Can Cops Smoke Weed? The Answer Remains Hazy

Effective January 1, 2024, AB 2188 amends Government Code section 12954 (Fair Employment and Housing Act “FEHA”) to prohibit an employer from discriminating against an employee or applicant for cannabis use off the job and away from work.  SB 700 further amends section 12954 to prohibit employers from requesting information from an applicant for employment relating to the applicant’s prior use of cannabis.  This legislation establishes enhanced protections for marijuana use by elevating its use to a protected status under FEHA, which protects the right and opportunity of all persons to seek, obtain, and hold employment without discrimination based upon protected statuses. This legislation has created uncertainty as to whether law enforcement officers and their employing agencies are covered by this legislation.  

The statutes cover state and local employees in California with no express exclusion of peace officers.  The only professions expressly excluded from the statute are employees in the building and construction trades. (Gov. Code, § 12954(c).) Thus, the exclusion of building and construction employees creates a presumption that peace officers are not excluded unless subject to the other exemptions related to federal legal requirements.

The bill also excludes applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense pursuant to Part 117 of Title 32 of the Code of Federal Regulations, or equivalent regulations applicable to other agencies. (Gov. Code, § 12954(e).) 

Some officers assigned to federal law enforcement task forces must undergo a federal government background investigation and are likely exempt, but most do not.  Before hiring an officer, Penal Code sections 1029(a)(3), (a)(11), (c), and 1031(c) require a search of the National Decertification Index of the International Association of Directors of Law Enforcement Standards and Training and, investigations of officers’ military discharge and local and nation criminal records fingerprint files.  However, none of these investigations appears to be “a federal government background investigation,” which is not defined in the statute. Ultimately, this question will have to be resolved by clean up legislation or the courts. 

The bill also provides that it does not preempt state or federal laws requiring employees to be tested for controlled substances, including laws requiring employees to be tested as a condition of receiving federal funding or federal licensing-related benefits.  However, state and federal law generally does not require California peace officers to be tested for cannabis. Further, any drug testing policy would have to be negotiated with the officers’ labor representatives. 

Officers may nevertheless be effectively excluded from the protections of these bills if they are required to lawfully possess a firearm as a condition of their employment. 18 U.S.C. section 922(g)(3) prohibits the receipt or possession of a firearm by anyone "who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)." Cannabis is classified by the federal government as a schedule I substance and therefore a user of cannabis is banned from possessing a firearm. However, possession of firearms issued by and for the use by a public entity are not covered by this federal law.  Thus, the Act covers officers who use their personal weapons on duty, but not firearms owned and issued by the employing agency.  

Further, when anyone buys a firearm from or through a firearms retailer, they are required to answer questions on the federal “4473” form. In California, there are other state forms that must also be completed, including the Dealer Record of Sale (DROS) form. The 4473 form specifically asks if the firearm purchaser is an “unlawful user” of marijuana. Even if marijuana use is legal in a particular state, it is still illegal under federal law. In order to be truthful, the individual must answer “yes” to this question if they use marijuana. The 4473 form must be signed under penalty of perjury. Committing perjury is a crime. Federal law also expressly prohibits knowingly making any false statement on the 4473. Doing so is punishable by up to ten years in prison and up to a $250,000 fine. 18 U.S.C. § 924(b).

The Ninth Circuit has held that the firearm prohibition on cannabis users is constitutional, even in the context of those with medical marijuana cards, explaining that “these laws will sometimes burden—albeit minimally and only incidentally—the Second Amendment rights of individuals who are reasonably, but erroneously, suspected of being unlawful drug users. However, the Constitution tolerates these modest collateral burdens in various contexts, and does so here as well.” Wilson v. Lynch (9th Cir. 2016) 835 F.3d 1083, 1094-95. 

