Did You Know?

Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in public safety.

• The Modesto Police Department may soon have a single-engine GippsAero GA8 plane to serve as a “police car in the sky” and would respond to the same calls for service as patrol officers on the ground. The plane would help the department respond faster to calls on reckless drivers or burglaries, because it would be equipped with a high-tech camera that would allow them to maintain sight of such individuals more easily than when responding from the ground.

• Assembly Bill 2799 added Evidence Code Section 352.2, which requires trial judges to consider specific factors before admitting evidence of a form of creative expression in a criminal proceeding. The law has been used to overturn a murder conviction that was based almost entirely on a rap music video.

• The Los Angeles County Sheriff’s Department deployed seven members of its search-and-rescue program to Turkey to assist with the aftermath of the 7.8 magnitude earthquake that hit Turkey and Northern Syria in February 2023.

California Prison System Ordered To Remediate ADA Violations As To Prisoners With Disabilities.

In 1994, a class of California prisoners known as the “Armstrong class” sued the California Department of Corrections and Rehabilitation (CDCR) and the Governor alleging widespread violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA). They claimed the prison staff discriminated against them based on disability, and failed to offer them reasonable accommodations. The district court held that the correctional officers’ treatment of disabled prisoners violated the ADA/ RA and ordered the CDCR to produce a plan describing how it would remedy the violations.

In 2020, the Armstrong class returned to court alleging pervasive violations of class members’ ADA rights. At the R.J. Donovan Correctional Facility (RJD), for example, auditors documented instances of correctional officers “forcefully removing inmates from wheelchairs” and assaulting inmates who were secured with restraint equipment.

A “strike team” went to RJD to investigate the auditors’ reports. The strike team found 48 of 102 inmates interviewed “provided specific, actionable information, relevant to the foundational concerns”. The inmates stated the officers targeted disabled inmates for abuse and retaliated against those who reported it. In one “illustrative example” a mobility-impaired inmate requested not to be handcuffed behind his back because he used a cane and a walker. The RJD officer slammed the individual to the ground where he hit his head and went unconscious for several seconds. When he came to, the officer kneed his throat and then kneed his face. The Court noted numerous accounts of mobilityimpaired class members being thrown to the ground after asking for handcuffing accommodations. Officers also denied requests for wheelchair pushers, and would not allow showers after incontinence incidents. One strike-team member noted, “I have never heard accusations like these in all my years… This is a very serious situation and needs immediate attention. If there is any means of installing cameras immediately, I would strongly suggest it…”

In addition, class members recounted several alarming incidents of retaliation. In one incident, an officer refused to help a disabled individual lift a heavy package of mail. The individual replied he intended to file a complaint, and in response, the officer peppersprayed him in the face, hit him in the face with the canister, and then kicked him. In another incident, an officer threatened to file a fabricated rules-violation report against a class member if he reported the officer’s earlier failure to accommodate him. Many reported they were afraid to request accommodations due to the threat of retaliation.

The Armstrong class requested the district court to impose further remedial measures at RJD based on the State’s failure to investigate and discipline staff in response to these allegations of misconduct. The court granted the request in large part, finding the inmate’s accounts credible because of the consistency among them. Moreover, the CDCR failed to submit any counter evidence.

The Armstrong class members housed in five other California State prisons also submitted declarations regarding officer misconduct. Although the prison did submit counter evidence to some of those claims, the court still sided with the Armstrong class. The court found that the root cause of these ongoing violations was the ineffectiveness of the CDCR’s system for investigating and disciplining staff, leading to a “staff culture” that condones abuse and retaliation against disabled inmates. The district court concluded additional remedial measures were necessary to prevent further ADA violations. The court ordered CDCR to draft new remedial plans, which had to include, among other things, installing fixed surveillance cameras and body-worn cameras, adding more staff training, implementing antiretaliation mechanisms, and reforming the staff complaint, investigation, and discipline processes. The CDCR appealed. It alleged, that the orders did not comport with the Prison Litigation Reform Act (PLRA).

The Ninth Circuit Court of Appeals decided that the record supported the district court’s decision. The PLRA says that a court “shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” Here, the district court not only found ongoing violations, but that a common source of those violations t was insufficient accountability for officers’ misconduct. The overwhelming and consistent declarations by aggrieved class members, testimony from experts, the auditor’s memo, the strike-team report, a report from the CA Office of the Inspector General, and CDCR’s own data showed systemic failures of accountability. The Ninth Circuit agreed, opining that a lack of accountability creates a vicious cycle that escalates into a prison-wide culture of abuse.

Armstrong v. Newsom (2023 S.O.S. 20-16921).

Note:

This case illustrates that promptly investigating and addressing misconduct through appropriate discipline is essential to the lawful operation of law enforcement and an appropriate staff culture.

LCW has 30+ consortiums across the State! Consortium members enjoy access to quality training throughout the year, discounts on other LCW products and events, and unlimited, complimentary telephone consultation with an LCW attorney on matters relating to employment and labor law questions (including questions involving COVID-19, supervisory skills, and negotiation matters!). We’ve outlined a recent consortium call and the provided answer below. Client confidentiality is paramount to us; we change and omit details in the ERC Call of the Month.

Question:

If a police officer applicant requests a second opinion on a psych disqualification, or otherwise wants to appeal the disqualification, is there any statute that mandates the City to accept the second opinion?

Answer:

The Peace Officer Standards and Training (POST) Regulation 1955(g) discusses second opinions on peace officer psychological exams. This section incorporates a provision in the California Fair Employment and Housing Act (FEHA), which grants any applicant who is medically disqualified the right to submit an independent medical opinion for consideration before a final determination is made. The POST regulation further obligates the department to provide the second-opinion evaluator with the same information provided to the first-opinion psychologist on the job duties, powers, demands and working conditions, as well as the POST psychological screening requirements, procedures and criteria. Potential reasonable accommodations for peace officer applicants to mitigate impediments resulting from emotional and psychological conditions may be limited. But law enforcement employers still have an obligation to provide a good faith “interactive process” (i.e., a constructive dialogue) with the individual to explore accommodation options (such as adjusting work schedules), in consultation with relevant experts, as necessary, before reaching any conclusion regarding whether there is any accommodation that would prevent substantial risks of harm to the officer candidate or others. The August 2022 POST Peace Officer Psychological Screening Manual can be found at https://post.ca.gov/peace-officer-psychological-screening-manual.