Ninth Circuit: The First Amendment Forbids City From Prohibiting Police Officers From Criticizing Police Department Or City

On September 5^th 2018, the Ninth Circuit found that a “Last Chance Agreement” restricting an employee’s negative comments about the police department, the city, or its employees, was an unconstitutional restraint on free speech.

In Barone v. City ofSpringfield, a victim advocate and a police department liaison to the city’s minority communities was investigated for two incidents. The first incident involved a tour during which students took photographs in restricted areas. The second incident involved a message left with dispatchers about a potential crime. After the investigation, the Officer was suspended for four weeks and placed on administrative leave. In order to return to work, she was presented with a mandatory Last Chance Agreement (“LCA”).  She refused to sign it “because it prohibited her from reporting on racial profiling and discrimination.”

After her refusal, the police chief provided her with an amended LCA. The amended agreement barred her from saying or writing anything negative about the department, the city, or their employees—although she could report complaints involving discrimination or profiling by the department. The amended LCA also said she would remain subject to a generally applicable order that barred her from publicly criticizing or ridiculing the department. She refused to sign this agreement as well and was subsequently terminated. She filed suit alleging, among other things, that the LCA violated her First Amendment rights.

The Ninth Circuit agreed that the amended LCA violated her constitutional rights. The Court specifically found that the Department’s concerns about potential disruptive speech were unconvincing. The Court concluded that the city needed evidence of past disruption or evidence that the anticipated harm is “real, not merely conjectural.” Without such evidence, the LCA unconstitutionally restrained Barone’s speech as a private citizen on matters of public concern.

CalPERS Changes Eligibility Rules for Industrial Disability Retirement

The California Public Employees’ Retirement System (CalPERS) posted Circular Letter 200-018-17 on March 30, 2017. Among other things, this Letter addresses changes to the eligibility determinations for certain local safety members applying for industrial disability retirement. 


In the past, CalPERS relied on the employer’s recommendation to verify eligibility of any member for industrial disability retirement. However, CalPERS will now independently evaluate whether certain members are eligible. The employer must obtain CalPERS’ determination of a member’s eligibility to apply for disability retirement before the employer starts the process of a disability determination for any of the following circumstances:

• Disciplinary process underway prior to the member’s separation from employment.

• The member was terminated for cause.

• The member resigned in lieu of termination.

• The member signed an agreement to waive his or her reinstatement right as part of a legal settlement (i.e., Employment Reinstatement Waiver).

• The member has been convicted of or is being investigated for a work-related felony.

The Letter also imposes a requirement for local agencies to re-evaluate eligibility determinations for disability retirees under the voluntary service retirement age. The purpose is to verify whether the recipient remains physically or mentally disabled from the position which they disability retired for the condition(s) that they were approved for.

The Letter requires employers to provide all relevant personnel documents and medical records to CalPERS. This information will be used to conduct the second evaluation of a member’s medical incapacity and employment status.  However, providing such information to CalPERS creates a conflict for safety employers. For example, Penal Code section 832.7 prohibits employers from disclosing peace officer personnel records without the peace officer’s written consent or a Pitchess motion. Employers are also prohibited from disclosing medical information without written authorization from the employee.

Court of Appeal: Cadets Can't Be Fired for Getting Hurt In Academy

In Atkins v. City of Los Angeles, the Court of Appeal ruled that the California Fair Employment and Housing Act applies to pre-probationary public safety recruits attending academy training. The City of Los Angeles used to allow recruits who were injured during training to temporarily fill light-duty administrative positions until they either healed or became permanently disabled. At some point, the department decided to cease offering these positions and told five recruits who were on light duty that they needed to get medically cleared to return to full duty or they would be terminated. None of the recruits were able to do so and they were terminated or forced to resign. They sued and won a total of $12.3 million in future wages from the date of termination through to a hypothetical date of retirement.

Under FEHA an employer may not discriminate against "qualified individuals" on the basis of their disability. A "qualified individual" is a person who can perform the essential job duties of a position. Here, the recruits could perform the essential functions of the light-duty administrative position, but not the police recruit position. On appeal the City argued that the Court must determine whether the recruits are qualified individuals with respect to the recruit position, not the temporary administrative position. The City also argued that it had no duty to accommodate pre-probationary trainees.