However, Wilson was decided before New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 142 S.Ct. 2111 and did not consider whether the ban was unconstitutional under our historical tradition of firearm regulation.  Rather, it proceeded under the now-defunct tiered-scrutiny approach that gave the government far more deference.  Notably, Hunter Biden's legal team cited Bruen defending against similar charges by arguing the framers of the U.S. Constitution were well aware of problems caused by intoxication but there is no history of preventing substance abusers from acquiring firearms.   Post-Bruen, the lower courts are invalidating these prohibitions, but until the Ninth Circuit reverses Wilson or the Supreme Court addresses the issue, the efficacy of the federal firearm prohibitions are uncertain at best.

In conclusion, the application of these laws to peace officers remains hazy.  Given the uncertain legal ramifications at stake, officers should exercise caution all until clean up legislation is enacted or the courts provide greater guidance.  If peace officers are determined to be covered, public safety unions cannot agree to waive FEHA protections for their members. This legislation goes far beyond legalization by elevating marijuana use to protected civil right. Ultimately, the employing agencies and individual officers must comply with all applicable laws.

Attorney General Bonta Clears Detective Tonn in the Shooting Death of Sean Monterrosa

Today California Attorney General Rob Bonta announced the California Department of Justice’s (DOJ) review of the shooting death of Sean Monterrosa cleared  Detective Jarett Tonn of any criminal wrongdoing. Detective Tonn appreciates the careful and thorough review of this incident conducted by Attorney General Bonta, which confirmed that Detective Tonn’s use of force was objectively reasonable under the totality of the circumstances. All human life is sacred and this incident was tragic for everyone involved.  

The investigation found that substantial evidence supported Tonn's claim of self-defense, and that none of the evidence, including video footage, or witness accounts "contradict[ed] the essential facts of Tonn’s account."  Report determined that the witness statements and the "video footage provide a largely uncontroverted account of the events" which is sufficient to establish self-defense even without Tonn's testimony.

The Report explained the objective reasonableness of Tonn's belief that deadly force was necessary. "California law requires consideration of all of the circumstances as they were known or appeared to Tonn. It is undisputed that six seconds prior to the shooting, Horton radioed the warning: 'It looks like they’re armed, possibly armed.' Horton’s words were qualified in nature, but Tonn, Wagoner, and Pittman all stated that they took this warning to mean that the subjects at the Walgreens were carrying firearms. ... [A] warning from an experienced senior officer that appeared to be based on personal observation would be taken very seriously by Tonn."

The Report noted the totality of the circumstances supported Tonn's belief that the suspect was armed with a firearm.  "First, the hammer that Monterrosa carried in his pocket would have had the same effect on his gait and body mechanics as he ran that carrying a firearm would. The hammer was 14.5 inches long, and the hammer head was 6 inches wide."  Tonn and other witnesses observed Monterrosa run in a manner that indicated he was holding something he did not want it to fall out of his waist band.

"Second, all of the witnesses who actually saw the shooting stated that Monterrosa was running away from the officers, suddenly stopped, and made a quick turn to face the officers’ truck immediately before the shooting." "[A]ll stated that Monterrosa had one of his hands in his torso or waist area when the shots were fired." In fact, a civilian witness stated that Monterrosa was fully facing Tonn at the time shots were fired.  No witnesses contradicted this testimony.  

The Report also noted that Tonn's decision to shoot from inside the vehicle corroborated his belief that he had to "shoot now or someone gets shot." This is because doing so is inherently dangerous for the officers in the vehicle. 

The report explained the importance of an officers' state of mind:

"Tonn’s knowledge and state of mind going into the incident must also be considered. In his statement, he discussed the facts that made him particularly concerned about encountering armed subjects on June 1, 2020. He was aware of reports of looters targeting gun stores in the days before June 1, 2020.  He was aware of multiple firearms-related calls on June 1, 2020. In particular, 911 calls had been made that evening regarding armed looters. He also was aware of intelligence reports warning of violence directed at law enforcement and that a law enforcement officer had been shot and killed several days earlier in a drive-by shooting in a nearby county."

