MICHAEL L. RAINS, Principal
JONATHAN MURPHY, Associate
RAINS LUCIA STERN, PC
A recent decision entitled Quezada v. City of Los Angeles by the Court of Appeal for the Second District reminds us about the collision course created between off-duty cops and Internal Affairs investigators when shots are fired, the “suspects” are cops who have just left a bar, and the investigators think they are lying.
In Quezada, the Court affirmed a lower court ruling dismissing the civil suit filed by three Los Angeles police officers alleging that the Department deprived them of interrogation rights under POBRA during the investigation of an incident involving the off-duty discharge of a firearm (Quezada et al. v. City of Los Angeles [January 8, 2014, Los Angeles County Super. Ct. No. BC464380], 14 C.D.O.S. 234).
Following their shift, three LAPD officers went to a local bar, where they stayed for three hours, and at least two of them became intoxicated. At some point, shortly after the three had left the bar to go to their cars, a report of shots fired was received, describing two suspects matching the description of two of the police officers. When LAPD units responding to the call discovered the three off-duty officers, they were ordered “on duty” and separated.
The shooting took place after 2 a.m., but the three officers were kept at the police station for a prolonged period, then interrogated, and finally released some 19 hours later, at 9 p.m. All three officers were assigned an employee representative, but all three officers requested a specific attorney. However, that attorney was unavailable to represent them in administrative interviews until late in the evening. Internal Affairs refused to postpone the interviews to meet the attorney’s schedule and the officers were interviewed without the assistance of an attorney.
The officers’ lawsuit alleged that after being separated, they had gone 30 hours without sleep when their interviews were conducted; they were given little food or water; they did not consent to the searches of their vehicles; they were intimidated by the threat that the investigators would impound their cars and obtain search warrants; their chosen counsel was not available; they had to watch their personal vehicles being searched without their consent; they were housed in uncomfortable rooms that were too cold or too hot during interrogations; they were denied their right to eat when they needed to and were limited in the amount of water they had access to; they were not allowed to obtain a change of clothing or take a shower; and they were restricted in their use of restroom facilities. Finally, the officers claimed they were forced to give multiple public safety statements, the last of which was elicited 12 hours after the police had finished their on-scene investigation.
The lawsuit alleged that the Department’s actions violated various rights guaranteed by POBRA: First, the Department violated the requirement that
“[t]he interrogation be conducted at a reasonable hour” and “at a time when the public safety officer is on duty, or during normal waking hours” unless the “seriousness of the investigation requires otherwise” (Gov. Code, § 3303, subd. [a]). Second, the officers were “subjected to physical and mental hardships during the investigation.”
Third, “they were forced to provide public safety statements on at least three occasions while detained over an extended period of time, and the purpose of such interrogations was not to obtain information in order to protect public safety, but for the purpose of improperly eliciting incriminating information from them.” And fourth, the Department violated their right to have counsel present during interrogations.
The Decision of the Court
The Court of Appeal agreed with the superior court, holding that the officers were not entitled to postpone their interviews to a more convenient time when their chosen attorney would be present. This was because the serious nature of the circumstances (off-duty discharge of firearms while intoxicated) empowered the Internal Affairs Division to conduct its investigation at the earliest opportunity “while the officers’ memories (although hampered by excessive alcohol consumption) were freshest.” The Court was not swayed by the fact that
the officers had been awake for many hours before the interviews because the cause of this was not any unreasonable delay by the Department, but because
the officers had been on duty for a full shift before they went drinking at the conclusion of their shift.
The Court found that the conditions of the interrogations did not violate the act because “the deprivation was not unreasonable given that plaintiffs did have access to food, water and restrooms during the interrogation process; plaintiffs did not ask for medical attention” and “plaintiffs … offered no evidence that they suffered any adverse mental or physical health consequences as a result of the interrogations.”
The Court also found that requiring the officers to provide three separate public safety statements was not a violation because the “seriousness” of the incident required investigators to work with “haste,” and earlier public safety statements provided by the officers, two of whom were drunk, were “insufficient.” Further, the officers could point to no incriminating evidence elicited from them during the interrogations.
Finally, in regard to POBRA, the Court found that “an officer’s right to be represented by the person of his or her choice is not unlimited” and that the officer “must choose a representative who is reasonably available [and] it is the officer’s responsibility to secure the [attorney’s] attendance,” citing Gov. Code § 3303(a) and Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th 1294. The Court again justified this position based on the “seriousness” of the incident and the need for Internal Affairs to conduct its investigation “at the earliest opportunity.” Additionally, the Court noted that the officers made little or no effort to find another attorney who was available.