The Court of Appeal found there was no distinction in the FEHA between pre-probationary employees, probationary employees, and regular employees with regard to either discrimination or the duty to accommodate. Thus, the Court upheld the failure to accommodate claim. However, the Court agreed that the proper test in a discrimination context is to examine whether the employees were "qualified individuals" with respect to the police recruit position, not the temporary light duty administrative position. Accordingly, the Court found that the employer did not discriminate against them. Ultimately the City was still liable for failure to accommodate, but the court did reduce the damages as they were too speculative.

Police Department Social Media Policy Found Unconstitutional

Liverman v. City of Petersburg (2016) 844 F.3d 400, involved two police officers who were disciplined based on two posts they made on Facebook. The two officers made posts that were critical of the administration’s practice of promoting inexperienced police officers into management positions. The City’s policy prohibited employees from: 1) making comments that would reflect poorly upon the Department or the City and 2) making negative comments about the operations of the Department. The first policy attempted to qualify itself by essentially stating that the First Amendment would still be observed and officers could comment on issues of general or public concern so long as those comments did not interfere with working relationships, efficient work flow, or undermine public confidence in the Officers.

The comments were purportedly divisive within the department and some patrol officers sought transfers away from the two officers. The two officers were given an oral reprimand and six months probation, but were told that the discipline would not affect their eligibility for promotion. However, several weeks later, a department chief changed the qualifications for promotion such that officers on probation were prohibited from promoting. When the two officers sent notice of their intent to challenge the disciplinary action, they were immediately subjected to several additional investigations which would have resulted in termination. One of the officers retired before he could be terminated.

The two officers contested the social media policy in civil court arguing that the policy violated the First Amendment, and thus, their discipline and the subsequent retaliation should be overturned. The Court recited First Amendment law stating that public employees generally do not lose their rights to speak on matters of public concern, but the speech must be balanced against the interest of the state in promoting the efficiency of the public services it provides. The Court found that the social media policy at issue explicitly restricted speech criticizing the department. 

The Court found it significant that the officers chose Facebook as their forum of choice which the court compared to writing into a newspaper's opinion section. By choosing Facebook, they were clearly showing an intention to communicate their concerns to the public, outside of the employment context. The Department did not establish a significant enough reason other than general concerns of divisiveness as to why such speech should be restricted. The “negative comments” policy did not contain the qualification which would permit comment on matters of public concern and was thus, unconstitutionally overbroad. Accordingly, the discipline against the employees was overturned and the Chief who imposed the discipline was denied qualified immunity because the law in this area was well-established.

Court Allows Officer's Retaliation Lawsuit to Proceed Over Anti-SLAPP Motion

In Armendariz v. City of Burbank, the Second Appellate District held that a Burbank Police Officer’s retaliation lawsuit against his employer could go forward, despite the City’s attempt to strike the complaint on anti-SLAPP grounds. The Burbank Officer sued his employer alleging that they had terminated him due to his outspoken criticism of the Department’s leadership decisions. The City asserted that their internal affairs investigation against the Officer was protected by the first amendment and thus, the Officer’s lawsuit should be stricken.

Specifically the Officer asserted in his complaint that he complained to his department about unlawful arrest and citation quotas being imposed on officers. He also complained repeatedly and publicly about the Chief of Police’s management of the department and new disciplinary guidelines while acting in leadership positions with the Police Officer’s Association. He also complained about the Department's decision to fill senior positions within the Department with outside officers and without complying with civil service protocols. These statements were also made to the press. Not long after these statements and complaints, the Department initiated a series of internal affairs investigations into the Officer.

The general purpose of California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute is to protect against lawsuits which are aimed at preventing or punishing protected first amendment speech. Part of this protection extends to statements made in connection with an “official proceeding authorized by law.” In recent years, cities and counties have been asserting that their internal affairs investigations are such protected proceedings. When employees sue their employers after being terminated due to an internal affairs investigation, employers often try to use anti-SLAPP to shut the lawsuit down.

