By Cassidy L. Bacon
Attorney at Law, Napier, Baillie,
Wilson, Bacon & Tallone, P.C.
As police officers and members in the Public Safety Personnel Retirement System (PSPRS), you have options if you are unable to perform your duties as a police officer because of illness or injury. This article will provide a brief overview of those options.
There are several types of medical/disability retirements. Each one has different requirements and benefits. If you are injured on duty, there are two main types of medical retirements for which you may qualify — an accidental disability retirement and a catastrophic disability retirement.
The most common we see is an accidental disability retirement. You may qualify for an accidental disability retirement if you have a physical or mental condition that totally and permanently prevents you from performing a reasonable range of your duties as a police officer. Calculating the amount of your accidental disability retirement benefits depends on your PSPRS membership tier but will not be less than 50% of your average monthly benefit compensation. Most, if not all, of the benefit amount is non-taxable.
Catastrophic disability retirements are reserved for those with physical injuries that totally and permanently prevent the employee from engaging in any gainful employment. Catastrophic disability benefits are calculated a bit differently. For the first five years, the employee would receive 90% of their average monthly benefit compensation tax-free. After that time, if the employee still qualifies for this type of retirement, their benefits are reduced to 62.5%, depending on years of service.
If, on the other hand, your illness or injury was incurred off duty, you may qualify for an ordinary disability retirement. This type of retirement requires either a physical condition that totally and permanently prevents you from performing a reasonable range of duties within the Department or a mental condition that totally and permanently prevents you from engaging in any gainful employment. Unlike medical retirements precipitated by an on-duty injury, ordinary disability benefits are taxable.
To obtain medical retirement benefits, you must first contact the City retirement office for an application. Once completed, you must file the application with the local board. This needs to occur no later than one year after ending your employment because of the disability. Once filed, the local board will then gather any relevant records from City Safety and schedule you for an initial appearance. At the initial appearance, your application will be reviewed. If the board determines that, on its face, your application meets the requisite standard, they will approve sending you for an independent medical examination, or IME. The IME will conduct a review of your records and an examination of you before making a determination as to whether you meet the standard for a medical retirement. The local board is bound by the findings of the IME in deciding whether to approve your application.
This article is intended to provide a brief overview of medical retirement benefits under PSPRS and should not be construed as legal advice. There are many nuances to the medical retirement statutes, so if you have questions or are considering a medical retirement, please reach out to discuss your specific situation. I can be reached at (602) 248-9107 or clbacon@napierlawfirm.com.
By Eric R. Wilson
Attorney at Law, Napier, Baillie, Wilson, Bacon & Tallone, P.C.
Almost everyone in Phoenix has seen the video and/or images of the August 22, 2017, protest and the response measures employed by the Phoenix P.D.’s Tactical Response Unit (TRU), whereby a protester who kicked a gas grenade at a group of officers was shot in the groin by TRU grenadier Officer Turiano with a 40mm impact round. The groin shot went viral and was the catalyst for several legal actions to follow that required our firm to protect PLEA and members’ rights.
The Federal Lawsuit
In the September/October 2022 Phoenix Law Enforcer article titled “Breaking Down the Fourth Amendment’s Role in Administrative Investigations” (pages 18–20), PLEA attorney Cassidy Bacon highlighted our firm’s prevailing efforts to protect Officer Turiano’s Fourth Amendment constitutional rights against the Department’s unlawful search of his imaged personal cell phone data and retaliation for declining to consent to that search. The U.S. District Court of Arizona issued a preliminary injunction, preventing the Department from pursuing any administrative, investigative or disciplinary proceedings against Officer Turiano based on his refusal to consent to the search of his stored personal cell phone data.
Following the Court’s decision, PSB finalized its challenge coin investigation and found no evidence that either Officer Turiano or Officer White had engaged in any misconduct related to the challenge coin. It is noteworthy that at the time the NOI was served, PSB had already concluded that Officer Turiano had not engaged in workplace misconduct related to the coin. There was no evidence that he was in any way involved in the creation or dissemination of the challenge coin. Simply put, Officer Turiano was just the one who fired the shot.