The Court of Appeal for the Second District has not specifically rescinded any rights granted by POBRA, but instead has determined that the “seriousness” of the circumstances — off-duty officers discharging a weapon in public while intoxicated — warranted Internal Affairs to conduct an immediate and thorough investigation. As we read this decision, it seemed the Court was openly hostile toward the officers, essentially saying they got themselves into the predicament to begin with. The Court weighed the alleged POBRA violations by the Department against the serious allegations facing the officers and concluded that the officers did not prove that POBRA violations occurred.
In short, in circumstances serious enough to warrant a hasty investigation, this case holds that it may not be a POBRA violation when Department investigators refuse to postpone interviews until the involved officers have adequate sleep and sober minds, or until the delayed arrival of the representative of their choosing. The result is not a bright line, and will vary from case to case depending on the particular hardships suffered by the officers weighed against the Department’s purported necessity to conduct the interviews expeditiously. Sadly, many of the problems caused by the plaintiffs’ failure to assert their own rights could have been remedied if they had had access to a capable attorney at the time of the incident, even if the attorney was not their first choice.
About the Authors
Michael Rains is a principal and founding member of Rains Lucia Stern, heading the firm’s Criminal Defense and Legal Defense of Peace Officers Practice Groups. One of California’s top trial attorneys, Rains has over 25 years of experience representing peace officers and other high-profile clients in civil and criminal litigation.
Jonathan Murphy is an associate in the firm’s Legal Defense of Peace Officers Group. Murphy has experience in the representation of peace officers in discipline matters and criminal cases.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
- Christopher Connally Assn of LEA
To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
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My attorney provided outstanding representation.
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- Yvonne Heuston ERS/SPPOA Supervisors
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My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
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I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
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- Todd Costa Santa Clara Co DSA
This was my first Internal Affairs investigation, my lawyer walked me through every step and answered all of my questions, without my lawyer's advice, I would have been lost throughout the investigation and a complete disadvantage against my department.
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LDF was there when I needed them!! In this litigious world, it's nice to know LDF has GREAT lawyers on our side who look out for us!! [My Representative] is a great attorney and a person I would trust in any circumstance!!!
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He was very professional. I trusted him to defend and he did! I am very thankful he was here for me.
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My representative was very kind and showed he cared when explaining what my legal rights were when dealing with an internal investigation.
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[My representative] was an outstanding attorney to work with. Even though I did not receive a desirable outcome entirely, I was exceptionally satisfied with his representation. Thank you.
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Thank you for all of the work related to my officer involved shooting case.
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My representative was an outstanding rep. I was very fortunate to be represented by her and the firm should be very proud to have her in it. She's courteous, smart and aggressive when needed. I would not ask for anyone else, if any other situation evolved, she's the best. Thanks.
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I thank God for the support of LDF and my attorney. I had a letter of intent to be fired and he helped me turn it all around. I still have my job and I'm so grateful.
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Unfortunately, I have been placed in the position to use LDF several times in my career. Without their valued services, I would not be here to write this. I and my family thank you.
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LDF is THE most important asset / resource that police officers have. "Thank you" to all involved and keep up the good work!
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My rep was great.
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I couldn't be happier or more satisfied with my LDF Representative, the process and the outcome of my case.
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I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
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Your rep was very personal. Even though my case involved something minor, your rep made me [feel] my case was his most important. I am very satisfied with my LDF team.
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They were there when I needed them and my whole case was handled on the phone. I met my representative after my case closed and he was at our union meeting when I had the pleasure to meet him and thank him in person.
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Very satisfied with the service I was given.
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I'm very pleased with the services offered by the LDF. I feel so fortunate to enjoy the benefits of having the membership. The services provided by LDF to its members is simply 110% professional, supportive, great!! LDF care for its members is reflected by the quality of Best Law Firm offered, simply the best!
- Adam Laird Eureka POA
Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
- Daniel Smock Ventura County PPOA
Everything went smooth. I think the current system works very well.
- Melissa Geraci Oakland POA
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I couldn't have been more satisfied with the representative!
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I have used LDF in 3 OIS's. Each time I have been very well taken care of. I highly recommend [ representative ] and the PORAC system. Well done and thank you.
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I felt I was represented in a thorough and professional manner.
