencies by Penal Code section 832.7, as significantly expanded by Senate Bill 1421 and Senate Bill 16.

The New York unions demanded bargaining over the impact of the legislative changes. They proposed specific procedures requiring notification to affected officers upon receipt of a request, provision of copies of the records intended for release, and an opportunity to submit objections before any disclosure. When the municipalities declined to bargain, claiming the subject was non-negotiable and that negotiations would impair statutory response deadlines, the unions filed improper practice charges. The New York PERB affirmed the finding of a violation in full.

The Board held that while the decision to comply with disclosure mandates is not subject to bargaining, the implementation of those mandates, including pre-disclosure notification and review mechanisms, constitutes a mandatory subject of negotiation. It rejected claims of preemption, finding no clear legislative intent to exclude the issue from collective bargaining. The Board further noted the absence of evidence that such procedures would prevent timely compliance, and it recognized the direct and significant impact of record disclosure on officers’ reputations, safety, and employment prospects. These effects, the Board concluded, trigger the obligation to bargain over reasonable protective measures.

This analysis likely applies equally to California’s public employee labor relations statutes, such as the Meyers-Milias-Brown Act. Public employers in this state are required to meet and confer in good faith regarding the effects of non-negotiable statutory mandates that materially affect terms and conditions of employment. The discretionary decisions inherent in implementing SB 1421 and SB 16 disclosures, particularly those involving timing, redactions, and officer notification, plainly fall within this duty. Advance notice and an opportunity to be heard enable officers to address potential inaccuracies or propose appropriate redactions, thereby mitigating adverse impacts without compromising statutory transparency requirements.

Consequently, California public safety labor organizations should promptly demand to bargain over pre-disclosure procedures whenever agencies adopt or revise protocols for handling SB 1421 and SB 16 requests. Where employers refuse such demands, the refusal may constitute an unfair labor practice. The memorandum of understanding can set forth negotiated protections for represented officers, ensuring they receive timely notice and a genuine opportunity to be heard before sensitive records are released to the public.

PERB Draws a Firm Line on Severance Petitions: Two Recent Decisions Confirm Limits on Transferring Employees to Existing Units and Strict Window-Period Rules

In two significant decisions issued weeks apart, the Public Employment Relations Board has provided clear and consequential guidance on the proper use of severance petitions under the Meyers-Milias-Brown Act and the Educational Employment Relations Act. In Fresno Unified School District (PERB Dec. No. Ad-531, July 28, 2025) and City and County of San Francisco (PERB Dec. No. Ad-532-M, August 27, 2025), PERB reaffirmed longstanding principles governing severance while rejecting attempts to use the procedure as a vehicle for transferring classifications from one existing bargaining unit into another. The decisions underscore the Board’s commitment to preserving bargaining-unit stability and enforcing the contract-bar doctrine and window-period requirements with precision.

In Fresno Unified, the International Association of Machinists and Aerospace Workers initially petitioned to sever the Roofers and Lead Roofers classifications from a larger building-trades unit represented by the Fresno Teachers Association. After the initial petition was deemed timely, the petitioner filed an amended petition seeking instead to place those classifications directly into an existing IAMAW-represented unit. 

In San Francisco, the San Francisco Deputy Sheriffs’ Association filed a severance petition seeking to remove Medical Examiner’s Investigators and Institutional Police Officers from Service Employees International Union Local 1021 units and place them into the DSA’s existing bargaining unit. When the Office of the General Counsel questioned the propriety of that approach, the DSA filed an amended petition proposing a new standalone unit consisting solely of the affected classifications. In both matters, the incumbent unions opposed the petitions, and PERB ultimately ruled against the petitioners’ attempts to achieve through amendment what the regulations do not permit.