Unfair Labor Practice
Recall that the City hired a third-party law firm, Ballard Spahr, to conduct an administrative investigation into the challenge coin (and similar memorabilia) that commemorated both the protest and Officer Turiano’s groin shot. It is noteworthy that Ballard Spahr was hired to investigate potential misconduct by Unit 4 employees, who are defined under the Phoenix Meet-and-Confer Ordinance as police officers (and detectives) below the rank of sergeant.
This was the first time in the history of the Department that the City hired an outside entity to conduct investigations of Department personnel misconduct. The investigatory process led by the outside entity lacked any meaningful communication regarding the procedure, especially in light of PLEA members’ due process and investigative rights under the MOU and the Police Officers Bill of Rights. Imagine the questions and concerns you would have if an unknown attorney contacted you and tried to question you about anything. It would be disconcerting to anyone in that position.
On March 24, 2021, Officers Turiano and White received letters from Ballard Spahr’s attorneys asking for consent to search personal cell phone data that had been imaged during discovery in the protest lawsuit. Both officers rightfully declined to grant consent. On April 1, 2021, Officers White and Turiano were informed that Ballard Spahr had requested that they answer written questions as part of its investigation. On April 2, 2021, Officers White and Turiano, through counsel, declined to participate because they did not believe the investigation comported with their rights under the MOU.
On April 27, 2021, Officers Turiano and White were informed by their supervisors that their duties were being restricted and that they were no longer able to work as grenadiers for TRU. They were also each provided a notice of investigation (NOI) compelling their involvement in the investigation pursuant to the MOU.
PLEA filed an unfair labor practice (ULP) charge with the Phoenix Employment Relations Board (PERB) based on the information below.
The MOUs between PLEA and the City of Phoenix contained the negotiated provisions regarding wages, hours and working conditions of Unit 4 employees. Specifically, the rights of unit members involved in disciplinary investigations are governed and provided by the MOU, and the parties have agreed that “investigations alleging serious misconduct and/or issues of veracity will be investigated by the Professional Standards Bureau (PSB).”
“The provisions contained in the 1988-90 and subsequent memoranda of understanding are mandatory subjects of bargaining” (2019–2021 MOU Section 1-4. G. 6. Pursuant to Phoenix City Code § 2-215 [A]). PLEA alleged that investigations of Unit 4 employees are mandatory subjects of bargaining that must be negotiated by the City and PLEA.
By compelling Unit 4 employees, specifically charging parties Turiano and White, to participate in an investigation by a third-party law firm, Ballard Spahr, the City unilaterally imposed a new investigation protocol for Unit 4 employees without bargaining with PLEA regarding a mandatory subject of bargaining. PLEA alleged that this constitutes “[r]efusing to meet and confer with an authorized representative of the employees” in violation of Phoenix City Code § 2-220(A)(5) and also interference with employee rights in violation of Phoenix City Code § 2-220(A)(1).
Additionally, PLEA alleged violations of Section 2-220 of the Phoenix City Code, which prohibits the City from “interference with employee rights under th[e] ordinance” and “retaliation against employees for invoking their rights under th[e] ordinance.” Rights under the ordinance necessarily include the rights afforded to employees by the MOU. Therefore, the ordinance protects an employee’s exercise or assertion of rights under the MOU. Ballard Spahr requested that charging parties White and Turiano answer written questions as part of its challenge coin investigation. The officers declined to do so because they did not believe the investigation comported with the MOU and advised Ballard Spahr that they would willingly participate in any investigation that did comport with the MOU. Shortly thereafter, the City served the officers with NOIs and restricted them from performing a significant portion of their job duties, which led to missed overtime opportunities. It was clear that the City was trying to send these officers a message.
