J & M

 

J O N E S  &  M A Y E R

 

Attorneys at Law

3777 North Harbor Boulevard • Fullerton, California 92835

(714) 446-1400 • (562) 697-1751 • Fax (714) 446-1448

www.jones-mayer.com

 


 

The Top Ten Employment Issues

Confronting Law Enforcement

 

International Association of Chiefs of Police

Legal Officers Section

November 14, 2004

Los Angeles, California

 

By: Martin J. Mayer, Esq., General Counsel

California Police Chiefs Association

Jones & Mayer

 



Contents

Law Enforcement Officers Safety Act of 2004 (HR 218)

Peace Officers Personnel Issues  

Fair Labor Standards Act (FLSA)  

Fitness for Duty Evaluations

Brady v. Maryland  

Employee Privacy Rights  

Americans with Disabilities Act  

Rights of Returning Veterans  

Use of Force   

Vita, Martin J. Mayer

 



Law Enforcement Officers Safety Act of 2004 (HR 218)

 

On July 22, 2004, President George W. Bush signed a new federal law that allows both current and retired law enforcement officers to carry concealed weapons wherever they go in the United States, regardless of most state or local prohibitions to the contrary. The law, which is attached, effectively “trumps” all local laws which may restrict and/or prohibit individuals from carrying concealed weapons in their states.

 

The law is very broadly drawn and leaves numerous questions unanswered including exactly who “qualifies” as a current or retired law enforcement officer. Significant concerns were raised by the International Association of Chiefs of Police in their testimony and opposition to the passage of HR 218, regarding officers who travel to other states and become involved in incidents while carrying concealed weapons.

 

HR 218 Issues

 

1.                  What, if any, liability falls on the employing agency, if action is taken by an off duty officer in another jurisdiction?

 

2.                  Are those who have limited peace officer authority (e.g. Reserves, corrections officers, part time officers, etc.) covered under HR 218?

 

3.                  Does the disciplinary action, referred to in HR 218, mean current or in the past?

 

4.                  What do retired officers need to prove if their state has no “standards for training and qualifications … to carry firearms?”

 

5.                  Can an officer carry “any” firearm while off duty?


Peace Officer Personnel Issues

 

Law enforcement officers throughout the United States frequently have rights and protections in addition to those provided to the general public sector employee. In California, as well as many other jurisdictions, officers are protected by some sort of form of a “Peace Officer Procedural Bill of Rights Act,” which provides protections and due process procedures specifically for peace officers throughout the state. These are in addition to the general rules and obligations imposed upon public sector employers creating due process rights for all public employees.

 

The following are examples of some of the procedural protections afforded police officers:

 

Montgomery v. City of Ardmore, 365 F. 3d 926 (10th Cir. 2004). Post termination remedies will not relive management of its obligation to provide a tenured police officer with minimal pre-termination due process.

 

Johnson v. State of Louisiana, 369 F. 3d 826 (5th Cir. 2004). The state employer was entitled to rely upon conclusions of the internal affairs investigation and did not violate the First Amendment rights of a motor vehicle inspector by terminating him for making persistent false accusations of sexual harassment.

 

P.B.A. (Anthony) v. City of New York, 765 NYS 2d 152 (2003). Transferring an NYPD union representative before a determination is reached regarding an allegation of an unfair labor practice undercuts union representative’s status. As such, the employer was enjoined from transferring the representatives until determination was reached regarding the charge.

 

Haggerty v. Superior Court (San Diego County), 117 Cal. App. 4th 1079 (2004). The sheriff’s department cannot be required to produce an internal affairs investigative report unless it first redacts those portions reflecting the analysis and conclusions of the investigating officer.

 

Upland POA v. City of Upland, 111 Cal. App. 4th 1294 (2003). It does not violate an officers due process rights to require the officer to submit to a compelled disciplinary interview without the officers attorney being present if the attorney was unable to appear for an interview which had been rescheduled to meet his needs.

 

Dwan v. City of Boston, 329 F. 3d 275 (1st Cir. 2003). An appeals court determines that a police officer suffered no damage after being placed on administrative leave with pay for eighteen (18) months. An internal affairs investigation was being conducted after the officer refused to testify, pursuant to the Fifth Amendment, to a grand jury investigating the beating death of a follow officer.