The Board’s reasoning in each decision rests on the plain language and historical purpose of the severance regulations. Under PERB Regulation 33700 (applicable to EERA cases such as Fresno) and the parallel provisions governing MMBA cases, a severance petition is designed to create a new, standalone bargaining unit consisting exclusively of the employees being severed from a larger existing unit. The regulations do not authorize the transfer of employees or classifications from one represented unit into a different, already-established unit. PERB emphasized that the phrase “consisting of” in the regulatory text operates as a term of limitation, not an invitation to add employees to an unrelated unit. This interpretation aligns with decades of precedent distinguishing severance from unit-modification procedures and with the fundamental goal of the contract-bar doctrine: promoting stability in established bargaining relationships.

Equally important is the Board’s treatment of amendments filed outside the statutory window period. Both decisions confirm that a severance petition—or any amendment to such a petition—must be filed during the defined window period (the 29-day period beginning 120 days and ending 91 days before the expiration of the governing memorandum of understanding) whenever a memorandum of understanding is in effect. Material changes to the petition, such as shifting from an attempt to join an existing unit to the creation of a new standalone unit, cannot be treated as mere technical corrections. The Board rejected arguments that more general amendment provisions applicable to certification petitions override the specific timing restrictions imposed on severance petitions. In the San Francisco case, PERB expressly held that the more specific regulation governing severance controls. In Fresno Unified, the Board similarly concluded that the attempted amendment fundamentally altered the nature of the petition and therefore could not cure the original defect.

For California public safety unions, these rulings carry immediate and strategic significance. Deputy sheriffs’ associations, police officers’ organizations, and other safety-employee representatives frequently confront situations in which specialized classifications—such as institutional police, medical examiner investigators, or other public-safety-adjacent roles—may appear better suited to a dedicated safety-focused unit. The decisions make clear that severance is not a shortcut for reassigning such classifications to an existing unit. Instead, any effort to sever must be framed from the outset as the creation of a new, independent bargaining unit consisting solely of the employees being carved out. Unions contemplating such action must therefore conduct a thorough community-of-interest analysis demonstrating that the severed group shares distinct interests that cannot be adequately addressed within the larger unit. They must also time the filing precisely within the applicable window period and ensure that any subsequent amendments do not introduce material changes that would render the petition untimely.

The rulings also serve as a cautionary reminder about the perils of attempting to cure procedural defects through late amendments. Public unions should treat the window period as inviolate and should file only those severance petitions that are fully formed and compliant at the time of submission. Where an initial petition contains a fatal flaw, such as an improper request to transfer employees into an existing unit, the proper course is not to amend but to allow the defective petition to be dismissed and to refile a new, compliant petition when the next window period opens. This disciplined approach preserves credibility with PERB and avoids the risk of prolonged litigation over timeliness and procedural compliance.

Notwithstanding the procedural hurdles, these decisions do not foreclose legitimate severance efforts. The Board in Fresno Unified expressly remanded the matter for processing of the original petition, which had properly sought creation of a new standalone unit. Public safety unions may therefore continue to pursue severance where the facts support a distinct community of interest and where the procedural requirements are strictly observed. In appropriate cases, such petitions can strengthen representation for specialized safety classifications and enhance the ability of unions to address the unique concerns of their members.

Taken together, Fresno Unified and San Francisco reinforce PERB’s commitment to orderly representation processes and stable collective-bargaining relationships. Public unions would be well advised to review pending or contemplated severance initiatives in light of these holdings. By filing only fully compliant petitions within the prescribed window periods and by framing severance requests as the creation of new, standalone units, unions can protect their procedural rights and advance the interests of their members without inviting dismissal or protracted appeals. The decisions underscore the continuing importance of meticulous preparation and strategic timing in representation matters affecting California’s public safety workforce.

