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Administrative (disciplinary), civil and criminal defense of peace officers related to acts and omissions in the course and scope of duty. Lackie & Dammeier
APC has experience in a broad range of public employee representation on the federal, state and local agency level.
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Public
Safety Officers Procedural Bill of Rights Act
History: California was the first state to enact a peace officers bill of rights act: California's act is often referred to as "POBR," "AB301," "Officers Bill of Rights" and similar names. The Public Safety Officers Procedural Bill of Right Act will be referred to herein as either "POBR" or "the Act." It was effective January 1, 1977. The concept originated around 1974 and involved the LAPD Police Protective League and PORAC. The largest supporter of POBR was the ACLU. The bill was signed into law by Governor Jerry Brown.
Opponents to POBR were CPOA, cities and counties, Cal Chiefs, the State Sheriff's Association and the California League of Cities. Opposition to POBR continues even today; the Act is constantly under attack.
Changes to the Act occurred over the years which have affected its interpretation. Many people know it exists but do not know how important it is. How the Act is applied depends on agency structure and the I.A. process it follows.
The California Supreme Court decided that POBR applies to all employing entities, regardless whether they are charter law or general law cities or counties.
POBR consists of Sections 3300-3311, Chapter 9.7, Division 4, Title 1, of the Government Code. Added in 1976 and amended in 1977, 1978, 1979, 1980, 1982, 1983, 1989, 1990, 1994, 1997, 1999, 2000 and 2001.
Click
here for the latest version of the Peace Officer's Bill of Rights
Introduction
To Internal Affairs Investigations
 The
purpose of IA investigations is to ensure that the integrity of the
department is maintained. The investigation is supposed to be conducted
with the intent to be fair, impartial and just. There are, of course,
departments that use IA’s to intimidate and harass employees management
does not favor. In these situations, peace officer rights play a
crucial role.
The investigation is
designed to identify real or potential misconduct resulting from an
officer’s actions or failure to take action. The outcome of an
investigation sustaining misconduct is to remedy deficiencies by
imposing discipline, requiring training, or implementing internal
changes. Similarly, an IA ensures personnel are protected when they
have acted within the scope of their employment and under the
established rules of the department.
The investigation is a
tool to not only identify wrong-doers but to clear those who are
innocent. The investigation should facilitate prompt and just
disciplinary action or documented vindication.
Complaint Initiation:
Under California Penal
Code Section 832.5, agencies which employ peace officers must establish
a procedure to investigate citizen complaints against officers. The
process must be made available to the public as a means for complaints
of misconduct.
'832.5 [Procedure for
investigation of citizen’s complaints against personnel]
(a) Each department or
agency in this state which employees peace officers shall establish a
procedure to investigate citizen’s complaints against the personnel of
such departments or agencies, and shall make a written description of
the procedure available to the public.
(b) Complaints and any
reports or findings relating thereto shall be retained for a period of
at least five years.
In 1997, the legislature
added section (c) to 832.5 which prohibits agencies from keeping
“frivolous, unfounded or exonerated” complaints in a peace officer’s
general personnel file or using these complaints in any disciplinary or
promotional decisions.
'832.5 does not require
that a formal complaint be taken merely because someone decides to
complain about an employee. The section simply requires an agency to
have a procedure to investigate complaints. Once a policy is in place,
the policy must be followed when handling a complaint. Often times, the
complaint can be handled informally at the level of the individual
receiving the complaint. When a complaint cannot be resolved
informally, a written complaint should be taken. The department must
make their decisions on merit and not on position.
Complaints can be a
result of misconduct or inappropriate application of policy and
procedure. It is important to distinguish between the two.
Example.
A complaint is made about an officer using a spotlight during a traffic
stop C a policy and procedure issue. If the complaint adds rudeness or
foul language, misconduct is now an issue. Try to determine the real or
underlying complaint. Was it the rudeness and language, or was it the
use of the spotlight?
Complaints should be
titled according to the nature of the complaint. Examples may include:
Complaints can result in
both criminal and administrative investigations. An investigation may
best be facilitated by bifurcating multiple allegations. The D.A.’s
office may be asked to conduct the criminal portion of the
investigation.
Once a complaint is filed
it is handled pursuant to department policy. Under case law (Pasadena
Police Officers Association v. City of Pasadena (1990) 51 Cal.3d
564) the officer must be notified of the nature of the complaint prior
to any interrogation, but not earlier unless past practice dictates
differently.
