Peace Officers’ POBRA Rights Are Not Absolute
February 3, 2014 by Lisa Charbonneau
Public sector labor law involving rights of police officers under departmental investigation are complex with guidance coming from both legislative and case law documentation. The recent California appellate court decision, Quezada v. City of Los Angeles is a strongly-worded warning that an officer’s interrogation rights under the Public Safety Officers’ Procedural Bill of Rights (“POBRA”) are not absolute. This summary by Beeson, Tayer and Bodine (BT&B) outlines some of the limits to officer rights when under investigation. BT&B is a California labor and employment law firm that has worked to protect the rights of workers and unions for over 75 years.
Quezeda involved the Los Angeles Police Department’s interrogation of three LAPD police officers during a departmental investigation of the alleged off-duty discharge of one of the officers’ weapons after the three had been drinking late into the night at a nearby bar after work. Suing as plaintiffs in civil court, the officers argued the Department’s conduct violated their civil rights under POBRA (California Government Code §3300 et. seq.). The lower court found for the Department on all claims and the appellate court affirmed.
In order to protect the rights of public safety employees POBRA requires officer interrogations to be conducted at a reasonable hour and when the officer is on duty or during normal waking hours unless the “seriousness of the investigation requires otherwise.” Govt. Code §3303(a). Here, the Court found the subject of the investigation (“drunken random firing of shots by off-duty officers”) so serious that it warranted interviewing the officers as early as possible — even though they were sleep-deprived (they had been awake for more than 24 hours when the interviews commenced), two of the three were impaired by excessive alcohol consumption, and their chosen attorney could not be present.
POBRA also states an interrogation session “shall be for a reasonable period taking into consideration the 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.” Govt. Code §3303(d). Here the court found that an interrogation process lasting from 2:30 am to 9:00 pm, during which the plaintiffs were at some times denied access to food or water, was lawful under POBRA because plaintiffs were not denied all access to food and water, and no request for medical attention was made.
POBRA further provides that an officer is entitled to the representative of his/her choice during any investigation-related interview the employee reasonably believes may result in discipline, Govt. Code §3303(i). Relying on previous case law, the Court found this right qualified by the following: the representative must be reasonably available and physically able to represent the officer at a reasonably-scheduled interrogation. Moreover, the officer is responsible for securing the attendance of her chosen representative. Otherwise, the officer should select another representative so the interrogation may proceed at a reasonable hour. Here, the officers were provided with an employee representative, an L.A.P.D. Sergeant, but requested an attorney as their representative. When contacted around 9:00 am, the attorney said he was unavailable until 9 pm that night. The department waited about five hours to conduct the interviews, until approximately 2:30 pm. The plaintiffs made no additional effort to secure another attorney during that time. The Court found that the circumstances prompting the investigation were so serious the Department did not have to delay the interviews to accommodate the attorney’s availability. That the department had made an employee representative available to plaintiffs satisfied the requirements of POBRA.
In serious cases involving investigation and interrogation of a public employee, the importance of legal representation by an attorney well versed in public labor law is critical. In the case above, the employee was responsible for securing attendance of the preferred representative and even though there was a 12 hour delay before the attorney could be present, the employee did not seek an alternative public labor law attorney. BT&B advises that public sector unions and employees maintain and/or obtain experienced legal representation to defend their rights when adverse action such as discipline is at stake. Learn more about Beeson, Tayer & Bodine and follow our legal news and blogs by signing up for our newsletter updates.
The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.