PERB’s Order
On August 15, 2023, after a full hearing, multiple rounds of briefing and multiple oral arguments, PERB issued its final order. PERB did not agree with PLEA that the City was required to meet and confer with PLEA before hiring Ballard Spahr to conduct the challenge coin investigation. However, PERB found that the City did retaliate against Officers Turiano and White after invoking their rights under the ordinance. Accordingly, PERB ordered the City to cease and desist from any further retaliation against Turiano and White. You can find the PERB order on the PLEA bulletin boards at your nearest precinct or Phoenix P.D. facility.
Note: This article should not be construed as legal advice. If a PLEA member finds themselves in a situation in which the Department is seeking to search their personal items or taking action that they believe violates your rights under the MOU, Meet-and-Confer Ordinance, Constitution or any other law, please reach out to PLEA or our office to discuss.
By Mike Napier
Attorney, Napier, Baillie, Wilson, Bacon
& Tallone, P.C.
The Phoenix Police Department is short on personnel. There are not enough officers. We can debate the cause and hear cross opinions, but the fact remains — officers are leaving the ranks. In the last four years, the number of officers has declined from approximately 2,859 in 2018 to approximately 2,583 by the end of 2022. This is not because the City of Phoenix actually defunded the police by cutting the police budget. Yet the clamor for defunding in some quarters has become one ingredient that has served to drain the respect, in large measure, out of the public’s perception of the job.
The fact is that the occupation is now considered by those who would suit up in the uniform as less attractive than other occupations. Officers have opted out and others are not forming recruit lines. It is a job in which you are more likely to be injured, commonly can’t bring the perpetrator to civil justice due to the Fireman’s Rule (which bars financial accountability), can not only get fired, but also go to jail for a split-second decision, and a job where once you were as good as the next good cop, now you are no better than the bad cop whose conduct rightfully disqualified him for the job. As PLEA President Darrell Kriplean has reminded us, it is with the broadest of brushes that you are painted. Like a Motherwell painting.
In this way, events in the past few years have altered the public’s perception of police officers, yet the degree of difficulty, amid the egregious acts of a few, in performing the job has only increased, as have the populations officers protect. Still, in many communities, officers, ill-equipped and not fully prepared, are expected to take the lead role in dealing with the mentally ill. Performance scrutiny has increased, as have the number of prosecutorial investigations.
How to Get the Officers Back — Restore Trust
To fix this, do not lower standards for qualifications to find recruits. That will, for obvious reasons, only perpetuate the problem of misconduct. Train your officers better than ever and don’t expect them to cope with the mentally ill for whom they have not been trained to the same level as a professional in the field. From the top down, in every respect, show and encourage respect for the vast majority of officers who deserve it. To the City leaders: Set the example for the community in your appreciation for all that the officers do for the community. This is a start to refind the acceptable level of police service and protection for the community.
The City has already embarked on another course to enhance the quality of police service — increase pay so that working as an officer in Phoenix will command pay that is no less than anywhere else. Were the remedy that easy, higher pay would be the sole answer. It is not. Another essential #10793 part of restoring police work so the City can find as many qualified officers as it needs is, during this shortage, to persevere, despite the conditions, in the hard work of the job. As officers have left in droves, the ones who have remained without the personnel support that they require for optimum safety try to be everywhere they are needed as fast as they are needed. And PLEA has supported the City through this crisis while staying the course on behalf of its members with its dedication to the communities’ charitable needs.
To stop the attrition and find qualified recruits, to relocate that respect, do not break promises, even if you are told you can, do not impose on police officers the crushing load of substantial attorneys’ fees awards, do not threaten to engage in unconstitutional searches and do not overload on the scrutiny of the officers’ work.
In this regard, the officers are mindful that the City has placed civilian review of aspects of the disciplinary process on top of the longstanding civilian review of discipline that already exists in Phoenix. In short, Phoenix, with civilians on the Disciplinary Review Board, with five civilians appointed by the mayor on the Phoenix Civil Service Board, a board with investigatory powers and with a civilian hearing officer adjudicating the appeal, already has a process that, once the discipline is administered, and even before, belongs to the community.