The notification may come
in a variety of forms. It could simply be a copy of the submitted
complaint or an internal memorandum.
Written directives may be
issued ordering the involved employee(s) and/or witness(es) not to
discuss the matter with each other pending completion of the
investigation.
Once notification of a
complaint is received, it is important to obtain copies of all the
related reports, call slips, officer logs, phone logs, dispatch tapes,
etc. These documents should be reviewed carefully before submitting to
an interview. Note, however, pre-interrogation discovery is not
required by Government Code '3303 and case law (Pasadena Police
Officers Assn case).
Civil Code '47.5:
Civil Code '47.5 provides
that an officer may file a civil suit for defamation against any person
who files a false and malicious complaint alleging misconduct,
criminal conduct, or incompetence.
In pursuing a complaint
for a false filing, several points must be supported. There must be a
showing that the complainant had no reasonable grounds to believe the
complaint was true, there was an exhibition of reckless disregard for
the truth, and the complaint was filed with malicious intent. 47.5 was
designed to protect the individual officer and not the department.
These cases are difficult to prove.
Presently, '47.5 is
unenforceable as an unconstitutional restraint on a citizen’s right to
redress (complain to) his government about police misconduct, and a
violation of a citizen’s free speech rights. (Gritchen v. Collier
(1999) 73 F.Supp.2d 1148; Haddad v. Wall (2000) 107 F.Supp.2d
1230); Walker v. Kiousis (2001) 114 Cal.Rptr.2d 69.
Similarly, Penal Code
'148.6 is presently unenforceable because it discourages public comment
by criminalizing statements made against peace officers and held was
unconstitutional by the Federal Court of Appeal (overruling our
California Supreme Court). Chaker v. Crogan, (9th
Cir. 2005) 428 F.3d 1215. The California legislature is presently
working on amendments to 148.6.
Agencies are required
to have complainant read and sign an admonition which notifies the
complainant may be prosecuted for filing a false complaint. (PC
148.6(a)(2).)
Preparing for the
Interrogation:
The person representing
the subject officer must be familiar with Government Code '' 3300 et
seq. Pay close attention to section 3303. Be sure you read the
city/county personnel rules and regulations. Identify the specific
rules and regulations which were violated so you can properly inform the
involved officer.
Read the memorandum of
understanding and all available reports. Attempt to locate other areas
which may assist in fully understanding the potential violations.
Spend time with your
officer discussing his/her view of the allegations and memory of what
occurred. Many times the complainant accurately describes a contact
with the officer, but fills in as detail the officer’s mental process.
Just because the complainant states something as fact does not mean that
he/she actually observed it.
An officer should never
enter into an interrogation without a representative. However, the
officer must ask that he be permitted to have a representative present
because such right is not automatic and the department may not have an
obligation to inform the officer of the right of representation.
The investigator will
tape record the interview, so you must do the same. Do not rely upon
the investigator’s assertion that you can have a copy of his tape.
Further, you will have your tape recorder running as soon as the
preliminary matters are announced, not just simply when questioning
begins.
The officer must be
truthful in all responses. It is normally much easier to deal with
admitted misconduct than battle over possible termination for
untruthfulness during the interrogation.
Serious allegations, or
an interrogation involving criminal conduct, requires the presence of an
attorney. The Miranda warning may be given because there is a criminal
allegation or as a matter of practice. The department’s
pre-interrogation advisement form may include Miranda. It is okay for
the department to give you Miranda because it is an added layer of
protection for you and your answers. You are not going to waive
your Miranda rights in any event.
Once the Miranda rights
have been given, the “Lybarger admonishment” is required and the
officer must be informed of the following.
1. While you
have the right to remain silent with regard to any criminal
investigation, you do not have the right to refuse to answer my
administrative questions.
2. This is
strictly an administrative investigation. I am therefore, now
ordering you to discuss this matter with me.
3. If you
refuse to discuss this matter, your silence can be deemed
insubordination and result in administrative discipline, up to and
including termination.
4. Any
statement you make under compulsion of the threat of such discipline
cannot be used against you in a later criminal proceeding.
Complainants (but not
always the officer) are usually notified by letter that the complaint
has been investigated and resolved.
