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Officer Must Show Incapacity To Perform
Ususal Duties For Current and Prospective California Agencies
To Qualify For Disability Retirement
NOLAN v. CITY OF ANAHEIM, 33 Cal. 4th 335
Steven Nolan began work as a police office with the City of Anaheim in 1984 after graduating first
in his academy class. During his early career he received outstanding ratings and in 1991, after
transferring to the gang unit, reported what he believed to be excessive use of force by fellow
officers. Nolan began to experience strained relations with other members of the gang unit and
voluntarily returned to patrol duty in 1992.
After an internal affairs investigation failed to substantiate any misconduct on the part of the other
officers, disciplinary charges were brought against Officer Nolan for violation of department rules.
Officer Nolan was terminated and took his case to arbitration; reinstatement was ordered with a five
day suspension. Officer Nolan began to receive threatening phone calls and hang-ups, which he
believed were placed by Anaheim police officers. One caller warned him to always wear his vest,
and another said, "welcome back, you're fucking dead." Officer Nolan filed for disability retirement
and a civil "whistle-blower" suit.
In the whistle-blower suit, the jury awarded Officer Nolan $223,000 for wrongful termination, but
reduced the award by $63,000 on the ground he could have found comparable employment
elsewhere. The jury additionally awarded Officer Nolan $180,000 for emotional stress.
In the disability matter, the administrative law judge found that Officer Nolan suffered no mental
incapacity and recommended denial of his disability retirement request. The city of Anaheim adopted
the decision and Officer Nolan filed an action seeking a writ of mandamus to compel the city to grant
him disability retirement. The superior court found Officer Nolan was permanently incapacitated for
the performance of his duties as a police officer for Anaheim. The Court of Appeal reversed and
remanded for reconsideration of the administrative record under, what it held to be, the appropriate
standard, "whether Mr. Nolan is mentally incapacitated for state service, i.e., perform police services
throughout the state ... ."
The California Supreme Court affirmed the Court of Appeal judgment and remanded the case for
further proceedings, holding "... that a peace officer seeking permanent disability retirement must
show not only that he is incapacitated from performing his usual duties for his last employer, but also
that he is incapacitated from performing the usual duties of his last assignment for other California
law enforcement agencies. ... "
The Supreme Court concluded that "[t]o deny Mr. Nolan disability retirement benefits on the ground
he is capable of working for other California law enforcement agencies would clearly work a
hardship on him if, as he claims, no other law enforcement agency would, in fact, be willing to hire
him because he has blown the whistle on misconduct by fellow officers." Therefore, the court stated,
"... if Mr. Nolan shows not only that he is incapacitated from performing his usual duties for
Anaheim, but also that he is incapacitated from performing the usual duties of a patrol officer for
other California law enforcement agencies, the burden will shift to Anaheim to show not only that
Mr. Nolan is capable of performing the usual duties of a patrol officer for other California law
enforcement agencies, but also that similar positions with other California law enforcement agencies
are available to him. By similar positions, we mean patrol officer positions with reasonably
comparable pay, benefits, and promotional opportunities. ... "
How does this affect your agency? The California Supreme Court answered the question of what
was meant by the term "state service," as used by PERS, for purposes of disability retirement for a
peace officer. The term means "all forms of public agency service," nor just with any one employer.
Therefore, retirement based on an "injury" which doesn't prevent the employee from working for
another public employer, (doing the same work at the same rate of pay) may not justify a disability
retirement. This decision may open the door for taxpayer litigation against the public employer
wanting to rid itself of a peace officer who has become politically "hot" or viewed as undesirable,
if it negotiates a "disability retirement" when the disability does not prevent the officer from
performing for other California law enforcement agencies.
Criminal Defendant May File Declaration
Under Seal In Support Of Pitchess Motion
GARCIA v. SUPERIOR CT OF ORANGE COUNTY (City of Santa Ana), 928 F. 2d 1136
Jose Antonio Garcia was charged with ADW on a custodial officer during the booking process in
the Santa Ana jail. A Pitchess motion was filed for the disclosure of personnel records for the six
custodial officers allegedly involved in the altercation. Garcia submitted the necessary attachments
including a declaration under seal in support of the motion, serving a redacted copy of the declaration
on the custodial officers' attorney and the City of Santa Ana. The City filed an opposition to the
motion, asserting it could not adequately respond without first reviewing the sealed declaration.
An ex parte in camera review of the sealed declaration was conducted, to which the City did not
object, and the trial court concluded some information could be released under a protective order.
The trial court also found other statements fell under either the attorney-client or work product
privilege and ordered those portions redacted. The California Court of Appeal, Fourth Appellate
District, granted Garcia's petition prohibiting the trial court from compelling disclosure of counsel's
sealed declaration.
