In addition to the dangers of the job, cops in California have to deal with an increasing number of threats from other corners – IA investigations, civil rights lawsuits, even criminal allegations.
We’ve seen it from the inside. We can use our experience to help you.
Our California Criminal Defense Lawyers have spent years in the criminal justice system.1 We’ve been cops and prosecutors. Now we represent people accused of crimes (including officers and deputies) and help them resolve discipline issues.
This article provides an introduction to the ways police can come under attack for alleged misconduct. We discuss the topic of the criminal defense of police officers for alleged crimes. If you have questions after reading it, we invite you to call us for a consultation.
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Police are not immune from legal problems. They get in trouble, too. Sometimes unjustly.
When they do, they face criminal and civil liability in addition to administrative discipline.
Our law firm has particular expertise in the criminal defense of California police officers.
Murder is among the most serious crimes a cop – or anyone – can be charged with. But it happened to former BART transit officer Johannes Mehserle in connection with an on-duty shooting death in Oakland. He claimed in defense that he mistook his gun for his taser.
Mehserle was found guilty of involuntary manslaughter by a Los Angeles jury and awaits sentencing.
For Police Officers Stacey Koon and Laurence Powell of the infamous Rodney King case, the charges were federal. They went to prison for federal criminal civil rights violations under 18 U.S.C. Sec. 242 after being acquitted of state ADW charges.2
The California Penal Code specifically criminalizes unlawful assault by a public officer under color of authority.3
Off-duty misconduct also can land a police officer at the defendant’s table. Recently we’ve seen California cops charged with a range of alleged crimes including drug dealing, driving under the influence and rape.
There’s also possible civil liability to contend with. Alleged victims of police misconduct can sue for state torts like assault and battery and emotional distress.
Then there are Section 1983 lawsuits.
Take a recent Southern California case involving the use of a Taser X26 during a traffic stop. The Ninth Circuit found that the tasing at issue constituted excessive force under the circumstances, in violation of the plaintiff’s Fourth Amendment constitutional right against unreasonable search and seizure.
But Officer MacPherson caught a break in the end. The court decided that he enjoyed qualified immunity for his actions given the uncertain state of the law surrounding tasers when the incident occurred. (The court initially held otherwise but ended up issuing a superseding opinion on the qualified immunity issue.)4
You can read more about the MacPherson case in our related article Tasers and Excessive Force.
Need for fair trials
All this goes to show that there is no shortage of potential criminal liability when it comes to cops. And that’s not even including administrative discipline.
Our California Criminal Defense Lawyers have been in the trenches of law enforcement. As former police officers and prosecutors, we appreciate the difficult job cops have.
We know that police officers have a right to defend themselves – including with the use of reasonable force – in lawful discharge of that job.5
We understand that police officers sometimes get on the wrong end of a grudge. It is not unheard of for a disgruntled suspect to claim planted evidence or false imprisonment.
We also understand that officers make mistakes.but still might deserve to wear the badge.
In today’s age of media activism, when cops can be “convicted” before a jury even hears the evidence, we know how important it is to keep a level head and vigilantly maintain the presumption of innocence.
Whether or not you ever see the inside of a courtroom in connection with alleged misconduct, you might face discipline within the department. You could be suspended or lose your job.
Internal Affairs (IA) is there to police the police, after all.
Within the Los Angeles County Sheriff’s Department, for example, the Internal Criminal Investigations Bureau investigates criminal allegations against deputies for possible referral to the district attorney’s office. The Internal Affairs Bureau investigates misconduct for possible administrative discipline.6
Last year the LAPD’s Internal Affairs Group was hard at work investigating racial profiling by officers. In an apparent mistake, the Los Angeles Police Commission disclosed to the media the names of over 250 officers being investigated. (Discipline files are confidential under law and policy.)
Internal investigations are a critical part of helping maintain police department integrity. But when it comes to interrogations, officers have rights provided by the Public Safety Officers Procedural Bill of Rights.8
“One thing POBRA does is protect cops from being taken advantage of,” explains California Criminal Defense Attorney Neil Shouse, former deputy DA in Los Angeles.
POBRA sets out conditions under which interrogations must take place if they might lead to “punitive actions” like dismissals or demotions. The officer must be informed of the name and rank of the interrogating officers and the nature of the investigation.
