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.

When Using an Internal Investigation as a Defense, Expect Disclosure: Lessons from Paknad v. Superior Court

In a decision of considerable practical significance for public safety unions, the Sixth District Court of Appeal in Paknad v. Superior Court (Apr. 17, 2026), has clarified that an employer cannot invoke the thoroughness of its internal investigation as a shield in litigation while simultaneously withholding the factual substance of that investigation behind claims of privilege. The ruling arises from a sexual harassment, gender discrimination, and retaliation lawsuit in which the employer repeatedly emphasized the quality and independence of its pre-litigation investigation. When the plaintiff sought production of the full investigative reports, the Court of Appeal held that the employer’s defensive reliance on those materials waived both attorney-client privilege and work-product protection as to the factual findings and information bearing on the scope and adequacy of the investigation itself.

Before litigation commenced, the employer retained outside counsel to investigate the employee’s complaints. Counsel conducted witness interviews, reviewed documents, and prepared two detailed written reports containing the employee’s allegations, summaries of the interviews, the investigator’s factual determinations, conclusions, and legal recommendations for future action. The employer provided the plaintiff only with a high-level summary of the findings and later asserted an avoidable-consequences defense in the lawsuit, representing to the court and the jury that it had “thoroughly investigated every allegation” through an “independent, outside investigator” who had interviewed numerous witnesses and reviewed a voluminous record. When the plaintiff moved to compel production of the actual reports and underlying materials, the trial court initially permitted sweeping redactions that stripped away virtually all of the investigator’s factual findings. The Court of Appeal twice granted writ relief, first ordering production subject to in-camera review and then rejecting the trial court’s overly broad redactions on the second petition.

The appellate court’s reasoning rests on a straightforward fairness principle. Once an employer places the adequacy and independence of its internal investigation at the center of its defense, it cannot fairly withhold the very facts that would allow the plaintiff to test that claim. The court expressly held that factual content—witness statements, the investigator’s factual determinations about what occurred, and any information relevant to whether the investigation was thorough and impartial—must be produced. Pure legal advice, mental impressions, or unrelated protected communications may still be shielded, but the factual core of the investigation is not. Even core attorney work product loses protection when the employer voluntarily puts the protected matter at issue.

For California public safety unions, this decision represents a meaningful advance in discovery rights. Public employers routinely contract lawyers to conduct workplace investigations into member complaints of discrimination, harassment, and retaliation. Later, they seek to conceal these investigations citing attorney-client privilege while simultaneously touting that they “did everything right” and “thoroughly investigated.” Paknad makes clear that such representations come at a price.

Unions and their members now have authority supporting demands that the employer produce the actual investigative reports, interview summaries, and factual findings rather than hiding behind vague summaries or privilege assertions. The practical implications are considerable. In future litigation, counsel for public safety members should move aggressively to compel production whenever the employer pleads or argues that it conducted a proper investigation. Unions should also counsel members, during the administrative phase, to request full copies of any investigative reports generated in response to their complaints. Early reliance on an attorney-conducted investigation does not guarantee confidentiality if that investigation later becomes a centerpiece of the defense.

Conclusion

In light of Paknad, public safety unions would be well advised to treat any employer assertion regarding the quality of an internal investigation as an invitation to demand full disclosure. Paknad establishes an important principle in California employment law: an employer who voluntarily invokes the thoroughness and independence of its internal investigation as a litigation defense cannot simultaneously withhold the factual substance of that investigation behind claims of attorney-client privilege or work product protection. 

To that extent, the decision supports access to investigation materials by the employee who was the subject of the investigation—but its support is conditional, not categorical. The case does establish a freestanding right of an accused employee to access investigation materials in the pre-litigation or pre-disciplinary context. Rather, it holds that when an employer places investigation adequacy "at issue", a waiver of both attorney-client privilege and work product protection occurs, and the scope of that waiver is governed by what the employer has voluntarily put at issue. The practical result is that the employee targeted by the investigation gains access to the investigator's factual findings, credibility determinations, and other materials related to the scope and adequacy of the investigation.

The decision potentially levels the playing field by ensuring that members can effectively challenge the very investigations their employers use to justify discipline but then seek to hide behind. California public safety employees deserve nothing less than the ability to test the completeness and fairness of the processes that determine their professional futures.

