The Ninth Circuit Vindicates the Warnings PORAC Delivered on the No Vigilantes Act

When the Legislature advanced the No Vigilantes Act, the Peace Officers Research Association of California warned that the measure was constitutionally defective and would not survive judicial review. On October 14, 2026, the United States Court of Appeals for the Ninth Circuit confirmed that assessment. In a published opinion in United States v. State of California, No. 26-926 (9th Cir. Oct. 14, 2026), the panel reversed the district court and ordered entry of a preliminary injunction against enforcement of Section 10 of the No Vigilantes Act, S.B. 805, holding that the statute cannot be applied to the United States, its agencies, or its officers. The warning delivered in committee has now become the law of the circuit.

The unanimous panel, speaking through Judge Bennett, concluded that the United States is certain to succeed on the merits of its Supremacy Clause claim. After the district court declined to enjoin Section 10, the Ninth Circuit first entered a temporary administrative injunction on February 19, 2026, and then granted an injunction pending appeal on April 22, 2026, reported at United States v. California, 173 F.4th 1060 (9th Cir. 2026). The same panel has now resolved the merits, explaining that the United States was not merely likely to prevail but was in fact certain to succeed because Section 10 attempts to directly regulate the federal government in the performance of its governmental functions without authorization from Congress. Because the United States brought a facial challenge, it was required to show that no set of circumstances exists under which the Act would be valid, and the panel found that burden satisfied. The opinion fully adopts, for precedential purposes, the analysis from the earlier injunction pending appeal discussed in our prior post, Ninth Circuit Ruling Confirms Constitutional Limits on State Regulation of Federal Law Enforcement Operations, converting that temporary relief into a firm directive that the district court enter the preliminary injunction.

California enacted Senate Bill 805, known as the No Vigilantes Act, on September 20, 2025, in direct response to the United States’ expanded immigration enforcement efforts. The statute requires any law enforcement officer operating in California who is not in uniform to visibly display identification that includes the officer’s agency and either a name or badge number, or both, when performing enforcement duties. Willful and knowing violations are punishable as a misdemeanor. Senator Scott Wiener authored the companion measure, Senate Bill 627, known as the No Secret Police Act. While the concerns that prompted these bills are understandable, the Ninth Circuit’s decision is a timely reminder that performative politics cannot replace a deliberative legislative process that takes the United States Constitution and the concerns of stakeholders seriously in crafting balanced, enforceable legislation.

On September 11, 2025, David E. Mastagni testified before the Senate Public Safety Committee on behalf of PORAC in opposition to the related restrictions. The Legislature was warned that the measures would be struck down as applied to federal officers under the Supremacy Clause and the doctrine of intergovernmental immunity, yet the severability provisions would leave California officers who do not enforce immigration laws to bear the full weight of the poorly drafted requirements. The Ninth Circuit has confirmed the accuracy of those concerns.

The panel’s analysis rests on the doctrine of intergovernmental immunity. The court explained that under the intergovernmental immunity component of the Supremacy Clause, states may not directly regulate the Federal Government’s operations or property, quoting Blackburn v. United States, 100 F.3d 1426, 1435 (9th Cir. 1996). Section 10 explicitly overrides the federal government’s power to determine whether, how, and when to publicly identify its officers and therefore regulates the manner and conditions under which federal agents can enforce federal law. The opinion holds that if a state law directly regulates the governmental conduct of the United States without congressional authorization, it is void irrespective of whether the regulated activities are essential to federal functions or operations and irrespective of the degree to which the state law interferes with such functions or operations. There is no de minimis exception. Because the Act exclusively regulates law enforcement, the United States showed that no set of circumstances exists under which the Act would be valid as applied to federal officers.

As a result of this ruling, the identification requirements of the No Vigilantes Act will have no practical impact on federal immigration officers. The injunction prevents California from imposing these operational mandates on federal agencies and officers. The severability clauses ensure that the identification requirements continue to apply to California’s state and local peace officers. These officers already confront difficult conditions in severe weather, hazardous materials incidents, and tactical situations. The additional mandates make their jobs harder without enhancing accountability for federal operations. As PORAC warned, poorly drafted reactionary legislation once again missed its mark, granted the federal administration an easy victory, and saddled California officers with more bad law. Public safety unions and their members deserve legislation that accounts for their concerns rather than inflicting collateral damage on local officers who are not involved in immigration enforcement.

The lesson of United States v. State of California is that good intentions do not save unconstitutional statutes. The surest way to protect both accountability and officer safety is to legislate with discipline, to respect the constitutional limits on state power, and to listen to the professionals who will have to carry the law into the field. California’s public safety officers deserve better. Mastagni Holstedt, APC remains committed to advancing sound policies on behalf of California’s public safety professionals.

PERB Holds That Rejecting a Tentative Agreement Without a Specific Explanation Is Per Se Bad Faith

On August 28, 2026, the Public Employment Relations Board issued United Teachers Los Angeles v. Alliance College-Ready Public Schools, PERB Decision No. 3054. After fifteen months of first contract bargaining, the parties reached tentative agreements for two charter units. The members ratified both agreements. The employer’s governing board then rejected them in July 2025 and again in September 2025. When the union asked why, the employer offered phrases such as “significant long term concerns” and a need for “financial flexibility.” PERB held those answers were not bargaining. They were a per se refusal to meet and negotiate in good faith.

The case turned on two related but distinct duties. First, the employer must stand behind a ratified tentative agreement. Second, if the governing body rejects the TA, it must give an explanation specific enough that the exclusive representative can return to the table and bargain over the stated objection. PERB treats those duties as separate violations.

BACKGROUND

Alliance College Ready Public Schools spent years contesting UTLA’s certification and then spent fifteen months at the table. The employer opened with a “One Alliance” proposal that would lock represented teachers to whatever Alliance later gave unrepresented staff and would waive any duty to bargain the decision or its effects. The union conceded compensation parity, health benefit parity, a one year term, and limited retroactivity to January 1, 2025. Those concessions produced full tentative agreements in March and April 2025. The units ratified them.

The board then canceled a scheduled June 11 ratification vote and told unit members, falsely, that UTLA had requested the postponement. On July 10 the board voted the agreements down. The next morning the employer’s negotiator wrote that Alliance would offer full year retroactivity “under conditions,” but defined no conditions and offered no formal proposal. Direct emails to members cited “significant long term concerns” and a side agreement while talks continued. The union asked why the board had rejected deals built on the employer’s own parity model, why money that Alliance called unaffordable in March had become available in July, and what had changed. The negotiator asked for private mediation and answered none of those questions.

REJECTION IS NOT A SILENT VETO

Alliance relied on City of Lincoln (2012) PERB Decision No. 2284-M and argued that a governing body may reject a tentative agreement without saying why. That reading does not survive. Twelve months after Lincoln, the Legislature amended Government Code section 3505.1. Under the Meyers Milias Brown Act, a governing body must vote to accept or reject a tentative agreement within thirty days of first considering it. A rejection “shall not bar” an unfair practice charge for failure to meet and confer in good faith. PERB has already held that this exposure covers regressive bargaining and a failure to vest negotiators with sufficient authority. Decision No. 3054 adds that it also covers a rejection with insufficient explanation to the union.

EERA contains no twin of section 3505.1. PERB refused to treat that omission as a license to renege. The California Supreme Court has instructed that EERA and the MMBA form one system of public employment relations law and that PERB should read them in harmony unless text and history compel a different result. AB 537 aligned the MMBA with existing unfair practice precedent. The Board therefore declined to let an EERA employer do what an MMBA employer may no longer do.

Alliance also argued that a party may forestall an agreement forever for good reasons, bad reasons, or no reason at all. PERB rejected that misreading of City of Placentia. A party may hold an inflexible position if it genuinely holds the position and can support it with reasons. It may not conceal a strategy to make bargaining futile. Hard bargaining still requires a reason the other side can test.

SPECIFICITY IS A SEPARATE DUTY

A board does not discharge the duty to explain by announcing “concerns.” PERB has long held that a party who withholds an explanation or substantiation for a position, when the information exists and the other side has requested it, both refuses to bargain and supplies an indicator of bad faith. If an argument is important enough to present at the table, it is important enough to require some proof of its accuracy.

Alliance’s phrases failed that test. “Significant long term concerns” and “financial flexibility” gave the union nothing it could answer with a proposal. They identified no cost, no term, no changed circumstance, and no conflict with another obligation. They did not explain why parity and limited retroactivity, which the employer had demanded for months and had never called financially unworkable except as to a longer retroactive period the union later dropped, suddenly became intolerable after the members voted yes. The Board held that those vague and perfunctory answers gave “no insights into its position with any specificity that UTLA could address through bargaining.”