In order to strike claims in a lawsuit using anti-SLAPP, a defendant must show that the claims of the plaintiff arise out of protected activity. Once demonstrated, the plaintiff may only continue its case if it can establish that its claims have minimal merit. In Armendariz, the court made clear that anti-SLAPP can only be used to strike the individual claims to which the protection applies; it does not destroy the entire complaint if it contains other claims.

In this case, the court decided that the Officer’s claims of retaliation did contain allegations relating to protected activity (the internal affairs investigation). Thus, statements or writings generated in connection with the investigation were protected activity within the meaning of the anti-SLAPP statute. However, the Officer was able to establish that his claims had at least minimal merit and likelihood of success. This was due partly to the City’s almost complete failure on appeal to address the Officer’s arguments and evidence submitted, offering only a single paragraph of bare argument in response to over 220 pages of evidence.

The City offered several other token defenses such as failure to exhaust administrative remedies, governmental immunity, and litigation privilege, all of which were denied. Governmental immunity did not apply because while a government entity is protected from vicarious liability from its employee's actions, this protection does not apply when the Officer is seeking to hold the City directly responsible for its violations of the law. Litigation privilege, which precludes liability arising from a publication made in a judicial proceeding, did not apply because the Officer’s claims arose out of the City’s actions of termination, and not necessarily from its statements during the IA process. 

Accordingly, the court allowed the Officer’s lawsuit to go forward and permitted him to recover his costs on appeal.  Although the officer's suit survived the anti-SLAPP motion, this case also illustrates the difficulties presented by the anti-SLAPP statute when challenging adverse employment actions arising from internal affairs investigations.

Officers Are Entitled To Reasonable Prior Notice Of The Subject Matter Of An Interrogation

The Second District Court of Appeal recently ruled in Ellins v. City of Sierra Madre (Jan. 28, 2016) that public safety officers must be given notice of the specific subject matter of an investigation "reasonably prior to" an interrogation so that they have sufficient time to consult with a representative.

Officer John Ellins allegedly used the CLETS database to do unofficial searches of his ex-girlfriend. The Sierra Madre Police Department opened an investigation into Ellins' conduct after receiving a tip from the ex-girlfriend. The Department gave a vague notice to Ellins that it was investigating "an alleged abuse of your peace officer powers and duties." Minutes before the interrogation was to begin, the Department told Ellins the specific allegations. The Department then gave Ellins an hour to consult with his attorney representative.

POBR provides that an officer under investigation "shall be informed of the nature of the investigation prior to any interrogation." (Gov. Code, sec. 3303(c).) The Court of Appeal held this means “'reasonably prior to' the interrogation—that is, with enough time for the officer to meaningfully consult with any representative he elects to have present."

The Court rejected the Department's argument that notice can be given only minutes before an interrogation.  But the Court declined to set a hard rule about how far in advance notice must be given.  it stated the amount of time will depend on the circumstances, including whether the officer needs time to obtain a representative, the complexity of the allegations, the number of unrelated allegations, and any risk the officer will retaliate against persons involved in the investigation or will destroy evidence.

The Court explained notice allows officers to prepare for the interrogation and identify justifications, explanations, extenuating circumstances, and other mitigating factors. If an officer is not given adequate prior notice of the subject matter of the interview and time to consult with his representative, he cannot get effective help and protection from his representative.

Officers' Off-Duty Use Of Cellphones Not An FLSA Violation

A federal court ruled the Chicago Police Department did not violate the Fair Labor Standards Act by requiring police officers to respond to work-related calls, emails, and texts on their department-issued cellphones while off duty.

In early 2010 several members of the Chicago Police Department's Organized Crime Bureau filed a lawsuit against the City of Chicago alleging it willfully denied them overtime pay for off-duty work. The department  issued the officers cellphones. The officers alleged the city knew the officers often worked overtime hours responding to work-related communications on these cellphones but refused to pay them for their work.