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LDF is a great organization that not only helps their clients but many of those around them such as coworkers and family members.
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Thank you for your help. I feel very secure as you assisted me.
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My LDF rep kept me well informed concerning the progress of my case. I was extremely satisfied with the service I received. Thanks.
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Amazing job, Thank you.
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- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.
- Stacey Bonilla San Mateo County DSA
[My Represenative] is an excellent attorney. He is very professional yet personable and I would definitely use him again. Thank you!
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Keep up the good work.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
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I was very pleased with the service I received
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I can't express how satisfying and comforting it was to have such a well qualified and pleasant attorney at my side. Thank you so much for everything you did for me, and if you can, please thank [ my representative] again for being there for me.
- Kenneth S. Blonski East Bay Regional Parks PMA
I was very pleased with my representative.
- Matthew Gardner Colorado PPA
I would not want to be an officer without this coverage. It was great to have it and kept my mind at ease.
- Scott King Ripon POA
[My representative] is the best LDF rep I have ever had. If I were to need an LDF rep again I would want it to be [my representative].
- Russell Wise Alameda POA
- James Walker Yakima Police Patrolsman Assn
This attorney and her legal team were one of the best I’ve seen and interacted with. I was always in the loop and constantly updated on the case status. I would use (my attorney) again if the need came and recommend her to anyone.
- Brad Young Oakland POA
[ My representative ] is an awesome attorney.
- James Beckman Miracosta College POA
Excellent service everytime.
- Christopher Wirth A F G E Border Patrol
LDF referred me to [ representative ] in Spokane, WA. [ Representative ] did an outstanding job representing me. Thank you very much for the referral ! I would not be employed any longer had it not been for [ representative ] and his legal team.”
- Chad Sakamoto National City POA
Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
- Korey Lankow Assn Highway Patrol of Arizona
Outstanding service from bottom-to-top.
- Gregory Carbett Ontario POA
The attorney assigned to my case was GREAT! It's sad, but it's impossible to be an officer in today's world without a defense fund like PORAC LDF. I am now retired and signed up for the retired officers CCW LDF. Thanks!
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Omar Daza-Quiroz Oakland POA
I have had (2) two cases in which LDF represented me. Both lawyers were exceptionally professional, intelligent and caring for me. They were friendly and very helpful.
- James Hika Border Patrol Supervisors Association
They did a great job!
- Robert Hartman Contra Costa Co DSA
Quick response, experienced and knowledgeable attorney which assisted in every step. [My representative] kept me apprised through the process. Thank you.
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Kelly K. Roe San Joaquin Co Corr Officers
[My representative] did a fantastic job at returning my phone calls and keeping me informed of any and all information pertaining to my case. I would recommend him to anyone.
- Jurell Snyder Oakland POA
My LDF representative had a power point presentation, which was extremely professional.
- Christopher Walters Antioch POA
My LDF rep was very attentive, and courteous. She made every effort to keep me informed, and kept my best interests at the front of the process. I was very satisfied with my LDF rep, and the entire process.
- Steven Curtiss Shasta Co DSA
This was my first need for LDF support and I was very happy with the level of service. Thank you.
- Carl Miller Clearlake POA
- Anthony Alonzo South Gate POA
Very pleased with the way the process was explained to me. Received updated info faster than I expected. Overall a good experience in a not so good situation. Thanks to LDF.
- Dan McDow San Luis Obispo POA
[My representative] is the poster face representative of the greatest attorney (representative) that anyone could possibly ask for. She gets a 12 out of 10 star rating. Nobody works harder.
- Andrea Salas Sonoma County DSA
[My Representative] was great! Thank you.
- Diana Drummey Coronado POA
I so appreciated my LDF rep - his kindness and understanding re my case during an embarrassing and uncomfortable time - he was so caring.
- Patricia Goss San Anselmo POA
[My Representative] is fabulous! Thanks for all the exra work she did for me!
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- Scott Cox Tulare Co DSA
I just want to say [my representative] did a great job! Thank you.
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- Christopher Adams Modesto POA
Thank you for all your help!
- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- Brent Teasley ERS/Reno PSAEA
[ My representative ] was bogged down with multiple cases when he represented me, but I feel he did an excellent job. I would not have wanted anyone else to represent me during a very troublesome time.
- Joseph A. Henderson Merced POA
The firm I used was very valuable to my career and kept me updated as to status of the case. Thank you!
- Dennis Leach National City POA
[My Representative] is a knowledgeable attorney and I would highly recommend him to anyone needing representation.