An explanation that names the article, the dollar figure, or the operational constraint that moved the board invites further negotiation. An explanation that a board could paste onto any rejection of any contract is not an explanation. Reneging and silence are related because a silent rejection leaves the union with nothing to bargain. They remain separate violations. A board that rejects a ratified tentative agreement and then supplies a concrete reason may still face a regressive bargaining or authority charge if the reason is new and changed circumstances do not support it. A board that rejects rejects a TA and provides only generic explanations commits a separate violation.

THE REMEDY FOLLOWS THE BREACH

PERB ordered Alliance, upon request, to place the ratified articles back on the table, to meet weekly face to face, and to report progress to the Office of the General Counsel. Make whole relief runs from January 1, 2025. It measures the difference between what unit members would have received under the tentative agreements and what they received under the status quo, plus interest compounded daily, until the parties ratify a written agreement or the employer lawfully imposes terms after good faith negotiations and completed impasse procedures. The union may also recover bargaining costs and diverted resources caused in material part by the violations.

The Board emphasized that the parties were bargaining a first contract. Conduct that would wound an established relationship does more damage when the exclusive representative is still proving that a signed deal means something.

TAKEAWAYS

Unions should treat a governing body’s vote on a ratified tentative agreement as bargaining conduct, not as a civic ritual outside the labor statutes. The association should request the reasons in writing the same day as the vote, and the request should ask what changed, which terms the board found unacceptable, and what facts support that conclusion.

Public safety associations that bargain under the Meyers Milias Brown Act have an additional statutory hook. Section 3505.1 already exposes a rejection to unfair practice litigation and already imposes a thirty-day clock. PERB now requires the post-rejection explanation to be specific enough to restart negotiations on the basis of mutual understanding.

A Big Win for Proportionate Discipline in CHP Sergeant's Appeal

Mastagni Holstedt and the California Association of Highway Patrolmen secured a significant victory on September 11, 2026, when the San Bernardino County Superior Court denied the California Highway Patrol’s petition for a writ of mandate in California Highway Patrol v. California State Personnel Board (Case No. CIVSB2517865). Judge Lily L. Sinfield upheld the State Personnel Board’s decision to reject dismissal of Sergeant Daniel Howard and to impose a demotion to officer instead. The result is a big win for fairness and for the principle that serious work can include human error without ending a career. 

The night that produced the charges was unlike anything most highway patrol supervisors ever confront. On June 22, 2021, Raymond Loftin stole a Peterbilt tractor and drove it the wrong way on Inland Empire freeways at speeds of sixty to seventy five miles per hour. He evaded officers across multiple jurisdictions for about an hour and a half, blew through three traffic breaks, continued on a sparking rim after a spike strip, and struck a guardrail before meeting a roadblock on Interstate 10. A CHP lieutenant with nearly thirty years of service testified that he had never seen a big rig driven the wrong way on multiple freeways.  Howard, a combat veteran, had worn sergeant stripes for less than two months. He had not received specialized sergeant training and had not yet come to know the Rancho Cucamonga officers under his command. He found himself directing five officers in that unprecedented scene.

The Department sought to end Howard’s career for his conduct during the pursuit and the shooting that followed. Howard appealed. After a six day evidentiary hearing, Administrative Law Judge Gregory W. Brown sustained some allegations and rejected others. He found dismissal too harsh. The State Personnel Board adopted that proposed decision on November 4, 2024, and reduced the penalty to a demotion from sergeant to officer. The Department then asked the superior court to overturn the Board’s decision. The court refused.

The Board’s reasoning, which the court accepted, recognized he faced a difficult incident that required a balanced penalty. Howard had fourteen years of service and generally positive performance reviews. He had earned promotion to sergeant and had received commendations. His history demonstrated an established record of public service rather than a pattern of disregard for duty. The Board also credited the extraordinary setting. Howard faced a unique, tricky, and high stakes problem without the training and local familiarity that a more seasoned sergeant would have brought to the same roadblock. He put his own life at risk in an effort to protect others. The administrative law judge found that his actions may have saved innocent motorists or fellow officers.

At the hearing Howard took responsibility for his actions and recognition of the seriousness of the incident. He broke down in tears over the loss of life that occurred in the course of his duties. The administrative law judge found that this response spoke well of his moral character and of his capacity to learn. The evidence supported affording him the opportunity to continue serving.

The evidence and testimony at hearing did not support the CHP’s depiction of his conduct and alleged inconsistent statements. The administrative law judge found that the evidence painted a more complex picture than a simple policy violation, and the court agreed that this was a reasonable reading of the record. Howard explained that his priority was to stop the truck and arrest the occupants. He screamed at the truck to stop as he stepped onto the roadway. On the shooting itself the Department agreed at the hearing that Howard believed the truck was going to hit him. The parties did not contest that Howard fired because he believed he was in imminent danger. Consideration of a proper penalty based on tactical judgments must take into account his reasonable beliefs. The court held that substantial evidence supported the finding that Howard discharged his firearm on that honest perception of imminent harm. The Department’s later argument that he created his own danger by leaving cover did not erase that core fact.

On the claim that he failed to take command after the shots, the record showed chaos ensued, rather than an abandonment of his duty. Another officer warned of possible crossfire in a span of frantic moments. Howard testified that he immediately broadcasted that he had fired, though the transmission may have been muffled by other radio traffic that witnesses described as fast and furious. The court concluded that the Department had not proved by a preponderance of the evidence that Howard failed to advise dispatch that shots had been fired. The record also did not support allegations he lost composure, rather it established he was working through an unfolding crisis with incomplete information and competing radio traffic.

The administrative law judge concluded that demotion would correct the command and safety protocol problems without destroying a fourteen year career. That is proportionate discipline. Employees, including peace officers, make mistakes. The question is whether the penalty matches the person, the circumstances, and the likelihood that the same failure will be repeated. The SPB imposed a measured reduction in rank that keeps the officer in service while removing him from a supervisory role.

Review under Code of Civil Procedure section 1094.5 asks whether the Board stayed within its authority, whether the hearing was fair, and whether the findings and the penalty rest on substantial evidence and reasoned judgment. Generally, a court will afford great deference to the SPB’s determination unless the Board acted arbitrarily or beyond the bounds of reason. See Fisher v. State Personnel Board (2018) 25 Cal.App.5th 1. If reasonable minds can differ on the penalty, the Board’s choice stands. See Department of California Highway Patrol v. State Personnel Board (2026) 122 Cal.App.5th 418.  

Although unpublished, the ruling confirms that a long and generally positive work history is central to any penalty analysis. It also confirms that isolated scrutiny of an imperfect command in an unprecedented pursuit does not render an officer unfit for duty. Howard faced an imminent threat of death or serious bodily injury and his decision-making must be considered in light of his work history, gaps in his training, his commendations, and genuine remorse.

AB 692 Limits New Training Cost Charges When Officers Transfer

 California’s stay or pay statute, Assembly Bill 692, was enacted to stop employers from charging workers a debt, fee, or training cost because they leave a job. The law adds Business and Professions Code section 16608 and Labor Code section 926. Public safety members face a narrower question. Does the statute change the cases that allowed some departments to bill officers who transfer after the academy?

AB 692 does not overrule those decisions. It sits on top of them. Agreements already signed remain subject to the older authorities. Agreements executed after the statute’s operative date face a prohibition those authorities never supplied.

BACKGROUND

Agencies long tried to slow lateral movement by making academy graduates repay a share of training costs if they left before a set term of service. Oakland used a prorated figure tied to five years and placed the term in the memorandum of understanding and the conditional offer. The First District in City of Oakland v. Hassey (2008) 163 Cal.App.4th 1477 held that such a clause was not an unlawful restraint under Business and Professions Code section 16600 because the officer remained free to work elsewhere. The court treated the obligation as contractual reimbursement rather than a covenant not to compete. It refused to decide Labor Code section 2802 because the issue arrived too late, and it barred collection through the final paycheck.

The Fourth District later reached the section 2802 question Hassey left open. In In re Acknowledgment Cases (2015) 239 Cal.App.4th 1498, Los Angeles required every recruit to attend its academy and repay prorated costs after an early departure to another agency. The court drew a disticntion. Basic POST certification is a statewide licensure prerequisite obtainable from more than one provider, so those hours are not standing alone an expense of discharging the duties of employment with a particular city. Department specific hours that the agency itself requires and delivers are expenses covered by section 2802 . A contract that waives that protection is void under Labor Code section 2804. Because Los Angeles bundled both categories and offered no apportionment, the entire acknowledgment failed.

