Supreme Court Clarifies Qualified Immunity Applies to Use of Force When Protecting Third Parties

 On April 2, 2018, the United States Supreme Court clarified that peace officers are permitted to use deadly force in order to protect third parties.

In Kisela v. Hughes, three Tucson, Arizona police officers responded to reports of a woman hacking at a tree with a kitchen knife and acting erratically. Upon arriving on the scene, the officers spotted a woman, later identified as Sharon Chadwick, standing in the driveway of a nearby house. A chain-link fence separated Chadwick from the three officers.

Amy Hughes came out of that same house carrying a large knife at her side. She matched the description of the woman who had been seen hacking a tree. Hughes walked toward Chadwick. She stopped no more than six feet from her.

All three officers drew their guns. At least twice they told Hughes to drop the knife. Chadwick said “take it easy” to both Hughes and the three officers. Although Hughes appeared calm, she failed to acknowledge the officers’ presence or drop the knife.

The top bar of the chain-link fence blocked Officer Kisela’s line of fire. He dropped to the ground and shot Hughes four times through the fence. Less than a minute transpired from the moment the officers saw Chadwick to the moment Kisela fired shots.

All three officers jumped the fence, handcuffed Hughes, and called paramedics—who transported her to a hospital. At the hospital, she was treated for non-life-threatening injuries.  Afterwards, Hughes sued Officer Kisela under 42 U.S.C. section 1983, alleging excessive force in violation of her constitutional rights.

While underscoring the need for officers to make spit-second decisions, the Court declined to engage in the second-guessing of officers on the scene. The Court specifically noted that although the officers themselves were in no apparent danger, all three of the officers said at the time of the shooting they subjectively believed Hughes to be a threat to Chadwick. To that end, Officer Kisela was entitled to the defense of qualified immunity

This is an important case for California peace officers. It underscores that officers are entitled to qualified immunity when utilizing deadly force in order to protect third-parties.  

Mastagni Holstedt Appeals Alameda County Deputy Sheriff’s Association PEPRA Decision to Supreme Court

David E. Mastagni and Isaac S. Stevens petitioned the California Supreme Court to review the First District Court of Appeals’ decision in Alameda County Deputy Sheriff’s Associationv. Alameda County Employees’ Retirement Association (“ACDSA”). The petition asks the Court to reverse the appellate court’s holding that detrimental changes to employees’ pension benefits need not be offset by comparable new advantages to be constitutional.

This case arose from the enactment of the Public Employees’ Pension Reform Act (“PEPRA”). On behalf of the ACDSA, we sued the Alameda County Employees Retirement Association (“ACERA”) in December 2012, after it announced plans to begin excluding forms of leave cash out and other pay items from ACDSA members’ pension calculations, supposedly to comply with PEPRA’s changes to the definition of “compensation earnable.” “Compensation earnable” is the pay used to calculate employees’ pension benefits.  The lawsuit alleged that, by excluding these pay items from members’ pension benefits, PEPRA infringed on members’ vested pension rights. The case was eventually consolidated with cases from Contra Costa County and Merced County asserting similar claims.

The trial court largely ruled against employees and unions in the case. According to the court, there was no vested right to pension that included terminal pay, and there was no basis for using the doctrine of promissory estoppel to require ACERA to continue including terminal pay in retirees’ pension benefits. We appealed.

While the case was on appeal, the First District issued a decision in a case raising issues very similar to ours, MarinAssociation of Public Employees v. Marin County Employees’ Retirement Association (“MAPE.”) The MAPE case also challenged the legality of excluding terminal pay from pension benefit calculations pursuant to PEPRA. In MAPE, the First District appellate court ruled that a detrimental change to vested pension rights did not need to be offset by a new advantage to survive scrutiny, so long as the remaining pension benefit was reasonable. Shortly thereafter, the First District issued a decision in Cal Fire v. California PublicEmployees Retirement System (“CalFire”), affirming the MAPE court’s decision that comparable new advantages were required when pension benefits were reduced.

