By Michael L. Rains and Jonathan Murphy 4/28/14
A recent decision entitled Quezada v. City of Los Angeles by the Court of Appeal for the Second District reminds us about the collision course created between off-duty cops and Internal Affairs Investigators where shots are fired, the “suspects” are cops who have just left a bar, and the Investigators think they are lying.
In Quezada, the Court affirmed a lower court ruling dismissing the civil suit filed by three Los Angeles Police officers alleging that the Department deprived them of interrogation rights under POBRA during the investigation of an incident involving the off-duty discharge of a firearm. Quezada et al., v. City of Los Angeles, (January 8, 2014, Los Angeles County Super. Ct. No. BC464380), 14 C.D.O.S. 234.
Following their shift, three LAPD officers went to a local bar, where they stayed for three hours, and at least two of them became intoxicated. At some point, shortly after the three had left the bar to go to their cars, a report of shots fired was received describing two suspects matching the description of two of the police officers. When LAPD units responding to the call discovered the three off-duty officers, they were ordered “on-duty” and separated.
The shooting took place after 2:00 a.m., but the three officers were kept at the police station for a prolonged period, then interrogated, and finally released some 19 hours later, at 9:00 p.m. that evening. All three officers were assigned an employee representative, but all three officers requested a specific attorney; however, that attorney was unavailable to represent them in administrative interviews until late in the evening. Internal Affairs refused to postpone the interviews to meet the attorney’s schedule and the officers were interviewed without the assistance of an attorney.
The officers’ lawsuit alleged after being separated, they had gone 30 hours without sleep when their interviews were conducted; they were given little food or water; they did not consent to the searches of their vehicles; they were intimidated by the threat that the investigators would impound their cars and obtain search warrants; their chosen counsel was not available; they had to watch their personal vehicles being searched without their consent; were housed in uncomfortable rooms that were too cold or too hot during interrogations; they were denied their right to eat when they needed to and were limited in the amount of water they had access to; they were not allowed to obtain a change of clothing or take a shower; and they were restricted in their use of restroom facilities. Finally, the officers claimed they were forced to give multiple public safety statements, the last of which was elicited 12 hours after the police had finished their on-scene investigation.
The lawsuit alleged that the Department’s actions violated various rights guaranteed by POBRA: First, the Department violated the requirement 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.’ (Gov. Code, § 3303, subd. (a);)” second, the officers were “subjected to physical and mental hardships during the investigation;” third, “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 in order to protect public safety, but for the purpose of improperly eliciting incriminating information from them;” and fourth, the Department violated their right to have counsel present during interrogations.
The Decision of the Court
The Court of Appeal agreed with the superior court, holding that the officers were not entitled to postpone their interviews to a more convenient time when their chosen attorney would be present. This was because the serious nature of the circumstances (off-duty discharge of firearms while intoxicated) empowered the Internal Affairs Division to conduct its investigation at the earliest opportunity “while the officers’ memories (although hampered by excessive alcohol consumption) were freshest.” The court was not swayed by the fact that the officers had been awake for many hours before the interviews because the cause of this was not due to any unreasonable delay by the department, but because the officers had been on duty for a full shift before they went drinking at the conclusion of their shift.
The Court found that the conditions of the interrogations did not violate the act because “the deprivation was not unreasonable given that plaintiffs did have access to food, water and restrooms during the interrogation process; plaintiffs did not ask for medical attention; and “plaintiffs… offered no evidence that they suffered any adverse mental or physical health consequences as a result of the interrogations.”
The Court also found that requiring the officers to provide three separate public safety statements was not a violation because the “seriousness” of the incident required investigators to work with “haste,” and earlier public safety statements provided by the officers, two of whom were drunk, were “insufficient.” Further, the officers could point to no incriminating evidence elicited from them during the interrogations.
Finally, in regards to POBRA, the Court found that “an officer’s right to be represented by the person of his or her choice is not unlimited” and that the officer “must choose a representative who is reasonably available [and] it is the officer’s responsibility to secure the [attorney’s] attendance” citing Gov. Code § 3303(a) and Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th 1294. The Court again justified this position based on the “seriousness” and the need for Internal Affairs to conduct its investigation “at the earliest opportunity.” Additionally, the Court noted that the officers made little or no effort to find another attorney who was available.
The Court of Appeal for the Second District has not specifically rescinded any rights granted by POBRA, but instead has determined that the “seriousness” of the circumstances – off-duty officers discharging a weapon in public while intoxicated – warranted Internal Affairs to conduct an immediate and thorough investigation. As we read this decision, it seemed the Court was openly hostile toward the officers, essentially saying they got themselves into the predicament to begin with. The Court weighed the alleged POBRA violations by the Department against the serious allegations facing the officers and concluded that the officers did not prove that POBRA violations occurred. In short, in circumstances serious enough to warrant a hasty investigation, this case holds that it may not be a POBRA violation when Department investigators refuse to postpone interviews until the involved officers have adequate sleep and sober minds or until the delayed arrival of the representative of their choosing. The result is not a bright line and will vary from case to case depending on the particular hardships suffered by the officers weighed against the Department’s purported necessity to conduct the interviews expeditiously. Sadly, much of the problems caused by the plaintiffs’ failure to assert their own rights could have been remedied if they had had access to a capable attorney at the time of the incident, even if the attorney was not their first choice.
LDF supported the filing of an amicus brief in support of having the California Supreme Court review the decision in this case. Unfortunately, the Supreme Court has now denied the request filed by the Plaintiff Police Officers for review, thereby making the Court of Appeal decision the legal precedent to be followed in California, unless a different decision on the same issues is reached by a different Appellate District, or the legislature changes existing language in the Peace Officers’ Bill of Rights Act.