Third District Court of Appeal Upholds Arbitrator’s Authority to Offset Discipline Sustained by the State Personnel Board in Retaliation Grievance

In a decision of considerable practical significance for California public employee unions and their members, the Court of Appeal for the Third Appellate District has reversed a trial court judgment that had limited an arbitrator’s remedial powers under a memorandum of understanding. The published opinion in Department of Human Resources v. California Correctional Peace Officers Association (2026 WL 1361422, filed May 15, 2026) clarifies that an arbitrator authorized to exercise the remedial authority of a Public Employment Relations Board ("PERB") administrative law judge may order rescission of a suspension previously upheld by the State Personnel Board, together with make-whole relief, where the award rests on a finding of retaliation for protected union activity rather than an attempt to supplant the SPB’s review on the merits. The ruling therefore preserves the vitality of concurrent or sequential grievance arbitration as a meaningful avenue for vindicating rights under the Ralph C. Dills Act even after the SPB has sustained discipline for cause.

Factual Background and Procedural History

Tracylyn Lopez, a correctional officer and CCPOA job steward at Salinas Valley State Prison, received a notice of adverse action for using profanity toward two fellow officers. After that matter was settled with a letter of reprimand, Lopez posted excerpts of the disciplinary materials on a union bulletin board visible to inmate workers, highlighting the surnames of the officers who had reported her. CDCR imposed a 60-workday suspension, which the SPB ultimately upheld on the ground that the posting promoted a “code of silence” and constituted inexcusable neglect of duty and failure of good behavior under Government Code section 19572, subdivisions (d) and (t).

Separately, Lopez filed a contractual grievance alleging that the suspension violated section 5.03 of the applicable MOU, which incorporates the Dills Act’s prohibitions on retaliation for protected union activity. CCPOA pursued the grievance to arbitration. The arbitrator found that CDCR had retaliated against Lopez for engaging in protected speech and representational activity, that the posting itself was not so opprobrious as to lose protection, and that CDCR failed to prove it would have imposed the same penalty absent the protected conduct. The arbitrator therefore ordered CDCR to rescind the notice of adverse action for the posting and to make Lopez whole through backpay and restoration of benefits and rights.

CDCR petitioned the superior court to vacate or correct the award, arguing that the arbitrator had exceeded her powers by interfering with the SPB’s constitutional authority to review disciplinary actions and by undermining public policy against the code of silence. The trial court denied the petition to vacate but granted the petition to correct, striking the provisions directing rescission and make-whole relief. CCPOA appealed.

The Court of Appeal’s Analysis

The Third District began from the well-established principle that judicial review of labor arbitration awards is extremely narrow, particularly in the public employment sector where strong policies favor collective bargaining and the finality of arbitral awards. An arbitrator exceeds her powers only in limited circumstances, including where the award violates an unwaivable statutory right or contravenes an explicit legislative expression of public policy. The public policy exception itself demands a two-part inquiry: identification of an explicit, clear, or well-defined and dominant expression of policy, followed by a determination that the award itself, not merely the underlying conduct, conflicts with that policy.

Applying this framework, the court concluded that the SPB’s constitutional authority under article VII, section 3, subdivision (a) to “review disciplinary actions” constitutes an explicit expression of public policy. Yet the arbitrator’s award did not contravene that policy. The SPB had reviewed the suspension for cause under the Civil Service Act and the merit principle; the arbitrator had examined whether the same discipline constituted retaliation for activity protected by the Dills Act and the MOU. These inquiries, while overlapping factually, are legally distinct. The SPB did not address the Dills Act claim, and the arbitrator did not purport to review or reverse the SPB’s determination on the merits. Instead, the award offset the suspension by providing a contractual remedy for the separate violation. Because enforcing one determination did not require violating the other, no inherent conflict arose.

The court similarly rejected the argument that the award undermined legislative and agency policies aimed at combatting the code of silence. While that policy is undoubtedly important, it does not mandate any particular length of suspension or preclude an arbitrator from finding that discipline was imposed for retaliatory reasons and ordering appropriate contractual relief. The award itself therefore did not conflict with an explicit expression of public policy.