In Allen v. City of Chicago, the U.S. Northern District Court of Illinois conditionally certified a class of police officers who alleged the city owed them overtime pay and penalties under the FLSA.  The court then held a bench trial, after which Magistrate Judge Sidney Schenkier ruled the officers had failed to prove that the city knowingly violated the FLSA.

The court found the officers did in fact perform compensable work by using their cellphones while off duty. The court ruled responding to communications from their superiors, their subordinates, confidential informants, and other law enforcement agencies involved in police investigations or task forces was compensable work.

However, the court also found the department generally did not know about the officers' off-duty work using their cellphones. The evidence supporting the officers' claims was weak. No officer was ever denied an overtime request related to off-duty use of their cellphone, nor did any officer ever complain to the department about this issue. The few times that an officer submitted a request for overtime pay for off-duty work, the department was not told it was for work on a cellphone and the department always paid.

Because the city did not know about the extent of officers' off-duty work using their cellphones, the court ruled the officers could not recover penalties from the city for violating the FLSA. Instead, the officers could only recover unpaid overtime wages for the hours they worked. An employer is liable under the FLSA when it suffers or permits its employees to work overtime but does not pay them overtime wages. If an employer does not know its employees are working overtime, it is not suffering or permitting the employees to work and has not knowingly violated the FLSA.

CBS13 Interviews David Mastagni About Military Equipment for Law Enforcement

CBS13 interviewed Mastagni Holstedt partner David P. Mastagni about President Obama's call to limit military equipment in law enforcement agencies.  In the interview, Mastagni explained, "Obama's dead wrong" and the policy "is going to decrease public safety [and] put the public at risk, increase the risk of law enforcement officers' injury or death in the line of duty.  He explained, "the equipment that is necessary to meet and exceed the criminal threat is the type of equipment he is seeking to ban."

BART POA Wins Injunction Protecting Identity of BART Officer Involved in Critical Incident

In BART Police Officers Association v. Bay Area Rapid Transit District et al., the BART Police Officers’ Association (BPOA) successfully defended the privacy rights of its members and prevented the unlawful disclosure of the name of an officer under investigation in a critical incident.

The Department sought to release the name of an officer identifying the officer as the subject of a disciplinary investigation following a use of force incident that gained widespread notoriety.

Following a use of force incident, a citizen made a complaint against the officer, and the department made statements to the media that the incident was under investigation. The Department informed the officer that they intended to release the officer’s name to the media, identifying him as the officer under investigation for the incident. The Department informed BART POA it intended to release the officer’s name to the press.

BART POA President Keith Garcia immediately moved to protect the officer’s privacy. BART POA sent a cease and desist letter to the Department and prepared an application for a temporary restraining order. Then the POA secured an agreement from the District to preserve the officer’s privacy until the dispute could be heard by a court on an expedited basis.

Then, on April 17, 2014, the Alameda Superior Court and the parties agreed to a preliminary injunction protecting officer privacy until at least 30 days after the California Supreme Court decides two closely related cases.

The California Supreme Court is considering two important cases about peace officers’ privacy rights. In Federated University Police Officers Association v. Superior Court, the Court will decide whether or not the California Public Records Act can be used to force disclosure of peace officers’ names in a report about the use of pepper spray at UC Davis in 2011.

In Long Beach Police Officers Association v. City of Long Beach, the Court will decide whether the California Public Records Act requires agencies to release the names of officers involved in officer-involved shootings. Together, these cases will establish the legal foundation for how these information requests must be treated in the future. In the meantime, officers can protect their rights by pursuing injunctions like the one BART POA won in this case.

Mastagni Law attorneys Kevin A. Flautt, David E. Mastagni, Jeffrey R. A. Edwards, and Brendon P. Parenti represented BART POA in the matter.

Court of Appeal Protects Police Officers' Workers' Compensation Benefits

In City of Sacramento v. Workers Compensation Appeals Board (Cannon) (December 26, 2013, Court of Appeal Case No. C072944), the Court of Appeal ruled in favor of accuracy and fairness when rating workers’ compensation injuries.  The decision establishes the Almaraz/Guzman rule is not limited to “complex and extraordinary" workers’ compensation claims.

