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Employment & Labor Law for Public Safety Agencies


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Firearms/Weapons - Other Issues

     Monthly Law Journal Article: Interagency Memorandums of Agreement for Officer-Involved Shooting Investigations, 2011 (1) AELE Mo. L. J. 501.

     The plaintiff had been employed as a city police officer since 1995. In 2013, a Memorandum of Finding was sustained against him on allegations that he failed to properly investigate and report an incident of sexual abuse against a girl the year before. The police chief recommended that he be terminated. Before a hearing could be held on his proposed termination, he was granted disability retirement for a back injury sustained while on duty.

      He then requested his retirement identification badge and that the badge include a Carry Concealed Weapon (CCW) endorsement. This request was denied because the city and police chief did not consider him to be “honorably retired” as that term was defined in Penal Code section 16690. They also argued that he not entitled to a hearing to dispute the finding. He sued, contending he was honorably retired and entitled to a CCW endorsement, and if the endorsement was denied for cause, he was entitled to a good cause hearing. An intermediate California appeals court upheld the trial court’s ruling that the defendants could deny the CCW endorsement for cause but that the defendant was entitled to a good cause hearing if it was denied. Bonome v. City of Riverside, #E064925, 10 Cal. App. 5th 14, 215 Cal. Rptr. 3d 654, 2017 Cal. App. Lexis 264.

