California Appeals Court Holds That Public Speech Protection Law Cannot Be Used To Stifle Suit Against County

In a victory for public employees, a California court of appeals shut down an attempt by the County to strike a sheriff's deputy's lawsuit against the county alleging that they retaliated against him for asserting his privacy rights in his medical record. While this case is unpublished and therefore not controlling authority, it signals a warning to employees who might attempt to use California's anti-SLAPP rules to strike down lawsuits asserting MMBA and POBR violations.

By way of background, California's "anti-SLAPP" or anti-Strategic Lawsuits Against Public Participation is a civil code section used to punish those who bring lawsuits which are intended to stop or retaliate against speech made during "official proceedings." The idea behind anti-SLAPP is to prevent persons from stifling protected free speech by filing a lawsuit. However, public employers often attempt to classify their disciplinary proceedings as "official proceedings" and their recommendations for discipline as "protected speech." While this is a perversion of the spirit and purpose of the law, that does not stop management from trying to use it.

In Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2016) Second District Court of Appeal, Case No: B260584, A deputy injured himself at work and became addicted to pain killers for two years. He later entered a drug dependency treatment program and returned to full duty. After a later back surgery he again obtained pain medications from several different physicians. At some point, an unknown person from the Sheriff's Department accessed his record of prescriptions in the database and saw that he had several prescriptions from different doctors. The Deputy then discarded all of his medications.

The Deputy was meeting all of his performance requirements, but shortly after the unauthorized access, as many as six supervisors asked to get consent to access his prescription information in the database. They also asked him to voluntarily submit to a psychological fitness for duty evaluation. The County Occupational Health Department requested that he submit to a fitness for duty examination given his refusal to provide access to his prescription record. When he met with the psychologist, the doctor refused to do an exam unless he provided his medical records. The deputy was then ordered to take a medical leave of absence and was refused the opportunity to return to work. 

 
The Association sued alleging, among other things, violation of privacy rights and retaliation for asserting his privacy rights. The County moved to strike all claims on anti-SLAPP grounds arguing that the referral of the plaintiff to Occupational Health was protected speech and the process by which the County required the Plaintiff to submit to a fitness for duty test was an official proceeding for purposes of SLAPP. The trial court agreed and ordered the Plaintiff to pay the defendant’s costs of suit.

The appellate court noted that the meaning of "official proceeding" continues to elude definitive judicial interpretation, but should generally be limited to proceedings of a public nature and that this case was likely an internal matter, not a public proceeding. However, the appellate court did not need to reach that question because the claims in this case did not arise out of that process anyway. SLAPP case law draws a distinction between speech made in connection with an official proceeding, and the decision made because of that proceeding. The thrust of plaintiff’s arguments stemmed from the decisions made by the Department after the proceeding, not from the statements themselves. Thus, SLAPP was inapplicable here.

New Law Bars Public Employers From Searching Cell Phones, Personal Devices Without Warrant

On October 8, 2015, Governor Brown signed S.B. 178, the California Electronic Communications Privacy Act (CalEPCA).  CalEPCA prevents a government entity from compelling disclosure of electronic data without warrant. The Act covers both personal devices and online services that store personal data. To waive this protection, the authorized user must give consent to the government agency seeking the information.

Public safety agencies often have policies that apply to "personal communication devices" (PCD). It's likely, however, that many of these sections violate CalEPCA.  For example, some Lexipol PCD policies used by many departments permit administrative searches of both department-issued and personally owned devices.  Under these policies, the employer can track the employee's location, inspect message content, and access online information.  Some Departments have attempted to compel employees to turn over text messages or phone logs without a warrant.

Now, absent an emergency or the employee's consent, the agency needs a warrant to get any of this information. Many public safety departments will have to change their current policies to conform to CalEPCA. As a mandatory bargaining subject, the department and union will have to "meet and confer" to adopt a new policy governing PCDs.

PERB: Employers Must Meet and Confer Over On-The-Job Cameras

In Rio Honda Community College Dist. (March 21, 2013) PERB Dec. No. 2313, PERB decided employers must meet and confer with labor associations over the impacts of video cameras, including whether they might create new kinds of evidence in discipline cases.  PERB's reasoning should apply equally to in-car cameras and GPS devices.

The Board held the union had a legitimate concern the new cameras could be used to monitor employees' compliance with workplace rules, and would create previously unavailable evidence to support discipline or evaluations.  How video recordings might be used in discipline and evaluation is therefore a negotiable effect of the decision to install the cameras.

PERB's decision expands an earlier ruling about use of technology to monitor employees.  In Trustees of the California State University (2003) PERB Decision No. 1507-H, PERB held rules about internet use were negotiable.  Here, PERB said the impacts of using video cameras presents "the same concerns" as "monitoring employee internet usage."  As a result, under this ruling, unions likely can demand to meet and confer about the impacts of other types of electronic surveillance, such as in-car cameras and GPS devices.

Court Finds Employers Liable for Word-of-Mouth Invasion of Privacy

In Ignat v. Yum Brands, Inc. (March 18, 2013) Case No. G046343, the Fourth District Court of Appeal ruled employees can sue when their employers publicly disclose private facts about them, even if just verbally.  The case started when Melissa Ignat, a Yum Brands employee, returned to work after an absence to learn that her employer had revealed to her co-workers that she suffered from bipolar disorder.  She filed a lawsuit, alleging public disclosure of private facts.

The case is especially significant because the Court of Appeal abolished the requirement that disclosure happened in a document.  The Court decided there was no good reason for the "document requirement" and recognized that verbal disclosures can be just as harmful and written ones.  Since the requirement served no legitimate purpose, the Court allowed Ms. Ignat to sue her employer for verbally disclosing her condition to her co-workers.