Implications for PERB Retaliation Charges and Disciplinary Appeals Involving Overlapping Circumstances

This precedent confirms that civil service discipline and public sector retaliation claims (including those filed before PERB) proceed on separate but compatible tracks. An adminsitrative appeal ruling upholding discipline for cause does not, standing alone, preclude a finding from PERB (or an arbitrator in a grievance) that the same discipline violated a public sector labor statue (such as the MMBA or the Dills Act) or an MOU. PERB or the arbitrator can also order rescission and make-whole relief, notwithstanding the outcome of the disciplinary appeal. The appellate court noted that an award that offsets rather than purports to reverse or veto the SPB decision survives review and avoids the concerns raised in earlier authority such as State Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512. Public sector unions may therefore pursue grievances and PERB unfair practices charges in appropriate cases without a favorable award automatically being judicially nullified on public policy grounds.

The decision also underscores the importance of preserving evidence of retaliatory motive and protected activity throughout the disciplinary process. Where emails, timing, or disparate treatment suggest anti-union animus, a well-developed record can support an offsetting remedy even after the disciplinary action has been upheld in the administrative appeal.  

Considerations for POST Decertification Proceedings Under Senate Bill 2

It is important to distinguish the framework addressed in this case from the decertification process established by Senate Bill 2. Under that statutory scheme, the Commission on Peace Officer Standards and Training, through its Peace Officer Standards Accountability Division, conducts an independent investigation into allegations of serious misconduct as defined in Penal Code section 13510.8. The Commission applies a clear and convincing evidence standard, higher than the preponderance standard that typically governs most disciplinary appeal proceedings, and its review of the entire record is not automatically constrained by prior agency or arbitral findings.

A sustained finding against an officer in a disciplinary appeal or arbitration does not, by itself, relieve POST of its obligation to satisfy this heightened evidentiary threshold. POST remains required to prove its case independently under the clear and convincing standard, even where the SPB, a local civil service commission or an arbitrator has already found misconduct.

It bears repeating that the appellate case involved distinct legal questions: whether discipline was supported by cause under the Civil Service Act, on the one hand, and whether that same discipline constituted unlawful retaliation for protected activity under the Dills Act and the MOU, on the other. By contrast, a POST decertification proceeding under Senate Bill 2 will ordinarily address substantially the same legal question presented in the underlying disciplinary appeal, namely, whether the officer engaged in the alleged serious misconduct, albeit under the heightened clear and convincing evidence standard rather than the preponderance standard typically applied in disciplinary appeals. This distinction between overlapping versus distinct legal inquiries helps explain why the Court of Appeal found no public policy conflict in the arbitration award, while also illuminating why a favorable determination in a disciplinary proceeding may carry greater preclusive potential in a subsequent decertification matter.

By contrast, a favorable factual or legal determination rendered in favor of the officer in the disciplinary appeal on the same serious misconduct allegations could in appropriate circumstances give rise to collateral estoppel or res judicata. Where the traditional elements are satisfied, including identity of issues and sufficient privity between the employing agency and the Commission, such a finding may preclude POST from relitigating those matters in a subsequent decertification proceeding. 

Conclusion

In light of this authority, an unsuccessful disciplinary appeal before the State Personnel Board does not preclude parallel unfair practice litigation. PERB would likely not be precluded from reviewing an upheld disciplinary action for unlawful retaliation under the MMBA, Dills Act, or other labor statute, nor would it be restricted in fashioning appropriate remedies for such violations. The Third District’s opinion represents a meaningful affirmation that carefully framed awards addressing retaliation will withstand judicial scrutiny.  

Arizona Federal Court Bolsters First Amendment Protections for Off-Duty Peace Officers in Protest Retaliation Matter

In a decision issued on May 21, 2026, the United States District Court for the District of Arizona addressed significant questions regarding the First Amendment rights of off-duty peace officers who engage in political expression and counter-protest activities. Although the court denied the plaintiffs’ request for a preliminary injunction that would have ordered the reinstatement of Sergeant Dusten Mullen to paid administrative leave, it delivered a detailed and favorable analysis of the merits of his First Amendment retaliation claim. 

