By: Oluwasegun Joseph
Individuals with felony convictions have some limited employment opportunities that allow them to contribute meaningfully to their communities. For example, felons, during their incarceration, can train and work as firefighters, especially in states like California where wildfires are rampant. Thus, felons trained in firefighting can become full-time firefighters in California except in certain regions of the state where felons seeking EMT certification is required to become a full-time firefighter.
Case in Point
In an ongoing case from California, Dario Gurola, et al., v. David Duncan, et. Al., two individuals with prior felony convictions are challenging a California statute, 22 Cal. Code Regs. § 100214.3, which places a lifetime ban on individuals with two or more felony convictions from receiving the EMT certification required to become a full-time firefighter. Plaintiffs argue that the California statute (i) violates their equal protection clause and due process clause; (ii) is overbroad and (iii) does not apply to felons who were certified before June 2010. The statute violates the individuals’ equal protection clause because it irrationally distinguishes between people with and without felony convictions. It violates their due process because the law is not rationally related to EMT certification and amounts to unconstitutional irrebuttable presumptions. Plaintiffs further argue that allowing felons to work as firefighters during their incarceration and as seasonal firefighters after incarceration without requiring EMT certification demonstrates that California’s basis for refusing EMT certification to prospective full-time firefighters is irrational. Moreover, the two-felony threshold for a lifetime ban is overbroad because the statute fails to specify felonies that are relevant to the work of firefighters who are EMTs. Thus, the ban amounts to a flat ban that gives no room for a rebuttable presumption that felons with two felonies can turn their lives around and become contributing members of their community.
Contrarily, the State of California argues that Plaintiffs are not similarly situated with individuals without two or more felony convictions because individuals with felony convictions have shown that they are unwilling to conform to the social norm not to harm others. However, the State did not argue that the statute is not overbroad; rather, it references the legislature’s power to exclude individuals with certain levels of criminal conviction like felonies from certain state jobs, certifications, etc., without the courts second-guessing the legislature. In responding to the Plaintiffs’ constitutional claims, the State claims that the ban on individuals with two felonies advances the government’s legitimate interest in ensuring public safety because EMTs often deal with vulnerable people in responding to emergencies. The district court agrees with the State.
District Court Takes the Short Route
Constitutional claims based on job occupation are reviewed under a rational basis test, i.e., whether the state law is rationally related to a legitimate governmental interest. Thus, laws generally pass this test if there is some legitimacy behind the law. In dismissing the Plaintiffs’ claim, the district court reasserts the State’s argument that EMT applicants with two or more felony records have a proven unwillingness to conform to the social norm to do no harm to others. Consequently, barring felons seeking EMT certification advances the government’s legitimate interest in ensuring public safety because EMTs[1] often deal with vulnerable members of society. Acknowledging that the law does not specify which felonies are relevant to the work of EMTs, the district court says it is compelled under the rational-basis test to accept the legislature’s generalizations even if there is an imperfect fit between means and ends.
Granted, courts are not legislature, and they must remain a check on the legislature. Regardless of courts’ deference to legislatures’ generalizations even when there is an imperfect fit between means and ends, courts must analyze the rationality of the law. The district court seems to conclude that because of the low threshold of rational basis and deference to the legislature, it cannot analyze whether the two-felony ban only serves to stall the careers of individuals with felony convictions. The district court has deferred to the legislature to judge whether the legislation is rationally related to full-time firefighting. Therefore, the district court’s decision seems to undermine the very purpose of the court, which is to review the legislature’s conformity to the constitution.
Court of Appeals
As it stands, Plaintiffs have appealed the case to the Ninth Circuit Court of Appeals and oral arguments were heard on Tuesday, January 11th of 2022. During oral arguments, one of the judges hinted at the possible outcome of the case by asking whether an individual’s criminal history can be expunged in the interest of justice and at the judge’s discretion. If true, the California statute would not act as a flat ban on individuals with two felonies who wish to become career firefighters because they can petition the appropriate court to expunge their felony convictions.
Takeaways
Individuals with felony convictions who wish to work for state governments are likely to face statutory barriers that would prevent them from pursuing careers after incarceration. In the current case, it seems that the Court of Appeals can rule either way. California’s two-felony lifetime ban statute appears to be overbroad and can be found irrational because (i) both seasonal and full-time firefighters, as first responders, encounter vulnerable people in their work. Thus, requiring EMT certification for full-time firefighters has no bearing on whether a particular firefighter encountering a vulnerable person is EMT certified, as a firefighter could encounter a vulnerable person in their work firefighting on a seasonal basis. (ii) California’s ban on two-time felons seeking EMT certification does not prevent the individuals from training as EMTs. Therefore, non-full-time firefighters working with vulnerable people defeats the State’s purpose of protecting vulnerable people. Moreover, if the protection of vulnerable people is California’s legitimate purpose, then the legislature should enact a law requiring all firefighter precincts in California to require EMT certification before individuals with felony convictions can become full-time firefighters.
On the other hand, the fact that felons can have their felonies expunged at the petition of the court and discretion of the judge means the ban is not a flat ban on becoming a full-time firefighter. Thus, the Court of Appeals can rule that the law is rational because individuals with two or more felony convictions who have truly turned their lives around can petition the appropriate court to expunge their records. Consequently, individuals who are still considered a danger to society will be denied. In conclusion, California law 22 Cal. Code Regs. § 100214.3 majorly affects minorities who are more likely to have felony convictions and are ready to contribute meaningfully to their communities after their incarceration. The California law should be tailored[2] to felonies that are relevant to rescuing and treating vulnerable people who seek emergency assistance, so that it is not a blanket law that blindly consign all felonies to one group.
[1] Firefighters are usually EMTs and EMTs can be firefighters. However, not all firefighters are EMTs and not all EMTs are firefighters.
[2] The word tailored here is used in its ordinary meaning and not to be confused with “narrowly tailored” test of the constitutional review strict scrutiny test.
