THE PUBLIC SAFETY OFFICERS PROCEDURAL BILL OF RIGHTS ACT Your - PowerPoint PPT Presentation

THE PUBLIC SAFETY OFFICERS PROCEDURAL BILL OF RIGHTS ACT

Your Rights When Subject to ANY Interrogation POBAR applies when you are under investigation and subject to interrogation that could lead to punitive action. 3 elements:  Under Investigation  Subject to Interrogation  Could Lead to Punitive Action

When Does POBAR Apply?  IA  Any OIS/In-custody death  Any investigation by Homicide/DA Investigators/DA

When Does POBAR Apply?  The inquiry need not be a formal investigation . (See hypothetical.)  Questions by an outside agency can trigger the protections. CCPOA v. State of California (2000) 82 Cal.App.4th 294. In this case, witnesses were told by the AG that they must answer or be suspended. The targets of the investigation were told they must answer or be immediately arrested.  POBAR Rights Apply No Matter the Outcome Paterson v. City of Los Angeles (2009) 95 Cal.Rptr.3d 333 – Even if an officer is exonerated, POBAR rights apply to the underlying investigation as the investigation was one which while it was being conducted “could lead to punitive action.”  Does not apply to counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other Public Safety Officer

Hypothetical  Fatal traffic accident during the morning commute.  Sgt. on duty goes out to investigate and then stops at Lucky’s Donut Shop.  Owner of Lucky’s tells the Sgt. that he had seen a male Filipino officer drive past the accident scene in a marked police car to a different donut shop called Dough Boy’s Donut Shop without stopping to render aid.  Back at the station, the Sgt. reviews the deployment log and determines that Officer “ Dokes ” was the only Filipino officer on duty at that time.  Sgt. then goes to Dough Boy’s where an employee confirms, under questioning, that a male Filipino officer had been at the store that morning at the time of the accident.  Sgt. calls Officer Dokes back to the Station and questions him about his whereabouts, the use of a City vehicle, and the route he took to Dough Boy’s.  Officer Dokes was later questioned by IA and terminated based on allegations that, among other things, he made false and misleading statements during his interview with his Sgt.

Hypothetical Was Officer Dokes denied his POBAR rights? YES – see City of Los Angeles v. Superior Court (Labio) (1997) 57 Cal.App.4th 1506.  Court found that the Sgt. questioned Officer Labio in violation of POBAR without advising that the was under investigation, without advising of his Miranda rights or his rights under POBAR.  The Sgt.’s questions were not “routine or unplanned” contact.  Did not matter that when he was later questioned by IA, he was fully informed of his rights under POBAR and was represented by counsel.  Court suppressed the statements Labio made to his Sgt. such that they could only be used for impeachment purposes.

Procedural Rights While Under Investigation  Reasonable hour and reasonable length of time  Allowed to take breaks  Informed of the person in charge of the interrogation  No more than two interrogators at one time  Informed of the nature of the investigation prior to any interrogation.  No offensive language or punitive threats  On-duty (unless an imminent public safety threat)  If off-duty, must be compensated  No loss of compensation while being interrogated  No visits from media without consent  Home address and photograph cannot be released to media

Procedural Rights While Under Investigation (cont.)  Record interview (including with your own recording device).  Have access to any recording prior to any further interrogation .  Entitled to a transcribed copy of any notes made by a stenographer or any reports or complaints made by investigators or other persons, except those portions that are required by law to be kept confidential.  Confidential notes/reports not be entered in your personnel file.

Procedural Rights While Under Investigation (cont.) No pre-interrogation discovery . However, a transcript or tape of the employee’s own prior interrogation is available at any follow -up interrogation. No right to complaints and reports until receipt of Skelly package. (Pasadena POA v. City of Pasadena (1990) 51 Cal.3d 564.) No right to materials unless discipline imposed. Only have to provide summary of complaints and the identity of the complainants. Unfounded or exonerated complaints are not part of an officer’s personnel file. Cannot be used against an officer, but there is also no right to examine the complaints. ( McMahon v. City of Los Angeles (2009) 172 Cal.App.4th 1324.)

