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Case of the Month (from CFLR Monthly)

April 2021
[Archive]

Dissent finds lack of evidence that the perpetrator was similarly situated to a spouse of his victim. . .

 

In affirmance, Fourth District majority holds that evidence was sufficient to establish that domestic violence perpetrator was similarly situated to a spouse of his victim; thus Department of Corrections acted reasonably in terminating his employment on the basis that his domestic violence conviction precluded him from carrying a gun (a necessity in his job).

 

Hernandez v. State Personnel Board

(February 10, 2021)

California Court of Appeal 4 Civil E072444 (Div 2) 60 Cal.App.5th 873, 275 Cal.Rptr.3d 154, (Raphael; Codrington concurring; Ramirez, dissenting. San Bernardino County: Pacheco, J, affirmed. For appellant: Michael Morguess, CALS, (909) 466-5600. For respondent: no appearance. For real party (Dept. of Corrections), Deputy Attorneys General Fiel Tigno, (510) 879-1003, and Kelsey Linnett, (510) 879-0986). CFLP §§ C.15.0.3.4.15, C.15.0.3.4.20.

 

In May 2015, correctional officer Anthony Hernandez began a romantic relationship with his girlfriend. For the next six months he lived with her four or five days a week. On October 25, 2015, the girlfriend called police for help, saying that she and Hernandez had been having "an extensive fight" during which he straddled her and tried to choke her three times before she escaped to the bathroom, locked herself in, and called for police. The officers took Hernandez into custody and he later pled nolo contendere to a misdemeanor violation of PC §273.5 [infliction of bodily injury on spouse, cohabitant, or other intimate partner in engagement or dating relationship].

 

The Department of Corrections then terminated Hernandez from his correctional officer job because, per 18 USC §922(g)(9), as a person convicted of domestic violence, he was precluded from possessing a firearm, and carrying a firearm was a requirement of his job. Hernandez appealed to the State Personnel Board. While his appeal was pending, the Department of Justice sent the Department of Corrections a notice that Hernandez was prohibited from possessing a firearm, and the federal Bureau of Alcohol, Tobacco, and Firearms issued an opinion letter stating that 18 USC §922(g)(9) similarly prohibited him from possessing a firearm. Acting on his appeal, an administrative law judge concluded that Hernandez's termination was proper, per 18 USC §922(g)(9); the State Personnel Board adopted that decision.

 

After petitioning unsuccessfully for a writ of administrative mandate, Hernandez appealed, but a Fourth District majority affirmed.

 

Close enough for government work. . .
The majority noted that Congress enacted 18 USC §922(g)(9) to bring defendants convicted of misdemeanor domestic violence under the same prohibition that applied to felons. The solons defined misdemeanor domestic violence as violence committed by a person who was in a specified domestic relationship with the victim, including among others, a person similarly situated to a spouse of the victim. Focusing on whether Hernandez had such a relationship with his girlfriend, the majority reasoned that federal cases have found such a relationship where the couple lived together, even for a short time. Here, Hernandez and his victim kept separate residences, but lived together four or five nights a week. Therefore, the majority concluded, their relationship was such that Hernandez was similarly situated to a spouse of his victim, making 18 USC §922(g)(9) applicable. Summing up, the majority held that the Board of Corrections had not erred in terminating Hernandez's employment on that basis.

 

Dissent. . .
In dissent, Justice Ramirez found there was insufficient evidence to support the conclusion that Hernandez and his girlfriend were similarly situated to spouses. The justice noted that the administrative law judge had made no such finding but had reasoned that a person convicted under PC §273.5 is someone to whom 18 USC §922(g)(9) applies as a matter of law. The dissenter did not agree with that reasoning, which would mean that Congress had incorporated state law into the federal statute although it hadn't. The justice would have reversed and remanded with directions to the State Personnel Board to make a factual finding on that point under the correct legal standard.

 

Library References
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶ 5:93.10

 

 

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