When a client suffers a permanent impairment, an evaluator rates the injury using the American Medical Association’s Guide to the Evaluation of Permanent Impairment (“AMA Guides”). Almaraz/Guzman, allows the evaluator to give a fair and accurate rating of the client’s disability using any page from the AMA Guides. This is particularly useful when a strict rating under AMA Guides rating is unfairly low. The use of Almaraz/Guzman often results in a higher disability rating for the client.

In this case, the City of Sacramento challenged the rating for a police officer injured on the job. The City's first argued an evaluator may not rate solely on the basis of subjective complaints of pain. The AMA Guides does not allow a strict rating solely based on pain. Thus, defendant argued no rating should be given. But the Court of Appeal quoted the Almaraz/Guzman decision, and reaffirmed the evaluator is not limited to either strict compliance or mechanical application of the AMA Guides. Where a condition is entirely subjective, the evaluator is entitled to use his/her best judgment in assigning a disability rating.

Next, the City of Sacramento dissected four words from the Almaraz/Guzman opinion and asserted it can only be used in “complex and extraordinary cases." The Court of Appeal flatly rejected the claim. The City of Sacramento misinterpreted Almaraz/Guzman. The words “complex and extraordinary cases” referred to syndromes not fully understood or those manifested solely by subjective complaints.  Officer Cannon’s injury, plantar fasciitis, is mentioned nowhere in the AMA guides. Thus, it was clearly within the realm of cases contemplated by Almaraz/Guzman.

This case was not the first time the defense bar has claimed Almaraz/Guzman was limited to “complex and extraordinary cases."  Hopefully, it will be the last. We hope this decision makes it clear accuracy and fairness is the key to rating workers’ compensation injuries.  In those cases where the strict interpretation of the AMA Guides does not accurately reflect a client’s impairment, the evaluator should cite Almaraz/Guzman and provide a more accurate rating.  Mastagni attorney Eric D. Ledger argued the case for Sacramento police officer Arthur Cannon before the Court of Appeal.

Court of Appeal: POBR Violation Voids Dishonesty Charge

In Ruiz v. City of Bell Gardens (2013) Case No. B244395, the Court of Appeal affirmed a superior court ruling voiding a dishonesty allegation because of a POBR violation.  Officer Ruiz was on administrative leave pending the outcome of an IA investigation.  When his department put him on administrative leave, it ordered him not to enter any city property not open to the general public.  Then, a lieutenant came across him in police trailer not open to the general public and asked him about why he was there.  The court found that the lieutenant's questions constituted an interrogation under POBR.  Since the department did not give him notice of the interrogation in advance, it violated POBR and Officer Ruiz statements were suppressed.  Without his statements, there was no basis to support the dishonesty allegation.

Court: "Liking" Sheriff Candidate on Facebook Protected by First Amendment

In Bland v. Roberts (4th Cir., Sept. 18, 2013, 12-1671) 2013 WL 5228033, the federal Court of Appeals for the Fourth Circuit ruled that the act of "liking" a candidate for Sheriff on Facebook by a deputy sheriff is protected speech under the First Amendment. As a result, it is unlawful for a sheriff to retaliated against an employee for "liking" his opponent.

The case started when sheriff’s office employees brought a civil rights action alleging that the sheriff retaliated against them by reappointing them because of their support of his electoral opponent. Two of the employees expressed support for the Sheriff’s opponent by “liking” his Facebook page and posting comments of encouragement for his upcoming election. After the sheriff was reelected, he refused to reappoint the employees to their positions as sheriffs deputies at the jail, a typical process in that jurisdiction.

 They sued, claiming that the sheriff violated their First Amendment rights to free association and free speech. Initially, the District Court sided with the sheriff, finding merely “liking” a Facebook page is insufficient speech to merit constitutional protection, but the Court of Appeals reversed.

The Court of Appeal said when one “likes” a political campaign's Facebook page, the user becomes associated with the campaign. A photo of the user is posted to the campaign’s profile, a link is provided on the users profile that others can use to access with the campaign’s page, and the “thumbs up” icon communicates the user’s support. The Court said the act of “liking” the page is like displaying a political sign in one’s front yard, which the Supreme court has held as substantive speech.

