By RPLG Founding Partner Jon Holtzman and Senior Associate Ryan McGinley-Stempel
In 1991, the California Supreme Court recognized that “[n]othing can more swiftly destroy the community’s confidence in its police force than its perception that concerns raised about an officer’s honesty or integrity will go unheeded or will lead only to a superficial investigation.” [1] Three decades later, the Court’s pronouncement has proved particularly prophetic as the public has demanded greater scrutiny in the wake of several high-profile incidents involving police misconduct.
But in many instances, state and federal law still poses a hindrance to such scrutiny. At the federal level, the discussion revolves around the doctrine of qualified immunity. But in California, perhaps the biggest impediment to increased scrutiny of policing takes the form of the Public Safety Officers Procedural Bill of Rights Act (more commonly known as “POBRA”), which provides officers with a litany of procedural protections in connection with investigations and the imposition of discipline. Indeed, despite the California Supreme Court’s admonition three decades ago about the importance of adequately investigating complaints about officer honesty or integrity, intermediate appellate courts have at times construed POBRA far too broadly, making it difficult for local public agencies and citizen oversight boards to fully investigate alleged misconduct.
A recent appellate decision involving the City of Oakland and its civilian police oversight board recently bucked this trend, opting instead for a more faithful interpretation of POBRA’s statutory language and purpose that permits local agencies to withhold confidential materials from officers under investigation until the investigation is fully completed so that such investigations may be completed more promptly, thoroughly, and fairly. Although the issue will likely not be finally settled until the California Supreme Court weighs in, this decision provides a roadmap for how public agencies and civilian oversight boards can work together to maintain the community’s confidence while fully investigating and disciplining police misconduct.
POBRA’s Restrictions on Interrogating Officers Under Investigation
POBRA “sets forth a list of basic rights and protections which must be afforded all peace officers by the public entities which employ them.” [2] When a public agency interrogates an officer in connection with an investigation that could lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer, POBRA requires that the agency comply with certain conditions. [3]
One of those conditions entitles officers to a tape recording of their interrogation “prior to any further interrogation at a subsequent time” as well as “a transcribed copy of any notes made by a stenographer” and “any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential.” [4]
In Pasadena Police Officers Assn. v. City of Pasadena, [5] the California Supreme Court held that this provision does not grant pre-interrogation discovery rights to a peace officer who is the subject of an internal affairs investigation. [6] The Court reasoned that “in allowing an officer under administrative investigation access to reports and complaints, the Legislature intended the right to such access to arise after, rather than before, the officer’s interrogation.” [7]
In Santa Ana Police Officers’ Association v. City of Santa Ana, [8] however, the Fourth District Court of Appeal concluded that once an initial interrogation has occurred, reports and complaints “must be produced prior to any further interrogation.” [9]
Oakland Police Officers Association v. City of Oakland
In Oakland Police Officers Association v. City of Oakland, [10] a citizen complaint regarding Oakland police officers’ execution of a welfare check resulted in an internal investigation in which the department cleared the officers of misconduct. The Oakland Community Police Review Agency, a civilian oversight agency with independent authority to investigate claims of police misconduct, conducted its own investigation. Before the civilian oversight agency formally interrogated the officers, however, the officers demanded copies of all “reports and complaints” prepared or complied by investigators pursuant to POBRA and the City of Santa Ana decision. The civilian oversight agency agreed to provide recordings and transcribed notes from the prior interrogations conducted by the department but refused to produce any other materials and insisted that the officers either sit for further investigations or face possible punitive action. [11]
The officers submitted to further interrogations, which led the civilian oversight agency to find that the officers had violated the citizens’ civil rights by re-entering their residence without a warrant or exigent circumstances and that the officers had given “misleading statements to investigators, omitted material details, and worked together in an attempt to conceal their misconduct.” [12] Accordingly, the civilian oversight agency sustained multiple findings of misconduct against the officers and recommended that the department implement certain changes to its policies regarding searches and seizures.
In the meantime, the officers and the police union filed an action challenging the civilian oversight agency’s refusal to provide the demanded materials under POBRA. The trial court, feeling bound by the City of Santa Ana case, ordered the City to disclose the materials in question, disregard the interrogation testimony gathered from the officers in violation of POBRA, and refrain from holding disciplinary hearings for the officers until final judgment was entered in the court action.
On appeal, however, the First District parted ways with the City of Santa Ana decision and reversed, explaining that “mandatory disclosure of complaints and reports prior to any subsequent interrogation of an officer suspected of misconduct is inconsistent with the plain language of the statute and undermines a core objective under POBRA—maintaining the public’s confidence in the effectiveness and integrity of law enforcement agencies by ensuring that internal investigations into officer conduct are conducted promptly, thoroughly, and fairly.” [13] As the court explained, “[t]o require an independent investigative agency to disclose notes, reports or complaints in its possession before it can interrogate police officers itself would hamstring investigators by allowing officers to alter their testimony in light of the disclosures, casting doubt on the integrity and seriousness of the investigation.” [14]
Takeaways
Given the First District’s express rejection of the Fourth District’s City of Santa Ana decision, it seems likely that the California Supreme Court will need to weigh in to resolve this conflict. In the meantime, trial courts “can and must make a choice between the conflicting decisions.” [15]
We think the First District’s City of Oakland decision is more likely to be sustained by the California Supreme Court because it has the better reading of POBRA’s statutory text and purpose of ensuring that internal investigations are conducted promptly, thoroughly, and fairly. Indeed, as the First District recognized, the alleged discrepancies in the officers’ accounts in that case “may not have materialized, and other avenues of investigation left undeveloped, had the CPRA been required to disclose the requested materials under the rule announced by the City of Santa Ana court.” [16]
So what should public agencies seeking to comply with the City of Oakland case do? The key takeaway is that confidentiality, not timing, is the touchstone for determining public agencies’ obligations to disclose notes, reports, and complaints under POBRA in connection with further interrogations. [17] “An investigating agency may deem such materials confidential if it finds that doing so satisfies a statutory basis for confidentiality (e.g., Evid. Code § 1040-1041), or if disclosure would otherwise interfere with an ongoing investigation.” [18] If “punitive action is contemplated at the conclusion of an investigation, the agency must decide whether to de-designate and disclose any confidential materials to the officer or decline to bring misconduct charges on the basis of those materials.” [19] And public agencies may not enter such confidential materials into the officers’ personnel files unless they are de-designated. [20]
Although it is a small step, the City of Oakland case carries significant promise for ensuring that local public agencies and civilian oversight boards can fully investigate allegations of police misconduct to ensure integrity in policing and maintain community trust.