California Court of Appeal Expands Disclosure of Confidential Police Personnel Records in Pitchess Motions

In a ruling that warrants careful attention from every California peace officer and the unions that represent them, the Court of Appeal in Schneider v. Superior Court (2025) 111 Cal. App. 5th 613 has broadened the scope of materials that must be disclosed following a successful Pitchess motion. The court held that once a trial court identifies Brady material during its in-camera review of an officer’s confidential personnel records, the prosecution is required to turn over not only the names and contact information of potential witnesses but the actual underlying records themselves. This now includes documentary evidence, police reports, audio and video recordings, and any other relevant materials contained within the personnel file.

For decades, Pitchess procedures have functioned as a narrowly tailored safeguard. Pitchess permited limited access to impeachment information while preserving the fundamental confidentiality of officer personnel records. The Schneider decision alters that balance. By mandating production of the full records rather than restricting disclosure to witness identifiers, the ruling exposes a wider array of sensitive internal documents to defense counsel and, in many instances, to criminal defendants. 

What makes this decision particularly troubling is how far it extends beyond the deliberately balanced transparency reforms enacted by the Legislature through Senate Bill 1421 and Senate Bill 16. Those statutes authorize disclosure of personnel records only in cases involving specific categories of serious misconduct, and only after the allegations have been sustained following a complete investigation and after the officer has been afforded a full opportunity to appeal. The Schneider ruling contains none of these safeguards. Instead, it opens the door to compelled disclosure of a much broader range of materials in criminal proceedings, even when the underlying matters involve unsustained allegations or fall well short of the serious misconduct threshold required under the legislation.

Public safety unions have long fought to protect the privacy of these files precisely because they contain highly personal and sensitive information that, if released, could compromise officer safety, reputations, and the integrity of internal administrative processes. The practical consequences for law enforcement personnel are substantial. This ruling increases the liklihood that mere allegations of misconduct and thier investigation, and other confidential materials will enter the public domain through criminal proceedings.  

In individual cases, officers should press for the most restrictive protective orders possible and insist upon rigorous in-camera reviews that limit disclosure to sustained allegations of serious misconduct. While the court’s opinion reflects a legitimate concern for defendants’ constitutional rights, it nevertheless tips the scales too far and creates the potential for unwarranted intrusions of privacy. 

 The decision underscores the continuing need to defend the confidentiality of personnel records as a cornerstone of effective law enforcement operations and the fair treatment of those who ptoect us all. 

Mastagni Holstedt files California Professional Firefighters Amicus Brief in the Ninth Circuit in Support of Judge Donato's Major Ruling Regarding Calculating Firefighter Overtime Rate

In a matter of significant consequence for public safety professionals throughout California, Mastagni Holstedt has filed an amicus curiae brief on behalf of the California Professional Firefighters in the pending Ninth Circuit appeal of David Barnett et al. v. City of San Jose. 

The Honorable James Donato, following a bench trial on stipulated evidence, issued a decision that correctly resolved long-standing disputes over the proper method for calculating the regular rate of pay for salaried firefighters under the FLSA. Specifically, Judge Donato held that the regular rate must be determined using the fixed divisor corresponding to the firefighters’ scheduled hours—224 hours over the 28-day work period—rather than dividing by total hours actually worked. Consistent with the published decision our firm obtained in Padilla v. City of Richmond, (N.D. Cal. 2020) 509 F.Supp.3d 1168, the court further ruled that holiday in lieu payments must be included in the overtime rate. In light of the City’s appeal, our brief respectfully urges the Court of Appeals to affirm this well-reasoned judgment in full.

The district court’s ruling rests on three principal determinations, each of which aligns squarely with the FLSA, its implementing regulations, and binding Ninth Circuit precedent. First, the court properly calculated the regular rate of pay for these salaried firefighters by employing the fixed 224-hour divisor prescribed by 29 C.F.R. § 778.113(a). Because the Memorandum of Agreement establishes a recurring bi-weekly salary intended to compensate a fixed schedule averaging 112 hours—equivalent to 224 hours over the 28-day FLSA work period—the salary methodology, rather than an hourly divisor based on actual hours worked, yields the correct regular rate. This approach prevents the fluctuating and artificially depressed rates that would result from the City’s proposed methodology, particularly in work periods when firefighters, consistent with their 48/96 schedule and frequent unscheduled hours, exceed the average.

