A Guide to Internal Affairs Investigations in California

Legal References:

1. 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.
2. 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.
3. 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.”)
4. Additional rights may be granted by a particular collective bargaining agreement.
5. 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.”)
6. 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.”
7. 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.”)
8. 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.”
9. 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.”)
10. 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.”)
11. 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.”
12. 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.”)
13. Garrity v. New Jersey, 385 U.S. 493, 500, supra.
14. 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.”)
15. 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.”)