Legal Issues

In yet another blow to longstanding protections in California for peace officer personnel records, the California Supreme Court ruled recently that a law enforcement agency may release its Brady list to prosecutors. (Association for Los Angeles Deputy Sheriffs (ALADS) v. Superior Court (2019) 8 Cal. 5th 28.) The court ruled agencies are not required to comply with Pitchess procedures before releasing the identity of officers on a Brady list when those officers are involved in a pending criminal case.

Responding to pressure from the State Coalition of Probation Organizations and other law enforcement groups, state legislators last week amended their controversial use of force bill to remove provisions that drastically increased civil and criminal liability for peace officers who use deadly force.

Peace officer personnel records are subject to new disclosure requirements under amendments to Penal Code section 832.7 that took effect January 1, 2019. Senate Bill 1421, signed into law last year by Governor Brown, made significant changes to the confidentiality restrictions on peace officer records that make it easier for members of the public and the media to obtain information relating to peace officer conduct and discipline.

The U.S. Supreme Court today overruled four decades of precedent and declared public sector agency shop agreements unconstitutional, holding the First Amendment is violated when money is taken from non-consenting employee for the benefit of a public employee union. The 5-4 decision in Janus v. American Federation of State, Municipal and County Employees (afscme) Means Local Agencies and public-sector unions can no longer collect union dues or agency fees without the employee's affirmative consent to pay.

State lawmakers in Sacramento announced on April 3, 2013 new legislation to restrict the use of deadly force by peace officers only to those situations where deadly force isdeemed "necessary... given the totality of the circumstances" to prevent imminent death or serious bodily injury to the peace officer or another person. AB 931 would justify the use of deadly force only when there is no reasonable alternative, including retreating from the threat. The legislation criminalizes the use of deadly force if there os a finding the officer's "gross negligence substantially contributed to making [the force] necessary."

The U.S. Supreme Court will hear oral argument later this month in a case that attacks on First Amendment grounds the agency shop structure that sustains public employee labor unions in California and many other states. The case, Janus v. American Federation of State, County and Municipal Employees, was brought by Illinois state employees who argue all union activity is political speech that employees can opt out of supporting with mandatory dues. A decision for the plaintiffs is likely because the newest associate justice, Neil Gorsuch, is believed to favor doing away with agency shop.

Ruling on a challenge by employees and unions to the constitutionality of the Public Employee Pension Reform Act of 2013 (PEPRA), the First District Court of Appeal issued a lengthy decision earlier this month that may pave the way for further attacks on the vested pension benefits of “legacy members” of county retirement systems. (Alameda County Deputy Sheriff's Assn. v. Alameda County Employees’ Retirement Assn. and Bd. of the Alameda County Employees’ Retirement Assn. (Jan. 8, 2018, No. A141913).) The court found PEPRA made substantial changes to county retirement benefits by removing vacation cash out and on-call pay from the calculation of pensionable compensation but returned to the trial court the question of whether those changes unlawfully impair the right of legacy members to existing pension benefits.

Buried in the sweeping gun control provisions of 2016's Proposition 63 were several requirements that added new duties for California probation officers beginning this year. The measure, which voters enacted overwhelmingly in July 2016, primarily restricts the sale of ammunition and bans large-capacity magazines. However, the new law also included requirements that probation officers verify and report to the courts when convicted felons and persons convicted of certain misdemeanors have relinquished any firearms and ammunition to local law enforcement.

On Monday, September 25, 2017, Governor Jerry Brown signed into law Senator Toni Atkins’ SB 587, the “Blue Light Bill” sponsored by the State Coalition of Probation Organizations to allow probation peace officers to display a blue warning light on authorized emergency vehicles. The bill amends Vehicle Code section 25258(b) effective January 1, 2018 to give probation officers the same authority as most other peace officers to add a steady or flashing blue warning light to department vehicles.

Legislation sponsored by the State Coalition of Probation Organizations will allow probation peace officers to display a blue warning light on authorized emergency vehicles. Senate Bill 587 (D-Atkins) would amend Vehicle Code section 25258(b) to give probation officers the same authority as most other peace officers to add a steady or flashing blue warning light to department vehicles.

In a 5-3 decision marked by a ferocious dissent from Justice Sonia Sotomayor, the U.S. Supreme Court ruled Monday that officers may use evidence obtained from a search incident to arrest even when the evidence is found after an unconstitutional stop. The case, Utah v. Strieff, gives peace officers the ability to use evidence found in a search when there is an arrest warrant independent of the illegal investigatory stop.

Ruling against a probationer who tried to suppress evidence he was in possession of child pornography, the First District Court of Appeal held the one year supervision period under the Postrelease Community Supervision Act does not expire until the statute’s 30-day review period has elapsed. (People v. Young (2016) 2016 Cal. App. LEXIS 426.)

California’s Third District Court of Appeal last week rejected a parole agent’s attempt to have the disciplinary action against him dismissed under the statute of limitations in the Public Safety Officers Procedural Bill of Rights Act. In Department of Corrections and Rehabilitation v. State Personnel Board (2016) 2016 Cal.App. LEXIS 414, the court held the agent, Shiekh Iqbal, had been timely served with discipline because the one-year limitations period was tolled during the department's internal criminal investigation of the agent for unauthorized access to CLETS.

At the last SCOPO board meeting, we discussed Friedrichs v. Cal. Teachers Ass’n, et al., a case pending before the U.S. Supreme Court in which California public school teachers are challenging agency shop laws and the fair share fee system. Yesterday a divided Court issued a per curiam opinion stating, “The judgment is affirmed by an equally divided Court.” The decision means the lower court ruling by the Ninth Circuit Court of Appeals upholding agency shop and fair share fees stands.

A deputy who retired while his administrative appeal from a suspension without pay was pending before the San Bernardino County Civil Service Commission will have his day in court after the Fourth District Court of Appeal upheld his right to a hearing. Ruling last week in Hughes v. County of San Bernardino, the court said the deputy’s voluntary retirement did not deprive him of the right to appeal.

Peace officer defense attorneys and law enforcement agencies have struggled for years with a provision of the Public Safety Officers Procedural Bill of Rights Act requiring departments to notify officers under investigation “of the nature of the investigation prior to any interrogation.” (Gov. Code § 3303(c).) How far in advance must the notice be given? What constitutes notice? Is the agency entitled to withhold notice? Does the officer have the right to delay the interrogation if notice is not given until the interview?

In a decision certain to have far-reaching consequences for public employee pensions in California, the Public Employment Relations Board (PERB) has issued a decision vacating the effects of San Diego’s Proposition B because the city failed to meet and confer with its unions over the controversial pension reform proposal. Proposition B, passed by voters in June, 2012, replaced a defined-benefit retirement plan with a 401(k)-type plan for most city employees.

The California Department of Justice has a Christmas gift for probation peace officers – renewed enforcement of the statutory ban on the sale of non-rostered firearms and high-capacity magazines to probation departments and their sworn employees.

Ruling last week in a controversial pursuit case involving a Texas public safety officer who killed a fleeing felon while trying to shoot his car, the U.S. Supreme Court has reinforced qualified immunity protections for peace officers nationwide.

Peace officers whose enforcement actions “fall . . . in the hazy border between excessive and acceptable force” still may enjoy qualified immunity from liability under a U.S. Supreme Court decision issued earlier this week. Ruling in a controversial pursuit case involving a Texas public safety officer who killed a fleeing felon while trying to shoot his car, the Court held the officer was entitled to immunity because his belief the suspect posed an imminent threat to others was reasonable.