In Pierce v. County of Sierra (E.D. Cal., June 3, 2013, 2:11-CV-2280 GEB AC) 2013 WL 2421710, a Northern California federal court ruled plaintiffs do not have to use the Pitchess process to get a peace officer's personnel records related in a federal lawsuit. The case started when a deputy sheriff allegedly hit a motorcyclist with his patrol car. The plaintiff sued the deputy and the county for negligence.
Then, the plaintiff sent a discovery request for parts of the deputy's personnel file to find paperwork related to the deputy's initial hire, find out about drug and alcohol testing, and the IA investigation related to the crash. The County objected that the records were confidential peace officer personnel records under California Penal Code section 832.7. The Pitchess process that limits disclosure of peace officer personnel records is the product of statute in California. In many states, officers do not have these protections and their personnel records are more easily obtainable.
The Court decided the California Pitchess process did not apply in the federal action because the Federal Rules of Civil Procedure supersede the Pitchess process. Instead, the Court examined whether there was good cause to turn over the documents. The Court decided there was good cause because the records could shed light on whether the deputy was at fault and whether the County was negligent. Accordingly, the Court ordered the County to release the records, but ordered the parties to work out a protective order to limit the exposure of the deputy's records.
Friday, June 7, 2013
Tuesday, May 28, 2013
Court Upholds Trial Verdict Against Peace Officer on Alleged POBR Violations
In Abney v. Board of Trustees of the California State University (May 20, 2013) 2013 WL 2241922, the Court of Appeal affirmed a trial verdict for the CSU. The court said POBR only requires an employer to tell the officer of the nature of the investigation. The court decided the employer did not have to state the potential discipline or exactly what the charges were while the investigation was ongoing. The Court also noted POBR does not require employers to record IA interviews. It only requires them to give officers a copy of the recording or transcript if they do record them.
Friday, May 24, 2013
Court Rules PC 242 Does Not Trigger Firearms Ban, Reistates Peace Officer
In Shirey v. Los Angeles County Civil Service Commission (May 6, 2013)--- Cal.Rptr.3d ---- the Court of Appeal ruled a conviction under California Penal Code section 242 does not trigger a firearms ban under the Federal Gun Control Act.
Deputy Sheriff Mark Shirey was found guilty of a simple battery in violation of Penal Code section 242, a misdemeanor. Because the subject of the crime was his live-in girlfriend, the crime was considered domestic abuse. As a result, the Los Angeles County Sheriff’s Department fired Shirey.
Title 18 of US code § 922(g)(9), the Federal Gun Control Act prohibited possession firearms if convicted of misdemeanor battery upon a domestic partner. The Department claimed that Shirey’s conviction disqualified him from continued employment as a deputy sheriff because the federal law prohibited him from carrying a firearm. Shirey appealed the decision.
The court sided with Shirey and found that a conviction under section 242 does not qualify as a predicate misdemeanor crime of battery upon a domestic partner. The court reasoned that section 242 requires use or attempted use of any amounted force which includes merely touching, whereas the federal statute requires “a quantum of force greater than a de minimus use of force or offensive touching.” Therefore, the Court granted Shirley's petition.
Deputy Sheriff Mark Shirey was found guilty of a simple battery in violation of Penal Code section 242, a misdemeanor. Because the subject of the crime was his live-in girlfriend, the crime was considered domestic abuse. As a result, the Los Angeles County Sheriff’s Department fired Shirey.
Title 18 of US code § 922(g)(9), the Federal Gun Control Act prohibited possession firearms if convicted of misdemeanor battery upon a domestic partner. The Department claimed that Shirey’s conviction disqualified him from continued employment as a deputy sheriff because the federal law prohibited him from carrying a firearm. Shirey appealed the decision.
The court sided with Shirey and found that a conviction under section 242 does not qualify as a predicate misdemeanor crime of battery upon a domestic partner. The court reasoned that section 242 requires use or attempted use of any amounted force which includes merely touching, whereas the federal statute requires “a quantum of force greater than a de minimus use of force or offensive touching.” Therefore, the Court granted Shirley's petition.