The MAPE represented a radical departure from decades of case law protecting pension benefits from being reduced. In Allen v. City of Long Beach (1955) 45 Cal.2d 128, the Court ruled that the Constitution required any changes to vested benefits be material to the theory of a pension system, and any detriment resulting from such a change should be offset by a comparable new advantage. This principle is often referred to as the California Rule. Over the years, the courts repeatedly affirmed the validity of this rule, and required detrimental changes be offset by new advantages to survive constitutional scrutiny. By turning the requirement for a new advantage into a mere suggestion, the MAPE court made public employees’ pension benefits vulnerable to reductions in the future. Indeed, Governor Brown himself acknowledged that, when the next recession comes around he will “have the option of considering pension cutbacks for the first time in a long time.”[1]

The California Supreme Court granted review in the Cal Fire and MAPE cases while the ACSDA case was still pending in the appellate court. In granting review in MAPE, the Court ordered further proceedings in that case deferred until our case was decided.

The appellate court in ACDSA ruled on our appeal in early January.  The court issued a lengthy ruling, finding the trial court failed to include a vested rights analysis, and its analysis of PEPRA’s impact on the pensions of legacy members was incorrect.  In the ruling, the court cited the MAPE decision approvingly, ruling that PEPRA’s changes to employees’ pension benefits did not need to be offset by corresponding new advantages to be constitutional.  Beyond merely agreeing with the MAPE decision, the court in ACDSA went so far as to describe MAPE’s evisceration of California vested rights case law as “not controversial.”

While the court determined that legacy PEPRA members could be entitled to have the excluded pay items included in their pension calculations under a theory of promissory estoppel, it left the door open for the State to continue reducing employees’ pension benefits in this future. We appealed the decision to ensure the California Supreme Court had an opportunity to overturn the First District’s efforts to erode public employees’ pension rights.

The petition for review we filed this week asks the Supreme Court to review the appellate court’s ruling on the comparable new advantage issue, while leaving the estoppel ruling intact. As discussed in our petition, review is necessary to reverse the First District appellate court’s efforts to overturn decades of vested rights case law and protect public employees’ pensions in the future.

The State of California has also petitioned the Supreme Court for review, seeking to overturn the appellate court’s ruling on whether retirement associations had the authority to agree to include the pay items at issue in employees’ pension benefits to settle disputes over benefit calculations after the Court’s landmark ruling in Ventura. The State’s appeal thus challenges the appellate court’s ruling on promissory estoppel, while leaving its destruction of the California Rule intact.

By appealing the appellate court’s decision, the appeal ensured that the ACDSA has a seat at the table when the Supreme Court considers the First District’s ruling, and an opportunity to defend our clients’ rights to receive the pensions they spent decades working for. The Court will address this issue when it considers the MAPE and Cal Fire cases, and an adverse ruling on those appeals could supersede the appellate court’s decision in the ACDSA case. By appealing, the ACDSA ensured its objection to the First District’s attack on the California Rule would be heard. For similar reasons, we filed an amicus brief on behalf of the ACSDA and public safety associations across California in the Cal Fire case, asking the Court to affirm the continued existence of the California Rule. Be sure to check the blog to keep up to date on what happens. 

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[1] http://www.sacbee.com/news/politics-government/the-state-worker/article194434479.html

Court of Appeal Issues Decision in Major Pension Case

On Monday, the First District Court of Appeal issued its opinion in a major pension reform case our office is litigating on behalf of the Alameda County Deputy Sheriffs’ Association (“ACDSA”).   While there are issues the Supreme Court will likely be asked to address on further appeal, the appellate court found in the employees/unions’ favor on several significant points.

On behalf of the ACDSA, David E. Mastagni and Isaac S. Stevens from our office sued the Alameda County Employees Retirement Association (“ACERA”) in December 2012, after it announced plans to begin excluding forms of leave cash out and other pay items from ACDSA members’ pension calculations pursuant to the Public Employees’ Pension Reform Act (“PEPRA”). The lawsuit alleged that, by excluding these pay items from members’ pension benefits, PEPRA infringed on members’ vested pension rights. The case was eventually consolidated with cases from Contra Costa County and Merced County asserting similar claims.  