The First District in USS POSCO Industries v. Case (2016) 244 Cal.App.4th 197 later upheld repayment of a voluntary and transferable private training program. That opinion helps optional coursework. It is a poor fit for a required police academy. The Ninth Circuit in Gordon v. City of Oakland (9th Cir. 2010) 627 F.3d 913 separately held that Oakland’s arrangement was not an FLSA kickback if the officer received at least the minimum wage in the final workweek. That federal holding does not control section 2802 or section 16608.

THE STATUTE

AB 692 makes it unlawful, for contracts entered on or after its operative date, to require payment of a debt if the relationship ends, to authorize collection upon termination, or to impose any penalty, fee, or cost because the relationship ends. Debt is defined broadly enough to reach education related costs. A violating term is treated as void under section 16600. A worker may sue for actual damages or five thousand dollars per worker, whichever is greater, together with fees and injunctive relief. The remedies are cumulative and expressly preserve section 2802 and the Unfair Competition Law.

The transferable credential exception reaches tuition for a degree from an accredited third party institution that is not required for the current job and that meets strict separate contract, cost cap, and proration conditions. POST basic training is a statutory prerequisite to exercising peace officer powers. Attendance is ordinarily a condition of hire. A classic in house academy clause does not fit the exception.

AB 1697, enrolled and presented to the Governor on September 3, 2026, would move the contract date from January 1, 2026 to January 1, 2027. Until the Governor acts, the original date remains on the books. If the delay is signed, 2026 contracts fall back under the pre statute cases.

WHAT CHANGES AND WHAT DOES NOT

Hassey held that a separation triggered academy repayment was not an unlawful restraint under section 16600. AB 692 reaches the opposite result by statute for new contracts. After the operative date, a department cannot rest a new acknowledgment on Hassey’s section 16600 reasoning. Optional college coursework that actually meets the transferable credential conditions may still be structured. A required academy cannot be rescued by calling it a loan.

The statute is prospective. Legacy papers signed before the operative date remain governed by Hassey, the Acknowledgment Cases, and USS POSCO. Recovery that isolates documented POST basic costs from an officer who leaves voluntarily may still be argued on those older instruments. Recovery that reaches academy wages or department mandated hours beyond POST remains barred by sections 2802 and 2804. Collection through the final paycheck remains independently unlawful. Because AB 692’s remedies are cumulative with section 2802, the 2015 decision continues to invalidate the department specific slice of any clause, old or new.

The statute speaks of an “employer” in general terms. The leading cases all involved municipal departments, which supports coverage. AB 1697 discusses collective bargaining calendars as a reason for delay. It does not enact a general memorandum of understanding exemption.

Published Appellate Decision Confirms Make Whole Relief When Agencies Skip Effects Bargaining Over Pension Changes

On August 28, 2026, the Second District Court of Appeal, Division Seven, certified for publication its decision in City of Los Angeles v. American Federation of State, County and Municipal Employees, Nos. B336981 and B340065. The court affirmed an order of the City of Los Angeles Employee Relations Board requiring the City to bargain the effects of ending pension reciprocity and to make represented employees whole for reduced pensions and related losses until that bargaining obligation is satisfied. Publication converts a municipal labor dispute into statewide guidance under the Meyers-Milias-Brown Act.

BACKGROUND

From approximately 1980 until 2014, employees transferring between the Department of Water and Power and other City departments could carry pension service credit between the Water and Power Employees’ Retirement Plan and the Los Angeles City Employees’ Retirement System, with the result that the receiving plan treated the worker as if the entire career had been spent under that system. In 2010 the Water and Power Employees’ Retirement Plan Board commissioned a study that found net transfers had added approximately $183 million to that plan’s unfunded liability, and the Board voted to suspend reciprocity. The City thereafter adopted Ordinance No. 182824, effective January 1, 2014, and stopped counting prior Water and Power service when calculating Los Angeles City Employees’ Retirement System benefit amounts, except for the limited purpose of determining eligibility to retire.

The financial effect on employees who had moved between the two systems was substantial. A stipulated example established that a Senior Clerk Typist who spent fifteen years in each system would receive $16,195 less each year than the employee would have received under reciprocity, and an employee earning $100,000 who sought to purchase two years of lost service would have been required to pay $60,000. The Coalition of City Unions demanded that the City meet and confer over those consequences. The City refused formal bargaining and offered only to answer questions.

THE ERB’S FINDINGS

The Employee Relations Board found that the City had no duty to bargain the decision to end reciprocity. Administrative Code section 4.1095, subdivision (k), made complete portability dependent upon participation by the Water and Power Employees’ Retirement Plan, and once that plan withdrew the City was obligated to stop counting the transferred service for benefit amounts. The City nevertheless retained discretion over the manner in which the change would be implemented. Disability retirement calculations, recognition of prior service for benefit amounts, retiree health treatment after a transfer, protected leave return windows, transfer rules, and the price of buying back service credit were effects of the decision rather than the decision itself, and those subjects therefore had to be bargained.

DECISION BARGAINING VERSUS EFFECTS BARGAINING

The court recognized the controlling distinction between decision bargaining and effects bargaining under the Meyers-Milias-Brown Act. Decision bargaining applies when the employer’s action itself falls within the scope of representation because the action significantly affects wages, hours, or other terms and conditions of employment, and a successful decision bargaining case can support rescission of the policy and restoration of the prior rule. Effects bargaining applies when the underlying decision lies outside the scope of representation, yet the policy change has reasonably foreseeable impacts on bargainable subjects. Pensions, severance, vacation, and seniority are classic effects subjects. The employer may lawfully make the core decision, but it must still give notice and an opportunity to bargain the effects after the decision is firm and before implementation.

The court treated the controversy as an effects bargaining case because the City could lawfully end reciprocity once its partner plan withdrew. Residual discretion over implementation, rather than any vested right to the former formula, is what made bargaining mandatory. The court therefore did not order restoration of the reciprocal arrangement itself and instead required bargaining over the discretionary aspects of implementation.

THE REMEDY

The court recognized that the Board could not recreate the arrangement that existed before 2014 or compel a nonparty retirement plan to return to it, and that full restoration of the prior system was therefore unavailable. The court held that a proper effects remedy must include an order to bargain together with limited make whole relief that continues until the parties reach agreement, reach impasse and exhaust any procedures that follow impasse, or the exclusive representative fails to request bargaining or to bargain in good faith. Back pay in this setting must include pension losses and other benefit reductions, and doubts about the measure of that relief are resolved against the employer whose unlawful conduct created the uncertainty.

The City argued that the make whole order conflicted with American Federation of State, County and Municipal Employees v. City of Los Angeles (2025) 109 Cal.App.5th 179, which held that employees possessed no vested contractual right to continued reciprocity. The court refused to conflate the vested rights doctrine with the statutory duty to bargain under the Meyers-Milias-Brown Act. The absence of a vested right does not erase the duty to bargain effects. The employees were not awarded permanent restoration of reciprocity. They were instead restored, for a limited period, to the economic position they occupied when the bargaining duty attached.

That approach is consistent with Boling v. Public Employment Relations Board (2019) 33 Cal.App.5th 376, which held that when a labor board cannot undo the underlying action, compensatory payments run until agreement or impasse. A permanent order would have functioned as a repeal of the 2013 Ordinance and would have exceeded the Board’s remedial authority. The court instead approved a bridge remedy that restores the economic status quo only until bargaining concludes and that does not compel the City Council to legislate.

THE BOARD’S AUTHORITY

The Board’s authority to award that relief was not confined to a prospective cease and desist order. The court relied on Ordinance section 4.810, subdivision (f)(12), which authorizes the Board to perform such other duties as may be necessary to carry out its responsibilities, and on Government Code section 3509, subdivision (d), which requires the Board to issue orders consistent with the policies of the Meyers-Milias-Brown Act. The Public Employment Relations Board has long treated retroactive make whole relief as standard relief for compensating harm, deterring unilateral action, and restoring bilateralism. The Employee Relations Board’s reading of its ordinance was therefore not clearly erroneous. Because the analysis rests on the Act rather than on a local peculiarity, the Public Employment Relations Board and other reviewing courts should be expected to follow it. The court also affirmed attorney fees under Code of Civil Procedure section 1021.5 and directed a further fee award on appeal.

TAKEAWAYS

The published opinion confirms that effects bargaining is not a lesser right. It identifies pension features that remain negotiable even after a lawful plan design decision, including disability calculations, service recognition for benefit amounts, retiree health treatment after a transfer, leave return windows, transfer rules, and the cost of buying prior service. An agency that implements first and bargains later can face make whole liability measured by the pension dollars members actually lost.