Monday, May 20, 2013
Court Rules Pension Impairments Unconstitutional Under Contract Clause
In a major ruling with statewide implications, the Monterey Superior Court ruled Friday that the City of Pacific Grove’s 2010 voter initiative and charter amendment capping the City’s contributions to CalPERS are unconstitutional. The Court’s ruling follows a challenge to the measures brought by the Pacific Grove Police Officers Association and Pacific Grove Police Management Association and supported by PORAC LDF. The Court also ruled that the measures violated the City Charter and the general law because voters cannot set employee compensation by initiative.
According to Pacific Grove Police Officers Association President Jeff Fenton, “Today’s ruling is about fairness. We went to court to ensure the City keeps the promises it made to employees and today the court said they have to.” The Court struck down the ordinance and charter amendment because they violate the Contract Clause of the California Constitution. The Contract Clause requires local governments to keep the promises they make to public employees. It also forbids them from impairing contracts with labor associations.
The case has major implications statewide because it establishes that cities and counties can’t go back on the pension promises they made to employees. PORAC LDF contributed significant resources toward the police officers’ efforts. “We are deeply thankful for the help from our brothers and sisters in the law enforcement community and PORAC LDF toward achieving this victory,” Fenton said.
The Pacific Grove Police Officers Association and Police Management Association were represented by Mastagni Law attorney Jeffrey R. A. Edwards in the matter.
According to Pacific Grove Police Officers Association President Jeff Fenton, “Today’s ruling is about fairness. We went to court to ensure the City keeps the promises it made to employees and today the court said they have to.” The Court struck down the ordinance and charter amendment because they violate the Contract Clause of the California Constitution. The Contract Clause requires local governments to keep the promises they make to public employees. It also forbids them from impairing contracts with labor associations.
The case has major implications statewide because it establishes that cities and counties can’t go back on the pension promises they made to employees. PORAC LDF contributed significant resources toward the police officers’ efforts. “We are deeply thankful for the help from our brothers and sisters in the law enforcement community and PORAC LDF toward achieving this victory,” Fenton said.
The Pacific Grove Police Officers Association and Police Management Association were represented by Mastagni Law attorney Jeffrey R. A. Edwards in the matter.
Tuesday, May 14, 2013
Ninth Circuit: First Amendment Protects Peace Officer Labor Leaders from Retaliation
In Ellins v. City of Sierra Madre (Mar. 22, 2013) 2013 WL 1180299, the Court of Appeals ruled it is unconstitutional for an employer to retaliate against a peace officer union president for comments made as part of his role as union president.
The case involved John Ellins, a Sierra Madre police officer who led a no confidence vote of the police officers union against the Chief of Police, Marilyn Diaz. Then, Diaz delayed granting Ellins a certification that would result in a 5% raise. Ellins sued alleging the delay was an unconstitutional retaliation for the exercise of his first amendment rights. While waiting for the approval of his raise Ellins served a suspension he received years before. During the trial the city granted his pay-raise and backdated it to the date Ellins completed his suspension.
The court ruled Ellins is protected by the first amendment because comments made by a police officer acting as a union representative are not pursuant to the officers' official duties. Hence the officer is speaking as a private citizen. Furthermore, even though his pay-raise was backdated Ellins still suffered an “adverse employment action”. The court reasoned that an adverse employment action exists whenever any economic benefit is withheld for any amount of time.
The court then concluded that the proximity in time of the adverse employment action and the protected speech was enough to infer the possibility of retaliation. However, the court did not find retaliation on its own and ordered that a trial be held on the issue.
The case involved John Ellins, a Sierra Madre police officer who led a no confidence vote of the police officers union against the Chief of Police, Marilyn Diaz. Then, Diaz delayed granting Ellins a certification that would result in a 5% raise. Ellins sued alleging the delay was an unconstitutional retaliation for the exercise of his first amendment rights. While waiting for the approval of his raise Ellins served a suspension he received years before. During the trial the city granted his pay-raise and backdated it to the date Ellins completed his suspension.
The court ruled Ellins is protected by the first amendment because comments made by a police officer acting as a union representative are not pursuant to the officers' official duties. Hence the officer is speaking as a private citizen. Furthermore, even though his pay-raise was backdated Ellins still suffered an “adverse employment action”. The court reasoned that an adverse employment action exists whenever any economic benefit is withheld for any amount of time.
The court then concluded that the proximity in time of the adverse employment action and the protected speech was enough to infer the possibility of retaliation. However, the court did not find retaliation on its own and ordered that a trial be held on the issue.
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