Confidentiality of
Results:
Penal Code Section 832.7
requires Chiefs and Sheriffs to notify complainants about the
“disposition” of complaints. Terminology similar to “appropriate
administrative action has been taken...” without being more specific is
acceptable. Disclosing the specific disciplinary action taken is
unlawful pursuant to Evidence Code '1043.
Recent federal court
decisions have held that the disclosure of compelled statements to the
district attorney, grand jury or attorney general, is not in itself a
violation of Fifth Amendment rights, however, the compelled statement or
anything deriving from such a statement may not be used in a criminal
trial against the officer. Misuse of these statements may be an issue
of due process and alleged violations may be challenged at a Kastigar
hearing.
See: United States v.
Koon (1994) 34F.3d.1416; In Re Grand Jury Subpoenas to Stover v.
United States (1994) 40 F.3d.1096; Kinamon v. United States
(1995) 45 F.3d.343; In Re Grand Jury Subpoena, Huntington Beach
Police Department (1996) 75F.3d. 446; Kastigar v. United States
(1972) 406 U.S. 441.
Peace officer files,
including disciplinary investigations, are protected from disclosure
under several statutory schemes. See, e.g., Penal Code '832.7; San
Diego P.O.A. v. City of San Diego C.S.C. (2002) 128 Cal.Rptr.2d 248.
Report of Citizen Review
Board involving review of an officer’s conduct is confidential and may
not be disclosed to the public. Davis v. City of San Diego 106
Cal. App. 4th 8 (2003). Even the identity of the officer in
a civil service proceeding is not accessible to the public. Copley
Press, Inc. v. Superior Court, (2006) 39 Cal.4th 1272.
A violation of P.C.
'832.7 does not give rise to a private right of action for damages.
Rosales v. City of Los Angeles (2000) 98 Cal.Rptr.2d 144. However,
dissemination by a supervisor of a disciplinary action to non-interested
employees may give rise to an action for invasion of privacy.
Operating Engrs. V. Johnson (2003) 110 Cal.App4th 180.
Confidentiality in
Counseling:
The psychotherapist -
patient privilege exists in every state under Federal Rule of Evidence
501 following the U.S. Supreme Court Decision in Carrie Jaffe as
Special Administrator for Ricky Allen, Sr. v. Mary Lu Redmond and
Village of Hoffman Estates, IL., decided June 13, 1996.
Searches of Employees:
Strip Searches of Peace
Officers.
(Kirkpatrick v. City of Los Angeles (1986) 803 F.2d 485). The
United States Court of Appeals, Ninth Circuit, ruled that in spite of a
police agency’s interest in police integrity, strip searches of police
officers for investigative purposes must be supported by reasonable
suspicion that evidence will discovered even when searches are conducted
in a courteous manner with the minimum invasion of privacy.
Reasonable suspicion to
search exists when the person responsible for the search is aware of
specific, articulable facts and inferences from those facts, which
reasonably warrant suspicion that evidence will be discovered.
In the Kirkpatrick
case, officers were accused of taking an arrestee’s money. The amount
varied from $60.00 to $600.00. The arrestee refused to repeat the
allegation when questioned in front of the officer’s sergeant. The
preliminary investigation, including a search of the officers’ police
vehicle, pockets, wallets and weapons belts, revealed that neither
officer possessed more than five dollars.
At the police station the
officers refused to voluntarily consent to a strip search. They were
then ordered to submit to the search. Again, no money was found. The
type, time, place, method and manner of search is limited and varies.
In this case the officers 4th Amendment rights were clearly
violated.
Demand the presence of an
attorney if a strip search (or other overly intrusive search) is
announced or anticipated.
For more information,
see below (Fitness for duty
evaluations)
Searches of Employee’s
Property:
Searches of Officer’s
Desk, Work Area, or Locker within the Police Facility.
Desk, work area or lockers within the police facility are subject to
search pursuant to Government Code section 3309. The section provides
that no officer shall have his locker or other storage space assigned
to him searched, except in their presence, or with their consent, or
unless a valid search warrant has been obtained, or where they have been
notified that a search will be conducted. This section only applies to
lockers or other storage spaces owned or leased by the department. It
does not include searches of the officer’s briefcase, tote bag, or other
personal containers.
This procedure applies to
administrative investigations only. Criminal cases and searches
incident to an arrest are conducted pursuant to traditional legal
practices.
Drug or Alcohol
Testing On and Off Duty:
Samples of an employee’s
blood, breath or urine may become necessary in an administrative
investigation. When there is a reasonable and articulated suspicion and
an employee refuses to comply, insubordination may exist. Discipline
may result as a consequence of the refusal to obey a lawful order.
