POBRA, IA INTERROGATIONS AND THE RIGHT TO COUNSEL
By: Martin J. Mayer, General Counsel – California State Sheriffs’ Association
On January 8, 2014, the California Court of Appeal, 2nd Appellate District, held, in Quezada et al. v. City of Los Angeles, et al., that although, pursuant to the Public Safety Officers’ Procedural Bill of Rights Act (POBRA), an officer under investigation, and subject to interrogation, is entitled to a “representative of his/her choice,” that does not guarantee the right to an attorney.
Officers Belinda Quezada, Abel Cepeida, and Enrique Verduzco claimed the Department’s investigation of their alleged misconduct, while off duty, was conducted at an unreasonable time; that they were denied counsel; that they were subjected to adverse mental or physical consequences; and they were subjected to undue threats or coercion.
The Court found that the City did not violate POBRA (Gov. Code section 3300 et seq.), “based upon [the plaintiffs’] treatment during a departmental investigation into the discharge of one of the officer’s weapons while the three officers were off duty and had been drinking at a bar near the police station.”
The decision of the Court reaffirmed a Court of Appeal decision from 2003,Upland POA v. City of Upland, 111 Cal. App. 4th 1294, regarding when and under what circumstances a peace officer is entitled to representation, and what it means when POBRA refers to a “representative of his or her choice.”
Facts
“On June 15, 2010, the regular work shift for plaintiffs commenced at 2:30 p.m. and ended at 11:00 p.m. After their shift ended, the plaintiffs parked their personal vehicles at the Hollenbeck Station parking lot and went to Weiland’s Bakery, located near the intersection of First Street and Hewitt Street. Quezada had one drink, but Cepeida and Verduzco consumed numerous alcoholic beverages and became intoxicated. The three left the bar shortly before closing at 2:00 a.m. on June 16, 2010.”
“Quezada was talking on her cell phone and had reached the gate of the Hollenbeck substation’s parking lot when she heard gunshots. She stopped abruptly and looked behind her. She turned and saw Cepeida and Verduzco behind her. Believing that they had fired a gun, she disarmed both of them.”
As a result of someone calling 911, several LAPD units responded to the location. “Sergeant Hicks, one of the responding officers, ordered plaintiffs “on-duty” and separated them. Verduzco told officers that he had accidentally fired his gun in his truck, but an officer who looked into Verduzco’s truck did not find any evidence of shots fired.”
Each of the officers gave “public safety statements” at the scene, which “are limited to the number and direction of rounds fired, whether other officers fired any rounds, whether a suspect fired rounds at the officers, and if so what direction the suspect fired, whether anyone was injured and their location, whether there are any witnesses and their location, the location of the officers when they fired their weapons, whether there are outstanding suspects at the location, and the location of any weapons or evidence.” It was determined that none of the statements provided useful information.
After plaintiffs were placed back on duty, they were taken to three locations for their interrogations by Internal Affairs officers. The plaintiffs’ requested that attorney Randall Quan represent them and he was contacted, however he stated that he was unavailable at that time. Since, pursuant to the terms of their MOU, the officers were entitled to be represented, Sergeant Rachel Canchola was provided as their employee representative.
All plaintiffs’ refused to consent to searches of their respective vehicles and “Commander [Richard] Webb determined to obtain search warrants of plaintiffs’ vehicles, conduct breathalyzer tests of the officers, photograph them, and to administratively interview them pursuant to the Department’s Internal Affairs procedures.” It was noted that “(a)ll plaintiffs admitted that Internal Affairs had the right to take their breathalyzer tests.”
Officers processed the scene and, among other things, a weapon was observed, in plain view, in Verduzco’s truck. As a result of LAPD Detective Daniel Ornellas obtaining a search warrant, “(i)n Cepeida’s car, he found two weapons and some ammunition that was later determined to match the bullet casings and bullets found at the scene of the shooting.”
None of the plaintiffs had been handcuffed at any time, nor were they placed in a holding tank. Quezada was allowed a break each time she made such a request, she went to a Subway for a sandwich, she was allowed to call her husband, she was not threatened with any form of violence, nor subjected to unhealthful conditions. She was reassigned to desk duty pending the completion of the investigation.
