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.

Failure to File Timely Answer to Complaint Means Admitting to Material Facts and Waiving Defenses

In a recent proposed decision by Public Employee Relations Board (PERB), an Administrative Law Judge (ALJ) evaluated what constitutes good cause for a late filing with PERB. The ALJ reviewed whether failing to submit a timely answer automatically admits all the material allegations and waives the right to assert any affirmative defenses. (California City Police Officers’ Association v. City of California City, (2021) PERB Decision No. LA-CE-1501-M.) In the case, the California City Police Officers’ Association (CCPOA) brought an unfair practice charge against California City for failing to meet and confer over a unilateral change to the disciplinary investigation process. PERB issued a complaint and notified the City of the deadline to file a response. Despite PERB’s notice of the deadline the City filed its answer to the complaint fifteen days late. 

The ALJ found that City failed to establish good cause for the late filing. This meant the City was admitting to the matters alleged in the complaint and the charge. PERB Regulation 32136 gives the Board the discretion to excuse a late filing for good cause only. Further, PERB Regulation 32644 provides that the Board may find the failure to file a timely answer an admission of the truth of the material facts alleged in the charge and a waiver of respondent’s right to a hearing. A failure to file a timely answer also waves affirmative defenses. (Regents of the University of California (2018) PERB Decision No. 2601-H.) 

In general, good cause is a “flexible standard, defined and constrained by considerations of fairness and reasonableness.” The Board will evaluate whether the circumstances were unanticipated or caused by an event outside of a person’s control. The City attempted to argue good cause by relying on a PERB case that found good cause due to the COVID pandemic. Ultimately, the ALJ found that “considerable time had passed since the initial stay-at-home orders and law offices had time to adjust their practices to the new reality.” Without a good cause justification, the City’s answer was untimely and the City effectively admitted to the factual allegations and legal allegations in the complaint and the charge. Therefore, City was found to have violated the Meyers-Milias-Brown Act. 

This case highlights the importance of timeliness when filing at PERB. It also provides insight into how PERB and perhaps other legal entities view the COVID-19 pandemic. Although the unprecedented times previously caused justified delays, sufficient time has passed for society to adjust and it is no longer a good cause for untimeliness.

Can An Officer Waive Their Own POBR Rights?

The purpose of the Public Safety Officers’ Procedural Bill of Rights Act is to promote effective law enforcement by maintaining stable employer-employee relations in California law enforcement agencies. The procedural protections provided by POBR balance the public interest in maintaining the efficiency and integrity of law enforcement with the police officer's interest in receiving fair treatment. These rights include limitations and guidelines for investigations and interrogations of public safety officers in connection with disciplinary proceedings, the right to be notified and comment on adverse comments placed in a personnel file, the right to inspect personnel files, and the right to representation. 

Though generally it would make sense that an individual would retain the ability to waive their own legal rights, in certain circumstances the law allows for an exclusion of such a waiver as it would likely result in imbalanced bargaining power between the employee and the employer. However, this is not an absolute exclusion. In Lanigan v. City of Los Angeles (1), California’s Second Appellate Court held that a police officer may voluntarily waive their POBR rights during employment as part of a disciplinary settlement agreement. 

In 2006, Officer Lanigan, a Los Angeles police officer, faced misconduct allegations when he recklessly operated his vehicle while off-duty. Lanigan was ultimately charged with three allegations of misconduct stemming from this incident. Subsequently, the Chief of Police referred Lanigan to the Board of Rights with a proposed penalty of termination. Before Lanigan had the chance to appear, his attorney negotiated a settlement agreement with the City. The Agreement reduced the proposed penalty to a 22- day suspension in exchange for a Lanigan’s waiver of various POBR rights. The Agreement also stated that should Lanigan be cited for any future misconduct he would have to immediately resign from the LAPD. Lanigan signed the Agreement in February of 2008. 

In September of 2008, Lanigan entered an emergency room intoxicated, unnecessarily identified himself as an officer, “terrified” other patients, and exhibited discourteous conduct that caused the hospital staff to call the Los Angeles County Sheriff's Department. When deputies arrived, Lanigan lied to them, claiming that the keys in his possession were not in fact his. Following an internal affairs investigation in 2009, ten new misconduct charges were sustained. Pursuant to the Settlement Agreement, the Chief of Police processed Lanigan’s resignation. 

Lanigan subsequently sued, claiming that the Agreement itself and his POBR waivers were unconscionable and legally unenforceable. Lanigan argued that a blanket waiver of his rights was against public policy. Lanigan also argued that the Agreement was unconscionable because the LAPD forced him to either sign the Agreement or risk termination. The trial court, who did not address the issues of whether the Agreement was voluntary or unconscionable, agreed with Lanigan that the Agreement itself was unenforceable and void because such rights cannot be waived. 

However, on review the Second Appellate Court disagreed with the trial court’s findings and reversed. The Court stated that though preemployment blanket waivers of POBR rights are unenforceable and void, waivers of statutory rights and other protections where the waiver is obtained as a quid pro quo for settlement of disciplinary charges, are valid and enforceable. (See County of Riverside v. Superior Court (2002) 27 Cal.4th 793, 804 [118 Cal. Rptr. 2d 167, 42 P.3d 1034] (Madrigal) [where the court held POBR was subject to a limited waiver]; see also Alhambra Police Officers Assn. v. City of Alhambra Police Dept. (2003) 113 Cal.App.4th 1413 [7 Cal. Rptr. 3d 432] (Alhambra Police Officers Assn.) [where the officer negotiated a settlement by which he received less severe discipline in exchange for admitting misconduct and waiving his right to appeal the discipline to the civil service commission.] The Court found that Lanigan’s Agreement was enforceable as it was not a preemployment blanket waiver of his rights under POBR, but rather a post-employment limited waiver in accordance with a settlement of disciplinary charges. 

