By Keith More
On Thanksgiving week- end, it was reported that Stephen Paddock fired some 1,100 rounds during the Las Vegas massacre and had an- other 4,000 unused rounds in his hotel suite. The news brings back memories so many would like to forget.
On Oct. 1, the gun-toting mass murderer, armed with automatic firearms, opened fire from his Mandalay Bay hotel suite onto thousands of concertgoers below at the Route 91 Harvest music festival in Las Vegas. At that terrible moment, four off-duty deputies from the Orange County Sheriff’s Department bravely jumped into action and risked their lives to save others.
As bullets rained down, killing 58 people and wounding more than 500 others, one of the OC sheriff’s deputies guarded the perimeter with a shotgun while the three others provided medical aid to the injured.
All of them saw untold horrors unfold around them as their fellow concertgoers fled in panic or were killed. One of the deputies suffered a gunshot wound to the abdomen and hip. While he is expected to recover, he will forever be disabled. Other deputies are enduring post-traumatic stress disorder from the massacre.
Although not officially on duty, all peace officers in California are told that they are on duty, for lack of a better word, 24/7. These officers could not ignore the attack and did their job — protecting the public — and they weren’t alone. More than 200 California peace of officers, including from Los Angeles, Riverside and San Bernardino counties, attended the Las Vegas concert. Many, if not all, demonstrated similar acts of bravery and courage.
State law and standard departmental policy require peace officers to respond — whether on-duty or not — when present during such events. California Labor Code Section 3600.2(a) states that public agencies are required to pay benefits to off-duty police officers injured while engaging in the “protection or preservation of life or property, while in the State of California.” There is no such requirement for those police officers injured out-of-state.
It is this section of the Labor Code that has now created a battlefield for these officers, as they have led claims for workers’ compensation benefits. Workers’ compensation would allow for the injured officers to receive temporary disability pay, medical treatment and aid for any permanent disability they may have. Unfortunately, the Orange County Board of Supervisors last month denied the Orange County officers workers’ compensation benefits for their physical and psychological injuries suffered during the massacre, saying the law doesn’t apply to injuries incurred outside of California.
While Orange County officials have denied these officers their potential benefits, officials in Los Angeles County have stated that California law is vague on the issue and suggested that litigation may be needed to settle the matter.
Not being one to wait, Assemblyman Tom Daly of Anaheim, who chairs the State Assembly’s insurance committee and supports the deputies’ workers’ compensation claims, has said he plans to introduce legislation to eliminate any legal ambiguity on this issue to ensure that it covers off-duty incidents outside of the Golden State’s borders. With the growing prevalence of terrorist attacks or mass shootings, the last thing that we want is a trained professional peace officer thinking twice about helping out just because the officer is outside the border of California.
Legislators have no excuse, as Article XIV, Section 4 of the California Constitution expressly gives the Legislature “plenary power, unlimited by any provision of the Constitution, to create, and enforce a complete system of workers’ compensation.”
Throughout the past several years, the legislators have in fact retroactively made changes to the workers’ compensation system. There is nothing holding back officials in Sacramento from doing just that. Amend Labor Code Section 3600.2(a) and take out the limiting language, “while in the State of California.”
It’s not just the legislators; Gov. Jerry Brown can also lead the way. If Brown and the Legislature don’t act quickly, affected peace officers may take the issue to court, which could drag out the process for several years. Even without a change, there are provisions of the Labor Code that would allow each agency to voluntarily accept the claims and allow the officers the benefits of the workers’ compensation system they deserve. Enough time has passed and enough delay has occurred. It’s time to step up, just as those officers stepped up — without hesitation or delay.
Keith More is a name partner at Bentley & More LLP based in Ir- vine. Mr. More’ s practice focuses on workers’ compensation and personal injury cases. Mr. More has settled over $100 million in workers’ compensation cases over his 29-year career.