Vol. 23 No. 18- Officers Have No “Right” To Consult Collectively With Legal Counsel Following A Critical Incident

November 7, 2008

The California Court of Appeal, Second Appellate District, recently ruled that officers do not have a constitutional or statutory right to confer, as a group, with legal counsel following an officer involved shooting.

In the case of the Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, (2008) 166 Cal. App. 4th 1625, the Court held that a policy of the Los Angeles County Sheriff’s Department (LASD), which permits “members [of the department] who were either involved in or witnessed [a deputy involved shooting] may consult individually with legal counsel or labor representatives … [but] … shall not consult with legal counsel and or labor representatives collectively or in groups…,” prior to being interviewed.

Officers Can Consult With Attorneys

The Association for Los Angeles Deputy Sheriffs (ALADS) challenged that policy claiming that the trial court’s denial of its motion for a preliminary injunction implied that the policy “not only prohibits deputies from meeting in a group with one lawyer, but also prohibits deputies from consulting separately with more than one lawyer from the same law firm.”  The Court of Appeal disagreed, stating that “multiple deputies may consult with the same lawyer (in individual sessions) or with different lawyers from the same law firm.”

The Court noted that the Department’s policy “expressly protects a deputy’s right to meet with counsel individually.”  Furthermore, the Court held that “an official interrogation following an officer-involved shooting incident ‘occurs at a crucial time’ and that, correspondingly, the officer should have legal representation in the event he or she so desires counsel.”

LASD’s Restriction is Reasonable

ALADS also claimed that the restriction on multiple deputies meeting with legal counsel collectively was unreasonable, and that the lower court misread the decision in Upland POA v. City of Upland, (2003) 111 Cal. App.

4th 1294, when it relied on it to conclude the LASD policy was reasonable.  However, this Court noted that the Upland court “ruled that a police officer’s choice of counsel must reasonably accommodate his or her department’s interests in conducting a prompt and efficient investigation of an officer-involved shooting incident.”  Furthermore, stated the Court, Upland “permits a police agency to impose ‘reasonable’ limits on a police officer’s statutory right under POBR to consult with counsel of his or her choosing during an interrogation regarding an officer-involved shooting.”

The Court continued, stating that “the trial court’s assessment of reasonableness was not incorrect as a matter of law and, thus, the court’s decision to deny a preliminary injunction (preventing the application of the LASD policy) should not be reversed.”

The Department’s policy, held the Court, “only precludes an officer from getting together in a group with other officers and a lawyer, the objective of the policy being to assure the collection of accurate witness accounts before the recollection of witnesses can be influenced by the observation of other witnesses.”


This case reaffirms the long established principle that officers involved in critical incidents, such as an officer involved shooting, have the right to confer with legal counsel prior to giving statements to their departments regarding what occurred.  However, there is no right to meet collectively with other involved officers and the attorney, and jointly discuss the incident, prior to each individual officer/witness being interviewed.

In order to ensure the ability to enforce such a procedure, a policy should be established and implemented. If that results in a change in past practice, it will require that the agency first meet and confer with its employees’ bargaining unit.

There are differing opinions regarding the separating of officers under such circumstances.  What is accomplished as a result of this decision is that each agency can reach its own conclusion as to how it will proceed.  As such, and as we always note, it is important to secure appropriate legal advice and guidance, from your agency’s legal counsel, prior to an incident occurring.  Trying to establish a procedure after the fact is, all too often, too little, too late.

Should you wish to discuss this case in greater detail, please feel free to contact me at (714)   446 – 1400 or via e-mail at mjm@jones-mayer.com.