The trial court largely ruled against employees and unions in the case. The trial court ruled there was no vested right to pension that included terminal pay, and found there was no basis for using the doctrine of promissory estoppel to require ACERA to continue including terminal pay in retirees’ pension benefits. We appealed that ruling.

Between when the trial court issued judgment and when the appellate court heard oral arguments in our appeal, the First District issued a decision in a case raising issues very similar to ours, filed by the Marin Association of Public Employees (“MAPE.”) The MAPE case also challenged the legality of excluding terminal pay from pension benefit calculations pursuant to PEPRA. In MAPE, the First District appellate court abandoned the long-standing requirement that any changes to a vested pension benefit be material to the theory of a pension and any detriment to the pensioner be offset by a corresponding new advantage. Specifically, the court found that a detriment did not need to be offset by a new advantage to survive scrutiny, so long as the impairment was reasonable.

Before oral arguments in our case, the appellate court told the parties to prepare to discuss MAPE’s impact on the issues in our case. We prepared arguments showing how the two cases differed, to ensure the court knew it could not simply apply the ruling from the MAPE case to the issues in our case. The parties attended oral arguments in early December, and addressed MAPE’s impact in depth with the appellate court.  

On Monday, the appellate court issued a lengthy ruling, finding the trial court failed to include a vested rights analysis, and its analysis of PEPRA’s impact on the pensions of legacy members was incorrect. The following is a list of the main issues the court decided:

1.  Leave cash outs before retirement (i.e. “in service cash outs.”) – the appellate court disagreed with the trial court. If an employee exercises a right to cash out vacation during his or her final compensation period, that pay must be included in the employees’ pensionable compensation – regardless of when the time was accrued.

2.  Leave cash outs at retirement (i.e. “terminal pay.”) – the appellate court agreed with the trial court’s ruling that CERL excluded terminal pay from pensionable compensation before PEPRA. According to the court, there was no vested right to have terminal pay included in pension benefits. As such, PEPRA could not impair any vested right to have terminal pay included.

3.  Pay outside normal working hours (e.g. standby and on call pay.) – the trial court ordered the retirement boards to continue including these pay items if they were previously included in pension calculations, they were earned and required of the employee during his/her final compensation period, they were “regularly applicable to the class of employees,” and were not designed to “enhance” the pension.

The appellate court found that these pay items were includable before PEPRA, and PEPRA was meant to exclude them. As a result, the appellate court found there was a vested right to on call pay being included in pensions, and the trial court should have analyzed whether changes to the definition of compensation earnable in Government Code section 31461 unlawfully impaired that right.

4.  PEPRA’s exclusion of compensation the retirement board determines was “paid to enhance a member’s retirement benefit.” – the appellate court found PEPRA added a new requirement in Government Code section 31461(b)(1), by excluding from pension benefits and compensation a retirement board determines is “compensation paid to enhance a member’s retirement benefit,” It further held the trial court erred in refusing to determine whether legacy members had a vested right to be free from the uncertainty posed by the new requirement. Because (b)(1) changed the prior CERL law, the appellate court ruled the trial court must subject it to a vested rights analysis.

5.  The proper analysis for vested rights impairment claims – the appellate court’s ruling was mixed for us. On one hand, the court found that MAPE’s elimination of the “corresponding new advantage” requirement was “not controversial.” On the other, it found that the MAPE court improperly hinged its analysis on what it believed a “reasonable pension” should be, as opposed to defining a “reasonable pension” as one subject only to “reasonable modification.” It also found that, while a modification could be lawful despite not being accompanied by a new offsetting advantage, any detrimental changes to legacy employees could only be justified by “compelling evidence” that the changes bear a material relation to the theory of a pension system and its successful operation. The court then found that the fact that the impact of changes to the definition of pensionable compensation for legacy members may seem modest when compared to the pension system as a whole may support a finding that the changes were unlawful – especially if the benefits at issue were already actuarially accounted for and treated as pensionable. This is good for us, because we can show ACERA has accounted for the inclusion of on call and standby pay in pension benefits over the years.

