As a cop, you’re trained to investigate crimes and put away bad guys.
But what happens when it’s you who’s accused of being the bad guy? Where can you turn for protection when Internal Affairs and criminal prosecutors come calling?
Our California internal affairs defense attorneys can help. We’re former cops and prosecutors, so we know how the whole system works. Now we represent people accused of crimes.including police officers accused of either criminal or administrative misconduct.1
In this article, we discuss the law of IA investigations in California. We cover:
- 1. How do internal affairs investigations work?
- 2. What rights do cops have in IA investigations?
- 3. How can an internal affairs defense attorney help?
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group for a consultation.
You might also be interested in our related articles Criminal Defense of Police Officers and California State Employees and Criminal Convictions.
1. How do internal affairs investigations work?
Internal affairs investigations are law enforcement agency investigations into possible misconduct and/or criminal activity by their officers.
Administrative versus criminal investigations
Administrative internal affairs investigations focus on whether an officer has engaged in noncriminal work-related misconduct.
“They are internal matters that can result in termination, suspension or other discipline,” explains former Banning Police Department sergeant and California internal affairs investigations defense lawyer Michael Scafiddi.
Criminal IA units examine whether an officer has committed a crime. They can result in criminal prosecution and prison time.
Let’s look at a few examples to see the difference:
Example: A Southern California resident files a complaint against Officer Carroll alleging harassment and foul language. This is a disciplinary matter, not a criminal one. The department’s internal IA division will investigate to determine if Officer Carroll violated department rules.
Change the facts: Officer Carroll is suspected of stealing and selling narcotics obtained during the course of his peace officer duties. The allegations are criminal in nature, so the department’s criminal IA division will investigate it.
To avoid tainting a possible prosecution, any administrative investigation arising out of the alleged police misconduct is generally handled by a separate unit or postponed until after the criminal investigation is finished.2
Investigation by other entities
When it comes to alleged cop misconduct, other entities besides the officer’s employing agency might become involved. An officer can anticipate multiple and/or consecutive investigations for serious matters.
Federal officials investigate when there is a possible federal criminal civil rights violation, as happened in the Rodney King beating case.
By policy, the Los Angeles County District Attorney’s Office investigates all cases of officer-involved shootings and in-custody deaths.3
Further, “police commissions, inspector generals and other watchdog entities provide additional oversight,” explains California criminal defense lawyer Jim Hammer, former head of the San Francisco District Attorney’s Office homicide unit and a current member of the San Francisco Police Commission.
2. What rights do cops have in IA investigations?
Depending on the circumstances, a cop undergoing IA interrogation can look to several statutory and constitutional provisions for protection.4
The Public Safety Officers Procedural Bill of Rights – a California statute often referred to as “POBRA” – applies during administrative internal affairs investigations.
POBRA sets out conditions with which an employing law enforcement agency must comply when it conducts an interrogation that might lead to “punitive action” in the form of dismissal, demotion, suspension, salary reduction, written reprimand, or transfer for punishment purposes.5
POBRA includes the following protections:
- The interrogation must generally be conducted at a reasonable hour, preferably while the officer is on duty, and for a reasonable period.
- The officer being interrogated must be informed of the rank, name and command of the officer in charge and of others present.
- Questions must be asked by no more than two interrogators at a time and the officer being interrogated must not be subjected to offensive language.
- Prior to the interrogation, the officer must be informed of the nature of the investigation.
- The officer being interrogated can bring his or her own recording device to the interrogation.
- Whenever an interrogation focuses on matters likely to result in punitive action, the officer can be represented by a union representative or California internal affairs investigation defense lawyer.
- If prior to or during the interrogation it is deemed that the officer may be charged with a crime, the officer must immediately be informed of his or her constitutional rights.6
POBRA applies to investigations conducted by an officer’s employing agency that are administrative in nature. It does not apply where an investigation is “concerned solely and directly with alleged criminal activities.”
Let’s look at two examples.
