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Newsletters
Officer's Termination Set
Aside By Court Due To Constitutional And POBR Violations
By Dieter C. Dammeier
LACKIE & DAMMEIER LLP
The Orange County Superior Court, on June 16, 2000, set aside the City of Santa Ana Personnel Board's decision to uphold the termination of veteran police officer Michael Cabrera. In doing so, the Court's awarded Cabrera back pay and benefits, with interest, plus an award of attorney's fees.
In January of 1995 officer Cabrera was the subject of an internal affairs investigation. In preparing a defense against allegations of that investigation, Cabrera and the Santa Ana Police Officers Association hired a private investigator to investigate and prepare a report for officer Cabrera's attorneys in the matter ("Cabrera Report"). Officer Cabrera ultimately prevailed in that matter and the "Cabrera Report" prepared by the private investigator remained undisclosed.
In August of 1997, the Orange County District Attorney's Office obtained a search warrant in an unrelated matter for the private investigator's office. The confidential and privileged "Cabrera report" was seized pursuant to this warrant. Eventually, the report was turned over to the Santa Ana Police Department's Internal Affairs section. With information obtained from the report, internal affairs began to investigate an allegation of Cabrera having sex while on duty in one of Santa Ana police department's substations.
In October of 1998, Officer Cabrera was ordered to report to internal affairs to be interrogated in regard to an allegation of having sex while on duty. At this point, Officer Cabrera was not informed by the Santa Ana Police Department or the Orange County District Attorney's Office that the "Cabrera report" had been seized or was being utilized in any fashion. At the outset of the interrogation the internal affairs investigators made comments, which indicated that they were utilizing confidential information, which was included in the "Cabrera report". Additionally, Officer Cabrera was informed that there were potential criminal implications in the case. At this point, Officer Cabrera as well as his non-attorney representative asked that the interrogation not commence until Cabrera could obtain an attorney representative. Officer Cabrera was given "10 minutes" to obtain an attorney, which he obviously could not do. He was then ordered to submit to the interrogation with his non-attorney representative. During the interrogation, Officer Cabrera denied having sex while on duty.
On February 20, 1999, Officer Cabrera was terminated based on information obtained form the "Cabrera Report". The two charges against Cabrera were having sex while on duty and untruthfulness (denying having sex on duty). On August 12, 1999, the City of Santa Ana Personnel Board upheld Officer Cabrera's termination, again, based on confidential privileged information obtained in the "Cabrera report".
In November of 1999, Officer Cabrera represented by LDF Panel Attorney Dieter Dammeier of Lackie & Dammeier LLP filed a Writ of Administrative Mandamus in Orange County Superior Court requesting the Court set aside Officer Cabrera's termination due to violations of Cabrera's rights under the Public Safety Officer's Procedural Bill of Right's Act and his right to counsel under the United States Constitution. Dammeier specifically argued that pursuant to Government Code section 3303(i) Officer Cabrera was entitled to "a representative of his choice" during the interrogation and when Cabrera was denied the ability to replace his non-attorney representative with an attorney, that right was violated. Dammeier further argued that because allegations included potential criminal conduct and Officer Cabrera requested an "attorney" which was denied, his constitutional right to counsel was also violated. Based on these arguments, it was requested that the Court throw out the statements made by Officer Cabrera during the interrogation, which would necessarily throw out the allegation of untruthfulness.
In addition to the POBR and constitutional violations argued, the Court was presented with evidence establishing the "Cabrera report" as a privileged attorney/client document. As such, it was requested that the Court prohibit its use and any information stemming from it against Officer Cabrera in any manner.
A court trial was held on May 2, 2000 and on June 16, 2000, the Court issued a final judgment in the case. The Court held that the City of Santa Ana in denying Officer Cabrera's right to an attorney when he requested one at the interrogation, violated both the Public Safety Officers Procedural Bill of Rights Act as well as the United States Constitution. Additionally, the Court concluded that the "Cabrera report" was an attorney client privileged document and therefore should not have been used as the "basis" of an internal affairs investigation or in any disciplinary action against Cabrera. Accordingly, the Court set aside Officer Cabrera's termination and ordered back pay and benefits with interest (approximately $120,000.00). Additionally, which is very rare in these types of cases, the Court found the City's actions to be "arbitrary and capricious" and issued an award of attorney's fees.
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