The DOJ's expert "opined that the use of the deadly force against the 'unarmed, but perceived to be armed and dangerous, Sean Monterrosa was consistent with generally accepted policing best practices and VPD’s Use of Force Policy.'”  The DOJ's expert "concluded that Detective Tonn’s actions, during the time when he believed that Mr. Monterrosa was armed and posed an immediate threat to him and others, 'were reasonable, necessary and proportional to any imminent threat he may have perceived and comported with law enforcement training with respect to using deadly force.'” 

Noting that an officers' conduct cannot be considered with the benefit of hindsight and taking into account that officers are often forced to make quick judgments, the Report stated Tonn's tactics in the moments preceding the shooting were objectively reasonable.

The Attorney General concluded, "[b]ased on the totality of circumstances, a reasonable officer could have believed that Monterrosa was armed and reaching for a firearm." These findings affirm prior determinations that Tonn acted lawfully in self-defense and defense of others.

Detective Tonn was represented by Joshua Olander from Mastagni Holstedt, APC.

The full Report on the Investigation issued by the DOJ today can be found here.

New RIPA Regulations Violate DFEH Laws By Requiring Peace Officers to Disclose Their Gender Identity

New regulations adopted by Department of Justice (DOJ) regarding RIPA, the California Racial and Identity Profiling Act of 2015, reporting requirements conflict with anti-discrimination protections afforded to all California employees. RIPA was enacted to address concerns of bias and discrimination through racial and identity profiling within law enforcement agencies. RIPA requires officers to report their perception of personal characteristics of the individuals stopped (e.g., age, gender identity, sexual orientation, race/ethnicity) along with the reasons for the detention/search, additional actions taken by the officer, and the outcomes of the stop.  Officers submit this information to their employing agency, who then submits the data to the DOJ without the name or other unique identifying information of the peace officer involved. (Gov. Code § 12525.5.)  The data submitted to the DOJ ultimately becomes a public record.

The RIPA statute also authorizes the Attorney General to issue regulations for the collection and reporting of data that specify all data to be reported, and provide standards, definitions, and technical specifications to ensure uniform reporting practices across all reporting agencies.  AG Bonta has enacted new regulations that require officers to report personal information about themselves, including their own gender identity beginning January 1, 2024.  

However, under the California Fair Employment and Housing Act (FEHA) regulations, it is illegal for an officers' employing agency to require an employee to disclose that information.  As a result, the RIPA regulation should likely have been rejected by the Office of Administrative Law (OAL) for failing the “consistency” standard, which requires “being in harmony with, and not in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law.” (Gov. Code § 11349(d).) The OAL is required to return any regulation that “conflicts with an existing state regulation and the agency has not identified the manner in which the conflict may be resolved.” (Gov. Code § 11349.1(d)(4).)  

New Regulation

The new regulations were purportedly enacted to “enable the Board to determine whether there is a link between officer’s race and/or gender and (1) racial and identity profiling and/or (2) the decision making of the officer.”  Paradoxically, the new regulations will force the most vulnerable officers to disclose their gender identity to their public employers.  Under the regulation, “‘Gender of Officer’ refers to the officer’s identified gender. When reporting this data element, the officer shall select all applicable data values set forth in section 999.226, subdivision (a)(6)(A).” 

1. Cisgender man/boy

2. Cisgender woman/girl

3. Transgender man/boy

4. Transgender woman/girl

5. Nonbinary person

Conflict with DFEH Employee Protections

Once that amendment becomes operative, there will be conflict between RIPA and FEHA. In 2017, amendments were made to FEHA regulations that prohibited employers from asking employees about their gender. Under FEHA, Cal. Code Regs. tit. 2 § 11034 Terms, Conditions, and Privileges of Employment:

“(i) Additional Rights

(1) It is unlawful for employers and other covered entities to inquire about or require documentation or proof of an individual's sex, gender, gender identity, or gender expression as a condition of employment.”

