Getting to "why?" in Police Misconduct Cases: the Interrogation Rights of Police Officers in Parallel Administrative and Criminal Investigations

• Jurisdiction: United States,Federal
• Citation: Vol. 16 No. 1
• Publication year: 2016
• Author: By Sean P. Perdomo
• topic: Civil Rights,Administrative Law,Constitutional Law,Criminal Law,Public Sector Law

GETTING TO "WHY?" IN POLICE MISCONDUCT CASES: THE INTERROGATION RIGHTS OF POLICE OFFICERS IN PARALLEL ADMINISTRATIVE AND CRIMINAL INVESTIGATIONS

By Sean P. Perdomo^*

Police misconduct has received intense media coverage since the St. Louis County Grand Jury refused to indict Officer Darren Wilson for murder in the shooting death of Michael Brown in Ferguson, Missouri.¹ After the events in Ferguson, criminal prosecutions of police were widely publicized in the deaths of Freddie Gray in Baltimore,² Walter Scott in North Charleston,³ and Michael James Tyree in Santa Clara.⁴ The publicity of police prosecutions signals a movement for more police oversight.⁵

The public's recurring question in misconduct cases is "why?" the officer acted.⁶ Understandably, an officer's answers could expeditiously resolve questions of misconduct. Although the answers would immediately satisfy the public's concern, the involved officer's rights could be threatened by a rush to judgment in classifying the incident as criminal until proven otherwise.

As discussed in Part I, peace officers' rights are found in the Public Safety Officers Procedural Bill of Rights Act, Gov't Code section 3300, et seq. [hereinafter Act]. The Act provides officers with rights during administrative interrogations, but the Act's application to criminal crossover cases is arguable.⁷ The Act's application to crossover cases is contentious because of the dramatic difference in administrative rights provided.⁸ This article addresses the Act's application to interrogations in crossover cases.

I. A Brief Overview of Peace Officer Misconduct Investigations

Agencies have authority to investigate their peace officer employees for administrative and criminal violations.⁹

Administrative investigations are based on agency regulations governing an officer's conduct.¹⁰ In some instances, administrative regulations parallel the criminal law. For example, agency regulations outlining the permissible use of a firearm parallel the criminal law's justifiable use of deadly force.¹¹

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Criminal investigations are based on federal and state laws. Agencies can criminally investigate peace officer employees because agencies have authority to investigate and enforce the law.¹² For example, an officer using unjustifiable deadly force resulting in death to another can be investigated for murder.¹³

The crossover in administrative regulations and criminal law is the source of contention in determining whether the Act's procedural rights are triggered, as will be discussed in Parts II and III below.

II. The Act's Application to Peace Officer Interrogations in Parallel Investigations

Government Code section 3303(h) provides that an agency must inform a peace officer of his or her constitutional rights any time prior to or during an interrogation when it is determined that the officer may be charged with a criminal offense. The constitutional rights an agency must provide an officer are shaped by a lineage of cases: Garrity v. New Jersey, 385 U.S. 493 (1967), Lybarger v. Los Angeles, 40 Cal. 3d 822 (1985), and Spielbauer v. County of Santa Clara, 45 Cal. 4^th 704 (2009). An agency must advise a peace officer subject to administrative investigation regarding a criminal matter of his or her Miranda rights¹⁴ and an admonition that (1) silence could be deemed insubordination leading to administrative discipline, and (2) any statements made under compulsion of the threat of such discipline could not be used in subsequent criminal proceedings.¹⁵ The courts recognize an officer cannot refuse to answer an agency's administrative questioning concerning his or her employment and the remedy is to exclude compelled statements from use in criminal proceedings to preserve the officer's Fifth Amendment rights.¹⁶

The Act also governs the conditions to be followed during administrative interrogations. The Act provides for the officer's right to representation,¹⁷ informing the officer of constitutional rights when criminal charges may be brought,¹⁸ the timing and length of an interrogation,¹⁹ the disclosure of the nature of the investigation,²⁰ the identity of the interrogators,²¹ the number of interrogators,²² the prohibition on the use of offensive language,²³ the prohibition on the use of inducements during the interrogation,²⁴ and the tape recording of the interrogation.²⁵ Although the Act provides for administrative interrogation rights, some criminal investigations are exempt.

Under Government Code section 3303(i), the Act does not apply when the investigation is concerned "...solely and directly with criminal matters." The Court of Appeals addressed the exception in I Correctional Peace Officers' Ass'n v. State of I, 82 Cal. App. 4^th 294 (2000) and revisited the issue in Van Winkle v. County of Ventura, 158 Cal. App. 4^th 492 (2007). The holdings of I Correctional Peace Officers' Ass'n (CCPOA) and Van Winkle are instructive on the Act's application when an administrative investigation can be recast as criminal. A tour through CCPOA and Van Winkle's progeny provides guidance on whether an investigation falls within the protection of the Act as discussed in Part III below.

(a) The Act Applies Where the Agency is Significantly Involved With an Outside Agency's Criminal Investigation.

In CCPOA, Corcoran State Prison correctional officers were told the following by the warden: the Department of Justice is conducting a criminal investigation, the officers have no right to legal representation before or during any questioning, the officers are ordered to cooperate with the criminal investigation, any "witnesses" refusing to cooperate will be disciplined immediately, any "targets" refusing to cooperate will be arrested, and the officers are not free to leave the prison grounds until they meet with investigators.²⁶ Corrections staff individually escorted and guarded the officers at their interrogations with Department of Justice investigators.²⁷ The investigators did not immediately inform the officers whether they were witnesses or targets.²⁸ The investigators threatened the officers with discipline for refusing to answer questions and did not Mirandize most of them.²⁹ The investigators advised any tape recordings would be seized as criminal evidence at the end of the interview.³⁰

CCPOA's facts indicate the investigation was "solely and directly" concerned with criminal activity because the officers were advised the Department of Justice was conducting a criminal investigation. The Act's protections seemingly did not apply because the matter was criminal; however, the court held the Department of Corrections violated the Act through the investigators and found the agency was acting in concert with the investigation.³¹ The court in dictum reasoned the exception applied to criminal investigations "...conducted primarily by outside agencies without significant involvement or assistance by the employer."³²

The CCPOA court did not emphasize the substance of the allegation being investigated to determine the Act's application. The statute's plain reading suggests the Act's application turns on the dispositive question of what is being investigated. The CCPOA court took a fascinating...