Correctional Officer’s Termination Upheld Due To Domestic Violence Conviction

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Apr 01, 2021

In October 2015, Anthony Hernandez, a Correctional Sergeant with the California Department of Correction and Rehabilitation (Department), choked his girlfriend of five months.  Hernandez and his girlfriend told police that Hernandez lived with her approximately four or five days per week.  Thereafter, Hernandez pled nolo contendere to a misdemeanor violation of Penal Code Section 273.5, which criminalizes the infliction of bodily injury on a spouse or cohabitant, or on another intimate partner in an “engagement or dating relationship.”

The Department then terminated Hernandez.  The Department stated that the conviction rendered him unable to possess a firearm.  Federal law generally bans a person convicted of a misdemeanor crime of domestic violence from possessing any gun or ammunition.  The Department noted that as a correctional officer, Hernandez must be able to carry a firearm at work.

Hernandez appealed to the State Personnel Board (Board).  While the appeal was pending, the California Department of Justice and the Bureau of Alcohol, Tobacco, and Firearms both notified Hernandez that federal law prohibited him from possessing a firearm.  An administrative law judge also concluded that Hernandez was prohibited from possessing a firearm and held that his termination was proper.  The Board adopted the judge’s proposed decision, and Hernandez filed a petition for writ of administrative mandate with the trial court.  The trial court denied the writ petition and Hernandez appealed.

The California Court of Appeal affirmed the trial court’s decision.  The Court of Appeal noted that a court should not disturb the penalty imposed on Hernandez in a mandamus proceeding unless the Department prejudicially abused its discretion.

Since the Department terminated Hernandez based on his inability to possess a firearm under federal law, the Court of Appeal examined federal law addressing domestic violence.  Specifically, the Court of Appeal examined Title 18, Section 921(a), of the U.S. Code, which defines a crime of domestic violence as one involving the use or threatened use of a deadly weapon by (i) a current or former spouse, (ii) a person who is cohabitating with or has cohabitated with the victim as a spouse, or (iii) a person “similarly situated to a spouse” of the victim.  After analyzing multiple cases confirming that a “live-in” boyfriend or girlfriend qualifies as someone “similarly situated” to a spouse under Section 921(a), the Court of Appeal held that Hernandez was a person “similarly situated to a spouse.”  Further, although Hernandez and his girlfriend only lived together for four or five days per week, the Court held this was sufficient.

Based on these facts, the Court of Appeal held that there was no abuse of discretion because the Department’s decision to terminate Hernandez was correct as a matter of law.

Hernandez v. State Personnel Board (2021) 60 Cal.App.5th 873.


Violence involving employees in and out of the workplace often requires quick and decisive employer action.  LCW attorneys can assist agencies in evaluating the proper steps to take when these circumstances arise. 

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