Court Rules POBR Statute of Limitations Tolled Until DA Declines Charges

In Richardson v. City and County of San Francisco (ord. pub. March 15, 2013), the Court of Appeal held a criminal investigation tolls the one year statute of limitations until the DA declines charges.  The case is about a San Francisco fraud investigator who was fired for CLETS violations, check fraud, and resisting arrest.  After the IAs were sustained, she filed a lawsuit claiming her Department did not discipline her within the one-year statute of limitations for discipline under POBR.

POBR’s one year statute of limitations has several exceptions.  One of the exceptions applies when, a “criminal investigation... is pending.”  Richardson argued POBR’s statute of limitations expired because the criminal investigation had to be an “actual and active investigation or prosecution” and the DA had stopped actively investigating the case against her more than a year before she was fired.  However, the Court decided the “active and actual” requirement is unworkable because it would be hard to prove how “active” a criminal investigation is at any point.  Instead, the Court said the investigation ended when the DA declined charges.  As a result, the Court upheld the discipline.

PERB Charges San Jose With Labor Law Violations Over Pension Initiative

On March 8, 2013, the Public Employment Relations Board issued a complaint against the City of San Jose related to Measure B, that City's attempt to strip employees of their retirement security.  The complaint alleges the City "knowingly provided inaccurate information" to the union about "its fiscal obligations regarding retirement benefits."  The City has been widely criticized for using pension numbers "not based on reality."

The complaint also alleges the City refused to meet and confer with the union and moved forward with Measure B without completing the labor relations process.  Accordingly, the complaint alleges the City violated Government Code sections 2503, 3505, and 3506.5.  Now the City must respond to the allegations with 20 days and the case will proceed to a hearing in front of judge with the Public Employment Relations Board.

Ninth Circuit: Officers' Use of Taser 22 Times Was Justified, Despite Death of Suspect

In Marquez v. City of Phoenix (9th Cir. 2012) 693 F.3d 1167, the Ninth Circuit Court of Appeals held that officers’ repeated and prolonged use of a taser against the suspect, both in “probe mode” and in “drive-stun mode,” which resulted in the suspect’s death, did not amount to excessive force in violation of the Fourth Amendment.

The case started when two Phoenix, Arizona, police officers arrived at a suspect's family home. They learned that the male suspect was attempting to perform an exorcism on his three-year old granddaughter. Upon entering the bedroom, which had been barricaded, the officers found chaos. The walls and furniture were smeared with blood, the suspect was reclining on the bed with a silent and motionless victim in a choke-hold, and the suspect’s adult daughter was naked in the corner screaming with evidence on her face of a recent beating. One officer ordered the suspect to let the child go or he was going to be tased. The suspect did not comply and, the officer deployed his TASER X26 ECD in “probe mode.” The taser was ineffective and the suspect continued to actively resist arrest, even kicking one officer in the groin.

After the victim was removed, the suspect continued to resist. Officers were eventually able to wrestle Ronald into submission after using the taser multiple times. At that point, the officers found that he had a weak pulse. Despite resuscitation efforts, the suspect went into cardiac arrest and died. The cause of death was listed as “excited delirium” and records found that the suspect received nine five-second cycles from the X26; two while it was ineffectively deployed in “probe mode” and seven when it was deployed in “drive-stun mode.” In all, the officers pulled the X26's trigger a combined 22 times.

While the Court found that considerable force was used, the force was not excessive. Interestingly, the Court was “not convinced that the use of an X26 involves deadly force” but even if it did, under the totality of the circumstances, the force was reasonable. The Court highlighted the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain and rapidly evolving. In this situation, officers were responding to a domestic violence call in which the suspect would not release his granddaughter from a choke-hold and then struggled viciously in close quarters against the officers attempting to restrain him while his daughter, who had also been the victim of his attacks, remained in the room throughout.