Example: During a Ventura County Sheriff’s Department Internal Affairs Unit investigation into possible misconduct by a deputy sheriff (conducting an extramarital affair while on duty), an investigator learns that the deputy might be involved in embezzlement of firearms.
Embezzlement is criminal and not administrative in nature, so the investigator turns the allegations over to the department’s Major Crimes Bureau.
MCB investigates and the suspect is implicated in a sting operation. MCB detectives arrest the deputy, read him his Miranda rights and inform him of the criminal nature of the interrogation. The deputy waives his rights and makes an incriminating statement.
POBRA does not apply to this criminal investigation, even though VCSD is the deputy’s employing agency. A law enforcement agency can police itself and in this case a separate unit conducted the criminal investigation.7
Correctional officers arrive at work one morning and the warden tells them that DOJ will be conducting a criminal investigation and that they are instructed to cooperate under threat of insubordination.
The CO’s are told they are not free to leave and are interviewed by DOJ on prison grounds. They are not permitted to confer with a California internal affairs defense attorney. Nor are they informed as to whether they are witnesses or targets of the investigation until the interrogations are underway.
POBRA protections do apply in this “hybrid” case. Even though the interviews are conducted by an outside law enforcement agency and are potentially criminal in nature, this is a joint operation with significant warden involvement.8
2.2. The Lybarger admonishment
Just like any employee, a cop has to follow orders from the boss – even during a California internal affairs investigation. If a commanding officer orders a cop to answer a question and the cop stays silent, the cop can be disciplined for insubordination.
However, the cop still retains his or her Fifth Amendment constitutional right against compelled self-incrimination.
The United States Supreme Court has reconciled these competing ideas by clarifying that the cop in this circumstance has immunity as to “compelled” statements. Under the Garrity/Lefkowtiz rule, a cop can be disciplined for standing silent in the face of an order, but any subsequent compelled statement (and evidence derived from it) cannot be used against the cop in a criminal prosecution.9
POBRA, as interpreted by the California Supreme Court, goes a step further. If it is “deemed” during an internal affairs investigation that an officer might face criminal charges, he or she must be given Miranda warnings. If the officer stays silent after being ordered to cooperate, the officer must be admonished that:
- his or her silence can be deemed insubordination, leading to administrative discipline, and
- any statement made under the compulsion of the threat of such discipline cannot be used against him or her in any subsequent criminal proceeding.10
It is important to note that prosecutors still might get access to compelled internal affairs statements.11 Even if they do, however, they are not supposed to “use” them in a prosecution.12 They will need to show that evidence against the officer came from an independent source as opposed to the immunized IA statement.
For a discussion of defendant access to police officers discipline files, please see our related article Pitchess Motions. A Pitchess motion is where the defendant in a criminal case seeks to access an officer’s personnel file. In these cases, the defense hopes to find witnesses who filed prior complaints against the officer…with the hopes of using these witnesses to impeach the officer at trial.
2.3. Constitutional protections
Peace officers don’t have a “watered-down version of constitutional rights.”13 In addition to the Fifth Amendment constitutional right against self-incrimination, officers have a Fourth Amendment constitutional right against unreasonable search and seizure, and a Sixth Amendment constitutional right to counsel.
This means that cops can’t be arrested without probable cause, subjected to unreasonable detention, denied access to counsel or otherwise forced to endure conscience-shocking treatment at the hands of law enforcement.
In the aftermath of the Ramparts scandal, for example, three officers brought a Section 1983 lawsuit in which they claimed their constitutional rights were violated during the investigation. The jury agreed that the officers had been arrested without probable cause and awarded each one five million dollars in damages.14
But things can get tricky when it comes to interrogations of cops by their employers. It may not be clear if the employing law enforcement agency acts as an employer or enforcer. An officer can thus hover uncomfortably in a gray area that exists between a California internal affairs investigation and an arrest.
Let’s look at a recent Ninth Circuit case:
Example: A man is allegedly assaulted by Los Angeles Sheriff’s Department deputies. The deputies are told to return to the station for questioning, but are never placed under arrest or searched. Normal “suspect” protocol is not followed. The deputies are allowed to talk to each other. They complete overtime slips and later receive overtime pay.