Sergeant Mullen, a Phoenix Police Department supervisor, went to Hamilton High School on January 30, 2026, to check on his son and remained to counter-protest an anti-ICE student demonstration. He was off duty, out of uniform, and did not identify himself as a law enforcement officer. He wore a face covering together with a T-shirt that read “Trump 2024,” which the court recognized as symbolic speech addressing the salient political issue of immigration enforcement. Sergeant Mullen also recorded his interactions with the student protestors and with responding officers, an activity the court held was protected under the well-established First Amendment right to film matters of public interest in public places. Student protestors surrounded him, shouted curses, and threw water on him. He reported the incident to a Chandler police officer and out of frustration commented about allowing students to assault him.

The video evidence and sequence of events later established that Sergeant Mullen’s remark to the Chandler officer reflected frustration with the limited police response rather than any encouragement of assault. The Phoenix Police Department’s Professional Standards Bureau initially classified the matter as a Class II violation that would not result in termination. After media reports surfaced in April 2026 and Phoenix City Councilwoman publicly criticized his off-duty conduct and questioned his continued employment, the investigation abruptly changed course. The lead investigator was directed to elevate the violation to Class III, to sustain an additional allegation without new factual findings, and to complete the report on an accelerated schedule despite repeated requests for more time. A pre-dsiciplinary hearing was held on May 11, 2026, and termination followed three days later. The court found this timeline, together with the investigator’s testimony describing unprecedented pressure and departures from normal procedure, sufficient to support the inference that Sergeant Mullen’s protected activity was a substantial or motivating factor in the adverse employment action.

The court held that Sergeant Mullen engaged in protected First Amendment activity as a private citizen on matters of public concern. It stressed that speech addressing police competency and core political questions such as immigration enforcement occupies the highest rung of First Amendment values. Defendants failed to carry their burden of demonstrating either an adequate justification for treating Sergeant Mullen differently from other members of the public or that they would have reached the same termination decision absent the protected conduct. Their predicted disruption rested on speculation and negative publicity rather than evidence of actual or imminent workplace interference. The court emphasized that core First Amendment speech by an off-duty employee requires a particularly vigorous showing of disruption. The video did not evidence any intent to provoke a crime and the administrative investigation did not support termination prior to the media publicity. The court therefore concluded that the plaintiff demonstrated a strong likelihood of success on the merits of the First Amendment retaliation claim.

Nevertheless, the court found that Sergeant Mullen had not established irreparable injury sufficient to grant a preliminary injunction. Rather, the court hled that monetary damages or back pay awarded in the ordinary course of litigation can compensate any loss of income. The court noted that the public announcement of his termination had already occurred and  the requested relief would not thaw the chilling effect on other officers. It therefore denied the motion for a temporary restraining order and preliminary injunction.

Although the court denied injunctive relief, the court’s favorable treatment of the underlying First Amendment retaliation claim bolsteres the protections afforded public employees. This case confirms that generalized or speculative predictions of disruption will not suffice, particularly where the speech addresses matters of core political concern and occurs off duty. The ruling further cautions agencies against allowing external political pressure or media attention to drive investigative findings without independent evidentiary support. 

The decision reinforces the importance of distinguishing between legitimate operational concerns and content-based objections to an officer’s political views. It further underscores that policies governing off-duty conduct and social media must be narrowly tailored and applied consistently, lest they become vehicles for viewpoint discrimination.  The underlying litigation remains ongoing with an appeal pending of the denial of preliminary injunctive relief.