New York Court Finds Post-Critical Incident Breathalyzer Legal Under Some Circumstances

In Palladino v. City of New York (S.D.N.Y., June 28, 2012, 07 CV 9246 GBD) 2012 WL 2497272, a federal court in New York decided NYPD’s policy of requiring a breathalyzer for officer who discharged firearms in critical incidents was constitutional under some circumstances. The case started after NYPD required all uniformed members involved in firearms discharges resulting in injury to or death of a person be subjected to Department administered alcohol testing. The stated purpose of the policy was to ensure the highest levels of integrity at the scene of officer involved shootings.

Law enforcement unions sued, arguing the policy was an unreasonable search in violation of the Fourth Amendment. However, the Court decided the primary purpose of the policy was to deter police officers from becoming intoxicated and discharging their weapon, which qualified as a “special need”. The Court decided NYPD officers carrying and discharging firearms had diminished expectations of privacy, the breathalyzer test was not an overly intrusive search, the policy was applied uniformly, and the policy was narrowly tailored to accomplish NYPD's goals of ensuring compliance with its policies regarding personnel management.  The ruling only addresses the constitutionality of the policy and not whether it would violate California state laws such as POBR.

Supreme Court Leaves Controversial Eavesdropping Ruling In Place

In American Civil Liberties Union of Illinois v. Alvarez (7th Cir. 2012) 679 F.3d 583, the Court of Appeal decided Illinois’ eavesdropping statute is unconstitutional.  The law makes it a felony to audio record “all or any part of any conversation” unless all parties to the conversation give their consent.  Defendants can be sentenced to up to fifteen years if they record a peace officer. The statute does not prohibit taking silent videos of police officers performing their duties in public; turning on the microphone, however, is prohibited.

The American Civil Liberties Union (ACLU) challenged this statute as applied to the organization’s Chicago-area “police accountability program,” which included a plan to record police officers performing their duties in public places. The local police union defended the law because it prevents people from recording officers to release snippets out of context.  The Court, however, found that the statute “restricts far more speech than necessary to protect legitimate privacy interests” and “it likely violates the First Amendment’s free-speech and free-press guarantees” as applied to the alleged facts.

The Court of Appeals argued the statute “interferes with the gathering and dissemination of information about government officials performing their duties in public.” The Court was quick to point out, however, that their decision would not immunize “behavior that obstructs or interferes with effective law enforcement or the protection of public safety.”  On Monday, November 26, 2012, the United States Supreme Court declined to hear the State’s appeal and thus, the Seventh Circuit’s ruling was left in place.

Stockton Voters Throw Mayor Out of Office in Landslide, Elect Pro-Public Safety Candidate

After years of cuts to police and rising crime, Stockton voters held the politicians accountable Tuesday.  Stockton voters overwhelmingly rejected mayor Ann Johnston's cuts to public safety, throwing the incumbent out of office in a landslide 58% to 42% vote.  Public safety was the central issue in the campaign.  Johnston attacked the Stockton Police Officers' Association in a flyer celebrating the way police officers' and firefighters' benefits were "slashed" and "axed" under her watch.  Mayor-elect Anthony Silva, on the other hand, campaigned on a promise to raise revenue and hire 200 more police officers, saying voters "want more police on our streets, they're saying we want our neighborhoods to be safe."

Report: Stockton Losing Experienced Officers

KCRA News reports the City of Stockton is facing a new problems after filing for bankruptcy.  According the report, "experienced police officers are leaving in droves."  A big part of the problem is that the "new cuts in the bankruptcy, essentially eliminating Senior Officer Pay, are causing a flight of officers, the veteran officers that you want to keep: they know the streets, they know the crime," according to Mastagni Law partner David E. Mastagni.  The recent attention to the flight of officer comes after bond holders argued employees aren't paying their fair share in the bankruptcy.  However, "I think if anybody's not bearing their fair share, it's the bond market," Mastagni said. "The cops are the ones out there jumping fences and putting their lives on the line."  Watch the full report here.

California Democratic Party Joins Police and Fire Unions to Oppose Prop 32

The Sacramento Bee reports that the California Democratic Party has voted to officially oppose Proposition 32, which would restrict union political fundraising by prohibiting use of payroll-deducted funds for political purposes.  CPF and PORAC are already aggressively opposing Prop 32.