 

Copley Press, Inc. v. Superior Court (County of San Diego), ____ Cal. App. 4th ______ , 2004 DAR 11687 (2004). Although personnel records of police officers in California, and information contained therein are exempt from disclosure pursuant to the California Public Records Act, the court ruled that information arising out of an officer’s appeal of discipline is not considered personnel information. The information did not come from the officer’s personnel file but, rather, from testimony during the appeal hearing. Therefore, such information shall be disclosed to the press.


Garcia v. Superior Court (City of Santa Ana), 120 Cal. App. 4th 1252. When the court considers a motion to access a peace officer’s personnel file, it must balance the peace officer’s claim of confidentiality with the defendant’s interest in obtaining pertinent defense information. However, the court ruled that a sealed declaration, submitted by the defendant’s attorney to justify accessing the personnel file, need not be disclosed to the city’s custodian of records thereby preventing him from challenging the declaration.

 

Note: On September 22, 2004 the California Supreme Court granted review.


Fair Labor Standards Act (FLSA)

 

Christensen v. Harris County, 59 U.S. 576 (2000). The Fair Labor Standards Act (FLSA) sets forth a safeguard to insure that an employee will receive timely compensation for working overtime. The Act guarantees that an employee will get to use compensatory time off within a reasonable time after making the request unless doing so will unduly disrupt the employers operation. However, there is no prohibition on an employer requiring an employee to utilize the benefits of comp time off by actually scheduling time off with pay.

 

Alvarez v. IBP, Inc., 339 F. 3d 894 (2003). Under the Fair Labor Standards Act (FLSA), employers must compensate employees for all “hours worked.” Changing in and out of specialized protective gear constitutes “work” under the FLSA for which employees must be compensated.

 

Leever v. City of Carson, 360 F. 3d 1014 (2004). A collective bargaining agreement provision which calls for compensating a sheriff’s deputy for training her canine must take into account actual hours worked. The mere fact that a collective bargaining agreement was negotiated at arms length does not necessarily make it reasonable. The City failed to investigate how many hours the officer actually worked in caring for the canine.

 

Mortensen v. County of Sacramento, 368 F. 3d 1082 (2004). The fact that the FLSA allows employees to use compensatory time, and requires the employer to allow its use within a reasonable time after it is requested, does not give employees absolute discretion over the use of the comp time. A deputy sheriff cannot require a county to grant him the use of his comp time off on days he specifically requested.


Fitness for Duty Evaluations

 

Davis – Durnil v.  City of Carpentersville, 128 F. Supp. 2d 575 (2001). Plaintiff was placed on administrative leave with pay after she was shot by a suspect and suffered anxiety attacks. The Americans with Disabilities Act (ADA) was not violated as a result of that action since she was allowed to retain her title and benefits and a psychological exam was promptly arranged for her. She was returned back to patrol once she was determined to be fit for duty.

 

Conrad v. Board of Johnson County, 237 F. Supp. 2d 1204 (2002). The Americans with Disabilities Act is not violated when employers make inquiries or require medical examinations (fitness for duty evaluations) when there is a need to determine whether an employee is able to perform the essential functions of his or her job. The employers order that an employee undergo a fitness for duty evaluation must be supported by evidence that would cause a reasonable person to inquire as to whether an employee is still capable of performing his or her job.

 

Smith v. Plano, U.S. Dist. LEXIS 12642 (2002). The psychotherapist – patient privilege does not apply to a fitness for duty evaluation “where the recommendations of the doctors are communicated to the patients employer in general terms, not including any specific diagnosis or clinical observations.” An officer cannot claim such a privilege if he consented to the information being shared with the Chief of Police.

 

Conroy v. New York State Department of Corrections, 333 F. 3d 88 (2003). A Federal Appeals Court overturned judgment for a corrections officer who sued to prevent management from getting a medical opinion on her fitness for duty. Although the ADA prevents generalized medical inquiries, managements allowed to offer a valid business reason to justify the intrusion.