- Keith Stiver Hayward POA
[My representative] brings a superlative reputation, a comforting and confidence building demeanor and a clear expertise to the table. In particular I appreciate her philosophy that she gives her total undivided attention to her clients during their appointments.
- Robert Mickschl SAN DIEGO HARBOR P O A
From my initial call to LDF, to my "Thank You" email to (my attorney ) I had the best representation I could have hoped for. The "800" number call receptionists were very professional & understanding. (My Attorney's) office & staff kept me informed & updated. I am forever thankful to LDF & exceptional representation by ( my attorney ) & staff.
- Gilbert Salazar Montebello POA
Can’t say enough. Both representatives that I had in 2016 were excellent. ( My attorney ) made himself available to me in late night hours, which made me feel comfortable and at ease. This program is essential to us in law enforcement.
- Andrew Hill Statewide University PA
I have used this law firm for union related business for the last several years. It was a no brainer to call them for LDF.
- Stephanie Haas Lyon Co SEA
When I first contacted LDF re: my case I was unsure of how well/poor I'd actually be represented. I was impressed beyond belief. From the timely responses from my attorney, his knowledge in my case, advising me what my rights were and where I stood. I felt like I was genuinely being protected from unwarranted and unfounded accusations and believe, as long as I am in the right, I have someone fighting for me. Thank you, Thank you.
- Paul Barrolaza Twin Cities POA
- Chris Lyon Tulare Co DSA
Very thorough group of sharp/smart government concerned [attorneys]. They understood what was happening and briefed me on everything. I was very impressed.
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! Thank you.
- William Burdette Newport Beach PMA
26 years and I have never needed a LDF rep, but the one time you need one, it was worth the fee’s paid.”
- Brad Young Oakland POA
[My representative] is an excellent attorney and I am very happy he picks up the phone and answers my questions whenever possible.
- Jon Seabron Oceanside POA
[My Representative] was the best and if I ever need to call al lawyer again for anything, I'll be calling her.
- Eric White Emeryville POA
Very satisfied with the LDF services provided. Thank you.
- Gregg Palmer San Joaquin Co Corr POA
Everything was explained very well prior to my questioning. I was not worried at all during the investigation. Very professional and a great asset to its members.
- Jaime Kim Oakland POA
My rep did a good job. First we met and he explained that there might be culpability on my part but not nothing close to the allegations. I appreciated his honesty as we have all done things that can be taken out of context so it was important he told me to realize that.
- Kim Jasper Alhambra POA
Excellent service, prompt and courteous.
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- Jeff Griffin Downey POA
My experience with the LDF, and in particular my attorney, was extremely positive. [ My attorney ] worked very hard and kept me informed along the way.
- Billy Aldridge Chico POA
[My representative] was awesome! He provided an excellent explanation of the process and was very professional. This was my first IA in 11 years of LE and [my representative] did a great job of reassuring me that I had nothing to worry about. Thank you so much for all your help.
- Alex Camarillo LASchool P A
[My Representative] did an excellent job with my case. He was very professional and kept me well informed throughout this case. Thank you for an awesome job.
- Alfredo Hernandez El Centro POA
[My representative] was very attentive, [informative] and knowledgeable. He spoke very clearly and explained things in ways easy to understand. [He] made me feel like he truly cared about what was going on with this case and me. Not to mention [he] was funny and witty, traits which made him trustworthy and someone who would stand by me and other police officers.
- Tigran Topadzhikyan Glendale POA
[My representative] is an excellent attorney. I would use him again. He communicates with his clients and is very competent.
- Oliver Sansen Concord POA
In 14 years I have never had to deal with an "IA." [My representative] was wonderful & put my mind at ease throughout the entire process. Thank you!
- Keith Braden Los Angeles School Police Mgmt Assn
Great work, no complaints.
- Jack Ellis Lompoc POA
An excellent plan. Very valuable to its members.
- Carlos Gonzalez Oakland POA
Very well informed group.
- Dennis W. Ostini Lake County DSA
[My Representative] was fantastic, knowledgeable, professional and easy to talk and work with. Even though the allegations lodged have not been resolved, [My Representative] continued to communicate with me, to offer his assistance.
- Joseph Barrett LA Airport POA
I was very well represented by a professional. I felt well represented and got great advice.
- Marco Flores Ventura County PPOA
Great program. I was lost until the attorneys explained the situation. I was very impressed and satisfied. Thanks LDF.