It is therefore advisable that exclusive representatives treat any announced change to reciprocal service credit, disability calculation, retiree medical eligibility, or service purchase terms as an event that at a minimum triggers an effects bargaining obligation. Notwithstanding an employer’s claim that plan design is reserved, the foreseeable impacts on pension amounts and related benefits remain inside the statutory duty. In light of the fee holding, successful enforcement of that duty can support an award under Code of Civil Procedure section 1021.5. The exclusive representative must request effects bargaining promptly and must participate in good faith, because a failure to do so can terminate the make whole remedy. For members who transfer, promote, or retire across systems, the opinion imposes a meaningful limitation on an employer’s ability to implement pension related changes unilaterally and to retain the resulting savings before the bargaining duty has been satisfied.

PORAC, CAHP, and CPRC Urge the US Supreme Court to Invalidate Semi-Automatic Rifle Bans

Mastagni Holstedt, APC was privileged to file an Amicus Curiae brief in the Supreme Court of the United States on behalf of the Peace Officers Research Association of California, the California Association of Highway Patrolmen, and the Crime Prevention Research Center in Viramontes v. Cook County, No. 25-238. The brief supports the petitioners’ challenge to Cook County’s semiautomatic rifle ordinance and to Illinois’s Protect Illinois Communities Act. Those restrictions track California’s assault weapon statutes. They also bear on pending Ninth Circuit challenges to the Unsafe Handgun Act’s feature-based ban on most modern handguns. PORAC and CAHP have filed a brief in that appeal challenging the constitutionality of the UHA. Viramontes will also determine whether California peace officers may retain, after retirement, the same commonly owned rifles they lawfully carried in public service.

The organizations speak from professional experience rather than from a partisan political perspective. PORAC and CAHP represent rank and file officers who enforce firearms laws every day, the men and women who run toward gunfire. CPRC conducts rigorous academic crime research. Their shared perspective supports sound public policy that disarms prohibited persons, confines violent offenders through firearm enhancements, and protects the self-defense rights of law-abiding citizens. They reject the approach of blaming the tools of self-defense while excusing the failure of state officials to enforce existing laws and to impose consequences on violent criminals.

Common Use Ends the Inquiry

The Second Amendment’s text covers the keeping and bearing of arms. Once that threshold is met, the government must demonstrate a historical tradition of comparable regulation. District of Columbia v. Heller, 554 U.S. 570 (2008); New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Arms “in common use” for lawful purposes may not be banned. That protection reaches even arms unknown at the founding, subject only to the limitation that “dangerous and unusual” weapons not “in common use” may be restricted.

AR-15 platform rifles satisfy that test because they are in common use. Americans own an estimated twenty to thirty million of them. They are lawful in forty-one States. Owners keep them for self-defense, target shooting, hunting, and pest control. Their ergonomics, modest recoil, and accuracy make them well suited to defense of the home. A firearm tens of millions of responsible citizens have chosen is not “dangerous and unusual.” Laws that treat these rifles as the functional equivalent of machine guns cannot be reconciled with Heller.

The Data on Gun Crime Refutes the Safety Rationale

The States defend these bans as necessary public safety measures. The empirical record does not support that claim. Criminals rarely obtain firearms through the lawful retail channels these statutes regulate. Bureau of Justice Statistics prisoner surveys show that most offenders who used a gun stole it, found it, or bought it on the street or in the underground market.

Rifles of every type account for a small and shrinking share of homicides. In 2025, of 16,091 murders in which the weapon was identified, only 494 involved a rifle or shotgun. That is fewer than 3.1 percent. The rifle share of firearm murders was 4.8 percent before the 1994 federal assault weapons ban, 4.9 percent while that ban was in effect, and 3.6 percent afterward, even as civilian ownership of AR-15s and similar platforms rose sharply.

Handguns, not rifles, are used in most felonious killings of officers. The rifle share did not fall during the decade of the federal ban.

National Institute of Justice evaluations of the 1994 ban found no discernible reduction in gun violence or in the lethality of gun crime. Independent state-level work controlling for preexisting differences and other gun laws reached the same conclusion. RAND’s synthesis and a 2005 systematic review in the American Journal of Preventive Medicine found no significant evidence that assault weapon restrictions reduce violent crime, homicide, or mass shootings. Mass public shooting data from 1998 through 2025 show that a majority of attacks used only handguns. Rifles of any type appeared in a minority of incidents. The deadliest attacks typically involved multiple weapon types rather than a single banned rifle.

Although the effectiveness of these rifle bans is not the historical test applied by the Court, the data is presented to refute the false premises used to enact these statutes.

California Extinguishes the Officer’s Right at Retirement

Peace officers and their families face reprisal risks that do not end with their shift or at retirement. California nevertheless treats possession of these arms as a revocable employment privilege. An officer may possess a registered “assault weapon” only while employed by a qualifying agency and only upon the agency head’s written certification of the specific firearm. Off-duty possession is confined to limited locations absent a Department of Justice permit. When employment ends, the right collapses. Cal. Penal Code §§ 30625, 30630(a), (b)(1)–(2), 30945(a)–(g), 31000(a)–(c).

Within ninety days the departing officer must permanently disable the rifle, sell it to a licensed dealer, obtain a difficult permit, or remove it from the State. Registered weapons may not be transferred to anyone in California except a licensed dealer. Weapons surrendered to law enforcement are forfeited for destruction. Cal. Penal Code §§ 30915(a)–(d), 30910, 30605. California thus forbids the officer simply to keep at home the rifle he or she lawfully acquired, registered, and carried for years of public service. Federal LEOSA grants qualified retired officers a nationwide concealed carry right, but it leaves the State’s possession ban intact. 18 U.S.C. §§ 926B, 926C.

The contradiction is dispositive of the safety rationale. If a trained, vetted, background-checked officer may carry the arm on duty for decades, there is no principled basis to treat that same officer as too dangerous to own it in retirement, or to deny it to any other law-abiding citizen.

Feature Bans Are Designed to Evade Heller

When a legislature cannot ban a common firearm by name, it bans ordinary commercial features instead. Those features include pistol grips, folding or telescoping stocks, flash suppressors, and detachable magazines. The feature prohibition does the work of banning the arm. California has carried that method furthest. It first applied the approach to rifles, then to standard capacity magazines, and then to most modern handguns through the UHA. Few, if any, California officers carry a handgun that meets the UHA requirements, even though they carry those same purportedly unsafe handguns on duty, when they are most likely to use them for self-defense. The result is a de facto freeze on new semiautomatic handguns even as agencies issue those same “unsafe” pistols for duty. Boland v. Bonta, 662 F. Supp. 3d 1077 (C.D. Cal. 2023). PORAC and CAHP filed a brief in the Ninth Circuit challenging the UHA in Boland.

A ban on a feature is, in operation, a ban on every common arm that bears it. Heller’s common-use test therefore resolves the question. Even if the Court proceeds to Bruen’s “how and why” inquiry, the bans fail. Reducing firearm misuse is a concern as old as the Republic. The Founders could have banned common arms and did not. No founding-era tradition supports prohibiting possession of arms in common use, whether the prohibition is labeled by model or by feature. United States v. Rahimi, 602 U.S. 680 (2024), confirms that the Nation’s tradition properly targets dangerous persons, not the common arms responsible citizens choose. PORAC and CAHP support Rahimi. A State cannot, however, erase Second Amendment rights through incremental hardware mandates. In the Court’s words, a right that can be erased in that manner is no constitutional guarantee at all. Heller, 554 U.S. at 635.

California Restricts the Law-Abiding While Relaxing Enforcement Against the Violent

California legislates aggressively against citizens who obey the law. At the same time, the State exhibits no equivalent zeal for keeping firearms from prohibited persons. It made once-mandatory firearm enhancements discretionary. It directed courts to dismiss enhancements in the furtherance of justice and to give great weight to circumstances favoring dismissal. It opened parole and resentencing pathways for certain individuals serving life without parole for serious, often firearm-related, offenses. The recent Glock ban was prompted by a Sacramento mass shooting committed by a violent felon released from prison six years early. Nevertheless, California tolerates widespread nonenforcement of laws already barring felons from possessing any firearm. Its Armed and Prohibited Persons System carries a backlog of approximately 24,000 individuals known to possess firearms unlawfully.

The cost is not hypothetical. On June 14, 2022, two El Monte police officers were murdered by a gang member who should have been imprisoned on a prior firearm possession arrest. He went free when the district attorney declined to enforce prohibited-persons laws.

A government serious about gun violence prosecutes armed felons. It does not ban common rifles from law-abiding people, and it does not disarm retired peace officers.

What a Favorable Ruling Would Mean for California Officers

A reversal would confirm that arms in common use may not be banned and that feature-based restrictions are measured by their burden rather than their label. The same principle would reach pending challenges to California’s assault weapon statutes, magazine limits, and the Unsafe Handgun Act. Officers who spent careers carrying these rifles would no longer be required to disable, sell, or exile them the day the badge comes off. Law-abiding citizens would regain access to the Nation’s most popular defensive rifles.