Appellate Court's Definition of “Great Bodily Injury” Broadens Canine Record Disclosures Under Penal Code Section 832.7

In a published opinion that will shape how law enforcement agencies respond to public records requests involving police canines, the Court of Appeal for the Fifth Appellate District held that the phrase “great bodily injury” ("GBI") in Penal Code section 832.7(b)(1)(A)(ii) carries the same well-established meaning it has long possessed in California’s criminal sentencing statutes. The court denied the City of Fresno’s petition for writ of mandate and affirmed the superior court’s order requiring production of records concerning canine deployments that resulted in GBI, defined as a significant or substantial physical injury. 

The underlying dispute began with a California Public Records Act request from the American Civil Liberties Union of Southern California seeking records from the Fresno Police Department regarding its use of police canines between 2019 and early 2023. The City produced more than nine hundred pages of material but withheld or redacted information from incidents it concluded did not meet its preferred, narrower definition of GBI which was drawn from the “serious bodily injury” ("SBI") standard in Government Code section 12525.2. 

The ACLU filed a petition for writ of mandate, which the superior court granted, holding that the term GBI means a significant or substantial physical injury. Fresno then sought extraordinary relief in the Court of Appeal. The appellate court rejected the City’s construction. 

The appellate court explained that when the Legislature selects a term of art that already possesses a settled legal meaning, courts properly assume the Legislature intended that meaning and its associated body of precedent. Section 12022.7(f)(1) has long defined great bodily injury as “a significant or substantial physical injury,” and decades of case law have refined the application of that standard in the context of sentencing enhancements. The court noted that the Legislature had originally considered the phrase “serious bodily injury” during the drafting of Senate Bill 1421 but ultimately substituted “great bodily injury,” which the court considered a deliberate choice incorpoorating section 12022.7. 

The decision therefore does not open the door to wholesale disclosure of every canine contact or every minor abrasion. The court emphasized that minor or inconsequential injuries do not constitute great bodily injury as a matter of law. Courts must evaluate these questions through fact-specific analysis. The severity of the particular injury sustained in each case controls the determination. 

Pain, superficial lacerations, bruises, or limited punctures will still fall outside the disclosure obligation unless they rise to the level of significant or substantial physical impairment. Courts applying section 12022.7 have recognized that even bone fractures or more serious-appearing wounds may not meet the threshold in every instance. Agencies and officers can therefore continue to distinguish between trivial and qualifying injuries, provided their documentation accurately reflects the medical facts and the extent of any impairment, treatment required, or functional loss.

The ruling produces several practical effects for agencies that deploy police canines. These departments must now produce complete investigative files, use-of-force reports, and related materials whenever a deployment results in significant or substantial injury. This may expand access to more incident records. At the same time, the published opinion supplies clearer guidance by tethering the standsard to an established criminal-law framework. 

As the City of Fresno intends to seek further appellate review, the final contours of the GBI disclosure obligations may ultimately be determined by our California Supreme Court.

Ninth Circuit Victory Bolsters First Amendment Protections for Public Employee Speech on Matters of Public Concern

In a decision of considerable practical significance for California public safety unions and the rank-and-file members they represent, the United States Court of Appeals for the Ninth Circuit has reversed a district court judgment and entered summary judgment in favor of a public university professor who faced investigation, reprimand, and threats of discipline after including a satirical statement in his course syllabus. The ruling in Reges v. Cauce clarifies important boundaries under the First Amendment in the public employment setting and carries implications that extend well beyond the university context.

Factual Background

The case arose when Professor Stuart Reges, a longtime teaching professor in the University of Washington’s Paul G. Allen School of Computer Science and Engineering, incorporated into his introductory computer science syllabus a concise parody of the university’s recommended indigenous land acknowledgment. Reges’s statement invoked the labor theory of property to question historical ownership claims and framed the university’s preferred language as an empty performative act. He viewed the official recommendation as part of a broader diversity, equity, and inclusion agenda that he believed improperly elevated certain groups on the basis of immutable characteristics. The statement was not presented as the university’s position; it was plainly attributed to Reges in the first person and appeared in a document over which faculty traditionally exercise substantial control.