If an employee is under
arrest, evidence may be collected following accepted legal procedures.
Several court decisions
have upheld the authority to implement random drug testing for
individuals within specific categories, such as those required to carry
firearms, involvement in direct interdiction of drugs and narcotics, and
having access to confidential material.
Agencies must have a DOT
policy to take random samples. Most policies must be developed with the
cooperation and approval of the POA/DSA as a subject of meet-and-confer.
District Attorney
and/or Federal Agencies:
Personnel files may be
accessed during criminal investigations on peace officers by the
District Attorney’s Office. Penal Code Section 832.7(a) provides:
Peace Officer personnel
records and records maintained by any State or local agency pursuant to
section 832.5, or information obtained from these records, are
confidential and shall not be disclosed in any criminal or civil
proceeding except by discovery pursuant to Sections 1043 and 1046 of the
Evidence Code. This section shall not apply to
investigations or proceedings concerning the conduct of police officers
or a police agency by a grand jury, a District Attorney’s Office or the
Attorney General Office.
The FBI or other federal
agency may also conduct a criminal investigation on an officer. They
may request information from the officer’s personnel file as well. It
is best to require them to obtain a Federal Grand Jury Subpoena.
Coerced statements
obtained from officers should not be given up to the feds or DA. If the
DA insists, you may be required to provide them. However, the case may
be tainted and any additional evidence stemming from the coerced
statement will be excluded. This same rule applies to federal
agencies. Under most circumstances, it may be in your best interest to
object to a prosecuting agency’s insistence for the production of
coerced statements.
Remember, the FBI and AG
are not your friends.
Investigations
Involving Other Agencies:
Another agency’s
independent investigation of alleged misconduct may not require
compliance with the Act. Alhambra P.O.A. v. City of Alhambra,
(2003) 113 Cal. App. 4th 1413. However, an employer’s
cooperation with an outside agency where it is acting in concert with
the other agency, orders its officers to cooperate with the outside
investigation, delivers them to outside investigators, or threatens
officers with arrest and/or discipline if they assert their rights
during interrogation by the outside agency, requires the other agency’s
full compliance with the Act. California Correctional Peace Officers
Assn. v. State of California (2000) 82 Cal.App.4th 294.
Interviews involving
other agencies may require ordering your officer to talk by a ranking
member of your department. A second request may be to order the
individuals not to discuss the interview or case with anyone else as
well.
Normally, this does not
occur and personnel from your agency are interviewed as witnesses only.
However, be very wary of being interviewed as a “witness.” “Witnesses”
can become criminal defendants.
Notifying the department
of contact with a peace officer from another agency is covered under
'432.7 of the Labor Code, '13300 of the Penal Code, and probably the
department’s general orders manual.
Handling Citizen's
Complaints
What should law enforcement
agencies do with externally generated complaints in which the
complaining party either refuses to sign the section 148.6 admonition,
or insist on anonymity? Here are some suggestions:
If the department treats a complaint which otherwise fails to comply with
section 148.6 as an internally generated complaint, the accused officer
should be notified of that fact, and should request that the department
consider expunging the internally generated complaint from his/her
personnel file in two years, instead of the normal five year period in
which citizen complaints of misconduct must be retained under Penal Code
section 832.5.
If an agency insists on accepting anonymous external complaints or
external complaints which do not otherwise comply with section 148.6,
the employee organization should insist that these complaints not be
treated as regular formal personnel complaints which would otherwise be
required to be included in the employee personnel and/or internal
affairs file.
Rather, the departments may wish to call them administrative inquiries or
something similar. This would allow the agency to conduct an
investigation of the otherwise defective externally generated complaint.
In the event the investigation is frivolous, unfounded, not sustained, or
exonerated, there would be no record of a personnel complaint having
been received in the officer's personnel or internal affairs file. In
the event the initial administrative inquiry resulted in a sustained
finding, the department could generate an internal affairs file number
and only then treat the matter as a personnel/internal affairs
complaint.
The value of this system would be to lessen the number of personnel
complaints which might go into an officer's file which did not otherwise
comply with Penal Code section 148.6.