Amici ask the Court to hold that these statutes violate the Second Amendment. The brief reflects the work of David E. Mastagni  and Alexandra Holland of Mastagni Holstedt, APC, and Timothy K. Talbot and Michael A. Morguess of RLSSS. This blog will continue to report on the case as it develops. Our firm is proud to stand with amici on this case of national importance.

READ THE BRIEF HERE. 

California Supreme Court Halts the Appeals Board's Practice of Extending Its Own Reconsideration Deadline

A significant win for California public safety employees and the unions that represent them

By Mastagni Holstedt, APC Partner David E. Mastagni and Senior Associate Jonathan D. Char

The California Supreme Court has delivered a decision that strengthens the finality of workers' compensation awards for the firefighters, peace officers, and other public safety employees who depend on them. In Mayor v. Workers' Compensation Appeals Board, the Court held that the Workers' Compensation Appeals Board may not extend its own statutory deadline of sixty days to act on a petition for reconsideration, and it made clear that the Board's administrative delays cannot excuse that failure. Mayor v. Workers' Comp. Appeals Bd., No. S287261, 2026 WL 2470051 (Cal. Aug. 24, 2026) Public safety unions should welcome this ruling because it protects an injured member's hard-won award from administrative irregularity and from the Board’s own neglect and system systemic failure.

The dispute arose from an all-too-familiar pattern. Joseph Mayor suffered an industrial injury while working for the Ross Valley Sanitation District, and a workers' compensation judge found him permanently and totally disabled. The employer filed a timely petition for reconsideration, yet the petition never reached the Board within the 60-day window because the workers' compensation judge never acted on or transmitted it for reasons the record does not explain, and the Board did not grant reconsideration until roughly 144 days after the petition was filed. The Board justified this lengthy delay by invoking Shipley v. Workers' Compensation Appeals Board, and by asserting that an administrative irregularity had prevented it from receiving the petition on time. The Court rejected that justification and restored the certainty that the governing statute demands.

At the heart of the decision lies Labor Code section 5909. In the version that governed Mayor, a petition for reconsideration was deemed denied unless the Board acted within sixty days of filing. The Legislature has since amended the statute so that the sixty days now runs from the date the trial judge transmits the case to the Board. The Court agreed that this deadline is mandatory and that the Board possesses no authority to toll its own time to act. The Court explained that equitable tolling exists to allow litigants to pursue claims despite certain equitable circumstances, and it does not exist to rescue an agency from its own missed deadline. The Court further reasoned that the statute serves the essential purpose of ensuring that petitions do not languish, and it concluded that permitting the Board to toll the deadline because of its own inefficiency or neglect would defeat that purpose entirely. When the Board acts after the sixty-day period expires, it acts in excess of its jurisdiction, even though it does not lose fundamental jurisdiction over the matter.

The Court reserved particular scrutiny for the Board's habitual reliance on Shipley. It disapproved Shipley to the extent that the decision implied that every party enjoys a due process right to Board review of a petition after the sixty-day deadline has passed. The Court recognized that narrow circumstances may exist in which due process permits the Board to act late, yet it emphasized that the Board had transformed Shipley into a routine workaround for a recurring and systemic failure to receive petitions on time. The Court did not catalog those narrow circumstances, but it made clear where the floor lies. In footnote 7, it explained that "[m]ore is required to establish a due process violation resulting from the failure to timely rule on a petition for reconsideration than the simple filing of a reconsideration petition and the expiration of the statutory deadline to act." That systemic breakdown, the Court held, cannot justify a self-administered remedy that allows the Board to toll its own statutory deadline whenever it falls behind. This portion of the opinion forecloses the very rationale that agencies have used to keep contested awards open indefinitely. That said, Mayor does not eliminate every avenue for prolonging a case. Its holding reaches only untimely Board action, meaning action taken after the statutory deadline has run. If the Board acts within the sixty-day window, it may still grant reconsideration, including a grant for further study, and that timely order keeps the award from becoming final while reconsideration proceedings continue. Because no statutory clock comparable to section 5909 governs how long the Board may then take to issue its decision after reconsideration, a timely grant can leave an award unresolved for a substantial period. What Mayor forecloses is the Board's use of its own delay to manufacture more time after the deadline has already passed.

The practical value of this decision for unions and their members becomes clear when one considers what open ended delay actually costs an injured worker. Mayor won an award of total and permanent disability, yet he received no compensation for years while the reconsideration dispute remained unresolved, and the Court expressly noted that the Board's practice of tolling its own deadline opens the door to open ended extensions. A firefighter who suffers a career ending injury cannot afford to wait while an agency sits on a petition, and this ruling ensures that the statutory clock means what it says. By insisting on finality, the Court protects the reasonable expectation of every public safety employee that a favorable award will become enforceable on a predictable timeline. That predictability cuts both ways. The same sixty-day rule that finalizes a favorable award also runs against an injured worker whose own petition for reconsideration is deemed denied when the Board fails to act in time. In that situation, the worker cannot wait on the Board. Once the petition is denied by operation of law, the member’s only route is a timely petition for writ of review in the Court of Appeal, and that petition must be filed within forty-five days.

The decision provides tools to enforce the deadline rather than wait indefinitely for the Board to act. The Court confirmed that a petition for writ of mandate filed in the Court of Appeal is the proper mechanism for an affected party to compel the Board to honor section 5909. A union member who prevailed before the workers' compensation judge and who watches the Board blow past the statutory window now has a clear judicial path to protect the award. This remedy transforms the sixty-day deadline from an aspiration into an enforceable command, and it places meaningful leverage in the hands of the employees and advocates who invoke it. Which remedy applies depends on what the Board does once the sixty days run. If the Board simply fails to act and the petition is denied by operation of law, the adversely affected party must move quickly, because that finality holds unless the party timely seeks review. In that situation, the remedy is a petition for writ of review in the Court of Appeal, and it must be filed within forty-five days of the deemed denial. If instead the Board acts after the deadline has passed, the remedy is different. There, the party affected by the untimely order enforces the deadline through a petition for writ of mandate, which the Court held is the proper way to compel the Board to honor section 5909. Either way, the sixty-day deadline operates as a firm limit on the Board's power, but it protects only the party who tracks the deadlines and seeks the correct writ in time.

Mayor is a reaffirmation that the workers' compensation system exists to deliver substantial justice expeditiously rather than to accommodate bureaucratic delay. Although the Legislature has since modified the statute so that the sixty-day period begins when the trial judge transmits the case to the Board, the principle that administrative problems must not leave injured workers and their benefits in legal limbo endures. Firefighters and peace officers accept extraordinary risks in the service of their communities, and this decision recognizes that the compensation they earn will not remain hostage to an agency's own missed deadlines.

California Supreme Court Clarifies Declaratory Relief Under the CPRA and Rejects an Implied Three-Year Retention Duty Under the CPRA

On January 15, 2026, the California Supreme Court issued its decision in City of Gilroy v. Superior Court, 19 Cal. 5th 38 (2026). Writing for a unanimous Court, Chief Justice Guerrero resolved two questions of first impression under the California Public Records Act, Cal. Gov’t Code § 7920.000 et seq. The Court considered whether declaratory relief remains available after an agency has produced all existing responsive and nonexempt records, and whether the Act itself imposes a three year retention obligation once an agency asserts a statutory exemption. The decision carries practical significance for every public safety agency that regularly receives requests for body worn camera footage and related enforcement records.

Background

The dispute arose from successive requests that the Law Foundation of Silicon Valley submitted to the City of Gilroy beginning in 2018. Those requests sought, among other materials, Gilroy Police Department body worn camera recordings related to homeless encampment cleanups. The City asserted that the footage fell within a statutory exemption, conducted a search that the trial court later found inadequate, and destroyed certain recordings under its ordinary retention schedule while the requests remained pending. After the City produced the nonexempt footage still in its possession, the Law Foundation sought both mandamus and declaratory relief. The superior court granted limited declaratory relief concerning the City’s search practices and exemption assertions, yet determined that the Act created no independent retention duty. The Court of Appeal then held that declaratory relief became unavailable once the City had disclosed all remaining nonexempt records and that the Act imposes no three-year preservation requirement. 

Holdings

The Supreme Court reversed in part and remanded for further proceedings, holding that Cal. Gov’t Code § 7923.000 authorizes declaratory relief in at least some circumstances even after disclosure of all existing responsive and nonexempt records. The statutory command that a court may enforce a requester’s right to inspect or receive public records does not confine that enforcement power to contemporaneous production orders. Declaratory relief remains proper where a declaration would resolve an ongoing controversy concerning the parties’ rights and obligations under the Act in a manner that has some likelihood of affecting future records requests or future agency conduct. The trial court’s declarations addressing the City’s inadequate search and its blanket assertion of exemption without review of the body camera footage met that standard, and those declarations therefore survive the subsequent production of remaining records. 