The interrogation must be for a reasonable period and conducted at a reasonable hour.9
If it is “deemed” that the officer may be charged with a criminal offense, the officer must be immediately informed of his or her constitutional rights.
The Lybarger case clarified that an officer must be informed that although he or she can be disciplined for insubordination in exercising the right to remain silent, any statements made under threat of discipline can’t be used against the officer in a subsequent criminal proceeding.10
Police officers also have rights in connection with disciplinary actions. Procedures differ from department to department, and within state and local agencies. But generally speaking, an officer has due process rights to a hearing and review on the matter.
A state correctional officer can request a hearing before the State Personnel Board, for example, while a Los Angeles deputy sheriff can take his or her appeal to the Los Angeles County Civil Service Commission.
One ground for police officer discipline is a conviction of a crime. For state employees, felonies and misdemeanor convictions involving moral turpitude count.11
In terms of the LAPD, Section 805.25 of the LAPD’s Manual defines misconduct to include the commission of a criminal offense.
Unfortunately, police officers can be the target of unsubstantiated accusations and unjustified allegations. This is one of the lingering consequences of scandals like Ramparts.
Officers who abuse their power should be held accountable. Good cops are the first to agree.
But at the same time, we need to make sure the whole thing doesn’t backfire. Police officers deserve their day in court just like everyone else.
We understand the reality of the streets and the parameters of the law. We know how things really go down in IA and DA’s offices across the state.
When bad things happen to good cops, we know how to stand up for your side of the story.
Our California Criminal Defense Lawyers Can Help.
If you or a loved one is charged with a crime and are a police officer and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
1Our California Criminal Defense Lawyers have local offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, San Diego, San Francisco, Torrance, Van Nuys, West Covina, and Whittier.
2Koon v. United States, 518 U.S. 81 (1996) (The Supreme Court described the case in an opinion related to sentencing issues: “Koon, Powell, Briseno, and Wind were tried in state court on charges of assault with a deadly weapon and excessive use of force by a police officer. The officers were acquitted of all charges, with the exception of one assault charge against Powell that resulted in a hung jury. The verdicts touched off widespread rioting in Los Angeles. More than 40 people were killed in the riots, more than 2,000 were injured, and nearly $1 billion in property was destroyed. On August 4, 1992, a federal grand jury indicted the four officers under 18 U.S.C. 242 charging them with violating King’s constitutional rights under color of law. Powell, Briseno, and Wind were charged with willful use of unreasonable force in arresting King. Koon was charged with willfully permitting the other officers to use unreasonable force during the arrest. After a trial in United States District Court for the Central District of California, the jury convicted Koon and Powell but acquitted Wind and Briseno.”)
3California Penal Code Section 149 PC provides: “Every public officer who, under color of authority, without lawful necessity, assaults or beats any person, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.”
4Bryan v. MacPherson, — F.3d —, 2010 WL 2431482 (Case No. 08-55622) (“We affirm the district court in part because, viewing the circumstances in the light most favorable to Bryan, Officer MacPherson’s use of the taser was unconstitutionally excessive. However, we reverse in part because the violation of Bryan’s constitutional rights was not clearly established at the time that Officer MacPherson fired his taser at Bryan on July 24, 2005.”)
5California Penal Code Section 835a provides: “Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance. A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance.”
6See 20th Semiannual Report on the Los Angeles County Sheriff’s Department by Special Counsel Merrick J. Bobb and Staff and Police Assessment Resource Center (PARC), August 2005, p. 47. The report found in the period studied that the LASD appeared to put more emphasis on internal discipline than on criminal referrals, perhaps due in part to a lack of interest in prosecuting on the part of the district attorney’s office. (“The quality of the small number of investigations conducted by ICIB is generally good, and we reviewed many investigation files in which ICIB investigators did exemplary work in interviewing witnesses and gathering evidence to present solid cases to prosecutors or to correctly determine no probable cause exists to believe a crime occurred. Nonetheless, we conclude that the Department’s proactive measures to uncover criminal misconduct are insufficient. Generally, the Department focuses its attention and resources on administrative investigations. There appears to be a departmental preference for getting bad apples to resign in lieu of seeking prosecution. One reason for this is the seeming futility of criminal investigations: the District Attorney declines to prosecute all but a handful of cases the LASD submits to it. While the LASD’s underutilization of criminal investigations may be both logical and pragmatic, it ultimately may disserve both the LASD and the public interest.” Id at 41)
7Id at 47.