How should a department handle the criminal prosecution of a complaining
party if it is determined by the department that the personnel complaint
filed by that party is false? Here are some suggestions:
If an internal affairs investigator determines that the complainant has
filed a false personnel complaint, the investigator should notify the
accused officer and the department head of such finding, which should
thereafter be reviewed by the department head.
If the department head agrees that the complaint filed against the officer
was false, the department head should direct investigators in the
department's criminal division to refer the matter to the District
Attorney's office for consideration of a criminal complaint.
Section D-1
The internal affairs
investigator should stay away from any involvement in seeking or
obtaining a criminal complaint; otherwise, it will look like the
internal affairs investigator had an active role in both adjudicating
the I.A. complaint in favor of the accused officer and thereafter
attempting to validate his/her own conclusions by getting a criminal
complaint issued against the complainant.
Since the accused officer is really the victim of a false personnel
complaint, the department should consult with the accused officer to
determine his/her wishes for a criminal prosecution of the complaint
and, whether he/she wishes to testify as a victim in the case. The
officer should be advised of Civil Code Section 47.5.
In addition to getting the approval of the accused officer to prosecute
the complaining party, the agency should probably have the accused
officer sign a waiver/release form in which the officer is essentially
acknowledging that the law enforcement employer is going to share with
the District Attorney's Office its entire internal affairs investigation
(presumably, including the officer's own Lybarger immunized interview
statement) in connection with the criminal prosecution of the
complaining party. The officer may not want to agree to the release of
his coerced statements.
The accused officer should further acknowledge that once this complaint
investigation is turned over to the District Attorney's Office for
purposes of a possible criminal prosecution, it will, in all likelihood
become a public record and therefore be disclosed to the public.
Departments should not allow the accused officers to personally take cases
of false internal affairs complaints filed against them to the District
Attorney for consideration of filing. This has all the earmarks of the
accused officer leaning on their local friendly D.A. to get back at the
complaining party.
Note: As of March 2002, Penal Code section 148.6 is unenforceable, and Civil Code section 47.5 cannot be used to sue the
complainant. The civil action was held unconstitutional by the 9th
Circuit. Walker v. Kiousis (2001) 114 Ca. Rptr. 3d 69. The criminal
section is now unconstitutional under a Federal appellate court
decision.
The
Administrative Interrogation
Representative's
Job Before and After The Interrogation
By telephone, or in person,
make initial inquiry into very general nature of incident including number
of other officers involved. Preliminarily determine whether there is a
potential for a conflict of interest between the involved parties (finger
pointing).
During conversation with member, determine the status of the investigation and whether an interview
date has been scheduled.
During conversation with
member, evaluate member's anxiety level including feelings towards the seriousness of pending investigation.
If departmental interrogation
needs to be scheduled, contact investigator to arrange for a mutually
convenient date and time for the interview and arrange for conference with
member prior to interview date to review full scope of nature of subject
matter.
Have member make copies of any
pertinent reports or other written material relating to the subject matter
of investigation. Review them carefully.
Prior to discontinuing initial
conversation with member, remind member not to discuss incident with others without first contacting you. Also, remind
member of his right to not answer any questions, orally or in writing,
without consulting with you. Provide member with appropriate telephone
numbers to reach you in the event an emergency arises.
Meet with member for full
discussion of subject matter of investigation and review of applicable
documents.
Either prior to or following
meeting with member, evaluate appropriateness of attempting to gain
additional information regarding investigation from other sources in an
effort to assess facts of the investigation and mitigating circumstances.
Explain to member that what is
discussed is confidential as between you and the member, except
criminal matters. (Always consult with an attorney where potential
criminal conduct is involved).
During conference with the
member, have the member describe everything remembered relating to the
subject matter under investigation. Ask questions to the extent necessary
to gain clarification of the sequence of events and nature of the
investigation. If aspects of the subject matter lack clarity or do not
seem plausible, probe further.
During discussions with the
member, gain an insight into how serious the member considers the
investigation and the extent of involvement in the incident.
Explain the procedural aspects
of an administrative investigation including what the member might expect
during the interview process. Explain your role during that process.
Discuss with the member the obligation to be truthful.
Discuss with the member his
demeanor during the interview process and how varying types of answers can
be misconstrued and should be avoided.
Tape record the entire interrogation. Advise your member not to
separately record it. Advise member he/she listen to the interrogation again at a later time.
Prepare the member for your involvement, including objections, and what to expect. Inform the member of his/her right to consult with you during the questioning as necessary.
