Principles for Public Safety Employment

Additionally, if the employee is required to carry a firearm, s/he must be able to do so without violating the federal Gun Control Act of 1968, as amended in 1996. 8 This federal law prohibits possession of a firearm or ammunition by a person who has been convicted of a felony, or of a “misdemeanor crime of domestic violence.” The Gun Control Act defines a “misdemeanor crime of domestic violence” as “any conviction which “(i) is a misdemeanor under Federal, State, or Tribal law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by . . . a person with whom the person shares a child in common, [or] by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian.” In Shirey v. Los Angeles County Civil Service Commission , 9 the Court of Appeal held that a misdemeanor battery conviction under Penal Code section 242 did not qualify as a “misdemeanor crime of domestic violence” under the federal Gun Control Act, and therefore did not disqualify a deputy sheriff from carrying a firearm, where there was no evidence in the record that the touching supporting the misdemeanor conviction was more than de minimis. The court found that Penal Code section 242’s definition that “battery is any willful use of force or violence upon the person of another” was broader than the definition in the Gun Control Act, in that some “use or force or violence” such as the one committed by the deputy at issue was less than a “use or attempted use of physical force.” The Court of Appeal in Hernandez v. State Personnel Board held that a correctional sergeant’s partner in a dating relationship of five or six months in length in which the couple spent four or five nights per week together was “similarly situated to a spouse,” making the sergeant’s nolo contendere plea to misdemeanor infliction of bodily injury on a spouse or cohabitant charge a crime of domestic violence under the Gun Control Act, disqualifying the sergeant from carrying a firearm and justifying his termination. 10 2. R ESPONDING TO R EQUESTS FOR I NFORMATION FROM O THER P UBLIC S AFETY A GENCIES Pursuant to Penal Code section 832.12, subdivision (b), any agency seeking to make a lateral hire of a peace officer is required to request and review that officer’s file from any agency that has previously employed that officer. Government Code section 1031.1 mandates that employers provide information about an applicant for employment with a law enforcement agency, whether or not for a peace officer position, to a prospective employer’s background investigator. But this requirement is only triggered if a notarized authorization releasing the former employer from liability is executed by the applicant and presented by an authorized representative of the prospective employer. 11 The notarized authorization provides a former employer an absolute defense to a legal action based on libel, slander or similar tort claims. 12 Employment information which is disclosed by an employer to an initial requesting law enforcement agency is confidential. However, the initial requesting law enforcement agency may disclose this information to another authorized law enforcement agency that is also conducting a background investigation, whether for a peace officer or non-sworn employee. 13

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 12