On the other hand, they are told they are the focus of a ‘criminal investigation.’ The captain addresses them in ‘harsh’ manner – announcing that he knows one of them used excessive force, are covering up and that the only way to avoid criminal charges is to come forward. LASD criminal IA investigators ask them whether they will give a statement.
No deputy is asked to waive his or her rights and each declines to give a statement. The deputies are reassigned from street patrol to station duties and, a year later, the deputies are ordered to give compelled statements. They comply and are cleared of the charges.
The deputies bring a lawsuit against the department for constitutional rights violations, but the court doesn’t see things their way.
The deputies were not impermissibly “seized” just because their employer (a law enforcement agency) ordered them to remain at a location and be questioned. There was no Fifth Amendment violation, either, as the deputies were not compelled to answer internal affairs questions or asked to waive their rights against self-incrimination. No compelled statements were used against the deputies, anyway.
A dissenting judge came out on the side of the deputies, observing: ‘In such situations, the employer must not play on this ambiguity to the disadvantage of the employee; rather, it must clarify whether it is questioning the employee in its capacity as an employer or as a law enforcer.’15
3. How can an internal affairs defense attorney help?
Chances are, you’re familiar with at least one instance in which a good criminal defense lawyer helped a suspect avoid trouble. Why deny yourself the same benefit if the tables are turned?
At Shouse Law Group, we still keep cop hours – and one of us is always on duty. Whether you’ve been involved in a critical incident, or face an internal affairs interrogation or criminal charge, we’re just a phone call away.
As former law enforcement ourselves, we’re not intimidated by IA, the media or anyone else. We fight hard but fair at trial.
We can help you figure out what is happening and how to proceed so you get the full benefit of your rights.
Our California Internal Affairs Defense Lawyers Can Help.
If you or a loved one is charged with a crime and are being investigated by internal affairs 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.
- Our California Criminal Defense Lawyers have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- This point is emphasized in the U.S. Department of Justice, Office of Community Oriented Policing Services, Standards and Guidelines for Internal Affairs (undated), p. 24. (“Great caution must be exercised to avoid a compelled statement or the fruits of a compelled statement from leaking into the criminal investigation. To do otherwise risks losing the potential criminal prosecution because of constitutional violations of the privilege against self-incrimination.”) The Standards and Guidelines include flowcharts of the IA frameworks of the Los Angeles Police Department and the Los Angeles Sheriff’s Department.
- Protocol for District Attorney Officer-Involved Shooting Response Program, Los Angeles County District Attorney’s Office, Updated April 15, 2009 (“It is the District Attorney’s role to only investigate and determine whether any violation of criminal law may have occurred. However, the role of the law enforcement agency may also be to administratively investigate other issues as well, and they may sometimes choose to conduct an administrative review concurrently with the criminal investigation.”)
- Additional rights may be granted by a particular collective bargaining agreement.
- California Government Code Section 3300, et seq. (Section 3301 sets out the reasons behind the law: “The Legislature hereby finds and declares that the rights and protections provided to peace officers under this chapter constitute a matter of statewide concern. The Legislature further finds and declares that effective law enforcement depends upon the maintenance of stable employer-employee relations, between public safety employees and their employers. In order to assure that stable relations are continued throughout the state and to further assure that effective services are provided to all people of the state, it is necessary that this chapter be applicable to all public safety officers, as defined in this section, wherever situated within the State of California.”)
- California 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.”
- Van Winkle v. County of Ventura, 158 Cal.App.4th 492, 501 (2007) (“When Van Winkle was interrogated by the MCB detective, he was advised it was a criminal investigation, not an administrative one. Van Winkle knew this because he had been arrested and was in custody. He made statements voluntarily after he waived his Miranda rights. He was advised that because it was not an administrative investigation the detective could not order him to speak. There is no evidence in this record to show that he was confused about the nature of this investigation or his rights.”)
