Vol. 21 No. 17- Police Officer’s Procedural Bill Of Rights And The Tort Claims Act

December 19, 2006

We are most pleased to report that the First Appellate District of the California Court of Appeal just published a decision, in Lozada v. City and County of San Francisco, holding that an officer must first file a claim under the California Tort Claims Act before demanding monetary sanctions under the Public Safety Officers Procedural Bill of Rights Act (POBRA). Martin Mayer and Krista McNevin Jee, of the firm of Jones & Mayer, filed an amicus curiae brief, and Krista presented oral argument to the Court of Appeal, supporting the City and County on behalf of the League of California Cities (LCC), the California State Sheriffs’ Association (CSSA) and the California Police Chief’s Association (CPCA). The California State Association of Counties (CSAC) asked for, and the court granted, permission to join in our brief.

Plaintiff had argued that a peace officer has, pursuant to POBRA, immediate access to the courts and, therefore, would not have to file under the Tort Claims Act before demanding penalties (up to $25,000 for each malicious violation of the Act, taken with intent to injure the officer) pursuant to G.C. 3309.5(e). In the alternative, he argued that the POBRA claim was not “for money damages” within the meaning of the Tort Claims Act. The Court of Appeal rejected both arguments and affirmed the judgment of the Superior Court in favor of the City and County of San Francisco .

POBRA does, in fact, allow a peace officer to seek judicial intervention when alleging violations of the Act, before exhausting administrative remedies. As the Lozada court stated, “the legislative history of POBRA reflects the Legislature’s concern that public safety officers be able to proceed to court to remedy violations of their procedural rights during investigations and that they not be required ‘ to exhaust lengthy administrative procedures’ .” (Emphasis in original.) However, the court continues, “there is no indication that the Legislature was similarly concerned in 2002 when amending the statute to add the remedies of a civil penalty and actual damages in case of malice….”

The court also points out that the right of an officer to seek judicial assistance arises even before any adverse action is taken against the officer. “POBRA ‘appears to afford protections to peace officers even before any punitive action is taken by the employer…. We seen nothing to preclude a peace officer from bringing a court proceeding to assert violations of [POBRA] before being served with a notice of adverse action Thus, the trial court has ‘initial’ jurisdiction without requiring the employee to wait for punitive action to be taken.” The court goes on to state that, “the word ‘initial’ in section 3309.5 simply deprives the employer of defeating court action by arguing the employee has failed to exhaust administrative remedies.”

However, despite the right of the employee to seek judicial help, the court ruled that such a right does not support”…his argument that he is not required to delay his claim to comply with the Government Claims Act once punitive action is taken.” Where the employee is also seeking money damages, “…we see nothing in the language of the statute or the legislative history inconsistent with a requirement that the public safety officer comply with the claim presentation requirements of the Government Claims Act before seeking those money damages.”


Since 2002, G.C. 3309.5(e) allows an officer to sue for money damages, in addition to attorney fees, if the officer claims violations of POBRA were maliciously taken with the intent to harm the officer. As a result of this case, such a demand must first comply with the filing requirement of the Tort Claims Act, thereby affording the entity the opportunity to evaluate the claim and, if appropriate, attempt to settle it.

Nonetheless, it is imperative that law enforcement agencies ensure, to the best of their ability, that the provisions of POBRA be afforded their peace officer employees. However, it is important to note that the sanctions do not apply to all violations of POBRA – only to those which the employee can prove were taken maliciously and for the purpose of harming the officer.

As always, we urge that you confer with your agency’s legal counsel on all matters involving legal interpretation… that includes the application of due process rights under POBRA. If you wish to discuss this matter in greater detail, please feel free to contact Martin Mayer or Krista McNevin Jee at 714- 446-1400 or by e-mail at mjm@jones-mayer.com or kmj@jones-mayer.com.