Although Cepeida had a hangover and threw up in the bathroom, he did not ask to see a doctor or request medical treatment. “Although there were vending machines at Central Station with food and water, he did not make an attempt to use them. Nobody told him he could not leave the conference room. At another time, he was offered food and water, but he was not hungry.” He was not threatened with any form of violence and was allowed to use the phone.
Verduzco also did not ask for medical assistance, did not use the restroom, and asked to stop at a liquor store on the way to the LAPD location, where he bought an energy drink. In addition, he was able to get a sandwich and drink at a Subway store. He also asked for Mr. Quan to represent him and was informed that Quan was not available.
The Court noted that “Plaintiffs also could have been charged criminally with violations of Penal Code sections 246.3, 594, subdivision (a), and 647, subdivision (f), as well as potentially false and misleading statements made by plaintiffs regarding the incident.” However, “Detective Ornellas, who was conducting the criminal investigation into plaintiffs’ conduct, did not interview plaintiffs concerning a possible criminal investigation because plaintiffs had refused to waive their Miranda rights.”
Prior to the interrogation by Internal Affairs officers, plaintiffs’ were advised of their rights pursuant to Lybarger v. City of Los Angeles, (1985) 40 Cal.3d 822, which states that “although police officers subject to an administrative inquiry into possible criminal misconduct must be advised of their Mirandarights, they also must be advised that silence during such an inquiry ‘could be deemed insubordination, leading to administrative discipline,’ and any statement made under the compulsion of a threat of discipline could not be used in a criminal proceeding.”
Plaintiffs’ Lawsuit
The plaintiffs’ lawsuit alleged several violations, including violations of POBRA. The City moved for summary judgment “arguing that no POBRA violations occurred because plaintiffs were ordered on duty, given overtime pay, allowed to eat, drink, use the restroom as need, and make phone calls. The police department read plaintiffs their Miranda rights; plaintiffs had an employee representative with them at all phases of the investigation; and the department is permitted to change an officer’s duties while an investigation is ongoing.”
The City also argued that “(t)he seriousness of the incident, which involved charges of criminal and administrative misconduct, required the police department to conduct the investigation immediately.” In addition, the City stated, although POBRA guarantees an officer who is under investigation, and subject to interrogation, the right to a representative, it does not guarantee an attorney in an administrative investigation.
“Plaintiffs opposed [the summary judgment motion], arguing that the undisputed facts established they had gone 30 hours without sleep when their interviews were conducted; they were given little food or water; the 911 calls established that Quezada was not involved in the shooting and was not intoxicated; plaintiffs did not consent to the searches of their vehicles; they were intimidated by the search warrants; and their chosen counsel, Randall Quan, was not available.”
The trial court granted the City’s motion for summary judgment and stated that, “it’s very misleading to describe this as a situation where the plaintiffs were kept up for 30 hours when, in fact, what happened was they did their regular work shift, were spry enough to go out drinking, and then after this incident happened, were kept, appropriately in my view, separated subject to an investigation.”
Alleged POBRA Violations
The Court of Appeal noted that POBRA provides procedural protections which must be provided to peace officers by their employing entities. “The various procedural protections provided by POBRA ‘balance the public interest in maintaining the efficiency and integrity of the police force with the police officer’s interest in receiving fair treatment.’ These rights include limits on and guidelines for investigations and interrogations of public safety officers in connection with disciplinary proceedings. . . .”
“Plaintiffs contend their interrogation sessions violated their POBRA rights because the interviews were conducted after they had been awake for a long time, Verduzco and Cepeida were intoxicated and/or hung over, and there were no exigent circumstances, which was in violation of POBRA’s directive that ‘[t]he interrogation be conducted at a reasonable hour’ and ‘at a time when the public safety officer is on duty, or during normal waking hours’ unless the ‘seriousness of the investigation requires otherwise.’”
However, the Court held, Gov. Code section 3303(a) “does not require that the interrogation be conducted at the convenience of the officer or the officer’s chosen representative. Rather, POBRA permits that ‘the seriousness of the investigation may allow interrogation at an unreasonable off-duty time.’” The Court cited to the case of Upland POA v. City of Upland which addressed the issue of an officer’s right to a representative of his or her choice.