University administrators responded swiftly. They removed the statement from the online syllabus, issued public statements condemning it, solicited student complaints, opened a lengthy disciplinary investigation, withheld a merit pay increase, and ultimately issued a formal reprimand while warning that future inclusion of similar language could result in further discipline. A faculty committee concluded that the statement caused significant disruption, citing student discomfort, one reported leave of absence, and an alleged dropout—claims the Ninth Circuit later found inadequately substantiated.

The district court had granted summary judgment to the university officials, concluding that any First Amendment interests were outweighed under the Pickering balancing test by the university’s interest in avoiding disruption to the learning environment. The Ninth Circuit disagreed in a thorough and carefully reasoned opinion.

The Ninth Circuit’s Ruling

The court first confirmed that Reges’s speech constituted protected academic speech rather than unprotected government speech. Although syllabi are distributed as part of a professor’s official duties, the Ninth Circuit’s precedent in Demers v. Austin establishes that speech related to scholarship or teaching falls outside the Garcetti framework that ordinarily denies First Amendment protection to public employee speech made pursuant to official duties. Reges was commenting on a matter of ongoing public debate, the propriety and factual premises of institutional land acknowledgments, and was not speaking as the university’s messenger. The court noted that the university itself treats syllabi as the purview of the faculty and does not pre-approve their content.

Because the speech addressed a matter of public concern, the court proceeded to Pickering balancing. It held that the university failed to carry its burden of demonstrating that its legitimate administrative interests outweighed Reges’s First Amendment rights. The primary evidence of disruption consisted of student offense, anger, and discomfort—reactions the court deemed an inevitable byproduct of robust academic debate on contested public issues. In the higher education setting, such reactions do not justify adverse employment action against a professor. The court further observed that claims of more tangible disruption, such as students dropping out or difficulties recruiting Native students, suffered from serious problems of proof. One cited student had not even been enrolled in Reges’s course and identified multiple other reasons for taking a leave of absence; the second student referenced in the record did not appear to exist.

The Ninth Circuit therefore directed entry of summary judgment for Reges on both his First Amendment retaliation claim and his viewpoint discrimination claim. It remanded for further proceedings on Reges’s facial challenge to the university’s broadly worded nondiscrimination policy, which authorizes discipline for “any conduct that is deemed unacceptable or inappropriate” regardless of whether it rises to the level of unlawful harassment or discrimination.

Implications for California Public Unions and Their Members

For California public unions and their members, this decision merits close attention. Although the facts arose in a university setting, the  framework governs public employees generally, including peace officers and firefighters. Public safety personnel routinely encounter questions regarding the scope of their rights to comment on departmental policies, social issues, or legislative matters that affect their profession and the communities they serve. The Ninth Circuit’s emphatic rejection of “heckler’s veto” reasoning, i.e. the notion that employee speech may be suppressed simply because it causes offense or emotional distress among colleagues or constituents, provides meaningful protects for publci employees who speak on controversial topics.

Overbroad language of the sort challenged in Reges may prove vulnerable to constitutional scrutiny, particularly where enforcement appears to turn on viewpoint rather than narrowly tailored operational needs.  The decision further underscores that public employers must substantiate claims of actual, material, and substantial disruption with concrete evidence rather than speculation or generalized assertions of harm. Mere predictions of difficulty in recruitment, retention, or internal harmony, without more, may not suffice to overcome an employee’s First Amendment interests when the speech addresses a matter of public concern.

The opinion serves as a timely reminder that the First Amendment exists to protect unpopular and even sharply worded expression on matters of public importance, and that public institutions may not insulate themselves from debate by punishing those who challenge prevailing orthodoxies.The principles articulated by the Ninth Circuit offer valuable tools for preserving the ability of rank-and-file employees to participate meaningfully in public discourse without undue fear of retaliation.

