Officer-Involved Shooting Prompts Changes to Rohnert Park Policies for Critical Incidents and Administrative Investigations

Posted by Christopher W. Miller, Esq.

An officer-involved shooting in Rohnert Park last May has led to recent, pro-officer changes to the critical incident and administrative investigation procedures used by the Rohnert Park Department of Public Safety and the Rohnert Park Public Safety Officers’ Association.

In the early morning hours of May 4, 2000, Sergeant Donald Wagner and other Rohnert Park officers were dispatched to a mobile home park in response to several calls of shots being fired. Moments after he arrived in the area, Wagner confronted a suspect, Robert Camacho, who was walking across the nearby expressway. The man was armed and pointed his revolver directly at the sergeant in response to an order to drop the gun.

Fearing for his life, Wagner fired several shots at Camacho, who returned fire while backing away through a field. He did not go down until one of Wagner’s rounds struck him in the head. Another officer also fired a shot. Officers at the scene discovered Camacho was wearing body armor and had several weapons at his residence. He later died of the head wound.

Critical Incident Protocol Used To Obtain Officers’ Voluntary Statements

The Sonoma County protocol for officer-involved critical incidents called for the officers involved in the shooting to give voluntary, rather than compelled, statements to sheriff’s department homicide investigators, while internal affairs investigators watched and listened from another room. Wagner submitted to this procedure because he preferred to be interviewed by the sheriff’s department investigators rather than his own department. Neither Wagner nor the other officer involved in the shooting was ever interviewed by internal affairs.

A statement taken from an involved officer in a critical incident investigation is “compelled” only when the officer has been (1) ordered to cooperate or face disciplinary action, including termination; and (2) warned any statements the officer gives cannot be used in a subsequent criminal proceeding against the officer. (Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 829.) The officer must be advised of Miranda rights before or during the interrogation if the officer may be charged with a criminal offense. (Govt. Code § 3303, subd. (h); Lybarger v. City of Los Angeles at p. 829.)

Any compelled statements the officer gives cannot be used in a subsequent criminal proceeding against the officer. (Garrity v. New Jersey (1967) 385 U.S. 493, 500; Lybarger v. City of Los Angeles at p. 829; but see People v. Gwillim (1990) 223 Cal.App.3d 1254, 1269—1270 [prosecutor has a statutory right under Penal Code section 832.7 to a copy of the officer’s statement].)

The Statement So Compelled Is Protected Against Use In Any Civil Proceeding As Well

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. (Govt. Code § 3303, subd. (f), exceptions omitted.)

Voluntary Statements Are Not Protected

Voluntary statements by officers involved in critical incidents are not protected in any way should the officer be subject to a civil or criminal action arising out of the same incident. The practice in Sonoma County and many other jurisdictions of treating an officer involved in a critical incident as a “witness” or “victim” for the purpose of obtaining a voluntary statement is an unfortunate fiction which ignores the potential civil and criminal consequences for the officer.

As the courts have recognized, “[t]he focus is clearly and directly upon the officer and the other participants of [sic] the incident” when an officer uses deadly force. (Long Beach Police Officer Association v. City of Long Beach (1984) 156 Cal.App.3d 996, 1010.) The conduct of the suspect or decedent in the case may be relevant to determining whether the officer’s use of force was justified, but that conduct does not necessarily absolve the officer of potential liability.

Officers involved in critical incident investigations are potential subjects of civil and criminal proceedings against them for their role in the incident. Only Miranda warnings and a compelled statement suffice to protect the involved officer’s rights.

It would be absurd if an officer who has committed a minor infraction is subject to inconsequential punitive action, and is entitled to representation and counseling under section 3303, subdivision (h), while an officer who has just been involved in a shooting incident and faces potentially grave penal sanctions is not entitled to an advisor prior to the filing of a potentially incriminating report. (Long Beach Police Officer Association v. City of Long Beach (1984) 156 Cal.App.3d 996, 1011.)

Therefore, the Rohnert Park Public Safety Officers’ Association, on the advice of its counsel, has adopted the practice of advising a subject officer in a critical incident investigation to decline to give statements unless compelled to do so pursuant to Government Code section 3303 of the Public Safety Officers’ Procedural Bill of Rights Act (POBR) and Lybarger.

Chief Concedes To Changes In Internal Affairs Procedure

Once the Sonoma County Sheriff’s Department completed its review of the shooting with a finding that Wagner’s actions were justified, he requested a copy of the investigation. Rohnert Park’s chief, however, refused to allow the sheriff’s department to provide Wagner with the investigation. The chief yielded after counsel reminded him the statements the officers gave to the criminal investigators were intended by the agreement of all parties to be sufficient for both the criminal investigation and the administrative investigation. The officers were entitled to the rest of the sheriff’s investigation because the investigation, once concluded, no longer was confidential or protected by the “official information” privilege. (See Evid. Code § 1040; County of Orange v. Superior Court (2000) 79 Cal.App.4th 759, 763.)

Yet when the internal affairs investigation was completed over eight months after the shooting, the chief again refused to turn over the investigation to the officers. He offered merely an opportunity to review the report.

Government Code 3303(g) and Pasadena Police Officers’ Association v. City of Pasadena (1990) 51 Cal.3d. 564, however, together give officers a post-interrogation right to a copy of non-confidential investigative reports and other documents related to the investigation. There must be a statutory basis for any claim of confidentiality. (County of Riverside v. Superior Court (2000) 103 Cal.Rptr.2d 62, 68—69.) The right to a copy of the internal affairs investigation arises even when no misconduct charges are made against the officer.

Chief Concedes To Changes In Internal Affairs Procedure

Faced with the officers’ insistence, through counsel, on a copy of the internal affairs investigation, the chief agreed to a change in internal affairs policy whereby any officer whose internal affairs investigation is resolved as unfounded, exonerated, or not sustained will be provided with a copy of the internal affairs investigation upon conclusion of the investigation. The package provided to the officer will not include any confidential information related to the complainant or witnesses, e.g., the identity of a citizen complainant or confidential informant.

The officer statement policy adopted by the RPPSOA protects the involved officer’s interests by postponing the availability of the officer’s statement to a time when all parties have had an opportunity to evaluate the officer’s liability. A compelled statement may be released to the district attorney — with the officer’s permission — at a later date to clear the shooting. But an officer who has voluntarily given a statement will have lost the ability to protect that statement against disclosure should a criminal prosecution ensue.

Wagner received a commendation from a local civic group for his actions in the Camacho shooting. Both he and the Rohnert Park Public Safety Officers Association also are to be commended for taking a principled stand in defense of peace officer rights in this case.

Christopher W. Miller is a former deputy district attorney who now provides representation to PORAC LDF clients throughout northern California as an attorney with Mastagni, Holstedt, Chiurazzi & Amick in Sacramento.