     The plaintiff was issued a medical marijuana registry card under state law. Based on this, and relying on a letter issued by the federal ATF, a firearms dealer refused to sell her a firearm. She claimed that federal statutes, regulations, and guidance that prevented her from buying a gun because of her medical marijuana use violated her Second Amendment rights. Intermediate scrutiny was applied, and the court properly held that 18 U.S.C. 922(d)(3), 27 C.F.R. 478.11, and the ATF's Open Letter at issue did not place a severe burden on the plaintiff's Second Amendment rights. The degree of fit between the laws and guidance and the goal of preventing gun violence was reasonable and survived intermediate scrutiny. The appeals court also rejected First Amendment and Fifth Amendment due process claims. There was no constitutionally protected liberty interest in holding a medical marijuana registry card at the same time as buying a firearm. Wilson v. Lynch, #14-15700, 2016 U.S. App. Lexis 16108 (9th Cir.).
     In 18 U.S.C. Sec. 922(g)(9), Congress extended the federal prohibition on firearms possession by convicted felons to persons convicted of misdemeanant crimes of domestic violence under federal, state, or tribal law, committed against a domestic relation that necessarily involves the use of "physical force." In a previous decision, the U.S. Supreme Court held that a knowing or intentional assault qualifies under Sec. 922(g)(9), but failed to address reckless assaults. Two individuals pled guilty under a Maine law making it a misdemeanor to “intentionally, knowingly or recklessly cause[ ] bodily injury” to another. The U.S. Supreme Court held that a reckless domestic assault qualifies as a misdemeanor crime of domestic violence, barring them from owning or possessing firearms. Reckless conduct, which requires the conscious disregard of a known risk, the Court stated, is not an accident: It involves a deliberate decision to endanger another. Voisine v. United States, #14-10154, 2016 U.S. Lexis 4061, 84 U.S.L.W. 4525.
     Four retired correctional officers claimed that the District of Columbia improperly deprived them of their federal right to carry a concealed weapon under the Law Enforcement Officers Safety Act (LEOSA), 18 U.S.C. 926C. They claimed that they met the statutory requirements but that they were unable to obtain firearms training because the District refused to certify that, as corrections officers, they had the power to arrest, specifically to arrest parole violators. The federal appeals court found that the complaint sufficiently alleged that they had been unlawfully deprived of a concrete individual right designed to benefit them, which could be remedied under 42 U.S.C. Sec. 1983. Duberry v. District of Columbia, #15-7062, 2016 U.S. App. Lexis 10096 (D.C. Cir.).
     A police officer was shot in the back with his service revolver by his three-year-old son. His injuries rendered him a paraplegic. He sued the manufacturers and sellers of his gun and holster, asserted products liability claims. He argued that the gun was defective because it lacked a safety mechanism to prevent accidental firing and had a light trigger pull. The appeals court ruled that summary judgment for the defendant gun manufacturer and retailer was improper on a design defect claim. The defendants failed to show that the plaintiff had no evidence that the alleged design defect caused his injuries. An expert witness for the plaintiff stated the opinion that a small child's hand would not have the leverage or size to depress a grip safety had the gun had one, and at the same time extend his finger far enough out to pull the trigger. The court upheld summary judgment on claims related to the holster, and against the gun's manufacturer and retailer for failure to warn the plaintiff that the gun should only be used with specific holsters, since the plaintiff was a sophisticated user. Chavez v. Glock, Inc., #B230346, 2012 Cal. App. Lexis 832  (Cal. App.).
     A training officer entered the area where a training exercise simulating an arrest was being enacted. He was supposed to fire his weapon into a sandbox, but failed to do that. When he pointed his gun at a prone officer playing the role of the arrestee, the weapon discharged, killing him. His surviving family filed a federal civil rights lawsuit asserting Fourth, Eighth, and Fourteenth Amendment claims. A federal appeals court found that the plaintiffs had not adequately alleged a Fourth Amendment excessive force claim, merely mentioning the Fourth Amendment without stating how it was violated. The Eighth Amendment claim was also inapplicable as there was no criminal prosecution or "adjudication of guilt" against the dead officer. The court did find that the failure to follow necessary safety precautions could be found to "shock the conscience" in violation of substantive due process. There was no basis for liability claims against the mayor or municipality, however, since the mayor was not involved and there was no showing that the death was caused by an official policy or custom. Due process claims against defendant officers present at the incident, including a supervisor, could proceed, as well as claims against some police defendants not present that day, but who had direct responsibility for the training exercise. Marrero-Rodriguez v. Municipality of San Juan, #11-1195, 677 F.3d 497 (1st Cir. 2012).
     The Wyoming Supreme Court overturned the termination of a deputy who had been accused of not performing his duties relating to report writing and firearms security. His conduct did not violate the department's written policies. There was undisputed evidence that the deputy's shotgun had been secured in a gun locker at his brother's house, which complied with the department's policy for securing a weapon with a lock when it was outside of a deputy's immediate control. Cook v. Laramie County Sheriff's Dept., #S-11-0152, 2012 WY 47, 2012 Wyo. Lexis 50.
     Declining to issue a former deputy sheriff a retirement badge and a firearm authorization card is not a stigmatizing event giving rise to an enforceable liberty interest. Palka v. Shelton, #08-4245, 2010 U.S. App. Lexis 20708 (7th Cir.).
     Appellate court sustains the termination of a sheriff's officer who repeatedly failed to qualify with her duty weapon. Moreover, "if a shooter is permitted to continue to shoot a failing qualification course without intervention to correct their improper habits and/or techniques, this will actually reinforce their improper habits and techniques which continually lead to the same negative results." In the Matter of Joan Ivan, #A-1070-07T2, 2009 WL 1118735 (Unpub. N.J. App. Div.).
     Tenth Circuit holds that an Oklahoma law holding employers criminally liable for prohibiting employees from storing firearms in locked vehicles on the employer’s property is not preempted by the federal Occupational Health and Safety Act. Ramsey Winch v. Henry, #07-5166, 2009 U.S. App. Lexis 3034 (10th Cir.).
     Federal Labor Relations Board affirms an arbitrator's award that upheld a bargaining agreement provision requiring management to provide ammunition to officers for use in firearms qualification practice. U.S. Dept. of Homeland Security and AFGE L-1917, #0-AR-3935, 61 FLRA No. 13, 2005 FLRA Lexis 100 (2005). {N/R}
     Illinois Police Training Act is amended to authorize the state Training Board to conduct annual firearm certification courses for retired law enforcement officers that are qualified under federal law to carry a concealed weapon. The amendments provide that retired officers must authorize a criminal background investigation. S.B. 0189. {N/R}
     Federal Labor Relations Authority upholds a management directive that customs officers should take their weapons home and secure them when off-duty, and not leave them at the workplace. NTEU and U.S.D.H.S., Customs and Border Protection, #0-NG-2627, 60 FLRA No. 77, 2004 FLRA Lexis 171 (FLRA 2004). [2005 FP Mar]
     Utah Supreme Court allows a private employer to discipline workers who violate its policies and have a firearm in their vehicles while in employer-provided parking lots. Hansen v. America Online, #20020288, 96 P.3d 950, 2004 UT 62, 2004 Utah Lexis 136 (2004). [2004 FP Oct]
     Two Federal appellate courts uphold fed. gun laws banning possession of machine guns. U.S. v. Kenney, 59 CrL (BNA) 1447 (7th Cir. 1996); U.S. v. Beukelaere, 59 CrL (BNA) 1462 (6th Cir. 1996) {N/R}
     Appellate court upholds a pay reduction for police officers who failed to score in upper 50% at the firearms range. Johnson v. Civil Serv. Bd., 627 So.2d 950 (Ala.Civ.App. 1993). [1995 FP 24]
     IACP bans the NRA from exhibiting at the Annual Conference and advertising in the IACP monthly magazine, The Police Chief, after an NRA officer called federal agents "jackbooted thugs." Crime Control Digest, 5/19/95 p. 10. {N/R}
     Duty to bargain: management does not have to bargain over the types of guns, other weapons, and quantities of ammunition to be provided. Twp. of So. Brunswick and P.B.A. L-166, N.J. PERC #86-115 (1986), 12 NJPER (LRP) ¶ 17,138 [Lexis]. {N/R}
     Class action filed by police officers against city, challenging restrictive deadly force policies, fails in trial court. Darrah v. Prease, Chief of Police, Civil #CV 81 9 2615, Summit Co. Common Pls. Ct. (Oct. 1981). (#86 FP 4).
     Appellate court holds that a police dept's firearms use and deadly force policy is not a negotiable issue in California. San Jose POA v. City of San Jose, 144 Cal.Rptr. 638, 78 Cal.3rd 935 (Cal.App. 1978). [1979-1 FP 4]
     Also see: Firearms - Restrictions on Wearing

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