Vol. 18 No. 22- Darvish V. City Of Inglewood

To: All Police Chiefs and Sheriffs

From: Martin J. Mayer

December 30, 2003

The California Court of Appeal, Second Appellate District, ruled on December 29. 2003, in Darvish v. City of Inglewood, that the City violated no provisions of the Public Safety Officers Procedural Bill of Rights Act (POBOR) in it’s actions at the scene of the, now infamous, video taped arrest of Donovan Jackson. The POA had argued that Officer Darvish had to have been advised of his rights when the field sergeant, Sgt. Gabriel Garcia, asked him, at the scene, “what happened?” They also claimed that he was not provided with required documents prior to an Internal Affairs interrogation, two days later, and that he was denied the representative of his choice at that interrogation.

The firm of Jones & Mayer had the privilege of representing the City of Inglewood, and Police Chief Ron Banks, and we are pleased that the Court adopted, virtually, all of the arguments we set forth. At this time, the Court has not certified the case for publication and, therefore, it cannot be cited in subsequent court cases. We anticipate petitioning the court to allow it to be published since it helps to clarify disputed language in the statute.

The first issue to be addressed was the officer’s claim that the Sgt. could not inquire as to what happened without first admonishing him as to his “rights.” The Court points out that G.C. 3303 (a) through (i) set forth procedural requirements “[w]hen any public safety officer is under investigation and subjected to interrogation…that could lead to punitive action.” However, the Court goes on to highlight the second paragraph of that section which states, in part, that the section “…shall not apply to any interrogation of a public safety officer in the normal course of duty, … or other routine or unplanned contact with a supervisor or any other public safety officer[.]” (Emphasis in original.)

In analyzing the situation, the Court referred to City of Los Angeles v. Superior Court (Labio), 57 Cal.App. 4th 1506 (1997), where questioning an officer, after collecting information and knowing the officer was being investigated for alleged misconduct, was determined to trigger due process rights. “Here, the facts, unlike those in Labio, establish Sergeant Garcia was conducting a routine investigation pursuant to section 3303, subdivision (i), exempting her from the requirements of section 3303, subsections (c) and (h). She did not have a complaint about police misconduct. Rather, she was responding to a report of use of force, a routine matter.”

We argued to the Court of Appeal that we cannot allow the use of force by a peace officer to be immediately classified as “misconduct” since, in most such cases, the use of force is absolutely appropriate. The Court agreed, stating that the Sergeant “…had no information which would lead her to conclude that any officer in particular had engaged in any misconduct that would lead to sanctions.” The Court also agreed with our argument that “because the facts establish Sergeant Garcia was investigating an event, not an individual facing misconduct allegations, her on-the-scene investigation…is within the ‘routine’ exception of section 3303, subdivision (i).” (Emphasis in original.)

As to the second issue, the alleged failure to provide Darvish with documents prior to the formal I.A. interrogation, the Court of Appeal ruled that the City gave Darvish more than is required. The Court cited to the California Supreme Court decision, Pasadena Police Officers Assn. V. City of Pasadena (1990) 51 Cal.3d 564, which held that “(d)isclosure before interrogation might color the recollection of the person to be questioned or lead that person to conform his or her version of an event to that given by witnesses already questioned…. Furthermore, to require disclosure of crucial information about an ongoing investigation to its subject before interrogation would be contrary to sound investigative practices.”

The statute does provide for a copy of any statement taken from the subject officer at the interrogation to be provided to the officer, prior to any subsequent interrogation of that officer. Otherwise, the statute “…provides no timeline for disclosure of the additional enumerated documents…” set forth in section 3303 (g). “(T)he additional materials enumerated in the statute need not be provided until interrogation is completed.”

The third major issue raised by Darvish and the POA focused on his demand to be represented by the POA attorney who was on vacation the day the I.A. interrogation was scheduled. Information was brought to the department’s attention that the attorney would be returning from vacation the next day, but it insisted on proceeding. Once again the Court of Appeal cited to a previous decision, Upland Police Officers Assn. V. City of Upland (2003) 111 Cal.App. 4th 1294, [a case in which Jones & Mayer submitted an amicus curiae brief on behalf of the California Police Chiefs Association (CPCA) and the California State Sheriffs Association (CSSA)], which held that an “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.” The Court accepted our argument that because of the notoriety of the incident, “the police department was understandably eager to conduct an interrogation of the officers involved.”

As to the claim that the delay would be no more than a day, the Court stated that “[a] delay of one day, however minor it may seem to the officer in question, was not de minimis to the police department in this context, and it was therefore not unreasonable to proceed with the interrogation with a substitute representative.” The substitute, we pointed out to the Court, is a highly experienced and highly qualified attorney in representing law enforcement officers. The Court made note that “Darvish has retained his substitute counsel to this day, negating any potential finding of prejudice from the substitution.”

Although unpublished, this decision is significant due to the Court’s careful analysis of the facts and the law, as set forth in the Bill of Rights Act. As we have stated many times, utilizing good judgment and conferring with legal counsel, whenever possible, before proceeding in an area where the law is unclear, is always beneficial. In each of the areas addressed by this decision, we urge that you first confer with your agency’s legal advisor.