Presently, the people of Phoenix know that for the majority of calls, a wait is required. The City can eliminate that wait, but only if we get started now.
Since July of 2014, PLEA has been in the litigation trenches with aims of securing many of your pensionable benefits that were unceremoniously and unilaterally stripped away from you with the City Council’s imposition of the 2012–2014 Terms and Conditions of Employment (TCE). As you will recall, the TCE eliminated certain provisions from your MOU that previously allowed eligible officers to receive additional compensation instead of accruing additional sick or vacation leave or receiving their annual uniform allowance. The additional compensation was structured in a way that allowed it to be included in the officers’ pension calculations. Following imposition of the TCE in July 2014, PLEA filed a lawsuit on behalf of all rank and file officers alleging claims for breach of contract and violations of the pension and contracts clauses of the Arizona Constitution.
Over the last seven years, our office has fought several legal battles related to this lawsuit — in the superior court, court of appeals, and the supreme court. At each stage, we prevailed. In June, however, the superior court found that “[a]ny claim for relief is barred unless a plaintiff was approved and participating in the wage enhancement program on or before July 1, 2014.” This decision significantly narrowed the issues and the potential class size going forward. Officers who were not yet participating in the conversion programs as of July 1, 2014 do not have a claim going forward.
Accordingly, we filed a motion to certify our case as a class action lawsuit. Class certification motions, responses, supplemental briefing and oral arguments spanned from January 2019 to October 2019. On October 22, 2019, the superior court granted our motion for class certification. Unfortunately, we were not able to proceed to the merits of the case because the City filed an appeal of the class certification ruling in November 2019.
After appellate briefing and oral arguments held in November 2020, the Court of Appeals affirmed the superior court’s certification of our class action litigation. In a surprising departure from their demonstrated litigation playbook, the City did not appeal the Court of Appeals decision to the Arizona Supreme Court. The lawsuit is now back before the superior court and a notice will be sent to all officers that were approved and participating in the wage enhancement program on or before July 1, 2014.
If you are one of these officers, it is imperative that you pay special attention to any notices sent from our law firm and that you are in contact with our firm to be actively engaged in the fight for the MOU pensionable benefits that you’ve earned.
If you have any questions about this article or general legal issues in law enforcement practices, please visit napierlawfirm.com or contact me at ewilson@napierlawfirm.com
The Supreme Court has held that the Fourth Amendment prohibits law enforcement officers from using excessive force when apprehending a suspect or making an arrest. Under 42 U.S.C. §1983 such a violation means that officers who use excessive force are subject to civil liability. Qualified immunity provides protection from civil lawsuits for law enforcement officers and other public officials. The doctrine recognizes the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority. But, qualified immunity is not absolute immunity and there are situations in which a public official can be held accountable for constitutional violations in civil court. “[Q]ualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.” Mullenix v. Luna, ___U.S.___, 136 S. Ct. 305 (2015) (quoting Malley v. Briggs, 475 U.S. 355, 106 S. Ct. 1092, (1986)).
The longstanding two-part test the Courts use to determine whether qualified immunity applies requires an analysis of: (1) Did the officer violate a constitutional right? and (2) Did the officer know that their actions violated a “clearly established right”?
While the doctrine of qualified immunity has not been codified by Congress in legislation, the Supreme Court has revisited the issue in several cases over the years and has previously signaled endorsement of the public officials’ liability shield. In addition to the recognized common law doctrine, qualified immunity has been codified by the Arizona legislature in A.R.S. §12-820.02 and A.R.S. §13-413 (no civil liability for justified conduct).