Second, the court correctly limited the credit available for the City’s contractual overtime payments to the premium (one-half) portion only. Under 29 U.S.C. § 207(h)(2) and 29 C.F.R. § 778.315, the straight-time component of contractual overtime constitutes wages already owed for hours worked and may not be applied to offset the FLSA overtime premium. The district court’s representative calculation for plaintiff David Barnett illustrated the point with precision: after determining the inclusive regular rate and the FLSA overtime due on hours above the 212-hour threshold, only the 0.5 premium on qualifying contractual overtime hours was creditable, revealing an underpayment of $1,100.83 for a single period. To hold otherwise, the court observed, would systematically underpay straight-time wages and reward the very accounting practices the FLSA was enacted to prevent.

Third, and of particular importance, the court correctly required inclusion of holiday-in-lieu payments in the regular rate numerator. These payments function as compensation for the inherent inconvenience of a 24/7 fire suppression schedule that affords no paid idle holidays, not as excludable remuneration for periods of non-work “due to” a holiday within the meaning of 29 U.S.C. § 207(e)(2) and 29 C.F.R. §§ 778.218 and 778.219. The district court’s analysis, consistent with Padilla v. City of Richmond and the Department of Labor’s 1999 Opinion Letter addressing precisely this issue, confirms that labeling such remuneration “holiday pay” does not render it excludable when it bears no connection to actual idle time. The court further upheld the award of liquidated damages and the issuance of declaratory relief establishing the proper methodology going forward.

Our amicus submission emphasizes the broader ramifications of these holdings for the more than 32,000 career firefighters represented by California Professional Firefighters. A favorable ruling on appeal will preserve a clear, regulation-based framework that harmonizes collective bargaining agreements with the FLSA’s overtime floor. It will eliminate protracted disputes over the proper divisor and crediting rules that have, in the wake of Flores v. City of San Gabriel, frustrated early settlement and out-of-court resolution of claims. Most importantly, affirmance will ensure that salaried firefighters receive the full measure of compensation to which they are entitled for the demanding and often unpredictable hours they work in service of public safety.

The California Professional Firefighters has a vital institutional interest in these issues, and we are gratified to have assisted in presenting them to the Ninth Circuit. Should the Court affirm, the decision will provide persuasive authority across the Circuit, safeguarding reliable funding for firefighting operations while protecting the economic security of the men and women who staff them. We will continue to monitor the appeal closely and will provide further updates as developments warrant.

The proper calculation of overtime is not merely a matter of arithmetic; it is a cornerstone of fair labor relations and the rule of law in public employment.

Ninth Circuit Ruling Confirms Constitutional Limits on State Regulation of Federal Law Enforcement Operations

The Ninth Circuit enjoined California’s attempt to regulate federal officers, affirming Supremacy Clause protections PORAC warned were at stake. 

California State Senator Scott Wiener authored and championed Senate Bill 627, known as the No Secret Police Act, along with its companion legislation, Senate Bill 805, the No Vigilantes Act. Enacted on September 20, 2025, in direct response to the federal government’s expanded immigration enforcement operations, these bills were presented as efforts to promote greater transparency and prevent so-called “secret police” tactics by prohibiting law enforcement officers from wearing facial coverings and requiring non-uniformed officers to visibly display identification while performing their duties. Unfortunitly, Senator Weiner chose to extend these restrictions to California's peace officers, who have no role in immigation enfrocement.  

In a decisive opinion issued April 22, 2026, the United States Court of Appeals for the Ninth Circuit granted the United States an injunction pending appeal in United States v. State of California, No. 26-926. The panel, speaking through Judge Bennett, enjoined the State of California, Governor Gavin Newsom, and Attorney General Rob Bonta from enforcing Section 10 of the No Vigilantes Act—codified at California Penal Code § 13654—against federal agencies and officers. That provision requires non-uniformed federal law enforcement officers to visibly display agency identification, including a name or badge number or both, while performing enforcement duties, subject to misdemeanor penalties for willful violations. The court held that the statute impermissibly attempts to regulate the United States directly in the performance of its sovereign governmental functions, thereby violating the Supremacy Clause and the doctrine of intergovernmental immunity.