[It should be noted that JONES & MAYER, as counsel to the California State Sheriffs’ Association (CSSA) prepared and submitted an amicus curiae brief to the Court of Appeal in support of the City of Upland. In addition, Martin Mayer presented oral argument to the Court, articulating the position of CSSA in supporting the Upland Police Chief’s right to order an interrogation to proceed, even though the “representative of choice” was unavailable, but the officer had the opportunity to secure other counsel and chose to not do so.]
“Under Upland Police Officers Assn., plaintiffs were not entitled to wait for Quan to become available. The seriousness of the circumstances prompting the investigation—the drunken random firing of shots by off-duty officers—mandated that Internal Affairs conduct its investigation at the earliest opportunity while plaintiffs’ memories (although hampered by excessive alcohol consumption) were freshest. The fact that plaintiffs had been awake for many hours before being interrogated was the result of the incident occurring after they had been on duty for many hours, and was not the result of the Department’s unreasonable actions.”
As to the public safety statements, “Plaintiffs contend they were forced to provide public safety statements on at least three occasions while detained over an extended period of time, and the purpose of such interrogations was not to obtain information by an actual need to protect public safety, but for the purpose of improperly eliciting incriminating information from them.” However, the Court found that “the public safety statements plaintiffs gave at the scene were insufficient, and two of the plaintiffs were physically impaired due to their self-inflicted excessive alcohol consumption.”
Additionally, “Plaintiffs contend that because they were subject to both an administrative and a criminal investigation, under Miranda and POBRA, they had a right to have counsel [not just a labor representative] present during interrogations.” However, said the Court, “an officer’s right to be represented by the person of his or her choice is not unlimited. ‘The officer must choose a representative who is reasonably available to represent the officer, and who is physically able to represent the officer at the reasonably scheduled interrogation. But it is the officer’s responsibility to secure the attendance of his or her chosen representative at the interrogation. If he or she is unable to do so, the officer should select another representative so that the interrogation may proceed ‘at a reasonable hour.’ The chosen representative during administrative hearings need not be an attorney.”
Conclusion
There is no doubt that officers who are the subjects of administrative, personnel, investigations have numerous procedural due process protections set forth in POBRA. It is the burden of the employing agency to ensure that those rights and protections are provided to the officers. However, how, and under what circumstances, those protections are provided are, obviously, subject to different perspectives.
The Court of Appeal, in Upland, discussed these provisions in great detail and concluded that the rights of the officer involved in that case were provided to him by his department, even though he was not being represented by the “representative of his choice.” The Upland court held that the selection of a representative cannot be arbitrary and cannot be one who is not reasonably available under the circumstances at that time.
“The officer must choose a representative who is reasonably available to represent the officer, and who is physically able to represent the officer at the reasonably scheduled interrogation. But it is the officer’s responsibility to secure the attendance of his or her chosen representative at the interrogation. If he or she is unable to do so, the officer should select another representative so that the interrogation may proceed ‘at a reasonable hour.’ ([Gov. Code] § 3303, subd. (a).)”
It is further noted by the Quezada court that “even when confronted with Quan’s unavailability, the record discloses that plaintiffs made little or no effort to obtain alternative counsel to represent them so that the interrogations could proceed.”
When, and under what circumstances, POBRA rights are triggered will be based on the facts, as well as the law. However, there is no doubt that the employer must be aware of the rights of the officers and must afford them their POBRA rights when required. As noted in this case, as well as inUpland, circumstances will dictate what rights are triggered. However, based on these decisions, there is little doubt that a demand to be represented by an attorney at the IA interrogation is not one of those protected rights.
As in all matters involving the law, it is imperative that agencies seek out and secure advice and guidance from their designated legal counsel. The correct application of statutes, such as POBRA, must be ensured in all appropriate circumstances and failure to do so may result in litigation and potential liability.
Martin J. Mayer is a name partner in the public sector law firm of Jones & Mayer and has served as General Counsel to the California State Sheriffs’ Association for over 30 years.