Brady v. Maryland

 

The concern regarding whether or not information regarding a peace officer who is a material witness in criminal prosecution must be disclosed pursuant to Brady continues to create problems for law enforcement. Under Brady, prosecutors are required to disclose to the defense evidence favorable to a defendant which is either exculpatory or impeaching and is material to either guilt or punishment.

 

Brady v. Maryland, 373 U.S. 83 (1963). “The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

 

United States v. Agurs, 427 U.S. 97 (1976). There is a duty to disclose such evidence which is favorable to the defendant even though there has been no request made by the accused.

 

Kyles v. Whitley, 514 U.S. 419 (1995). Evidence is considered material “if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different.” The prosecutor, who is in control of the case, has an affirmative duty to seek out Brady material amongst all members of the prosecution team and disclose such evidence to the defense.

 

Been v. Lambert, 283 F. 3d 1040 (2002). Significant evidence impeaching a prosecution witnesses’ creditability was not turned over to the defense until the trial had ended. The defense was therefore deprived of the opportunity to impeach the state’s primary witness. “The prosecution failed to disclose multiple peaces of critical impeachment information that could have been used to undermine the credibility of … a prosecution witness whose testimony was crucial to the state’s claims….”

 

Abatti v. Superior Court (People), 112 Cal. App. 4th 39 (2003). The prosecutor has a constitutional duty under Brady to disclose exculpatory evidence to a criminal defendant. The court must determine whether a former police office’s personnel records indicated a propensity to fabricate facts.

 

Jean v. Collins, 221 F. 3d 656 (2000). A plaintiff brought a section 1983 action against police officers alleging that they violated plaintiff’s due process rights under Brady in the plaintiff’s prior criminal prosecution by failing to disclose impeachment evidence. “A police officer who withholds exculpatory information from the prosecutor can be liable under … section 1983… where the officers failure to disclose the exculpatory information deprived the section 1983 plaintiffs of their right to a fair trial.”


Employee Privacy Rights

 

Shaddox v. Bertani, 110 Cal. App. 4th 1406 (2003). A dentist did not violate medical confidentiality when he reported to internal affairs that a police officer had tried to get a prescription for an opiate without medical justification. There is a public policy encouraging citizens to report possible misconduct of police officers.

 

TBG Insurance Services Corporation v. Superior Court (Zieminski), 96 Cal. App. 4th 443 (2002). An employee has no “reasonable expectation of privacy” in the use of the computer provided by his employer. A policy statement signed by the employee indicated that the computer, which the employee was permitted to take home, was to be used exclusively for company business and his downloading of pornographic sites on the internet was justification for termination of employment.

 

U.S. v. Reilly, 2002 U.S. Dist. Lexis 9865 (2002). In order to establish a violation of the Fourth Amendment, an employee must prove a legitimate expectation of privacy in the place searched or the item seized. While government employee may have a legitimate expectation of privacy in their offices or in parts of their offices such as their desk or file cabinet, office practices, procedures, or regulations may reduce legitimate privacy expectations.

 

U.S. v. Angevine, 281 F. 3d 1130 (2002). University professor had no objectively reasonable expectation of privacy in pornographic material downloaded to his university computer. While employees may have a reasonable expectation of privacy, those expectations may be reduced by the actual procedure, practice or by proper regulation of the office. The courts will consider the employee’s relationship to the item seized; whether the item was in the immediate control of the employee when it was seized; and whether the employee took actions to maintain his privacy in the item.

 

Muick v. Glenayre Electronics, 280 F. 3d 741 (2002). Employee of electronic company did not have reasonable expectation of privacy in child pornography saved on his laptop. Where an employer loans an employee office equipment (laptop) for use at work and announces that the employer may inspect the laptop, this destroys “any reasonable expectation of privacy” an employee may have had.

 

U.S. v. Reilly, 2002 U.S. Dist. Lexis 9865 (2002). An employee did not have a reasonable expectation of privacy in his cubicle which had a doorway two feet wide; no door; allowing other employees to see in; and other employees entered even when employee was away.  Further, diskettes of the employee were allowed to be seized without a warrant because it was “carried out for the purpose of obtaining evidence of suspected work-related employee misfeasance.”