- California Correctional Peace Officers Association v. State of California, 82 Cal.App.4th 294, 307 (2000) (“The CDC and DOJ must be considered to have been acting together in this investigation. The CDC did not merely order the correctional officers to cooperate with the DOJ investigation, but delivered interviewees to DOJ investigators, and threatened them with arrest and/or discipline if they asserted their rights during interrogation by DOJ agent. Until they had given statements, correctional officers were prevented from leaving prison grounds by their employer. Hallway exits and interrogation rooms were guarded by the CDC. The interviews took place during work hours or immediately thereafter, on work premises. Upon being told by DOJ interrogators that an officer was not providing satisfactory responses during the interrogation, CDC employees threatened the officers with criminal and disciplinary sanctions. Under these circumstances, the CDC and the DOJ must be considered to have been acting in concert.”
- Garrity v. New Jersey, 385 U.S. 493, 500 (1967) [officer could not be forced to waive privilege or lose job] (“The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in Miranda v. Arizona…is ‘likely to exert such pressure upon an individual as to disable him from making a free and rational choice.’ We think the statements were infected by the coercion inherent in this scheme of questioning, and cannot be sustained as voluntary under our prior decisions.”); Lefkowitz v. Turley, 414 U.S. 70, 82 (1973) [architects could not be compelled to testify in grand jury proceeding under threat of loss of contracts] (“The State sought to interrogate appellees about their transactions with the State, and to require them to furnish possibly incriminating testimony by demanding that they waive their immunity and by disqualifying them as public contractors when they refused. It seems to us that the State intended to accomplish what Garrity specifically prohibited — to compel testimony that had not been immunized. The waiver sought by the State, under threat of loss of contracts, would have been no less compelled than a direct request for the testimony without resort to the waiver device. A waiver secured under threat of substantial economic sanction cannot be termed voluntary.”)
- Lybarger v. City of Los Angeles, 40 Cal.3d 822, 829 (1985) (“What were appellant’s ‘constitutional rights’? Given the context of an administrative inquiry into possible criminal misconduct, we think it likely the Legislature intended that interrogated officers be advised of their so-called ‘Miranda rights’., as modified by the Lefkowitz/Garrity rule previously discussed. 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. Although appellant was properly advised of the adverse effect of his silence, he was never told of the extent of the protection afforded to any statements he might make. That omission was critically important here. It is argued that, because appellant refused to answer any questions, he was not harmed by the failure to advise him of his rights. Yet had appellant understood that his statements during the administrative interview could not be used against him in a criminal proceeding, he might well have elected to cooperate rather than remain silent.”); Miranda v. Arizona, 384 U.S. 436, 444 (1966) (“Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.”)
- California Penal Code Section 832.7 provides: “(a) Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney’s office, or the Attorney General’s office. (b) Notwithstanding subdivision (a), a department or agency shall release to the complaining party a copy of his or her own statements at the time the complaint is filed. (c) Notwithstanding subdivision (a), a department or agency that employs peace or custodial officers may disseminate data regarding the number, type, or disposition of complaints (sustained, not sustained, exonerated, or unfounded) made against its officers if that information is in a form which does not identify the individuals involved. (d) Notwithstanding subdivision (a), a department or agency that employs peace or custodial officers may release factual information concerning a disciplinary investigation if the officer who is the subject of the disciplinary investigation, or the officer’s agent or representative, publicly makes a statement he or she knows to be false concerning the investigation or the imposition of disciplinary action. Information may not be disclosed by the peace or custodial officer’s employer unless the false statement was published by an established medium of communication, such as television, radio, or a newspaper. Disclosure of factual information by the employing agency pursuant to this subdivision is limited to facts contained in the officer’s personnel file concerning the disciplinary investigation or imposition of disciplinary action that specifically refute the false statements made public by the peace or custodial officer or his or her agent or representative. (e) (1) The department or agency shall provide written notification to the complaining party of the disposition of the complaint within 30 days of the disposition. (2) The notification described in this subdivision shall not be conclusive or binding or admissible as evidence in any separate or subsequent action or proceeding brought before an arbitrator, court, or judge of this state or the United States. (f) Nothing in this section shall affect the discovery or disclosure of information contained in a peace or custodial officer’s personnel file pursuant to Section 1043 of the Evidence Code.”
