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.
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:
- Neglect of Duty
- Conduct Unbecoming an Officer (CUBO)
- Off Duty Misconduct
- Excessive/Unnecessary Force
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.
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.