 

U.S. v. Simons, 206 F. 3d 392 (2000). Employer’s policy of inspecting and monitoring Internet activity destroyed employee expectation of privacy in files transferred from the Internet. 

 

Americans with Disabilities Act

 

Hernandez v. Hughes Missile Systems Company, 362 F. 3d 564 (2004). The Americans with Disabilities Act (ADA) protects people who have successfully completed a drug program and are no longer using illegal drugs. A terminated employee who had a drug and alcohol problem and was not rehired may sue under ADA alleging that the reasons offered by the employer were a pretext for discrimination.

 

Raytheon Company v. Hernandez, 124 F. Ct. 513 (2003). A claim of disparate treatment under the ADA must establish that an employer treated people less favorably because of the protective characteristics. Raytheon’s neutral, no rehire, policy satisfied its obligation to offer a legitimate, nondiscriminatory reason to refuse to rehire Hernandez.

 

Brown v. City of Tucson, 336 F. 3d 1181 (2003). The plain language of the ADA clearly prohibits a supervisor from threatening an employee with a transfer, demotion or forced retirement unless the employee forgoes a statutorily protected reasonable accommodation. The fact that Brown was asked continuously about her disability and was told to stop taking medications or else be subject to transfer, raised trable issues about material fact regarding her claim under ADA.

 

Chevron USA, Inc. v. Echazabal, 536 U.S. 73 (2002). Under the ADA, an employer may exclude a worker who poses a direct threat to the health or safety of others to the workplace. The safety of the worker himself may also be considered. Chevron may have risked violating workplace occupational safety laws that require employers to ensure the safety of each and every worker.

 

Rights of Returning Veterans

 

The Uniformed Services Employment and Reemployment Act (USERRA) was enacted in October 1994 and provides protection and rights of reinstatement to employees who participate in the National Guard and/or the Reserve. There are numerous rules and regulations contained in USERRA which are designed to encourage non-career service in the military by:

 

1.                  Eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service;

 

2.                  Providing for the prompt reemployment of such persons upon their completion of such military service; and

 

3.                  Prohibiting discrimination against persons because of their service in the military.

 

The time limit for an employee to return to work after military leave of absence depends on the duration of the employee’s military orders. If the employee serves between one and thirty days, he/she is expected to return to work at the beginning of the next regularly scheduled work period on the first full day following completion of military service. If the service was between thirty-one (31) and one hundred eighty (180) days, application for reinstatement by the employee must be submitted not less than fourteen (14) days after the completion of military duty. Finally, if service exceeds one hundred eighty (180) days, application for reinstatement must be submitted no later than ninety (90) days after completion of military duty.

 

If an employee was wounded or incurred some form of disability during military duty, the deadline for reinstatement under those circumstances may be extended for up to two (2) years to allow the individual to convalesce as a result of the disability incurred or aggravated during military service. Employers are required to make reasonable accommodations for the impairment sustained by the employee if such reasonable accommodation is possible. The law requires that the employer hold the individuals job for up to a two year period of time while they are convalescing.

 

An employer can require a fitness for duty evaluation if a returning employee was injured during military service, however, the employee must first be reinstated to payroll in accordance with the provisions referred to above. The employer CANNOT require a fitness for duty evaluation merely because the employee is returning from active duty, but must be able to articulate a justifiable reason for such evaluation.


Free Speech Issues

 

Thomas v. City of Beaverton, 379 F. 3d 802 (2004). An employee, who was a municipal court administrator, offered sufficient evidence to create a genuine issue of material fact as to whether her refusal to facilitate her supervisor’s allegedly unlawful retaliatory treatment of a fellow city clerk in the hiring process, constituted expression on a matter of public concern protected by the first amendment.

 

Ceballos v. Garcetti, 361 F. 3d 1168 (2004). A public employee’s speech concerning the matter of public concern is protected by the First Amendment. A deputy district attorney’s allegation that a peace officer may have lied to obtain a search warrant is inherently a matter of public concern and therefore protected speech. Individual supervisors were not entitled to qualified immunity from civil liability for the actions taken against the Deputy District Attorney.