On the retention question the Court reached the opposite result and affirmed the Court of Appeal. It rejected the argument that the Act imposes a three year retention period commencing from the moment an agency invokes a statutory exemption, because nothing in the text of the Act creates such a duty. The Court noted that the Legislature expressly enacted retention requirements for certain records in otehr statutes, including body worn camera data under Cal. Penal Code § 832.18, yet did not include retnetion requirements in the CPRA. Inferring a broad preservation obligation from the availability of judicial review or from the constitutional policy favoring access would rewrite a detailed statute to add a requirement the Legislature did not address. The Court limited the opinion to the ordinary operation of routine retention schedules, leaving open questions that might arise from intentional destruction undertaken for improper purposes. 

Take-Aways

Agencies cannot assume that production of remaining records will automatically moot claims for declaratory relief concerning search adequacy, the propriety of exemption claims, or compliance with response timelines. A declaration that an agency failed to conduct a reasonable search or improperly asserted a categorical exemption without segregating nonexempt material may still issue and may support an award of attorney fees under section 7923.115 if the requester is deemed to have prevailed. Departments that receive recurring requests for body-worn camera footage of enforcement activity therefore have a continuing incentive to document search efforts carefully, review footage before asserting exemptions, and provide specific rather than boilerplate justifications for withholding.

On the other hand, the rejection of an implied three-year hold provides agencies a significant win. The Act does not require public safety agencies to freeze every record once an official claims an exemption. Retention continues to turn on the agency’s adopted schedules and on any specialized statutes that govern particular media, including body worn camera recordings. Agencies should implement litigation holds when they reasonably anticipate litigation, as they already must under generally applicable preservation duties. The Act, however, does not convert every exemption claim into a three year preservation mandate of its own force.

Justice Groban filed a concurrence, which Justices Corrigan and Kruger joined, that supplies a useful limiting principle. In his view the Act does not authorize declaratory relief solely to pronounce that an agency’s past conduct violated the statute where the requester offers no evidence of a pattern or practice of violations and where the agency does not dispute its legal obligations. Broader use of the remedy, he warned, could incentivize requests pursued principally for fee recovery and could discourage agencies from reconsidering initial withholding decisions. That guidance should help courts and agencies distinguish controversies capable of guiding future conduct from isolated or technical disputes that warrant no declaration.

Conclusion

City of Gilroy therefore confirms that the Act remains a potent instrument for enforcing transparency while making equally plain that the statute is not a general records retention code. In light of the Court’s willingness to declare past practices unlawful even after production is complete, agencies will likely examine existing search protocols and exemption procedures now rather than await the next recurring request.  

The Supreme Court Says Cannabis Use Alone Cannot Disarm You. What Does that Mean for California Cops?

California peace officers now stand at the intersection of two bodies of law that pull in opposite directions. State law shields their right to use cannabis when they are not on duty, while federal law forbids anyone who uses cannabis from possessing the very firearm that their profession demands. The Supreme Court has just unsettled the federal side of that equation in United States v. Hemani, and its decision invites a fresh look at whether an officer who lawfully uses cannabis away from work may still be denied the badge and the gun. United States v. Hemani, 146 S. Ct. 1677 (2026) The answer is not yet clear, and the competing arguments deserve careful attention.

The Legislature spoke plainly when it enacted Assembly Bill 2188 and Senate Bill 700, which amended Government Code section 12954 and took effect on January 1, 2024. That statute makes it an unlawful employment practice for an employer to penalize a worker for using cannabis off the job and away from the workplace, and it forbids reliance on a drug test that detects only the nonpsychoactive cannabis metabolites that linger in the body long after any effect has passed. Gov Code § 12954. The Legislature exempted only employees in the building and construction trades, and it said nothing at all about peace officers. Because the Legislature expressly excluded one occupation and left every other unmentioned, officers possess a legitimate argument that the omission of their profession was deliberate and that the new protection reaches them. The statute therefore begins from a position that appears to favor the officer who uses cannabis on personal time.

That favorable starting point gives way, however, to several exemptions that may prove decisive for law enforcement. Section 12954 does not permit an employee to use or to be impaired by cannabis on the job, it preserves an employer's authority to maintain a drug free workplace, and it expressly leaves intact any other rights or obligations that state or federal law places on the employer. The statute also declines to preempt any state or federal law that requires controlled substance testing as a condition of employment, and it removes from its protection any position that requires a federal government background investigation or security clearance. The difficulty is that the ordinary municipal or county officer completes a state background investigation for good moral character under Government Code section 1031, not the federal investigation that the exemption describes, and Government Code section 1029 disqualifies only those convicted of a felony rather than those who use cannabis. Whether these provisions carve officers out of the statute or leave them comfortably within it remains genuinely uncertain.

The sharpest tension arises not from the employment statute but from the firearm that every sworn officer must carry. Federal law makes it unlawful for any person who is an unlawful user of a controlled substance to possess a firearm, and cannabis remains a Schedule I controlled substance under federal law no matter how completely California has legalized it. An officer who uses cannabis therefore appears, at least on the face of the statute, to be a person whom Congress has forbidden to hold a tool that the job requires. That same officer who buys a personal weapon must attest truthfully on the federal firearms transaction record that he is not an unlawful user of marijuana, and a false answer carries federal criminal exposure. The firearm requirement, far more than anything in the employment code, is what has long threatened to place cannabis-using officers outside the protection that Assembly Bill 2188 seems to promise.

For years the governing federal authority in California cut sharply against the officer. The Ninth Circuit in Wilson v. Lynch, 835 F.3d 1083 (9th Cir. 2016) applied a two-step inquiry and intermediate scrutiny and upheld the federal restrictions that keep marijuana users, including the holders of a state medical marijuana card, from acquiring firearms. The court reasoned that these laws burden the Second Amendment only minimally and incidentally, and it concluded that the Constitution tolerates such modest collateral burdens. Wilson supplied a straightforward answer that a cannabis user could be kept from the firearm and therefore from the job. That answer, however, rested on the Ninth Circuit’s Second Amendment analysis that the Supreme Court has rejected.

The ground shifted when the Supreme Court decided New York State Rifle and Pistol Association v. Bruen and directed courts to measure firearm regulations against the Nation's historical tradition rather than against tiers of scrutiny. United States v. Hemani, 146 S. Ct. 1677 (2026), decided on June 18, 2026, applied that framework to the very statute at issue here. Ali Hemani used marijuana a few times a week, and the government sought to imprison and permanently disarm him on that basis alone, without any claim that he was an addict, that he was intoxicated while armed, or that he had ever posed a danger to anyone. The Court held that the prosecution could not stand, because the historical laws the government invoked, the old regimes that restrained habitual drunkards through vagrancy, civil commitment, and surety bonds, targeted persons whose intoxication left them incapacitated and operated only after some form of legal process. Section 922(g)(3), by contrast, automatically disarms any regular user of any controlled substance without proof of incapacity, intoxication, or dangerousness, and the Court concluded that this automatic and status driven ban does not fit within the Nation's historical tradition of firearm regulation. Applying the statute to Hemani on those facts therefore violated the Second Amendment.

The Court took evident care to confine its ruling. It did not decide whether Congress may disarm those who are addicted or presently intoxicated, it did not disturb the separate prohibition on firearm possession by convicted felons, and, most importantly for officers, it did not resolve whether the government may proceed under the statute when it offers individualized proof that a person's drug use renders him a danger to himself or others. The holding thus dismantles one categorical justification for disarming cannabis users while expressly preserving room for a narrower approach that rests on individualized findings.

Arguably, if the federal firearm ban cannot constitutionally reach a person merely because he uses cannabis, then an agency can no longer prohibit marijuana use based on the contention that such an officer is legally incapable of possessing their duty weapon. Under this argument, the exemptions from section 12954 may not apply, because they preserve only employer obligations that federal law genuinely imposes, and under Hemani federal law may not impose a firearm disability based on cannabis use alone. The earlier Ninth Circuit rule in Wilson, resting on a repudiated legal framework, looks increasingly invalid after Hemani. Thus, an officer disciplined solely because he or she uses cannabis may run afoul of the categorical prohibition that the Supreme Court has now rejected. Read together, Assembly Bill 2188 and Hemani suggest the officer may be protected from discipline.