Ninth Circuit Protects First Amendment Rights to Place Political Yard Signs While Drawing Sharp Limits on Internal Job-related Speech

In a decision that offers important guidance for California public safety unions and the rank-and-file members they represent, the Ninth Circuit Court of Appeals in Burch v. City of Chubbuck (2025) 146 F.4th 822 has clarified the boundaries of First Amendment protection in the public workplace. Although the court ultimately affirmed summary judgment in favor of the employer, the opinion carefully distinguishes between protected speech made as a private citizen and unprotected speech made pursuant to official job duties. The ruling reaffirms that off-duty political expression retains meaningful constitutional safeguards while underscoring the narrower protection afforded to internal workplace communications.

Rodney Burch served as the Public Works Director for the City of Chubbuck, Idaho. During a local mayoral election, he placed a yard sign at his residence supporting the incumbent mayor’s opponent. Separately, he engaged in internal advocacy, criticizing the mayor’s management policies and advancing a detailed proposal for the creation of a city administrator position. After the mayor secured re-election, Burch faced requests that he resign, an attempt to remove him through the city council, and subsequent reductions in his responsibilities and decision-making authority. He filed suit alleging First Amendment retaliation.

The Ninth Circuit held that Burch’s political yard sign constituted protected speech. It addressed a matter of public concern and was undertaken in his capacity as a private citizen rather than pursuant to his official duties. By contrast, the court concluded that Burch’s internal criticisms of the mayor’s policies and his structural reform proposals were speech made pursuant to his official responsibilities as a department head. As such, those communications fell outside First Amendment protection under the principles established in Garcetti v. Ceballos. Because the employer demonstrated adequate justification for the adverse actions based on the unprotected speech, and because the changes in Burch’s duties did not rise to the level of constructive discharge, the court affirmed summary judgment for the city.

For rank-and-file public safety employees, this decision carries significant practical weight. Public employees frequently speak out on matters of public concern, including departmental policies, public safety priorities, budget decisions, or local political questions. Burch confirms that classic off-duty political activity, such as displaying campaign signs, posting on personal social media in a private capacity, or otherwise expressing views as a concerned citizen, remains strongly protected. Public employers may not retaliate against employees for engaging in such citizen speech merely because the content is critical of management or touches on workplace issues.

At the same time, the ruling serves as a clear cautionary note about the limits of protection for speech delivered in the course of employment. Internal emails, reports, meeting comments, or proposals that can reasonably be viewed as part of an employee’s official responsibilities will typically be treated as unprotected under Garcetti. This distinction is especially pertinent in law enforcement and fire service agencies, where structured chains of command and operational proposals are commonplace. What may appear to a member as legitimate workplace advocacy can mischaracterized by management as insubordination once it is framed as an official communication.

Public safety unions should therefore treat Burch as a valuable educational tool. It is advisable to provide members with clear guidance on how to separate personal, citizen speech from any expression that could be construed as arising from their official duties. When raising legitimate concerns about public safety or departmental operations, members are generally better served by channeling those concerns through union representatives or other protected avenues rather than through formal internal memoranda or proposals presented in their official capacity.  

While the outcome in Burch favored the employer, the decision does not represent a broad retreat from public employee speech rights. On the contrary, it reaffirms that pure private-citizen speech on matters of public concern continues to enjoy meaningful First Amendment protection. For California public safety unions, the case provides a useful roadmap for how to exercise their constitutional rights safely and effectively. By understanding and respecting the line drawn in Burch between protected citizen speech and unprotected official-duty speech, public employees can more confidently participate in the democratic process while minimizing exposure to retaliation.

Public safety unions must remain vigilant in defending these rights and should be prepared to challenge overbroad applications of Garcetti whenever employers attempt to silence legitimate citizen expression. The First Amendment remains a vital safeguard for those who protect our communities.