Kisela v. Hughes — Expanding Entitlement to Qualified Immunity in Use of Force Cases
On April 2, 2018, in Kisela v. Hughes, 584 U.S. ___, the United States Supreme Court overturned a Ninth Circuit Court of Appeals decision in favor of a woman who had been shot and wounded by a law enforcement officer in Tucson, Arizona. In doing so, the Court held that the officer was entitled to qualified immunity because the incident was far from an obvious case in which any competent officer would have known that it violated the Fourth Amendment.
Factual Background
In May 2010, three officers responded to a 911 report that a woman was acting erratically and hacking at a tree with a large kitchen knife. Upon arrival, the officers observed a woman standing next to a car in the driveway of a nearby home. The officers were separated from the woman by a chain link fence. Another woman exited the home carrying a large knife at her side. This woman, later identified as Amy Hughes, matched the description provided by the 911 caller. Hughes approached the woman in the driveway and stopped approximately six feet away.
At this point, the officers drew their guns and twice ordered Hughes to drop the knife. Although Hughes appeared calm, she did neither acknowledge the officers’ presence nor dropped the knife. Without additional warning, one officer dropped to the ground and shot Hughes four times through the fence. The entire incident lasted less than a minute.
Hughes survived the shooting and sued the officer who shot her, alleging a violation of her civil rights. A federal district court ruled for the officer, but the Ninth Circuit reversed, holding, first, that the record was sufficient to establish that the officer violated Hughes’s Fourth Amendment rights and, second, that the officer was not entitled to qualified immunity because the Fourth Amendment violation was obvious and clearly established by previous, similar court cases.
The Supreme Court Decision
The Supreme Court reversed the Ninth Circuit without deciding whether the officer had violated the Fourth Amendment. Instead, it held that even assuming the officer used excessive force in violation of the Fourth Amendment, he was entitled to qualified immunity.
The Court explained that “[q]ualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” and cautioned against lower courts defining “clearly established rights” too generally. For a right to be clearly established, existing precedent must have placed the constitutional issue beyond debate. In the context of use of force cases, “[a]n officer ‘cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Thus, “police officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.” The Court found that the Ninth Circuit had failed to apply this portion of the standard correctly.
The Court considered the standard in light of the following facts:
- The officer had only a few seconds to assess the potential threat.
- The officer was confronted with a woman armed with a large knife who was reported to have been behaving erratically.
- Hughes was only feet away from another individual and failed to acknowledge two separate commands to drop the knife.
- The officer claimed to have shot Hughes because he believed she posed an immediate threat to the woman standing next to her.
- The other two officers on scene reported that they also believed Hughes was a threat.
Given those facts and the lack of precedent with a sufficiently similar fact pattern, the Court concluded that this was “far from an obvious case in which any competent officer would have known that shooting Hughes to protect [the third party] would violate the Fourth Amendment.” Accordingly, the Court held that the officer was entitled to qualified immunity and reversed the Ninth Circuit’s decision.
Dissent
It should be noted that not all justices agreed with the majority’s decision to reverse. Justice Sotomayor authored a strong dissent, joined by Justice Ginsburg, asserting that the ruling “is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public” that officers “can shoot first and think later.” Justice Sotomayor’s disagreement centered on the “clearly established” standard. In her view, the majority placed too much emphasis on there being a factually identical case. Rather, she wrote, “[i]t is enough that governing law places ‘the constitutionality of the officer’s conduct beyond debate.’ Because, taking the facts in the light most favorable to Hughes, it is ‘beyond debate’ that [the officer]’s use of deadly force was objectively unreasonable, he was not entitled to summary judgment on the basis of qualified immunity.”
Conclusion
So what does this decision mean for you? Kisela provides additional support for the principle that law enforcement officers must have knowledge that their actions would violate the Fourth Amendment before they can be held liable for a use of force incident. Unless a factually similar case #10032 existing before a use of force incident demonstrates that your actions were clearly unconstitutional, you would likely be entitled to qualified immunity. This ruling, thus, will likely be helpful in defending officers sued civilly for uses of force. This ruling does not, however, affect the Department’s ability to discipline you for any policy violations arising out of a use of force incident. Thus, it remains imperative that you contact PLEA if you are involved in a use of force incident. PLEA representatives and the attorneys PLEA provides will ensure that you understand all possible criminal, civil, and administrative implications.
