Judge Dismisses Dishonesty Charge And Suppresses Illegal Interview After Finding Department Violated Officer’s Pobr Rights

Posted by David E. Mastagni

A Sacramento County Superior Court judge has issued a writ of mandate dismissing a dishonesty charge alleged against a Sacramento police officer and suppressing the illegal interrogation that led to the charge. Judge Gail D. Ohanesian issued the order after finding a lieutenant who questioned the officer in an investigation that could lead to discipline had violated his rights under the Public Safety Officers Procedural Bill of Rights Act (POBR).

The allegations against the officer were made by a citizen who complained on July 15, 2004, that the officer had been rude to her at the scene of a traffic accident on July 8, 2004, and had not completed his collision report about the accident. The officer had found the citizen to be at fault in the accident.

Lieutenant Conducts Illegal Interrogation

The officer’s watch commander, a lieutenant, questioned him immediately after roll call about the report, his understanding of the Department’s report-writing policy, and whether he had obtained a supervisor’s approval to hold the report over his days off. The lieutenant even identified the policy she suspected the officer of violating. The lieutenant and the officer dispute whether the officer claimed a supervisor had given him approval to hold the report over.

The Internal Affairs Division re-interrogated the officer using the statements the lieutenant had obtained in her investigative interview. The department later proposed to fire the officer for dishonesty based on the lieutenant’s allegation, which the officer has consistently denied, that he told her he had obtained a supervisor’s permission to hold the report. The termination was predicated upon the dishonesty charge, although other lesser charges were also included, such as violation of report writing policy and discourtesy towards the complainants. At the Skelly hearing, the Department was advised the officer would seek a court order if the Department persisted in charging him with dishonesty based upon the illegal interrogation. Nevertheless, Chief Albert Najera fired the officer based on his alleged responses to the lieutenant.

Writ Petition Alleges Pobr Violations

I filed a petition for a writ of mandate on behalf of the officer seeking to have the dishonesty charges dismissed and the lieutenant’s interrogation suppressed in any subsequent disciplinary hearing on the grounds her interrogation violated several provisions of the POBR. Government Code section 3303, subdivisions (b), (c), (g), and (i), require that when a police officer is “subjected to interrogation . . . that could lead to punitive action,” the officer, at a minimum, must be (1) informed prior to the interrogation of the rank, name, and command of the officer in charge of the interrogation; (2) informed of the nature of the charges against him; (3) afforded the right to record any aspect of the interrogation; and (4) afforded the opportunity to be represented by a representative of his or her choice. Subdivision (f) bars the admission at any subsequent proceeding of any statement derived through duress, coercion, or threat.

To support the petition, I deposed the lieutenant and the internal affairs sergeant. In her deposition, the lieutenant admitted she grew angry with the officer during her questioning and decided to request a formal discipline case be opened. The lieutenant also acknowledged she knew the officer’s responses could lead to discipline if a policy violation was established.

Court Dismisses Dishonesty Charge

At the court hearing, the City argued the lieutenant was “solely” locating a report when she questioned the officer. The City also claimed the lieutenant’s questioning was exempt from the POBR because it occurred “in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor.” (Gov. Code ‘ 3303(i).) The deposition testimony, however, had established sergeants usually locate missing reports, while lieutenants often conduct watch level investigations.

The City argued the officer was not under suspicion when the lieutenant interviewed him and that the lieutenant believed the officer’s alleged claim about having permission until his supervisor contradicted him via an email later in the shift. However, the sergeant’s email indicated he could not recall if he granted the officer permission. The lieutenant also acknowledged sending a memorandum to her captain immediately after questioning the officer, in which she stated, “based on the complaint by a citizen and prior discipline with [the officer], I recommend this be made a case.” The memorandum contained no reference to the alleged contradiction between the officer and the sergeant.

Judge Ohanesian ruled in favor of the officer, finding that because the lieutenant was aware of the citizen complaint when she interrogated him, the officer’s POBR rights attached. Accordingly, the judge ordered the lieutenant’s interrogation and the charge of dishonesty suppressed. The Court allowed the proceedings against the officer to go forward, but limited the City’s case to the lesser charges.

The officer is grateful to the PORAC Legal Defense Fund and the Sacramento Police Officers’ Association for their unwavering commitment to vindicating his statutory rights.

David E. Mastagni is a PORAC Legal Defense Fund panel attorney and senior associate with Mastagni, Holstedt, Amick, Miller, Johnsen and Uhrhammer. He is general counsel to the Sacramento Police Officers’ Association.