However, the application of Assembly Bill 2188 to peace officers remains unclear. Hemani decided only an as applied challenge that turned on the complete absence of any individualized showing, and the Court pointedly left open a prosecution supported by individualized proof of dangerousness. An agency may contend that an officer who carries a loaded firearm in public every single day presents exactly the individualized safety concern that the Court declined to reach, so that the reasoning of Hemani may provide officers no shelter at all.

Section 12954 independently preserves the employer's right to maintain a drug free workplace and to honor any obligation that federal law and regulation impose, and Government Code section 1031 must be read and applied consistently with federal law. Cannabis also remains unlawful under federal law even where a prosecution under section 922(g)(3) would fail, and the officer who purchases a personal firearm still confronts the sworn federal form and the criminal exposure that a false answer invites. 18 U.S.C.A. § 922. Wilson, while legally suspect, remains binding in the Ninth Circuit until that appellate court or the Supreme Court squarely overrules it, and an agency may reasonably continue to rely upon it.  

The honest conclusion is that the law has not settled and that officers and their employers alike should proceed with caution. Hemani has weakened the categorical federal bar that once made this analysis simple, yet it has deliberately left open the individualized path to enforcement. More importantly, the California exemptions remain untested in any court.

Public safety unions should resist any suggestion that their members must surrender the protections that the Legislature extended, and they should insist that any adverse action rest on an individualized assessment of fitness and risk rather than on cannabis using status alone. Officers, for their part, should remember that cannabis remains unlawful under federal law and should weigh that stubborn reality before they place their careers in the hands of an unsettled disciplinary dispute. Until the Legislature or the courts clarify this issue, prudent officers should tread lightly regarding off-duty cannabis use. 

A Published Victory for Proportionality in California Highway Patrol v. California State Personnel Board

The California Court of Appeal has handed California peace officers a rare and valuable published decision holding that a single, isolated act of dishonesty does not compel termination and does not, by itself, brand an officer as unfit to serve. In California Highway Patrol v. California State Personnel Board, No. B336135 (Cal. Ct. App. July 29, 2026, ordered published Aug. 5, 2026), the Second Appellate District affirmed the State Personnel Board's decision reducing an officer's dismissal to a suspension, and it did so in an opinion that peace officers and the unions who represent them will cite for years to come. Mastagni Holstedt represented the officer, and the published result confirms a principle that agencies too often ignore. Not every act of dishonesty is the same, and the penalty must fit the misconduct and the officer who committed it.

The facts illustrate why proportionality matters. Officer Nathaniel Partridge joined the California Highway Patrol in 2006, compiled a record free of prior discipline, and earned excellent and proficient performance ratings that described him as conscientious, dependable, and ready for promotion. He worked overtime details under the Maintenance Zone Enhanced Enforcement Program, an arrangement through which the Department of Transportation reimbursed the Highway Patrol for enforcement services on highway maintenance projects. A local standard operating procedure required officers released early by Caltrans to remain at the East Los Angeles station for the balance of the scheduled shift. On September 17, 2017, after his detail ended early, Partridge went home rather than remaining at the station, yet he received the full scheduled overtime (roughly three hours and forty five minutes) pay. The agency also faulted him for failing to record the return time of his patrol vehicle on eight occasions over a six month period.

The State Personnel Board sustained a charge of dishonesty against Partridge, and it did not minimize his conduct. The Board held that theft of public funds and the falsification of official forms, even on a single occasion, constitute serious misconduct for a sworn peace officer. The Board nevertheless reversed his dismissal because the evidence established one isolated event rather than a pattern or a disposition to deceive. The Board contrasted Partridge with officers who had engaged in systematic overtime abuses and concluded that a single lapse by an officer with a long and unblemished career did not demonstrate a propensity to lie, cheat, or deceive. Applying the factors articulated in Skelly v. State Personnel Board, 15 Cal. 3d 194, 218 (1975), which direct the decision maker to weigh the harm to the public service, the circumstances surrounding the misconduct, and the likelihood of recurrence, the Board imposed a suspension that cost Partridge a full year of salary.

The Court of Appeal affirmed. A reviewing court may not substitute its own judgment for that of the administrative body on the question of penalty, and it will disturb the chosen discipline only in the exceptional case in which reasonable minds cannot differ. See Barber v. State Personnel Board, 18 Cal. 3d 395, 404 (1976). The Highway Patrol argued that dishonesty is a continuing trait of character and that any sustained finding of dishonesty therefore requires dismissal. The court rejected that categorical position and held that dismissal is not required in every case of dishonesty. See County of Siskiyou v. State Personnel Board, 188 Cal. App. 4th 1606, 1617 (2010). Reasonable minds could differ about the appropriate consequence for the officers' conduct, and the existence of that reasonable disagreement fortified rather than undermined the Board's exercise of discretion.

Most significant for officers facing discipline is the way the court distinguished degrees of dishonesty. The court confronted the authorities that agencies routinely invoke to demand termination and confined each of them to its facts. It explained that Kolender v. San Diego Civil Service Commission, 132 Cal. App. 4th 716, 721 (2005), described dishonesty as a continuing trait of character only in the context of an officer who lied to conceal the physical abuse of an inmate and refused to tell the truth until investigators exposed the falsehood. It viewed Cate v. State Personnel Board, 204 Cal. App. 4th 270 (2012), as a case in which dishonesty accompanied far more egregious misconduct, including the encouragement of a mentally ill patient to commit suicide, the intimidation of a witness, and an abuse of official power. Measured against that conduct, Partridge's isolated overtime claim occupied a different place on the spectrum, and the court refused to treat every falsehood as the equivalent of the aggravated dishonesty that had justified dismissal elsewhere. Degrees of dishonesty exist, and the law recognizes them.

The publication of this opinion carries independent importance. The published decisions in this area have generally sustained dismissals, and agencies have marshaled those cases to argue that any dishonesty finding ends an officer's career as a matter of law. A published opinion that affirms a proportional penalty for an isolated act of dishonesty now stands as citable precedent for the opposite and correct proposition. Officers and their representatives no longer need to rely on unpublished dispositions or on the bare language of Skelly. They can point to a binding appellate holding that an isolated lapse, committed by an officer whose integrity had never before been questioned, may warrant discipline short of termination. The decision restores balance to a body of law that had tilted heavily toward the agency.

The opinion also speaks to the decertification regime that now governs California peace officers. Senate Bill 2 empowered the Commission on Peace Officer Standards and Training to suspend or revoke the certification of an officer who engages in serious misconduct, and it defined serious misconduct to include dishonesty relating to the reporting, investigation, or prosecution of a crime or the investigation of officer misconduct. See Cal. Penal Code § 13510.8(b)(1). Nothing in that statute makes decertification automatic. The Commission possesses discretion, for the statute provides that it may suspend or revoke certification rather than that it must. See Cal. Penal Code § 13510.8(a)(2). The implementing regulation confirms that the analysis is individualized, for in deciding whether revocation is proper the Commission considers the extent to which the dishonesty related to a material or significant fact and whether the officer acted willfully and with the intent to deceive. See Cal. Code Regs. tit. 11, § 1205(a)(1). The Commission may recommend revocation only when serious misconduct is established by clear and convincing evidence. See Cal. Code Regs. tit. 11, § 1212(b)(2).

This case demonstrates that a sustained dishonesty charge should not trigger a presumption of decertification. The very factors that persuaded the State Personnel Board to impose a suspension rather than dismissal are the factors that the certification regulation directs the Commission to weigh. An isolated act, the absence of any pattern, the materiality and intent behind the conduct, and the officer's overall record all bear on whether the extraordinary sanction of decertification is warranted. An officer who commits a single lapse presents a fundamentally different case from an officer who lies repeatedly to conceal abuse or to defeat an investigation. Agencies and the Commission that read this opinion faithfully will understand that a dishonesty label, standing alone, does not resolve the proportionality question that both the disciplinary and the certification frameworks require them to answer.

Conclusion

For California public safety unions and their members, the practical lesson is clear and encouraging. When an agency seeks to terminate an officer for an isolated act of dishonesty, the decision maker should weigh the full circumstances, including the officer's career, the isolated character of the conduct, and the materiality and intent behind it. 

When an agency invokes Kolender or Cate to demand automatic dismissal, the officer may answer that those cases turned on aggravated misconduct far removed from an isolated error. And when the specter of decertification arises, the officer may remind the Commission that Senate Bill 2 and its regulations call for an individualized assessment rather than a reflexive revocation. 

The published opinion in California Highway Patrol v. California State Personnel Board gives officers and their advocates the authority to make each of these arguments with confidence. It affirms that fairness and proportionality remain the law, and that a single mistake need not end a career of honorable service.