 

Coszalter v. City of Salem, 320 F. 3d 968 (2003). An employee alleging retaliation under the First Amendment must show that he was subject to an adverse employment action. Although retaliation by the employer occurred three (3) to eight (8) months after the protected speech (his publicly complaining of safety hazards caused by sewer discharge) there are no bright line rules about the timing of retaliation. The employee, therefore, may file a civil rights lawsuit for retaliatory acts that occurred several months after exercising free speech rights.

 

Skaarup v. City of Las Vegas, 320 F. 3d 1040 (2003). Speech which asserted that a city was discriminating against women over forty (40) was a matter of public concern. However, the employee took no steps to make these concerns public and had no first hand knowledge of the truth of the allegations. The city’s interest in running an efficient fire department, and in maintaining good relations with the union, outweighed the Skaarup’s right to express his own suspicions. His comments were divisive in a way that would effect the efficient operation and morale of the department and, therefore, disciplinary action against him was not an abridgment of free speech.


Use of Force

 

Wall v. County of Orange, 364 F. 3d 1107 (2004). It is “well established” law that overly tight handcuffing can constitute excessive force, therefore, the granting of qualified immunity to deputies on a dentist’s claim that he was arrested without probable cause and wrongfully subjected to handcuffing so tight that the injuries required him to leave his profession, was improper.

 

Neuburger v. Thompson, 303 F. Supp. 2d 521 (2004). Police officers who approached a distraught woman, who was armed with a handgun with their own weapons drawn, did not render them liable for her subsequent death when she pointed her weapon at one of them and she was shot and killed. The argument that their conduct unreasonably “provoked” a confrontation resulting in her death was rejected by the court.

 

Drummond v. City of Anaheim, 343 F. 3d 1052 (2003). Although some force was justified in restraining Drummond, who had a history of mental illness, the force used by the officers was excessive when compared to the minimal amount justified under the circumstances. Reasonable officers would have clearly known that the amount of force used by the Anaheim police was not justified.

 

Miller v. Clark County, 340 F. 3d 959 (2003). The use of excessive force constitutes an unreasonable seizure under the Fourth Amendment and deadly force is reasonable only in special circumstances. Although it is possible that a person can die after being bitten by a police canine, the possibility is remote, therefore, the force used in this case was not deadly force. Based on the circumstances, the use of the police canine was reasonably necessary.

 

Johnson v. County of Los Angeles, 340 F. 3d 787 (2003). Officer Woodward was dealing with two armed suspects on a high-speed car chase. Johnson’s presence in the backseat of the vehicle was a surprise to the officers. Johnson made suspicious movements with his hands and, therefore, pulling him out of the car was a minimal intrusion on his Fourth Amendment right to be free from the use of excessive force.

 

Haugen v. Brosseau, 339 F. 3d 857 (2003). Deadly force cannot be justified based merely on a slight threat. An officer may not use deadly force unless it is necessary to prevent an escape and the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury to the officer or others. Although the officer had reason to believe Haugen had committed crimes of burglary and drug possession, she did not have probable cause to believe he had committed a crime involving infliction of serious physical harm.

  

 

Vita

Martin J. Mayer

3777 North Harbor Boulevard

Fullerton, California  92835

(714) 446-1400 Telephone

(714) 446-1448 Facsimile

E-mail: mjm@jones-mayer.com

                                                           

The Law Offices of Jones & Mayer is located in the City of Fullerton.  The firm basically limits its practice to representing cities, counties and special districts on a variety of legal issues.  Martin Mayer limits his practice to representing cities, counties and the State as legal advisor to their Chiefs of Police or Sheriffs and in that capacity represents approximately seventy agencies throughout the California.  In addition, the firm serves as the City Prosecutor for seven municipalities.  Prior to establishing his original law firm, Mr. Mayer worked with the League of California Cities for four years as Director of its Criminal Justice Planning Unit.