The Ninth Circuit’s reasoning rests on foundational precedent. States lack authority to impose operational mandates on federal officers that interfere with the execution of federal duties, even when the legislation is framed as generally applicable. The panel emphasized that the Supremacy Clause shields federal operations from such state interference. The remaining preliminary-injunction factors—irreparable harm, balance of equities, and public interest—likewise favored the United States. Accordingly, the injunction remains in force pending further proceedings.

This ruling powerfully confirms the advocacy of the Peace Officers Research Association of Californiaand the testimony David E. Mastagni delivered on behalf of  PORAC before the California Senate Public Safety Committee on September 11, 2025, in opposition to Senate Bill 627, the so-called No Secret Police Act, and related measures. At that hearing, Mr. Mastagni warned that legislation of this character was blatantly unconstitutional under the Supremacy Clause when applied to federal officers. He explained that the bills could not lawfully regulate federal law enforcement activities yet their severability clauses would leave California’s local peace officers to bear the full brunt of poorly drafted, reactionary restrictions. Despite this ruling, California officers, who play no role in federal immigration enforcement, still face impaired operational flexibility, compromised safety protocols, and the unwarranted stripping of essential immunities, all while the federal government secured an easy victory in court.

The Ninth Circuit’s decision carries immediate and substantial implications for Senate Bill 627. Although the opinion addresses the identification mandate in the No Vigilantes Act, its Supremacy Clause and intergovernmental-immunity analysis applies with equal force to SB 627’s prohibitions on facial coverings by law enforcement officers. The district court had already preliminarily enjoined enforcement of those provisions against federal officers, a ruling California elected not to appeal. The district court found no Supremcy Clause violation, but held the exclusion of Califoria State officers violated intergovernmental immunities by discriminating againt federal officers. 

Following the district court’s earlier ruling, Senator Wiener publicly cheered the decision as “very good news” in light of the judge’s conclusion that “masking is not necessary for law enforcement.” In the same vein, he described the ruling as “a huge win,” asserting that California possessed the power to ban federal agents from wearing masks and that the only adjustment required was to extend the prohibition equally to state officers. He  moved quickly to introduce SB 1004 to extend the facial covering ban to state officers. 

However, the Ninth Circuit’s subsequent analysis demonstrates the futrility of SB 1004, as the core constitutional defects run far deeper than any drafting fix can cure. Extending these operational mandates to more California officers will only compound SB 6727's harm to California’s public safety officers. In light of the Ninth Circuit’s clear articulation of the governing SUpremecy Clause principles, any remaining uncertainty regarding SB 627’s application to federal operations has effectively been resolved in favor of federal supremacy. Notwithstanding the facial neutrality of the statute, it directly regulates how federal agencies conduct their operations and therefore cannot stand as applied to them.

For California’s state and local peace officers, however, the consequences are far less favorable. The severability clauses embedded in these measures ensure that the restrictions, narrow and vaguely worded exceptions, criminal penalties, and—most troubling—the wholesale stripping of critical civil immunities remain fully operative against them. Officers confronting legitimate needs for facial coverings in gang-related operations, riot control, hazardous-materials scenes, or protective details now operate under the constant threat of personal liability and loss of protections long afforded by statutes such as Penal Code §§ 836, 847, and Government Code §§ 820.2, 820.4, and 821.6. The “knowing and willful” standard, as Mr. Mastagni carefully explained in his testimony, attaches to the act of covering one’s face rather than to any intent to violate the law, thereby eliminating good-faith mistake defenses and exposing officers to statutory damages of at least $10,000 even in the absence of actual harm.

In the midst of California’s ongoing law-enforcement staffing crisis, these burdens exacerbate recruitment and retention challenges and chill proactive policing. Public safety unions and their members have long understood that legislation born of political impulse rather than careful drafting ultimately harms the very officers charged with protecting our communities. The Ninth Circuit’s ruling should serve as a cautionary signal to the Legislature that further efforts to extend similar operational mandates against federal officers will will meet the same constitutional fate, i.e. only land on state and local officers and further compromise officer safety and effectiveness.