The Court further determined that Lanigan’s waiver was also voluntary. For a waiver to be enforceable, it “must be a voluntary and knowing act done with sufficient awareness of the relevant circumstances and likely consequences.” (Madrigal at p. 806.) The Court stated that Lanigan was aware he could enjoy continued employment with the LAPD, but only on condition that he accept resignation and loss of certain POBR rights as a consequence of misconduct. By signing the Agreement, in the presence of representation, he acknowledged that he was doing so voluntarily and with a full understanding of its consequences. 

While pre-employment blanket waivers of an individual’s POBR rights are illegal, individually negotiated waivers of POBR rights in the context of disciplinary charges are valid and enforceable.

_______________________

(1) Lanigan v. City of Los Angeles (2011) 199 Cal.App.4th 1020

A Look Inside AB 490 & Limitations on the Use of Force

On September 30, 2021, Governor Newsom signed into law AB 490 (Gipson), which “prohibit[s] a law enforcement agency from authorizing techniques or transport methods that involve a substantial risk of positional asphyxia, as defined.”(1) This law is an expansion of AB 1196 (Gibson), signed into law one year ago in response to the death of George Floyd, which prohibited a law enforcement agency from authorizing the use of the carotid restraint and choke holds. As stated by the California Public Defenders’ Association in support of AB 490, “[t]he recent news coverage of excessive force incidents by law enforcement officers involving this type of restraint including the death of George Floyd demonstrates the urgent need for this legislation.” 

AB 490, codified in Government Code section 7286.5, defines “positional asphyxia” as: 

Situating a person in a manner that compresses their airway and reduces the ability to sustain adequate breathing. This includes, without limitation, the use of any physical restraint that causes a person’s respiratory airway to be compressed or impairs the person’s breathing or respiratory capacity, including any action in which 

- pressure or body weight is unreasonably applied against a restrained person’s neck, torso, or back(2), 

or 

- positioning a restrained person without reasonable monitoring for signs of asphyxia. 

As identified by the California State Sheriffs’ Association, the language of the new law is overly broad and fails to give clear guidance to peace officers regarding permissible uses of force when attempting to effectuate an arrest or detention. In their official opposition to the bill, the Sheriff’s Association stated: "The bill's inclusion of ‘any technique in which pressure or body weight is unreasonably applied against a restrained person's neck, torso, or back' as violative of the measure is overly broad. Further, reasonableness will be difficult to judge from situation to situation.” 

An obvious problem with AB 490 is the over-broad prohibition on the use of force to the majority of the body – the torso and back. Pressure applied to any part of the torso or back does not cause asphyxia. For example, while pressure to the center (thoracic) area of the back may be problematic, pressure to a subject’s shoulder blades would not result in impaired breathing. Additional training, supported by scientific and medical evidence, is necessary to provide sufficient notice to peace officers regarding the application of certain detention techniques. 

It does appear, however, that AB 490 is limited to the use of unreasonable pressure or body weight against restrained persons. If a subject has not yet been restrained and an officer is still in the process of effecting an arrest or preventing escape, the use of force restrictions in AB 490 do not appear to apply. If a subject has been restrained, officers must avoid unreasonable pressure and reasonably monitor them for signs of impaired breathing.

“Reasonableness," the standard for law enforcement use of force, remains the standard under AB 490. It is also important to note, based on the legislative intent articulated in the Legislative Counsel Digest, only techniques and transport methods to restrained persons that involve a substantial risk of asphyxia are prohibited. Thus, techniques that carry a minimal or moderate risk of asphyxia should be permissible under AB 490. Officers will clearly require new POST-approved, evidence-based training in order know what techniques involve minimal, moderate, or substantial risks of both compression and positional asphyxia. 

The law prohibits the agency from authorizing any of these techniques but does not specifically bar the officer from using any of these techniques. As such, we are likely to begin seeing a clash between agency policy allowing an officer to use reasonable force for self-defense and the use of “authorized techniques.” Officers are permitted, when in self-defense of serious bodily injury or death and authorized techniques are not feasible, to utilize untrained and unauthorized techniques. 

The issue of positional asphyxia and compression of a subject’s airway has been dealt with, and trained on, for years by many police agencies. For example, agencies already train on the “restorative position” and monitoring detained subjects to address any airway issues. Most significantly, there is no legitimate use of force training or technique that would justify what was done to George Floyd during his arrest. 

Some agencies have started to change their use of force training to reflect this new law or what they believe the new law is trying to prohibit. One of the first agencies to change their arrest and control techniques was the New York City Police Department. New York City passed a similar arrest and control law like AB 490. Unfortunately, the successes and failures of these “new” techniques is still unknown. 

It is inevitable that the California Legislature will pass more laws impacting officers and their ability to use force to effect arrest and prevent escape. For AB 490 to be successful, officers will require new training regarding appropriate techniques of arrest control that will avoid causing a substantial risk of asphyxia. Will these laws create better policing? Or more second guessing and distrust? The challenge is balancing these new laws against public safety and the safety of officers who put their lives on the line every day to keep us safe.

(1) Legislative Counsel Digest; emphasis added.

(2) AB 490’s definition of positional asphyxia also includes “compression asphyxia."