As always, if you wish to discuss this case or any other matter affecting your employment, please feel free to contact PLEA’s attorneys at Napier, Coury & Baillie, P.C.: (602) 248-9107 or napierlawfirm.com
By Mike Napier
Attorney, Napier Coury & Baillie P.C.
Recently, an emerging sentiment has been to label police unions as the abettor and accomplice of bad officers, nothing more and nothing less. As the protest lines took shape, the police — all in uniform and, shoulder to shoulder, a seemingly militaristic machine — stood in one line and civilian protestors in another, facing them. It is too easy to perceive every officer in the police line as the same and as the collective enemy. This is the fate of those who sign on to protect the community. And, by extension, because the officers’ union provides representation to those officers, so too may the union be perceived. But this perception fails to consider even a cursory understanding of the past or present of the Phoenix Law Enforcement Association.
It was late in the year of 1975 when PLEA was formed. PLEA was not part of any national group but simply a small group of officers who felt a need for an organization that would help officers achieve better wages and working conditions. The mission was clear, but how to achieve that mission was filled with choices. None of the officers had experience in union leadership. Still, based on a sense of right and wrong, those decisions were made. One such decision was how and when officers would receive legal assistance for discipline that would result from misconduct. At the time, other police unions operated on the premise that every officer, no matter the conduct, would receive the assistance of an attorney. This, then, #10361 became one of the earliest choices made by PLEA: whether to defend every officer in every circumstance. The choice that was made reveals the core values of the men and women of PLEA. PLEA decided then that not every officer would be represented. In other words, never has PLEA, by providing legal representation, impliedly condoned conduct that shows, by its nature, that an officer should be in a different occupation. To the contrary, to those who believe that PLEA nurtures a culture that seeks to keep officers committing bad acts on the force, know this: PLEA will, when it is the right thing to do, refuse to provide legal representation and, instead, encourage the officer to resign. And PLEA has done just that in numerous cases over the years.
In making that choice, PLEA distinguished itself from other police unions. More importantly, PLEA recognized that the police profession was not for everyone, but only for those who could withstand the unique daily challenges and rigors of the job. Policing is a profession and PLEA, in 1975, made clear its intention to keep its officers in the profession of the highest caliber.
Those beliefs that created PLEA’s policy of protecting the profession as well as individual officers continues today. The members of PLEA understand and accept that. If anyone engages in misconduct and is disciplined, PLEA’s grievance committee examines the misconduct and determines whether representation should be afforded. And, just as in the early years, not everyone is given the legal assistance to appeal the discipline. If an officer’s due process rights were not violated during the investigation, if the discipline meets the just cause standard set forth in state law and if the discipline is fair under the circumstances, then PLEA will not provide legal assistance in an appeal. In so doing, PLEA’s core values have remained the same. PLEA has never been, and is not now, an influence that perpetuates the misconduct of police; rather, PLEA is an influence that perpetuates the best qualities of the police professional.
Over time, other decisions were also made that molded the character of PLEA. PLEA has invested in and encouraged officer training, making officers better at their jobs. PLEA created charitable nonprofits to aid officer families in need and to extend a positive reach into all corners of the community by organizing and supporting other community causes. Yes, PLEA has become a factor in our community, but not wielding the kind of negative influence depicted recently by detractors. Instead, PLEA, its trustees and members have sought to bring police and the community together by supporting community causes, common causes and the professionalism of policing. Neither PLEA nor its officers want to participate in a formidable line of authority at a protest. They do not want to be perceived as a mindless military force, and they do not want to be judged on the misconduct of a few. They do want to be recognized for embracing those values that formed PLEA and guide it now. PLEA, for its members, seeks only to improve policing and touch the community in positive ways. That is, and always has been, PLEA’s mission.