The new RIPA regulations effectively force an officer to disclose their gender to their employer, in violation of FEHA. The California Department of Justice (DOJ) justifies this requirement reasoning that Government Code section 12525.5, subdivision (e) authorizes the Attorney General to issue regulations to “specify all data to be reported” under RIPA. However, that provision does not give the Attorney General authority the nullify employee protections under FEHA by requiring disclosure of otherwise private information. FEHA clearly states, “[a]ny state law that purports to require or permit any action that would be an unlawful practice under this part shall to that extent be invalid.” 

During RIPA’s Proposed Rulemaking Action comment period, concerns were raised about the conflict between RIPA and FEHA in requiring gender self-identification. The DOJ oddly responded addressing race and ethnicity, but not gender: “the Department has not identified any provision within the FEHA or within its implementing regulations that would prohibit the collection of race or ethnicity of an officer for purposes of stop data or other types of data.”  (Emphasis added.) (The DOJ either misinterpreted or dodged another comment asking: “What if the officer does not identify with these limited categories?” The DOJ’s response discussed the requirement of reporting the perceived gender of the person stopped rather than of the officer. )

Furthermore, the collection of such data is easily distinguishable from forced disclosure. This conflict between an employer’s reporting requirements and an employee’s privacy rights arises in other contexts. For example, when employers must request information related to gender for legally required reporting, such as federal EEO-1 Reports, employee disclosure of that information must be voluntary. Employees can be asked to self-identify their gender, but if they decline to do so, federal law requires employers to identify the employee’s gender based on employment records or other reliable information.  Similarly, here, an officer’s self-identification should be voluntary.

In support of its position that the California Legislature has required employers to provide demographic information to the state, the DOJ references California Government Code section 12999 which obligates “private employers of 100 or more employees to report to Department of Fair Employment and Housing pay and hours-worked data by job category and by sex, race, and ethnicity.” The California Civil Rights Department (CRD) states that “[e]mployee self-identification is the preferred method of identifying sex information. If an employee declines to state their sex, employers must* still report the employee according to one of the three sex categories, using current employment records or other reliable records or information, such as an employee’s self-identified pronouns.”  

It is likely that RIPA could legally impose the same practice. However, as currently written, RIPA requires the employee to “select all applicable data values” and leaves no option for other methods of data collection.

Moreover, according to the CRD, “[u]nder the Gender Recognition Act of 2017 (Senate Bill 179), California officially recognizes three genders: female, male, and non-binary. Therefore, employers should report employees’ sex according to these three categories.”  Accordingly, the RIPA data collection should not go beyond these categories.

The recent RIPA amendments added another data point requiring the self-identification of an officer’s race or ethnicity.  However, there is no FEHA regulation related to race or ethnicity that is analogous to Cal. Code Regs. tit. 2 § 11034(i)(1) which prohibits any inquiry into an individual’s gender. 

Still, the above-mentioned state and federal regulations related to pay data follow the practice of encouraging employee-self-identification, but, if that is not voluntarily provided, allowing the employer to identify the employee’s race or ethnicity based on employment records or other reliable information. Nevertheless, because there is no specific prohibition on inquiring about race or ethnicity, it is likely that RIPA could require such self-identification by an officer.

Conclusion

If an officer declines to voluntarily self-identify their gender to their employing agency, the agency could comply with the RIPA regulations by reporting based on employment records or other reliable information, as is the practice with state and federal pay data reporting requirements. However, uncertainty exists regarding whether the RIPA statute and regulations are permit such an arrangement.  Thus, compliance with these regulations by ordering officers to disclose their gender identity creates significant potential liability for local agencies under California's antidiscrimination statutes.  Public safety unions may wish to meet and confer with their employing agency regarding whether such disclosures are voluntary or mandatory.  