8See California Government Code Section 3300, et seq.
9California Government Code Section 3303 provides: “When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions. For the purpose of this chapter, punitive action means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment. (a) The interrogation shall be conducted at a reasonable hour, preferably at a time when the public safety officer is on duty, or during the normal waking hours for the public safety officer, unless the seriousness of the investigation requires otherwise. If the interrogation does occur during off-duty time of the public safety officer being interrogated, the public safety officer shall be compensated for any off-duty time in accordance with regular department procedures, and the public safety officer shall not be released from employment for any work missed. (b) The public safety officer under investigation shall be informed prior to the interrogation of the rank, name, and command of the officer in charge of the interrogation, the interrogating officers, and all other persons to be present during the interrogation. All questions directed to the public safety officer under interrogation shall be asked by and through no more than two interrogators at one time. (c) The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation. (d) The interrogating session shall be for a reasonable period taking into consideration gravity and complexity of the issue being investigated. The person under interrogation shall be allowed to attend to his or her own personal physical necessities. (e) The public safety officer under interrogation shall not be subjected to offensive language or threatened with punitive action, except that an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action. No promise of reward shall be made as an inducement to answering any question. The employer shall not cause the public safety officer under interrogation to be subjected to visits by the press or news media without his or her express consent nor shall his or her home address or photograph be given to the press or news media without his or her express consent. (f) No statement made during interrogation by a public safety officer under duress, coercion, or threat of punitive action shall be admissible in any subsequent civil proceeding. This subdivision is subject to the following qualifications: (1) This subdivision shall not limit the use of statements made by a public safety officer when the employing public safety department is seeking civil sanctions against any public safety officer, including disciplinary action brought under Section 19572. (2) This subdivision shall not prevent the admissibility of statements made by the public safety officer under interrogation in any civil action, including administrative actions, brought by that public safety officer, or that officer’s exclusive representative, arising out of a disciplinary action. (3) This subdivision shall not prevent statements made by a public safety officer under interrogation from being used to impeach the testimony of that officer after an in camera review to determine whether the statements serve to impeach the testimony of the officer. (4) This subdivision shall not otherwise prevent the admissibility of statements made by a public safety officer under interrogation if that officer subsequently is deceased. (g) The complete interrogation of a public safety officer may be recorded. If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered in the officer’s personnel file. The public safety officer being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation. (h) If prior to or during the interrogation of a public safety officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights. (i) Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation. The representative shall not be a person subject to the same investigation. The representative shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from the officer under investigation for noncriminal matters. This section shall not apply to any interrogation of a public safety officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety officer, nor shall this section apply to an investigation concerned solely and directly with alleged criminal activities. (j) No public safety officer shall be loaned or temporarily reassigned to a location or duty assignment if a sworn member of his or her department would not normally be sent to that location or would not normally be given that duty assignment under similar circumstances.”
10Lybarger v. City of Los Angeles, 40 Cal.3d 822, 828 (1985) (“We must construe the act in such a manner as to encourage full cooperation with police department investigations of criminal offenses, so long as fundamental constitutional rights are protected in the process. Such a balancing of interests is achieved by holding that, although the officer under investigation is not compelled to respond to potentially incriminating questions, and his refusal to speak cannot be used against him in a criminal proceeding, nevertheless such refusal may be deemed insubordination leading to punitive action by his employer. Seen in this light, the right to remain silent is not a ‘hollow’ right: It may be exercised without fear of penal sanction..In other words, appellant should have been told, among other things, that although he had the right to remain silent and not incriminate himself, (1) his silence could be deemed insubordination, leading to administrative discipline, and (2) any statement made under the compulsion of the threat of such discipline could not be used against him in any subsequent criminal proceeding.”)
11California Government Code Section 19572 (k) provides: “Each of the following constitutes cause for discipline of an employee, or of a person whose name appears on any employment list.(k) Conviction of a felony or conviction of a misdemeanor involving moral turpitude. A plea or verdict of guilty, or a conviction following a plea of nolo contendere, to a charge of a felony or any offense involving moral turpitude is deemed to be a conviction within the meaning of this section.”