The Appellate Court pointed out that because statutes outlining the Pitchess procedure were silent
on the issue of filing supporting declarations or affidavits under seal, nothing expressly prohibited
a defense attorney from making use of the practice where privileged or confidential information was
included to demonstrate good cause for the release of peace officer personnel records. The Appellate
Court noted that this practice has been employed in other settings and there was no compelling
reason to preclude it here.
The Appellate Court stated that "... when confronted with a sealed declaration or affidavit in support
of a Pitchess motion, the trial court should apply the procedures similar to those followed in other
third-party discovery motions. First, the criminal defendant who submits a sealed declaration in
connection with a Pitchess motion must provide timely and proper notice to the third party,
specifically claiming his or her attorney-client, attorney work product, or other recognized privilege
or immunity. Second, the trial court must review the sealed declaration or affidavit in camera with
defense counsel to determine what portions of the document, if any, contain legitimately privileged
information. The court should then order that those limited portions of the document remain under
seal."
How does this affect your agency? Demands will now be made, by defendants bringing Pitchess
motions, to allow their attorney's declarations to be filed under seal. Since it is impossible for legal
counsel representing the department and the custodian of records to respond without reading the
allegations in the declaration, it is now imperative for counsel to challenge such action in court.
Civil/Civil Rights
Police Must Be Aware Of
Probation Search Terms At Time
Of Search To Fall Under Fourth Amendment
Warrant Requirement Exception
PEOPLE v. HOENINGHAUS, 2004 Cal. App. LEXIS 1201
Dep. Terry Parker of the Santa Cruz Sheriff's Department and two deputies were conducting a
narcotics-related investigation in an area frequented by drug users and littered with discarded needles
and drug paraphernalia. The officers had two persons in custody when Brian Keith Hoeninghaus
emerged from the brush and approached Det. Parker. Dep. Parker identified himself, asked
Hoeninghaus what he was doing in the area and observed numerous scabs on the back of
Hoeninghaus' hands. Dep. Parker also noticed Hoeninghaus' pupils appeared to be too constricted
for the lighting conditions
Hoeninghaus became nervous, denied using drugs when asked, and was detained and handcuffed
as he started to move away. Dep. Parker reexamined Hoeninghaus' eyes, concluded Hoeninghaus
was under the influence, arrested and searched him. Dep. Parker found a vial containing a usuable
amount of liquid that tested positive for opiates. Hoeinghaus told Dep. Parker his car was parked a
few hundred yards away. Dep. Parker retrieved the key, searched the vehicle and found drug
paraphernalia and three grams of a substance that also tested positive for opiates. Hoeninghaus was
taken to the county jail, where Dep. Parker learned Hoeninghaus was on probation and subject to a
search condition.
Hoeninghaus moved to suppress the evidence, which the trial court denied, agreeing with the
prosecution that the search was valid under Hoeninghaus' probation search condition. The California
Court of Appeal, Sixth Appellate District reversed and remanded with directions to conduct a new
hearing on the motion to suppress.
The Appellate Court then engaged in an analysis of People v. Robes (2000) 23 Cal.4th 789 (holding
that a residential search could not be justified under a search condition of which the police were
unaware at the time of the search); In re Tyrell J. (1994) 8 Cal.4th 68 (holding that an officer's
ignorance of a probation condition to be irrelevant and that warrantless searches, even by officers
ignorant of a condition, still promoted the rehabilitative purpose of juvenile probation); and People
v. Sanders (2003) 31 Cal.4th 318 (holding that the state may not claim that a warrantless search was
a valid parole search if police were unaware of the search conditions at the time of the search).
The Appellate Court noted that the Supreme Court in Sanders did not overrule Tyrell J. or expressly
limit its ruling to juvenile probationers. The Appellate Court held that when the state attempts to
justify a warrantless search under a probation search condition, the propriety of the search depended
on whether police knew about the conditions at the time of the search.
The Appellate Court rejected the People's interpretation of the probation condition which infers,
from its silence on the issue of advance knowledge, that Hoeninghaus consented to searches without
advance knowledge. The Appellate Court pointed out that a probationer does not waive the Fourth
Amendment protection against searches that are arbitrary, capricious, or harassing. The purpose of
a probation condition was to inform police, among others, about the scope of a probationer's consent
and thereby ensure that they do not conduct unreasonable searches by exceeding it.
How does this affect your department? Training, training, training! The "rules" change constantly
for those enforcing the laws. It is managements duty and obligation to ensure its officers receive
prompt notice of those changes and guidance on implementing such changes. This case is a perfect
example of the need for legal support for law enforcement agencies.
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