by Benjamin Tschirhart
Most prisoners quickly learn that slavery has never been fully abolished in the United States. The Thirteenth Amendment to the Constitution allows prisoners to be compelled to work for little or no pay, and most jurisdictions take advantage of the provision. In California, some state prisoners are permitted to fight wildfires, employed alongside professionals in fire camps throughout the state.
Dario Gurrola and Fernando Herrera both worked as firefighters while in California prisons. After their release, they applied to become full-time firefighters. That’s when they discovered that the state would not let them obtain the prerequisite qualification as Emergency Management Technicians (EMTs) because of their felony convictions.
Instead, California law instructs the state medical director to “deny or revoke an EMT certificate if the applicant: (a) has been convicted of two or more felonies; or (b) has been convicted of a felony offense and released within the preceding ten years,” as laid out in 22 C.C.R. § 100214.3(c)(3).
The two men brought a complaint challenging the ban to the federal court for the Eastern District of California. When their claim was dismissed, they turned to a three-judge panel of U.S. Court of Appeals for the Ninth Circuit. The formerly incarcerated firefighters argued that the felony bans “irrationally discriminate between two similarly situated groups: people without felony convictions seeking EMT certification and people with felony convictions seeking EMT certification.” They also claimed that the bans violate the Due Process Clause of the state and federal Constitutions by “restrict[ing] certification based on criteria that are not rationally related to fitness for certification.”
The Court rejected these arguments, however, holding that “[r]egulations on entry into a profession … are constitutional if they ‘have a rational connection with the applicant’s fitness or capacity to practice’ the profession.” Here the rational connection was the stain that incarceration left on the applicants’ “good moral character,” which the state may require “for entry into a profession, when the practitioners of the profession come into close contact with patients or clients,” as held in Dittman v. California, 191 F.3d 1020 (9th Cir. 1999).
Left unaddressed was how the state can declare a person meets professional criteria while incarcerated but not afterward. Instead the district court’s decision was affirmed on June 9, 2022, when the panel declared that “the wisdom in the state legislature’s decision to impose certain restrictions on entry to a profession is not for courts to judge.” See: Gurrola v. Duncan, 2022 U.S. App. LEXIS 15943 (9th Cir.).
Appellants then asked for a rehearing before the full Ninth Circuit en banc, but that request was denied on September 13, 2022. They were represented by attorneys Joshua House and Andrew H. Ward with the Institute for Justice in Arlington, Virginia, along with California attorneys Thomas V. Loran, III and Derek M. Mayor with Pillsbury Winthrop Shaw Pittman LLP. See: Gurrola v. Duncan, 2022 U.S. App. LEXIS 25665 (9th Cir.).
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