When ordered to appear for an internal affairs interview as a subject officer, it is never a level playing field. Subject officers are usually interviewed last, meaning the investigator already knows what witnesses have said, what the videos purport to reveal, and what the complainant has claimed. Many employing agencies do not allow officers access to anything to refresh their recollection prior to an interview, or, what access agencies do allow is not sufficient to paint a full picture as to what transpired in a given incident.
However, officers should be aware that they are entitled to significant discovery rights if they are compelled to attend a second, subsequent interrogation. In Santa Ana Police Officers Association v. City of Santa Ana (2017) 13 Cal.App.5th 317, the court of appeal held that after an officer has been interrogated by their department, Government Code section 3303(g) requires that they be provided with “all reports and complaints concerning the alleged misconduct” prior to any subsequent interrogation.
It is important for officers to assert this right prior to a subsequent interrogation, as the term “reports and complaints” has been given an expansive definition. In San Diego Police Officers Association v. City of San Diego (2002) 98 Cal.App.4th 779, the court of appeal held that “reports and complaints” encompass all materials that may contain reports of or complaints concerning the misconduct that is the subject of the investigation. This includes pre-interrogation access to the investigators’ notes or tape-recorded interviews. (Id. at p. 784 [“[t]o the extent that an investigator’s notes or tape-recorded interviews may contain reports or complaints made by other persons concerning the misconduct, [Government Code section 3303(g)] requires their production.”])
Therefore, under Santa Ana, if a subject officer is compelled to attend a second interrogation by their employer for the same administrative investigation, that officer is entitled to receive “all reports and complaints” “concerning the misconduct” in advance of the second interrogation. Thus, prior to the follow-up interview, that officer should demand access to all audio recorded statements of witnesses or fellow subject officers, body camera video germane to the alleged misconduct, surveillance video, the investigator’s notes, any reports concerning the misconduct, and the complaint itself.
The rights and protections afforded under section 3303(g) apply whenever an officer is made to appear for an interrogation that could lead to punitive action by order of their employer, which includes interrogations conducted by local police commissions and civilian review boards. Thus, where an officer has been interviewed by their department, and a police commission or civilian review board seeks to compel another, subsequent statement from the officer concerning the same incident giving rise to the misconduct allegations, that officer has a right to receive the full panoply of post-interrogation discovery discussed in Santa Ana and San Diego.
The rights afforded under section 3303(g) are important, and can greatly assist an officer in refreshing their recollection and otherwise providing greater insight into the often spurious allegations that have been made against them. For these same reasons, this right should be liberally enforced and jealously guarded.
About the author
Justin E. Buffington is a partner with the firm’s Legal Defense Group. He represents clients in criminal and administrative matters, and responds to critical incidents.