- In re Grand Jury Subpoena, Huntington Beach Police Officers Association v. United States, 75 F.3d 446, 448 (1996) [police department must comply with grand jury subpoena of personnel files relevant to federal civil rights investigation] (“We hold that the protection of the Fifth Amendment privilege, when applied to statements by police officers in internal affairs files, must focus on the use of those statements against the officers who gave them. The statements are not privileged from production to a subpoenaing authority. But the Fifth Amendment guards against any improper use of them. That protection is provided by the screening and redaction proposed here by the Department of Justice and by a later Kastigar hearing.”) SEE ALSO Gwillim v. City of San Jose, 929 F.2d 465, 468 (1991) [no constitutional violation where administrator turned over immunized statement to prosecutor] (“We, however, need not and do not decide whether in fact Gwillim’s immunity was violated by what Sanderson did. The question before this court is whether transmission of the information was in itself a violation of the constitutional privilege. The law of this circuit is clear that a prosecutor’s access to immunized testimony is not a violation of the privilege.A wall between the immunized testimony and the prosecution would be the equivalent of granting transactional immunity, thus negating the plain import of Kastigar. The defendants in this case could, therefore, have transmitted the information in accordance with the California statute without violating the Constitution. Gwillim made no showing that the defendants knew that the prosecutor would use the information to motivate the complainant or that the defendants could reasonably have anticipated such use. Under these circumstances it was not their responsibility to assure that Sanderson’s use of the information complied with the Constitution.” Internal quotations omitted.); Kastigar v. United States, 406 U.S. 441, 461 (1972) [use and derivative use immunity is coextensive with scope of Fifth Amendment privilege against self-incrimination] (“Both the statute and the Fifth Amendment allow the government to prosecute using evidence from legitimate independent sources..We conclude that the immunity provided by 18 U.S.C. 6002 leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. The immunity therefore is coextensive with the privilege and suffices to supplant it.”)
- Garrity v. New Jersey, 385 U.S. 493, 500, supra.
- Harper v. City of Los Angeles, 533. F.3d. 1010 (2008). (“After an eleven-day trial, the jury returned a special verdict in favor of the Officers, finding that the Officers’ constitutional rights were violated by the City and by Chief Parks in his official capacity. The jury awarded each officer compensatory damages in the amount of $5,000,001. .Both the jury’s verdict and the jury’s damages award are supported by substantial evidence.”)
- Aguilera v. Baca, 510 F.3d 1161, 1175 (2007) (Kozinski, in dissent: “When a law enforcement agency suspects one of its employees of criminal wrongdoing, their relationship becomes a strained and complex one. The employer, of course, retains all powers over the employee qua employer-it may ask him to work overtime, complete reports, answer the questions of supervisors and generally comply with the terms of the employment relationship. In addition, however, the employer is also in the business of detecting and prosecuting criminal activity, so the employer can-and generally has the duty to gather evidence that may be used to prosecute the employee and others. Whether the employer is wearing one hat or the other (or both) is often unclear, which can put the employee in a precarious situation by forcing him to choose between disobeying an order from his employer and giving up the constitutional privilege against self-incrimination. In such situations, the employer must not play on this ambiguity to the disadvantage of the employee; ?rather, it must clarify whether it is questioning the employee in its capacity as an employer or as a law enforcer. Where the employer fails to do this, the employee is entitled to act on the assumption that he is dealing with a law enforcement agency, if a reasonable person in his position would have so believed. Plaintiffs here easily meet this standard, and so they are entitled to bring their case before a jury; ?this is precisely the kind of conflict that a group of citizens drawn from the community is in the best position to resolve.”)