At the conclusion of the
interview process meet privately with member as a form of debriefing.
Explain to the member what can be expected next during the investigative
process.
Remind the member to not
discuss the subject of the investigation with others and to also contact
you if the member hears anything regarding the status of the
investigation. Periodically contact the
member to determine whether there has been any change in the status of the
investigation.
Emphasize to member to contact
you immediately upon receipt of any notices from department. Never let
member assume you have been copied or received the notice.
Refer member to association
attorney as appropriate or necessary.
Consult with association
attorney about any questions or if doubts exist about continuing to
represent member.
Remember, the administrative
interview is usually the most important part of your department's
investigation. It can also be the most damaging aspect of your member's
response to the investigation.
Most IA's which result in
disciplinary action are based on what was said during the administrative
interrogation and not necessarily on the underlying facts of the incident.
In other words, your department's case against your member may be based
on his responses rather than merely on written reports of the incident or
citizen complaint.
An increasingly common
approach by police departments to try to circumvent the Act and avoid
representative involvement in the case is to issue a written directive to
the officer to respond in writing to an attached citizen's
complaint.
Your member is entitled to
representation and consultation prior to and when writing a responsive
memo or report to a citizen's complaint (and all other administrative
inquires).
Peace Officer Rights in Critical Incidents
With everyone worried about
the suspect's rights, the victim's rights and the agency's liability, who
is worried about your rights as an officer involved in a shooting, serious
accident, inmate death or other critical incident? Is it your employing
agency, whose primary objective is to escape liability? Is it the local
District Attorney's Office, who make career advancements prosecuting cops?
The truth is the only one looking out for you in a critical incident is
your representative.
When a critical incident does
occur, the most important and first thing that should be done is to
contact an attorney who represents officers in critical incidents. Now is
not the time to call brother-in-law who is a family law attorney. Your
association likely has a list of attorneys to call or if you are a PORAC
member there is a 24 hour number to call the Legal Defense Fund. The
reason this is the first thing that should be done is most critical
incidents occur at night and to get an attorney out to the scene is going
to take at least an hour depending on your location and from where the
attorney is rolling. Every shift should have a primary and secondary
person who is responsible for contacting an attorney in a critical
incident. While waiting for the attorney you should pick a representative
to look out for your rights. Hopefully you have someone available who has
a working knowledge of the Public Safety Officer's Bill of Rights. The 60
to 90 minutes you are waiting for your attorney are the most important.
When officers get in trouble it is usually from something they do or say
in this 60 to 90 minute window. Keep in mind the following rights you have
as a California Peace Officer:
Right to Representation
California Government Code
section 3303(i) and case law gives an officer the right to have
representation of his/her choice in any interrogation where discipline is
a possible result. While you can pick anyone to be your representative, in
critical incidents, where there is a possibility of criminal charges, it
is very important to have an attorney. For example, you get in a shooting
and one of your fellow officers represents you. Section 3303(i) protects
your fellow officer from compelled disclosure of any information you told
him in any civil or administrative proceeding. The problem arises when
that nice Deputy District Attorney you had lunch with last week is
prosecuting you for the incident and he calls your representative to
testify as to what you said. In the case of your fellow officer, it is
admissible and possibly very damaging. If you have an attorney acting as
your representative, Attorney/Client privilege comes into play and the
attorney can never be compelled to disclose what you may have told him.
So what happens while you are
waiting for your attorney to show up and the Sergeant walks up to you and
asks you, "what happened?" You tell him that your attorney is on
the way and you would like to wait until he/she gets there. If the
supervisor is not willing to wait, get a tape recorder and record the
following:
"I
understand that I am being ordered to make a report or answer questions
and that if I do not comply with the order, I may be disciplined for
insubordination. Therefore, I have no alternative but to abide by the
order. However, by doing so, I do not waive my Constitutional rights to
remain silent under the Fifth and Fourteenth Amendments to the United
States Constitution, and the protections afforded me under case law.
Furthermore, by submitting to this coerced interview, I am waiving no
right afforded me under the Public Safety Officer's Bill of Rights
Act."
The Courts are very protective
of officer's due process rights. That is why it is important that the
officer be able to show he/she was compelled to answer questions or write
reports without prior representation being present. For example, if you do
answer questions after asking to wait for your attorney, it is possible to
have those statements suppressed at any future disciplinary hearing. Hanna
v. City of Los Angeles (1989) 260 Cal.Rptr. 782, 212 Cal.App.3d 363. This
includes being asked to write an incident report. You have the right to
have your attorney present while you write your report and if your agency
refuses, your report will not be admissible against you in any
disciplinary proceedings Watson v. County of Riverside (1997) 97 Daily
Journal D.A.R. 13065.
