Tune in LIVE this Thursday: "The Next Step: Understanding Peace Officer Bill of Rights"

 

Please watch the Assembly Select Committee hearing on police reform on December 16, 2021!

Our partner, David E. Mastagni, will be one of the panelists to share his insights and important information on investigating police misconduct and how POBR works in practice. The panel will address the circumstances under which POBR applies, the investigations of allegations of peace officer misconduct, and a comparison of POBR rights with Weingarten Rights afforded other public employees. Additionally, the panel will compare and contrast the provisions in California's POBR with other states including Maryland, New York, and Illinois.

Click the link below to tune in LIVE this Thursday, 9 a.m. - 1 p.m.

https://policereform.assembly.ca.gov/hearings

 

 

California Public Safety Officers Afforded Stress Related Support

California public safety officers work in unpredictable, high-stress environments that can take an overwhelming mental, emotional, and physical toll that does not subside when their shift ends. Over time, the continued strain from this stress can contribute to serious health problems, such as heart disease, high blood pressure, depression, and anxiety. For the first time, in 2019, California established a law outlining the rules and procedures for a Law Enforcement Peer Support and Crisis Referral Services Program. Assembly Bill 1117 (Government Code § 8669 et seq.) was signed by Governor Newsom on October 8, 2019 and became effective January 1, 2020.

The Bill authorizes law enforcement agencies to establish their own referral program that will provide an agency wide network of trained peer representatives who are available to come to the aid of their fellow employees on a broad range of emotional or professional issues. Issues such as substance use, critical incident stress, family issues, grief support, legal issues, line-of-duty deaths, serious injury or illness, suicide, victims of crime, and workplace issues. The goal of the Bill is to provide peer support intervention that leverages shared experiences to foster trust, decrease stigma, and create a sustainable forum for seeking help and sharing information about support resources and positive coping strategies. 

A unique aspect of this Bill is that communications between officers and a peer support team member, while the team member provides support services, would now be considered confidential. Previously, these types of communications would be subject to disclosure to the employer. The Bill outlines that officers will be afforded 

confidentiality during these communications except under limited circumstances. It is important to note that a “confidential communication” does not, however, include a communication in which an officer discloses the commission of a crime or a communication in which the law enforcement personnel’s intent to defraud or deceive an investigation into a critical incident is revealed. Additionally, confidentiality may be breached when disclosure is reasonably believed to be necessary to prevent death or substantial bodily harm. There is also an exception to confidentiality when disclosure is consented to in writing, during referral of a law enforcement personnel to receive crisis referral services by a peer support team member, during a consultation between two peer support team members, or if otherwise required by law. 

The Bill also provides that, except for an action for medical malpractice, a peer support team member providing peer support services and the law enforcement agency that employs them are not liable for damages, relating to an act, error, or omission in performing peer support services. However, liability will attach if the act, error, or omission constitutes gross negligence or intentional misconduct. 

The purpose of allowing for confidential communications is for officers to feel comfortable discussing emotional or professional issues without facing discipline or adverse repercussions from their employer. According to a 2016 article in Policing and Society entitled "Law enforcement officers' perceptions of and responses to traumatic events: a survey of officers completing Crisis Intervention Team training," roughly three-fourths of the surveyed officers reported having experienced a traumatic event, but less than half of them reported it to their agency. Even more troubling, about half of the officers reported personally knowing another law enforcement officer who changed after experiencing a traumatic event, and about half reported knowing an officer who had committed suicide. 

Peer Support Programs are effective in helping peace officers develop healthy coping techniques for themselves and their families. As such, the passing of AB 1117 is a step towards breaking stigma and affording peace officers the care they need and deserve.

A Look Inside The Daniel Rivas-Villegas v. Ramon Cortesluna Case

Daniel Rivas-Villegas v. Ramon Cortesluna, 595 U. S. ____ (2021) 

Facts

Petitioner Rivas-Villegas, a police officer in Union City, CA, responded to a 911 call where respondent Ramon Cortesluna, holding a chainsaw, threatened to hurt his girlfriend and her children. Officers ordered the suspect outside and onto the ground. Officers saw a knife in his left pocket. One officer bean bagged him twice because he moved his hands down against the officers’ commands. While Rivas-Villegas and another officer were in the process of removing the knife and handcuffing the suspect, Rivas-Villegas briefly placed his knee on the suspect’s back for 8 seconds. The suspect sued for excessive force for the knee placement.

Discussion 

The issue was whether Rivas-Villegas was entitled to qualified immunity. 

Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. A right is clearly established when it is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Existing precedent must have placed the statutory or constitutional question beyond debate. The existing precedent inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. 

The Appellate Court applied LaLonde as the existing precedent to hold that Rivas-Villegas violated clearly established law, and thus not entitled to qualified immunity. In LaLonde, officers responded to a noise complaint. LaLonde answered the door in his underwear and a T-shirt, holding a sandwich in his hand. He refused to let the officers enter his home. One officer knocked the sandwich from his hand and grabbed his ponytail and knocked him to the ground. After a scuffle, the officer maced LaLonde in the face. LaLonde ceased resisting and another officer, while handcuffing him, dug his knee into LaLonde’s back with a force that caused him long-term back injury. 

The Supreme Court distinguished LaLonde from the interaction involving Rivas-Villegas. One suspect clearly did not pose a threat while the other was threatening his girlfriend and her children with a chainsaw. “Precedent involving similar facts can help move a case beyond the otherwise hazy borders between excessive and acceptable force and thereby provide an officer notice that a specific use of force is unlawful.” However, LaLonde was not sufficiently similar to provide Rivas-Villegas with notice that the placement of his knee was unlawful. For that reason, the Court reversed the Ninth Circuit and held that Rivas-Villegas was entitled to qualified immunity. 

Takeaway 

In use of force cases, we apply the foundational Graham v. Connor and Tennessee v. Garner tests to determine if the force was justified. These foundational tests are broadly applied and can establish why force was justified. However, in a qualified immunity case, the plaintiff must identify a relevant case that put the officer on notice that his specific conduct was unlawful to show a violation of clearly established law.