Appellate Court Affirms Broad Make Whole Remedy for Violation of Duty to Engage in Effects Bargaining Over Pension Reciprocity

On July 30, 2026, the Court of Appeal for the Second Appellate District, Division Seven, issued an unpublished decision in City of Los Angeles v. American Federation of State, County and Municipal Employees, Nos. B336981 and B340065. The court affirmed the Los Angeles Employee Relations Board order requiring the City to engage in effects bargaining and to make whole Coalition represented employees who suffered reduced pension and other benefits after the City suspended reciprocity between the Los Angeles City Employees Retirement System and the Water and Power Employees Retirement Plan. Although the Employee Relations Board exercises jurisdiction limited to the City of Los Angeles, the Court of Appeal expressly construed the Meyers Milias Brown Act in reaching its conclusions. That construction carries significant weight for every public employer and exclusive representative subject to the Act statewide. The decision confirms that when a public employer implements a nonnegotiable change that foreseeably affects retirement benefits, it must still bargain the effects of that change, and that make whole relief for resulting pension losses remains an available and appropriate remedy under the Meyers Milias Brown Act.

Factual Background

Beginning in 1980 the City and the Department of Water and Power maintained a reciprocal arrangement that permitted employees transferring between the two systems to carry pension service credit. In 2010 the Water and Power Employees Retirement Plan Board voted to suspend reciprocity after determining that net transfers from City service into the Department of Water and Power increased the Plan unfunded liability by approximately one hundred eighty three million dollars. After litigation and settlement in Romero et al. v. City Council of the City of Los Angeles, the City Council in December 2013 adopted Ordinance No. 182824, effective January 1, 2014. The Ordinance ceased crediting prior Water and Power Employees Retirement Plan service for benefit calculation purposes under the Los Angeles City Employees Retirement System, although such service continued to count solely for eligibility to retire. The Coalition of City of Los Angeles Unions, which includes the American Federation of State, County and Municipal Employees and several other organizations representing Los Angeles City Employees Retirement System members, demanded bargaining. The City provided information but refused formal meet and confer obligations.

LA ERB Ruling

The Coalition filed unfair employee relations practice charges. After extensive hearings the Employee Relations Board concluded that the City possessed no duty to bargain the underlying decision to suspend reciprocity yet retained a clear duty to bargain the effects of that decision. Those effects included disability retirement calculations, retiree health subsidies, protected leave return rights, and transfer practices. The Board ordered the City to meet and confer in good faith over those subjects. It further ordered the City to make whole any Coalition represented employee who sustained losses, including reduced pension or other benefits, from January 1, 2014, until the parties reached agreement or impasse or the Coalition failed to bargain in good faith. The Board also directed the City to cease and desist from applying the post 2013 Administrative Code provisions governing treatment of Water and Power Employees Retirement Plan service until that bargaining obligation was satisfied.

Superior Court Ruling

The trial court denied the City petition for writ of mandate and granted the Coalition cross petition seeking enforcement. The court further awarded the Coalition attorney fees under Code of Civil Procedure section 1021.5. The City appealed both the judgment and the fee order. On appeal the City conceded its duty to engage in effects bargaining yet challenged only the remedy. It argued that the Employee Relations Board lacked statutory authority to order make whole relief, that the particular remedy failed to restore the status quo and conflicted with other provisions of law, that the order was vague and overbroad, that it violated separation of powers principles, and that the fee award was improper.

Court of Appeal Ruling

The Court of Appeal rejected each contention. It first held that Employee Relations Ordinance section 4.810, subdivision (f)(12), which authorizes the Board to perform such other duties as may be necessary to carry out its responsibilities, empowers the Board to award retroactive make whole relief. The court reasoned that local rules implementing the Meyers Milias Brown Act must remain consistent with the policies of that Act. Government Code section 3509, subdivision (d), expressly grants the Employee Relations Board power to issue determinations and orders it deems necessary consistent with and pursuant to the policies of the Meyers Milias Brown Act. The Public Employment Relations Board has long recognized that make whole relief serves the dual purposes of compensating employees for harm caused by an unfair practice and deterring future violations. Because the Employee Relations Board interpretation of its remedial authority was not clearly erroneous, the court deferred to it.

The court next confirmed that make whole relief constitutes an appropriate and customary remedy for effects bargaining violations. Effects bargaining stands on equal footing with decision bargaining. Both protect the principle of bilateralism that forms the centerpiece of the Meyers Milias Brown Act. The usual remedy directs the employer to bargain over effects and awards limited back pay, understood to encompass all forms of economic loss including reduced pension and medical benefits, until the parties reach agreement or impasse. The Employee Relations Board remedy in this case tracked that established framework. The make whole obligation terminated upon completion of the bargaining process. The court distinguished the earlier decision in American Federation of State, County and Municipal Employees v. City of Los Angeles, 109 Cal. App. 5th 179 (2025), which held that employees possessed no vested contractual right to continued reciprocity. Absence of a vested right does not eliminate the distinct statutory right under the Meyers Milias Brown Act to bargain the effects of terminating reciprocity and to receive interim relief that restores the parties as nearly as practicable to the position they occupied when the bargaining duty arose.

This distinction is critical for bargaining rights over pension changes. Public employers frequently retain the unilateral right to alter retirement plan design, contribution rates, or reciprocal arrangements so long as those changes do not impair vested contractual rights. The Court of Appeal made clear that the absence of a vested right does not extinguish the concurrent duty under the Meyers Milias Brown Act to meet and confer over the effects of such changes on represented employees. Pension calculations, service credit recognition, disability retirement eligibility, and retiree medical subsidies all fall within the scope of effects bargaining when a nonnegotiable decision foreseeably impacts them. The make whole remedy, which can include the difference between the pension benefits employees would have received and the benefits they actually received, remains available until the employer satisfies that bargaining obligation. Because the Court of Appeal grounded its analysis in the policies of the Meyers Milias Brown Act rather than in unique features of the Los Angeles Employee Relations Ordinance, the reasoning applies with equal force to every public agency and exclusive representative subject to the Act.

The court found no separation of powers violation. The remedy did not compel the City Council to enact or rescind legislation. It merely maintained the economic status quo on a temporary basis until the City satisfied its statutory bargaining obligation. Nor was the cease and desist directive vague or overbroad. The order identified the clear category of post 2013 Administrative Code provisions governing treatment of Water and Power Employees Retirement Plan service for employees moving into Los Angeles City Employees Retirement System covered positions. Read in light of the Board findings identifying the specific effects subjects, the order provided sufficient notice of the conduct enjoined.

Finally, the court upheld the attorney fee award under Code of Civil Procedure section 1021.5. The Coalition was the successful party because it achieved the core objectives of securing an effects bargaining order and make whole relief. The litigation enforced an important public right, namely compliance with the duty to bargain under the Meyers Milias Brown Act, and conferred a significant benefit on a large class of City employees and on other bargaining units that may confront similar unilateral changes. The Coalition is likewise entitled to its reasonable attorney fees and costs on appeal.

State-wide Impacts

Although the Employee Relations Board exercises jurisdiction only within the City of Los Angeles, a Court of Appeal decision that construes the Meyers Milias Brown Act itself benefits all public employee organizations operating under that statute. The Public Employment Relations Board and reviewing courts consistently look to appellate interpretations of the Act when resolving effects bargaining disputes. This decision reinforces that pension related impacts remain fully subject to effects bargaining even when the underlying decision to change a retirement system is nonnegotiable. It further confirms that make whole relief measured by the difference in pension benefits is an ordinary and available remedy designed both to compensate employees and to restore the parties to a more balanced bargaining position. Unions throughout California therefore gain a clearer statement of the rights their members hold when employers alter reciprocal service credit arrangements, contribution formulas, or related retirement features without first addressing the foreseeable effects.

Public employee unions and their members should take careful note of the temporal limits the court endorsed. Make whole relief is not permanent restoration of reciprocity. It functions as a temporary bridge that preserves bargaining leverage and compensates for delay caused by the employer unlawful refusal. Associations therefore should remember to request effects bargaining promptly when management announces nonnegotiable changes that will foreseeably affect retirement service credit, disability benefits, leave rights, or transfer opportunities. Failure to request bargaining or to bargain in good faith can terminate the make whole period. Conversely, employers that ignore the duty face the prospect of years of retroactive liability measured from the date employees first experience harm.

The Court of Appeal affirmed the judgment and the attorney fees orders. Although the opinion is not certified for publication, its careful synthesis of Employee Relations Board authority, Public Employment Relations Board remedial doctrine, and the policies of the Meyers Milias Brown Act will inform future disputes involving effects bargaining over pension and benefit changes throughout California. 

Conclusion

Where management retains unilateral authority to alter certain arrangements, associations should prepare written demands for effects bargaining and document the economic consequences that will flow from any suspension. The make whole remedy affirmed in this case supplies a potent tool for restoring balance when that duty is ignored.