 

Terminated for Tweeting “All Lives Matter”: Eastern District Court Finds Political Retaliation Plausible and Allows Wrongful Termination Lawsuit Involving Sacramento Radio Host, Grant Napear, to Move Forward

         The case continues for former Sacramento Kings radio announcer, Grant Napear, as the Eastern District Court rules that Napear’s wrongful termination lawsuit may proceed under his political retaliation claim. Napear filed a wrongful termination lawsuit against his former employer, Bonneville International Corporation, who terminated Napear in May 2020 after he tweeted that “ALL LIVES MATTER…EVERY SINGLE ONE” during the height of the George Floyd-inspired unrest. Napear’s May 31, 2020 tweet responded to the question he received on Twitter from a former Kings player: “What’s your take on [Black Lives Matter]?”

        Bonneville terminated Napear on June 2, 2020, merely 36 hours after his tweet, under the determination that Napear’s tweet could likely discredit the station’s reputation. Bonneville terminated Napear for cause as defined in his employment contract, which states that “the term ‘Cause’ shall be defined as any of the following conduct by Employee, as determined by the Company in its reasonable discretion:…Any act of materials dishonesty, misconduct, or other conduct that might discredit the goodwill, good name, or reputation of the Company.”   

     Napear, the plaintiff, filed a federal employment discrimination and retaliation lawsuit against Bonneville in October 2021 alleging that Bonneville terminated him due to his religion, race, gender, and political views. In April 2023, the Court dismissed Napear’s complaint with leave to amend on the finding that Napear failed to allege sufficient facts showing that Bonneville knew of Napear’s religious beliefs, let alone that it had discriminated against him on the basis of those beliefs. Napear filed an amended lawsuit in May 2023.  

       In July 2023, the Eastern District Court ruled that Napear’s amended claim may proceed on the grounds of retaliation, but tossed Napear’s religious discrimination claim without leave to amend. Judge Dale A. Drozd ultimately ruled that Napear sufficiently stated a plausible claim for retaliation under California Labor Code §§ 1101 and 1102, which limit an employer’s ability to fire employees for their political activities.  

ON THE AMENDED SUIT & RELIGIOUS DISCRIMINATION 

      In May, Napear filed an amended suit asserting three claims: (1) wrongful termination in violation of public policy; (2) discrimination on the basis of religion in violation of the California Fair Employment and Housing Act, California Gov. Code § 12940 (“FEHA”); and (3) retaliation in violation of California Labor Code §§ 1101 and 1102. In the Second Amended Complaint (SAC) filed on May 11, 2023, Napear alleged that he “periodically spoke with his coworkers…about his religion and his faith in God.” He argued that his tweet was a “personal expression” of his “sincerely held Christian religious beliefs,” that the tweet was a “self-evident expression” of those beliefs, and that “[m]any people…including…[his] coworkers” and “members of the public” understood the tweet to be an expression of his “Christian religious beliefs.” 

     Bonneville, the defendant, filed a motion to dismiss Napear’s SAC in its entirety and relatedly argued that Napear’s allegations only suggested that his coworkers knew of his religious beliefs, not that any person directly involved with his termination knew of those beliefs. 

    The Court granted defendant’s motion to dismiss Napear’s religious discrimination claim without leave to amend. The Court noted that the facts alleged by Napear “do not give rise to the inference that [Napear’s] termination could have been based on religious animus” and therefore, the Court concluded that Napear failed to state a plausible claim for religious discrimination. Napear’s allegations do not suggest that Bonneville knew of the purported religious nature of Napear’s tweet nor that Bonneville knew of Napear’s religion more generally, before terminating him. Moreover, the Court noted that there was nothing contained in the tweet itself, such as a quotation to scripture or a reference to religion, indicating that the tweet was in any way religious in nature. 

ON POLITICAL RETALIATION 

      Next, the Court examined Defendant’s move to dismiss plaintiff’s claims brought under California Labor Code §§ 1101 and 1102. These sections serve to protect the fundamental right of employees to engage in political activity without interference by employers. California Labor Code § 1101 provides that “[n]o employer shall make, adopt, or enforce any rule, regulation, or policy: (a) forbidding or preventing employees from engaging or participating in politics…[or] (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.” Similarly, § 1102 prohibits an employer from attempting to coerce or influence its employees’ political activities through the threat of discharge. 