Remember, these rights only
apply in an interrogation where punitive action is possible. Your
supervisor is entitled, if asked, to a very brief description of what
happened for the purposes of securing the scene or locating outstanding
suspects. The agency may compel an officer to give public safety
information before your attorney arrives. Ward v. City of Portland (9th
Cir. 1988) 857 F2d 1373.
Your Rights in the
Interrogation
Your rights while being
interrogated are the same in a critical incident as they are in any
interrogation in which disciplinary action is possible. Under section
3303(c) of the Government Code, you are required to be told the nature of
the investigation prior to any interrogation. Under 3303(b) no more than
two interrogators can be asking you questions at one time, and yes, that
includes a captain or chief. Under 3303(g) you have the right to bring
your own tape recorder and record the interrogation. If this is a second
interview, you have the right under 3303(g) to any reports and complaints
as well as a copy of your statements from the first interview. These are
the more important rights of many you have in an interrogation setting.
Make sure you have a competent representative there to assert these and
other rights that may come into play. After a shooting or other critical
incident, you are going to have so many things running through your head.
Trying to figure out what your rights are by yourself, while under stress,
should not be one of them. Call your Attorney!
Always give a coerced
statement
If you give a voluntary
statement, it can be used against you in a subsequent criminal and/or
civil proceeding. That is why in every interrogation, you should make sure
that you are not there of your own choosing, but only because you are
ordered to be there and ordered to answer questions. If you are not
ordered to answer questions then don't. This applies to other agencies
investigating such as the FBI or the D.A.'s office. (The FBI is not your
friend!) Politely tell them you do not want to talk to them (unless
ordered to do so by your employing agency), and then only with counsel
present.
Remember, in any critical
incident, take advantage of those dues you pay and get some representation
there. Do not make any statements while waiting for your representative,
unless ordered to after you make clear on tape, that you want your
representative present before answering any questions.
CLICK HERE to
read the latest article on giving an After Shooting Statement
Fitness for Duty Evaluations Fitness for Duty Examination and Medical
Records
Police agencies have the authority to send peace officers to fitness for duty examinations to determine if they are fit for duty.
Government Code § 1031(f). Some agencies use fitness for duty examinations as disciplinary tools or ways of harassing employees. While an employer is allowed to determine whether you are fit for duty or not, that is all the employer is
entitled to know. California Civil Code § 56.10(c)(8)(B) limits the information available to a public employer to a description of "functional limitations" and "fitness to perform...her present employment provided that no statement of medical causes is included in information disclosed."
In order to avoid this limitation, employers and medical providers ask officers to sign medical waivers allowing the medical provider to share all information with the employer. Officers are
NOT required to sign such waivers which allow disclosure of information other than whether or not the
officer is fit for duty or not. (See Pettis v. Cole (1996) 49 Cal. App. 4th 402.) Officers should always seek assistance of counsel when ordered to a fitness for duty examination.
A fitness for duty exam may be required only if a job-related performance issue
exists linkable to a suspected physical or mental impairment. There must be
significant evidence questioning the employee's ability to perform his job, such as difficulty performing one or more essential functions of the job, excessive
absenteeism, obvious mental imbalance (not just poor judgment), decline in quality of work (not just sloppy procedures), or significant erratic behavior.
The health care examiner can take into account an employer's (truthful) reason for the referral (but not an opinion of what's wrong) and a detailed job description.
The result should be a "yes or no" report to the employer regarding the employee's fitness for duty in terms of the employee's ability to perform the essential functions of the job. The employer cannot be advised of the medical cause of an employee's inability to perform. The health professional cannot relate to the employer
whether the medical condition, if any, is job related (assuming the condition is not obviously work induced or caused without employee authorization.)
A fitness for duty exam should be resisted, if possible, short of insubordination. Document your objection to the exam. as appropriate, use your
own authorization form and
NEVER sign the examiner's form without first consulting with an attorney. You cannot be ordered to waive your rights to the confidentiality of your medical/emotional impairment. View
sample form: Authorization for Examination and Release of Final Opinion for Fitness for Duty
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