LITIGATION BACKGROUNDER

California Firefighter Fresh Start

Dario Gurrola thought he put his past behind him. During a misspent youth he struggled to make something of himself and committed several crimes. But as he left his 20s, Dario decided to turn his life around. Now 38, he lives in northern California, working as a firefighter during the summer months.

Dario loves firefighting, and he wants a stable, non-seasonal, long-term career in the field. But California won’t let him get the certification he needs to be a career firefighter, even though it faces a shortage of firefighters, even though it lets Dario fight fires seasonally and, most absurdly of all, even though it trained Dario to fight fires while he was in custody.

Fire departments throughout California require an EMT certification for career positions. An EMT certification is an entry-level qualification certifying that someone can perform basic, non-invasive first-response techniques, such as CPR, checking blood pressure and giving oxygen. People with only basic EMT certifications are not paramedics, cannot administer drugs and cannot drive ambulances. EMTs can be found in variety of places, from amusement parks to event spaces to factories.

But California categorically bans anyone with a felony conviction from obtaining an EMT certification for 10 years after release from prison, and it bans people with two felony convictions, like Dario, forever. That means Dario—whom California trained and paid to fight fires while in custody and who works as a seasonal firefighter now—can never become a career firefighter. This lifetime ban is irrational and unconstitutional.

The U.S. Constitution protects Americans’ right to earn an honest living in the profession of their choice. To ban people from working, the government must have a good reason. That Dario was convicted of felonies 15 years ago is not a good reason to ban him from a fulfilling profession forever. America is a land of second chances, and Dario deserves a fresh start.

That’s why Dario has teamed up with the Institute for Justice to file a federal lawsuit challenging California’s lifetime ban. Banning Dario from EMT certification doesn’t protect Californians; it just deprives them of a committed and qualified firefighter.

Dario Gurrola

Dario lives in Alturas, California, where he works as a seasonal firefighter. The work is interesting, physically engaging and a way to help others for a living. But a decade ago, Dario was living a different life.

Dario started hanging out with a tough crowd in high school, and in his 20s he struggled to find purpose. In 2003, he was convicted of a felony for illegally carrying a hidden knife, which he kept for protection. And in 2005, while under the influence of drugs and alcohol, he got into a fight with a security guard and was convicted of felony assault. Dario was convicted of a few more crimes, all of which were later expunged and dismissed. He finished serving his last sentence in 2011.

Approaching 30, Dario realized he had to change. He stopped hanging around with his old friends. He reconnected with his father, a retired San Diego sheriff sergeant. He regularly attended church. And, thinking back to when he had served in the state’s fire camps, he decided to become a firefighter.

Since then, Dario has done everything right. He completed EMT training, he completed firefighter training and he repeatedly worked as a seasonal firefighter. He even passed the national EMT exam. The final step to becoming a firefighter was getting licensed as an EMT. But in the end, none of his experience mattered. When he applied for the EMT license, California denied his application. Because of his two felony convictions, which are already 15 years old, the state will deny him for the rest of his life. Nothing he has done, and nothing he can ever do, will change that. That’s the law in California.

Firefighting Careers in California

Dario is not the only person hurt by this law.

California prisons train low-risk offenders to be firefighters and deploy teams of trained inmates to fight wildfires across the state. There are “about 3,700 inmates working at minimum security training facilities called ‘fire camps’ throughout the state, 2,600 of whom are qualified to fight on the fire lines . . .  The inmate crews receive the same training as the state’s seasonal firefighters and do much of the same work, though their pay—between $2 and $5 a day, plus $1 per hour when they’re on a fire—is considerably less.”[1]

Once released, many of these firefighters work in seasonal positions that involve fighting wildfires and doing controlled burns.[2] An EMT certification is not required for these seasonal positions, but for many, the positions aren’t sustainable, requiring travel and second jobs during the winter.

Career firefighting positions, by contrast, can mostly be found in city or county fire departments. And nearly all local fire departments require a basic EMT certification.

The felon ban is an absolute bar to these career fire department positions. As one prisoner reentry counselor told the Sacramento Bee, “I have to tell people right out—I’m sorry, you can’t do this . . . [emergency medical services agencies] are just turning people away with felonies, period.”[3]

Although there is competition for spots in urban fire departments, many rural departments face shortages. Yet it is impossible to hire the many qualified applicants who, because of the felon ban, simply cannot obtain EMT certification. This creates an absurd situation where there is a need for firefighters, and there are experienced and trained firefighters looking for jobs, but California prevents those firefighters from filling open positions.

California Bans People with Felonies from Becoming EMTs

EMTs are first responders who administer aid that is (with rare exceptions) non-invasive and non-pharmacological. They are “trained in all facets of basic life support,”[4] which means “emergency first aid and cardiopulmonary resuscitation procedures” and involves assistance necessary “to maintain life without invasive techniques.”[5] There are more than 60,000 EMTs certified in California.[6] EMTs are not paramedics, who provide a full array of emergency care or transport care, including invasive procedures or administering drugs. [7] An EMT certification does not grant the right to drive ambulances or enter homes; it is an entry-level certification used in various jobs requiring first-responder skills—wilderness guide, gym attendant, medical dispatcher, stadium staff and more.