 

Martin Mayer received his undergraduate degree from the City University of New York and his law degree from St. John’s University, also located in New York.  Mr. Mayer is admitted to practice law in all lower courts in the states of New York and California, the United States Federal Courts, and the United States Supreme Court.

 

Mr. Mayer lectures extensively on matters involving civil liability and law enforcement on behalf of the California POST Commission, California Peace Officer’s Association, California State Sheriff’s Association, the Department of Justice, and Americans for Effective Law Enforcement.  Mr. Mayer was a member of the faculty of California State Polytechnic University, Pomona, Kellogg West, for eight years, teaching in their Executive Development Program for law enforcement managers.

 

Mr. Mayer serves as Legal Advisor to the California Police Chief’s Association, the California State Sheriff’s Association and the California Peace Officers’ Association.  He also served, for 10 years, as the State Chairman of the Police Legal Advisors’ Committee for the California Peace Officer’s Association.  Mr. Mayer is a graduate of the Sixth FBI National Law Institute at Quantico, Virginia and was the first attorney in private practice to be included in the program.  Mr. Mayer also served as a POST certified reserve with the Downey Police Department for approximately nine years.  Mr. Mayer also serves as a member of, and legal advisor to, the Advisory Council for the National Law Enforcement and Corrections Technology Center (Western Region) which is funded by the National Institute of Justice and the U.S. Department of Justice. 

 

Published Articles

 

• Utilizing the Department’s Legal Counsel at Major Incidents

     The Police Chief, Published by IACP, May 1998, Vol. LXV, Number 5

 

• Fair Labor Standards Act & Police Personnel Administration

     Journal of California Law Enforcement, Vol. 29, No. 2, 1995

     The Police Chief, Published by IACP, April 1997, Vol. LXIV, Number 4

 

• The ADA:  Psych Evaluation; Background Investigation; Conditional Offer

     of Employment; Grievance Procedure

     California Peace Officer, Vol. __, No. _, 1994

 

• ADA:  Some Questions & Answers

     California Peace Officer, Vol. 13, No. 4, 1993

 

• Americans with Disabilities Act:  Some Do’s and Don’ts

     Journal of California Law Enforcement, Vol. 26, No.1, 1992

 

• Penal Code Section 618--A Reason for Concern?

     Journal of California Law Enforcement, Vol. 24 No. 3, 1990

 

• To Provide or Not to Provide:  No Longer a Question for Internal Affairs Investigations

     Journal of California Law Enforcement, Vol. 24 No. 4, 1990

 

• The Special Relationship Syndrome

     California Peace Officer, December 1989

 

• Officer Involved Shootings:  A Procedural and Legal Analysis

     Journal of California Law Enforcement, Vol. 23, No. 2, 1989

 

Representative Speaking Engagements

 

• California Commission on Peace Officer’s Standards & Training (POST) 1980 - present

     Executive Development Program

     Police Mid-management Course

     County Chiefs and Sheriff’s Associations Annual Training Retreats

 

• California Peace Officer’s Association (CPOA) 1979 - present

     Role of the Chief of Police

     Discipline and Due Process

     Legal Update (2 day session)

     American’s With Disabilities Act (ADA)

 

• American’s for Effective Law Enforcement (AELE) 1989 - present

     Civil Liability Issues Affecting Law Enforcement

     Discipline and Law Enforcement

 

• Labor Relations Information System (LRIS) 1995 - present

     Labor Relations and Disciplinary Procedures

• International Association of Chief’s of Police (IACP) 1997 - present

     Police Psychologist Committee – “Impact of Psychologists on Law Enforcement

     Legal Officer’s Section – “Union Impact on Internal Affairs Investigations”

                        

• California State Sheriff’s Association (CSSA) 1990 - present

     Legal Update at Annual Conference

 

• California State University at Long Beach,

     Department of Criminal Justice 1992 - present

     Legal Issues Affecting Internal Affairs Investigations

 

• California Association of Law Enforcement

      Background Investigators 1997 - present

     Legal Update Impacting Upon Background Investigations

 

• League of California Cities Annual Conference 1998 - present

     Chief of police Department – Legal Update

     City Attorney Department – Civilian Review Boards

 


 

© 2004, Jones & Mayer