       In its motion to dismiss plaintiff’s claims, Bonneville argued that plaintiff failed to state a claim under §§ 1101 and 1102 because he had not alleged that 1) Bonneville had a rule within the meaning of section 1101; 2) that the tweet constituted political activity; and 3) that defendant’s motivation in terminating Napear was political. The Court remained unconvinced by Bonneville’s assertion that it fired Napear as an apolitical business decision. The Court noted that Napear did sufficiently allege a rule within the meaning of § 1101. Napear met this standard by alleging that Bonneville used his termination as a warning to other Company employees that anyone who publicly criticized the Black Lives Matter movement (BLM) would be summarily terminated. 

      On the issue of whether Napear’s tweet constituted “political activity,” the Court considered Napear’s tweet to be facially political in nature when construed in the light most favorable to plaintiff. The tweet contained the phrase “All Lives Matter” in response to the question “What’s your take on BLM?”; was published by public figures; and was made just days after George Floyd’s death. These allegations were sufficient to allege that Napear’s tweet was political speech regarding a specific cause and could plausibly constitute political activity under §§ 1101 and 1102. 

       Napear’s amended claim also highlighted Bonneville’s political motivations underpinning the termination. Napear’s termination came swiftly, as did Bonneville’s public statement which noted that Napear’s tweet did not reflect the views or values of the company and that Napear’s tweet “was particularly insensitive.” Napear also contended that all seven individuals involved in his termination objected to the political and/or religious nature of his tweet and had expressed negative emotion in response to his “All Lives Matter” statement. Collectively, these allegations, the Court concluded, were sufficient to plausibly suggest that Napear’s political activity – which included posting a tweet containing a certain message – motivated Bonneville to terminate him. As such, Napear’s political retaliation claims under §§ 1101 and 1102 will move forward. 

TAKEAWAYS

   Two lessons emerge from this ruling. The first is that an employee claiming wrongful termination on the basis of religious discrimination must prove that the employer acted with a discriminatory motive. This involves showing that the employer knew of the employee’s religion, that those involved in making the decision to terminate the employee were aware of the employee’s religious beliefs, and that the employee was terminated due to those beliefs. A tweet isn’t religious just because the person posting it says it is. 

   Secondly, an employer’s use of a termination as a warning to other employees of intolerable conduct may be construed as a rule under § 1101, and thus give rise to a political retaliation claim. As Judge Drozd noted, “defendant used [Napear’s] termination ‘as an example to all other employees of the Company as an implicit warning that anyone that dared to speak out publicly and criticize the politics of the Black Lives Matter movement would be summarily terminated.’” This ruling serves as a warning to employers of the perils of view point discrimination against employees whose political beliefs differ from their own.

You can access the full July 25, 2023 Court Order here. 

SIGN UP REMINDER: Lunch & Learn POST Class Tomorrow, Oct. 18 on "Demystifying the New Decertification Process Under S.B. 2"

Join us tomorrow via Zoom as our attorneys, David E. Mastagni and Joshua Olander, present a class on "Demystifying the New Decertification Process Under S.B. 2." Class starts at 11:30 A.M. and is expected to end around 2:30 P.M.

The class provides an overview of the national standards for licensing police officers and aims to familiarize students with the grounds for decertification with a focus on the current legislative fight in California over Senate Bill No. 2. 

To register, you can go to our "Upcoming Events" page on our website. Click here to be redirected to the event sign up webpage. Click on the class (or classes) you wish to attend and enter in your contact information, including your POST ID. Once registered, you will receive a Zoom link. Alternatively, you can also email us at register@mastagni.com to register. 

Please contact us if you are having issues receiving the Zoom link or if you have any questions about our course offerings. The full list of our Lunch and Learn classes can be found on our flyer below. 

Thank you and we hope to see you soon!