Rains Lucia Stern St. Phalle & Silver, PC represents several thousand peace officers throughout California as members of law enforcement labor associations and in our work as panel providers for employee legal defense funds. Our lawyers have unparalleled experience representing peace officers in critical incidents, such as officer-involved shootings, in-custody deaths, and fatal vehicle collisions.
Our attorneys frequently lecture on these topics and have been consulted by policy makers and government officials for assistance in drafting critical incident protocols. We are at the forefront of the legal profession in terms of handling these increasingly high-profile matters. Our attorneys and staff are available 24 hours a day, 7 days a week.
The firm is well-versed in the application, interpretation, and enforcement of the Public Safety Procedural Bill of Rights Act (California Government Code section 3300, et seq.). We have litigated scores of cases concerning the Act, and have aggressively sought court intervention to address violations of the Act. We also routinely enforce the Act by raising issues related to its requirements in administrative appeals. To read the Act in full, click here.
In any criminal or administrative investigation, you have the absolute right to consult a representative of your choice before making any statement, oral or written, regarding any matter that could lead to punitive action.
For an exclusively administrative matter, you may consult with your Association representative. However, you should talk only to someone from a law office for any matter that has potential criminal liability, such as any use of force. There is no confidential communication privilege between you and an Association representative.
Shootings, in-custody deaths, significant uses of force, and other “critical incidents” should always be viewed as criminal investigations, and the involved officer should speak only with a representative from this office about the incident. If a fellow officer is involved in a critical incident, you may assist him/her by lending emotional support, attending to personal needs, and calling for legal representation, but do not discuss the incident. There is arguably no confidential communication privilege in such conversations. However, officers should disclose information relating to suspect description, direction of flight, direction of shots, and other information important to officer/public safety.
If ordered to give a statement without your requested representative, demand that it be recorded and read the following:
“I have been refused the right to have a representative of my choice. I understand that I am being ordered to make a report or answer questions and that if I do not comply with the order, I may be disciplined for insubordination. Therefore, I have no alternative but to abide by the order. However, by so doing, I do not waive my Constitutional rights to remain silent under the Fifth and Fourteenth Amendments to the United States Constitution, and the protections of the California Constitution, and the protections afforded me under case law. Furthermore, by submitting to this coerced interview, I am not waiving any right afforded me under the Peace Officer’s Bill of Rights Act.” Government Code Section 3300, et seq.
BILL OF RIGHTS
The two most significant benefits conferred on peace officers covered by the Peace Officer’s Procedural Bill of Rights are:
• Right to representation in any interrogation which could lead to punitive action.
• Right to appeal punitive action.
WHAT IS PUNITIVE ACTION?
Any of the following are considered Punitive Action:
• Transfer for purpose of punishment
• Reduction in salary
• Written reprimand
• Findings that may lead to adverse employment consequences
Before interrogation for something that could lead to punitive action, the department must tell you:
1. That you are under investigation for possible misconduct. City of Los Angeles v. Superior Court (Labio).
2. The name and command of the investigator(s) [3303(b)].
3. The nature of the investigation (with enough specificity to enable you to decide whether you want representation) [3303(c)].
4. Constitutional Rights (if the matter may result in the filing of criminal charges) [3303(h)].
5. A “Lybarger” or “Garrity” warning that orders you to talk or face disciplinary action for refusing.
BEFORE INTERROGATION YOU HAVE THE FOLLOWING RIGHTS:
1. To request a representative of your own choosing.
2. To obtain and use your own tape recorder. (Turn it on ASAP.)
3. To review any tapes or notes of prior interviews. (Ask for help from your representative.)
THINGS THE DEPARTMENT MAY NOT DO
The department may not take the following actions:
• Interrogate you off-duty without compensation.
• Use more than two interrogators at one time.
• Conduct an unreasonably lengthy interrogation.
• Use offensive language, make threats, or promise rewards.
• Subject you to news media exposure without your consent.
• Provide your home address/phone number to news media without your consent.
• Provide news media your photo without your consent.
• Refuse to allow you to attend to personal physical necessities.
• Compel you to take a polygraph test. (Never volunteer to take a polygraph test.)
• Discipline you for refusing a polygraph test.
• Make a note or comment on your refusal to take a polygraph test.
The department can search your locker under the following conditions:
• If they tell you.
• If you are present.
• If you give consent.
• With a search warrant.
CONSULT LEGAL COUNSEL
You may have additional rights. Your rights are described in the following resources:
• Collective Bargaining Agreement (MOU)
• Personnel/Civil Service Rules and Regulations
• Department Policy/Procedural Manuals
• Employee Handbooks
• Local Ordinance
• U.S. and California Constitutions
DID YOU KNOW?
The following facts are important to remember:
• Penal Code §135.5 Misdemeanor to destroy, tamper with officer files, or conceal information during IA to harm officer.
• Penal Code §29805(c) 10 yr. Prohibition to possess firearm for misdemeanor convictions including §§240, 242, 273.5, 417 PC etc.
• 18 U.S.C. 922 (g)(9), Federal Gun Control Act Any misdemeanor conviction for domestic violence = lifetime prohibition to possess firearm.
• Penal Code §632 You cannot secretly tape record “confidential communications”, i.e., supervisor, co-workers, etc.
• Penal Code §502 Misdemeanor to access computers without permission. i.e. LOCAL, CLETS, DMV.
• Civil Code §47.5 Officer has right to sue person who made false complaint.
• Civil Code §56.10 Department doctor (includes psychologist) cannot release information to Department without your signed release except “fit or not fit” for duty. Pettus v. Cole (1996)
• Civil Code §5620(b) You cannot be disciplined for failure to sign a release.
• Holliday v. City of Modesto (1991) Employer must bargain on drug testing policy.
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