What is Punitive Action? “ Punitive action ” = any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment. - Transfer resulting in loss of pay is per se punitive . ( McManigal v. City of Seal Beach (1985) 166 Cal.App.3d 975.) - Demotion with corresponding salary decrease is punitive . (Henneberque v. City of Culver City (1983) 147 Cal.App.3d 250 – Permanent employee on probation in new position is entitled to administrative appeal from demotion and corresponding salary decrease.) - Includes warning of possible future disciplinary action. ( Otto v. Los Angeles Unified School District (2001) 89 Cal.App.4th 985 – “May lead to …” includes a “summary of conference” memo which warned of possible future disciplinary action.) - Routine negative evaluations are not punitive action. ( Turturici v. City of Redwood City (1987) 190 Cal.App.3d 1447.)

Right to Miranda if Criminal Charges Contemplated If, prior to or during the interrogation, it is contemplated that the officer may be charged with a criminal offense he/she must be immediately informed of his/her constitutional rights.

Coerced Statements ( Lybarger Immunity) Statements made during interrogation by a Public Safety Officer under threat of punitive action shall not be admissible in any subsequent judicial proceeding, except when: – The department is seeking civil service sanctions against any Public Safety Officer, including disciplinary action brought under Section 19572. – The Public Safety Officer or his or her association has brought a civil or administrative action, arising out of a disciplinary action. Hanna v. City of Los Angeles (1989) 212 Cal.App.3d 363 – Exclusion of statements that could impact the outcome of a disciplinary case. – Used for impeachment purposes. – Admission of statements if officer deceased.

Right to Representation Under POBAR  Public Safety Officer shall have the right to a representative of his or her choice present at all times during the interrogation  The representative shall not be a person subject to the same investigation  The representative shall not be required to disclose , or be subject to any punitive action for refusing to disclose, any information received from the Public Safety Officer under investigation for noncriminal matters

Right to Representation Under POBAR Right is not unlimited. Has to be “reasonably available representative” at a “mutually - agreeable time.” Upland POA v. City of Upland (2003) 111 Cal.App.4th 1294; Quezada v. City of Los Angeles (2014) 222 Cal.App.4 th 993. (No right to postpone interrogation due to seriousness of charge [firing weapon while off-duty and drunk] even though officers were awake for 24 hours, intoxicated, hung over, and chosen representative unavailable.) Question of attorney-client privilege vs. Police Officer’s law enforcement duties. Titus v. Civil Service Commission (1982) 130 Cal.App.3d 357. (Discharge of Lieutenant, who was also an attorney, upheld where he refused, due to attorney-client privilege, to disclose name and identity of individual possessing dynamite.)

Cannot be Reassigned during Investigation The Department cannot loan or temporarily reassign an Officer to a location or duty assignment if any other officer in his or her department would not normally be sent to that location or would not normally be given that duty assignment under similar circumstances . Example : Being assigned to a desk job was normal for officers involved in shootings until the officers are cleared by a psychiatrist. ( Crupi v. City of Los Angeles (1990) 219 Cal.App.3d 1111.)

Cannot Be Penalized for Exercising POBAR Rights You shall not be subjected to or threatened with punitive action , or denied promotion, because of the lawful exercise of the rights granted under this Act , or under any existing administrative grievance procedure.

Right to Administrative Appeal Before Punitive Action Imposed  No Punitive action or denial of promotion on grounds other than merit without an opportunity for administrative appeal – Right to appeal only comes after action is taken ( Butler v. County of Los Angeles (1981) 116 Cal.App.3d 633.) – Removal from SWAT, with a pay reduction, entitled officer to full evidentiary appeal. Giuffre v. Sparks (1999) 76 Cal.App.4th 1322. – No appeal from transfer for “deficiency in performance.” ( Orange County Employees Association v. County of Orange (1988) 205 Cal.App.3d 1289.) – For some discipline, hearing need not be a “due process hearing”, unless there is a loss of pay. ( James v. City of Coronado (2003) 106 Cal.App.4th 905.)