US Supreme Court: Warrant Required for GPS Tracking

In a 9-0 decision, the Supreme Court held that attaching a GPS device to a vehicle, and using it to monitor the vehicle’s movements on public streets, constitutes a search under the Fourth Amendment.  As a result, the Court held it is unconstitutional to attach a GPS device to a vehicle without a warrant or consent.

The case started after the FBI obtained a warrant, but the warrant only authorized installation of the device in the District of Columbia and within 10 days of when the warrant was issued.  Instead, agents installed the device on the 11th day and in Maryland.  Consequently, the Court treated the case as though there was no warrant.

The agents tracked the vehicle’s movements for 28 days.  Later, they secured an indictment of the defendant and others on drug trafficking conspiracy charges based in part on evidence obtained with the GPS device.  The District Court suppressed the GPS data obtained while the vehicle was parked at the Defendant's residence, but decided the remaining data was admissible because the Defendant had no reasonable expectation of privacy when the vehicle was on public streets.  The Defendant was convicted and appealed.

Justice Scalia, writing for the majority, reasoned one's vehicle is a type of personal "effect" the Fourth Amendment specifically mentions, and that, therefore, attaching a GPS device to one's vehicle is the type of encroachment that would count as a search under the Fourth Amendment at the time it was adopted.  The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  Justices Roberts, Kennedy, Thomas and Sotomayor joined his opinion.

Justice Alito wrote an opinion reaching the same result from a different perspective.  He decided the use of the GPS device was unconstitutional because the length of the monitoring made it a degree of intrusion that a reasonable person would not have anticipated.  Justices Kagan, Ginsburg, and Breyer joined his opinion.

Court Dismisses DEA Agent's Lawsuit Over Leaked Shooting Video

On January 17, 2012, the federal appellate court for the District of Columbia dismissed a privacy lawsuit brought by a DEA after a video of him accidentally discharging his weapon was released on the internet.  The agent discharged his weapon, injuring himself, during a presentation to students at a local school.  One of the parents was recording the presentation and turned the video over to the DEA shortly after.  It was later copied and distributed to various people within the DEA.  The officer never learned how it was released publicly, but the video was widely viewed on the internet.

The officer brought claims under federal and Florida law, alleging a public disclosure of private facts.  While the court noted the DEA's conduct was"far from a model of agency treatment of private data," the court dismissed the claim, noting "[n]o liability attaches 'for giving further publicity to what [a] plaintiff himself leaves open to the public eye.'”

Court Upholds Peace Officers' Right to Sue Over Dissemination of Personnel Records

In Olivera et al. v. Siemens, et al., Case No. S-CV-0029390, the Placer County Superior Court upheld peace officers' right to seek redress for dissemination of their personnel records, overruling a city's demurrer.  The officers filed suit for invasion of privacy after a former IA sergeant took and distributed a copy of their IA files to officers at another agency.  The city then filed a demurrer, challenging the ability of peace officers to bring a civil suit over disclosure of their personnel files. The Court found the officers could proceed with their claims for invasion of privacy and intrusion into private affairs, noting the alleged dissemination of their personnel records was "sufficiently outrageous" to trigger liability under Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272.

The Court also upheld the officers' right to proceed with their claims on intentional infliction of emotion distress, negligent infliction of emotion distress, and injunctive relief ordering the defendants to retrieve and destroy unlawfully disseminated records.  The plaintiffs are represented in the matter by Mastagni Law attorneys David E. Mastagni, James B. Carr and Isaac S. Stevens. 

Court Reaffirms Peace Officers' Constitutionally-Protected Right to Privacy While Partially Undressed

Following the Ninth Circuit, the Court of Appeals for the Third Circuit found a female deputy sheriff had a reasonable expectation of privacy while partially undressed and undergoing a decontamination process.  Doe, a deputy sheriff in Luzerne County, Pennsylvania was surreptitiously filmed by a male officer while undergoing decontamination. The male officer uploaded the video onto his work computer and called several officers into his office to view the footage.   He then put in on a county-wide server.  Doe filed a 1983 action against the county and the officer, alleging violations of her right to privacy under the Fourteenth Amendment and her right to be free from unlawful searches and seizures under the Fourth Amendment.

The trial court granted the county's motion for summary judgment. The Third Circuit reversed on the Fourteenth Amendment claim and affirmed on the search and seizure claim.  After looking to other circuits, the court concluded a deputy sheriff has a constitutionally-protected privacy interest in his/her partially clothed body. The court noted:

Although the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit, other circuits—including the Second, Sixth and Ninth Circuits—have held that such a right exists. See, e.g., Poe v. Leonard, 282 F.3d 123, 136–39 (2d Cir.2002) (finding that plaintiff, a female civilian who was participating in a police training video, alleged sufficient facts to raise a triable issue of whether her constitutional right to privacy was violated where the male police officer surreptitiously filmed her in the dressing room while topless and without a bra); York v. Story, 324 F.2d 450, 454–56 (9th Cir.1963) (finding that the plaintiff properly stated a claim for a violation of her constitutional right to privacy where she alleged that, while reporting a sexual assault, a male police officer deceived her into permitting him to photograph her genitals and exposed breasts under the pretext of an investigation), cert. denied, 376 U.S. 939, 84 S.Ct. 794, 11 L.Ed.2d 659 (1964); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 497–98 (6th Cir.2008) (finding a privacy violation where a middle school's surveillance cameras recorded the plaintiff students in their undergarments while in the school locker room)
(Doe v. Luzerne County (3d Cir., Oct. 12, 2011, 10-3921) 2011 WL 4823387.)

The court concluded the male deputy’s filming did not implicate the Fourth Amendment because it was conducted for personal reasons.