Mastagni Holstedt's representation of PORAC and California’s public safety unions remains unwavering. We will continue to monitor this litigation closely and support constitutionally sound policies that enhance rather than undermine the ability of law enforcement to perform their vital duties. 

California Court of Appeal Rules Public Safety Union Did Not Waive Right to Bargain Over Outsourcing

    In a published opinion that will resonate throughout California’s public safety labor community, the Court of Appeal has reversed a trial court decision and ruled that the Los Angeles County Professional Peace Officers Association retained its statutory right to meet and confer over the County’s plan to outsource security work to a private contractor. Los Angeles County Professional Peace Officers Association v. County of Los Angeles (2026) B338182 (certified for publication April 10, 2026), held that the union did not clearly and unmistakably waive its right to bargain over the County’s decision to transfer bargaining-unit security work to a private contractor.

    The dispute centered on Article 16 of the parties’ Memorandum of Understanding, titled “Employee Rights in the Event of Transfer of Functions.” That article provided, in pertinent part:

“In the event the County enters into any agreement with another public employer or private entity which involves the transfer of functions now being performed by employees in this representation Unit or the law provides for the transfer of functions now being performed by employees in this Unit to another public or private agency, the County will advise such public or private entity of the existence and terms of this Memorandum of Understanding and will immediately advise PPOA of such agreement or law. In addition, the County will consult with the employer absorbing a County function to encourage utilization of affected employees by the new employer. When a Department’s Request for Proposal is approved by the Chief Executive Officer, the Labor Relations Office will arrange to meet with representatives of PPOA to advise them of this action within five (5) days.

When advance knowledge of the impact of pending changes in function, organization, or operations is available which will result in the abolishment of positions or when there is any major reassignment of functions from one department to another or to another agency, Management will make an intensive effort to either reassign or transfer affected employees to other position for which they qualify, or train affected employees for new positions in order to retain their services.

It is understood and agreed that Management shall have no obligation to negotiate the decision of any reorganization by the County during the life of this agreement.”

    When the County announced its intention to contract out security services at the Kenneth Hahn Hall of Administration, it refused the union’s request to meet and confer on the decision itself. The County asserted that the final sentence of Article 16 constituted a waiver of any obligation to negotiate the decision of any reorganization, which it interpreted to include outsourcing.

    The appellate court carefully examined both the contract language and the governing legal standard under the Meyers-Milias-Brown Act. It reaffirmed that outsourcing decisions affecting terms and conditions of employment constitute mandatory subjects of bargaining. The court reiterated that any claimed waiver of a union’s bargaining rights must be clear and unmistakable. After reviewing the full context of the Memorandum of Understanding provisions, the court concluded that neither the transfer-of-functions language nor the general reorganization clause satisfied this demanding standard.

    The court explained that the notice and consultation provisions in Article 16, while addressing the consequences of a transfer, say nothing about waiving the statutory right to meet and confer. The court further observed that the management rights clause’s reference to “any reorganization” is vague and ambiguous. It could reasonably be read to memorialize only the County’s right under Government Code section 3504 to make fundamental management decisions, such as internal reorganizations or layoffs, without bargaining. The clause does not expressly mention outsourcing or the statutory meet-and-confer obligation.

    The decision underscores a principle of enduring importance in public sector labor law. General management rights clauses serve to preserve traditional managerial prerogatives rather than to operate as silent waivers of the duty to bargain over matters such as subcontracting that directly impact wages, hours, and working conditions. Silence or ambiguous language is insufficient to relinquish important statutory protections. In the court’s view, the County simply failed to carry its burden to demonstrate a clear and unmistakable waiver under the terms of the Memorandum of Understanding.

    This ruling therefore provides valuable guidance for public safety unions negotiating memoranda of understanding throughout the state. Agencies will frequently attempt to rely on broad contract language to bypass the meet-and-confer process on critical issues such as outsourcing. PERB is in accord, scrutinizing such claims rigorously and requiring explicit, unmistakable waiver language before finding that a union has surrendered its rights.

    California public employee unions can take confidence from the outcome, which reinforces the fundamental protections of the Meyers-Milias-Brown Act and serves as a timely reminder that vigilant negotiation and careful review of proposed contract terms remain essential to safeguarding bargaining-unit work.

To read the Court's full Opinion, click here.