Under the relevant statutes, the county EMS agency doesn’t need the felony ban to deny people with criminal histories when it matters. That’s because they may deny certification if the applicant has been convicted “of any crime which is substantially related to the qualifications, functions, and duties of prehospital personnel.”[8] Crimes that are “substantially related” are, according to regulations, those that “evidence unfitness of a certificate holder to perform the functions authorized by the certificate in that it poses a threat to the public health and safety.”[9]

The problem is a separate regulation that doesn’t permit case-by-case decisions. Under that regulation, county EMS agencies “shall deny” a certificate if an applicant, among other things, “[h]as been convicted of two (2) or more felonies” or “[h]as been convicted and released from incarceration for said offense during the preceding ten (10) years for any offense punishable as a felony.”[10] Thus, county EMS agencies hand out documents like the one below to emphasize that those with the wrong criminal histories need not apply. This amounts to a near-total ban on granting EMT certification to people with felony convictions.

Legal Claims

Dario is challenging California’s lifetime exclusion of people with two felony convictions. That ban violates the U.S. Constitution in two ways.

First, the lifetime ban violates the equal protection clause guaranteed by the Fourteenth Amendment. The lifetime ban irrationally bars all EMT-certification applicants with two felonies, even if other, similarly situated applicants have committed the same or worse crimes, but for one reason or another never received two felony convictions. There are many, many felonies, and there are many complex reasons why one could receive a felony or misdemeanor (or no charge at all) for the same conduct. A categorical ban does not consider what the felony conviction was for, or whether the person who committed it is actually a poor candidate for EMT certification. And the lifetime ban also discriminates against people with two past felonies who have rehabilitated and haven’t committed a felony in the past decade or more. There’s no reason not to give these rehabilitated people the same treatment as others applying for EMT certification. Anyway, there is already a separate law, not challenged in this suit, that allows county EMS agencies to deny certification to anyone convicted of a crime “which is substantially related to the qualifications, functions, and duties of” emergency personnel. But the categorical ban just discriminates. It doesn’t matter how well Dario proves he is rehabilitated and can help the public. The lifetime ban unreasonably discriminates against people with criminal histories, denying rehabilitated men and women like Dario the right to prove their fitness to be an EMT and all of the job opportunities that come with the certification.

Second, the lifetime ban violates due process of law because limits on the right to earn a living must be rationally related to the applicant’s fitness to practice the profession itself. But “felony” is a broad term, applying to crimes from tax evasion to marijuana possession that have nothing to do with being an EMT. Some California prisoners are trained to perform lifesaving, EMT-type work while in prison. And people with felony backgrounds are not prohibited from acting as unsalaried volunteer firefighters in local fire departments, helping other EMTs. It’s therefore irrational to keep the very same people from earning a living in EMT-related careers.

The Fight for a Fresh Start

This case is part of IJ’s broader fight against laws that keep re-entering citizens from earning an honest living. There is a growing consensus these harsh restrictions aren’t working. One in three Americans has a criminal record, and hundreds of thousands of people get out of prison every year. Those people need jobs. We know that in states with lower licensing burdens, recidivism rates shrink, and in states where the government makes it harder for people to get jobs, recidivism rates grow. But allowing people with criminal records to support themselves isn’t just about preventing repeat offenses. It’s about ensuring that people who have paid their debts to society still have a chance to become productive members of society.

IJ is a nonprofit, public interest law firm that is fighting for fresh starts on multiple fronts. In Pennsylvania, IJ litigators are challenging a law that keeps ex-offenders from practicing cosmetology—a trade that Pennsylvania itself teaches to inmates.

At the same time, IJ’s legislative team has proposed a model “Collateral Consequences in Occupational Licensing Act,” that would:

  • Allow ex-offenders to petition a licensing board at any time—including before investing in training—for a determination that they will not be disqualified because of their criminal records;
  • Limit disqualifications to convictions directly related to the license; and
  • Place the burden on the government to prove ex-offenders should be disqualified.

Additionally, IJ’s legislative team released the most up-to-date survey of occupational licensing barriers for ex-offenders. Using 10 criteria, this report grades all 50 states and the District of Columbia on their legal protections for license applicants with criminal records.

[1] https://www.latimes.com/opinion/story/2019-11-01/california-inmate-firefighters

[2] See id.

[3] Id.

[4] Cal. Health & Safety Code § 1797.80 (emphasis added).

[5] Cal. Health & Safety Code § 1797.60.

[6] Id.

[7] Cal. Health & Safety Code § 1797.84; 22 Cal. Code Regs. 100146(a).

[8] Cal. Health & Safety Code § 1798.200(c)

[9] Cal. Code Regs. tit. 22 § 100208(a)

[10] 22 Cal. Code Regs. § 100214.3(c) (emphasis added).