6.  Estoppel - the employees had argued that, even if they never had a legal right to receive terminal pay in their pension benefits before PEPRA, they should nonetheless have it included under the doctrine of promissory estoppel. Promissory estoppel is a legal doctrine used to grant relief when a person detrimentally relies on the promise of another person. It allows the injured party to enforce the promise. The trial court found that certain employees were not entitled to relief. The appellate court found that employees in all three affected counties – including Alameda – could use promissory estoppel to obtain relief. According to the court, “all legacy employees should be entitled to include terminal pay in compensation earnable to the limited extent such pay was designated as pensionable by their relevant post-Ventura settlement agreement.”

So what does this all mean for legacy employees in 37 Act retirement systems? It is a mixed result. There are parts of the judgment that will likely be appealed by both sides. If the ruling stands, the matter will go back to the trial court to determine whether PEPRA unconstitutionally impaired legacy members’ rights to a pension free of any uncertainty caused by PEPRA’s new requirement that pensionable income not include pay meant to enhance a member’s retirement benefit. In the meantime, there would be grounds for ACERA, MCERA, and CCCERA to continue including terminal pay in legacy members’ pension calculations. It is not clear at this time what the retirement boards plan to do. Alternatively, the ruling could be appealed to the California Supreme Court. We will keep you posted as the case goes forward.

Attorneys David E. Mastagni and Isaac S. Stevens from Mastagni Holstedt represented the Alameda County DSA in this case.

CSLEA Profiles Member Sal Martinez's Legal Defense Fund Victory

Sal Martinez is an ABC agent.  He is a member of the California State Law Enforcement Association and participates in CSLEA's Legal Defense Fund.  On February 1, 2016, Martinez was the victim of an off-duty, possible hit and run vehicle accident.  Despite acting as most peace officers would under the circumstances, he was charged with violating PC 245(a)(2) and 417(a)(2) (brandishing).  After a grueling 18 months, he was acquitted and won his job back.  Now, CSLEA's Legal Defense Fund is profiling his story in an in-depth hour-long video presentation.  Mastagni Holstedt attorney Greg Thoming represented Martinez at trial.

 

Association for Los Angeles Deputy Sheriffs Victorious in Battle with Sheriff Jim McDonnell

In a recent decision, the Second District Court of Appeal (Second DCA) ruled that the names of peace officers with potential misconduct involving moral turpitude in their personnel files are confidential and not subject to disclosure absent a Pitchess motion.

LA County Sheriff Jim McDonnell wanted to disclose to the LA County District Attorney a department-created list of alleged "Brady" officers so that the District Attorney would know when to file Pitchess motions or inform defendants that a Pitchess motion may be necessary. The Association for Los Angeles Deputy Sheriffs (ALADS) brought an action for an injunction to prevent this from occurring. 

The trial court partially granted ALADS' request and ruled that the Sheriff could not disclose the names of officers unless the officer is a potential witness in a pending criminal prosecution. The Second DCA ruled that disclosing the officers' names would violate the Pitchess statutes, and stated that the Pitchess statutes protect not only personnel records but all "information obtained from these records." Thus, the court viewed the trial court's decision as a ruling that the Pitchess statutes were unconstitutional under Brady when it ruled that protected information could be disclosed without a Pitchess motion. 

The Second DCA found that it must follow the precedent established under Mooc and City of Los Angeles and ruled that the Pitchess statutes are constitutional and mere supplementary to the requirements established under Brady. This is because it has been ruled that a defendant who cannot meet the less stringent requirements of the Pitchess standard cannot meet the materiality standard set by Brady. 

It remains to be seen whether the California Supreme Court will take up an appeal in order to reconcile the Second DCA's ruling with the Supreme Court's previous ruling in Johnson.