STEVEN N. WELCH
Rains Lucia Stern St. Phalle & Silver, PC
The purpose of this article is to provide a guide regarding the use of compelled administrative statements in subsequent criminal prosecutions. The article consists of three parts: a background regarding compelled administrative statements and immunity; an explanation regarding whether compelled administrative statements may be used to impeach a defendant officer who elects to testify at a subsequent criminal trial; and the potential consequences of the release of an officer’s compelled administrative statement pursuant to amended Penal Code §832.7 (SB 1421).
In Garrity v. State of New Jersey (1967) 385 U.S. 493, 494, officers were interrogated regarding alleged ticket fixing. Before being questioned, the officers were warned that if they refused to answer questions (based on their Fifth Amendment constitutional guarantee to not be “compelled in any criminal case to be a witness against himself”) they would be terminated (Id., fn. 1). The officers’ answers were used in subsequent criminal prosecutions. The U.S. Supreme Court ruled that “the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic” (Id. at 500). Therefore, an officer’s compelled administrative statement may not be used in a subsequent criminal prosecution of that officer.
In Gardner v. Broderick (1968) 392 U.S. 273, 274, a New York City officer was subpoenaed to appear before a grand jury, advised of his privilege against self-incrimination and asked to sign a “waiver of immunity” after being told that he would be fired if he did not sign the waiver. The officer refused to sign the waiver and was discharged. (Id.) The U.S. Supreme Court ruled that the officer could not be discharged for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege (Id. at 278, citing Garrity v. State of New Jersey, supra). The court in Gardner ruled that the officer could have been terminated if he continued to refuse to answer questions on Fifth Amendment grounds after he was granted immunity from use of his answers, or the fruits thereof, in a subsequent criminal prosecution. (Id.) Therefore, an officer may be compelled to give an administrative statement if the officer is granted immunity.
In Kastigar v. United States (1972) 406 U.S. 441, 444-445, the U.S. Supreme Court asserted that the Fifth Amendment privilege against compulsory self-incrimination can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, and it protects against disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. In Lefkowitz v. Turley (1973) 414 U.S. 70, 77, the U.S. Supreme Court, citing Kastigar, asserted that a witness protected by the privilege may rightfully refuse to answer questions unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. This guarantee against the use of a compelled statement and any evidence derived therefrom in a subsequent criminal prosecution is called “use” and “derivative use” immunity.
California Government Code §3303(h) provides that, “if prior to or during the interrogation of a public safety officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights.” In Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 829, the California Supreme Court ruled that those “constitutional rights” are Miranda rights, as modified by the Lefkowitz/Garrity rule. In Lybarger, an LAPD officer was interrogated by the Internal Affairs Division and advised that if he refused to cooperate in the administrative interview, he could be charged with insubordination and could lose his job. Officer Lybarger was then ordered to cooperate. Lybarger refused to answer questions and was removed from his position. The court found that Lybarger should have been advised that “although he had the right to remain silent and not incriminate himself, (1) his silence could be deemed insubordination, leading to administrative discipline, and (2) any statement made under the compulsion of the threat of such discipline could not be used against him in any subsequent criminal proceeding.” (Id.) Therefore, if an officer may be charged with a criminal offense, the department must advise the officer of, and therefore grant, use and derivative use immunity prior to compelling the officer to provide an administrative statement.
Can a Compelled Administrative Statement Be Used to Impeach at a Subsequent Criminal Trial?
In New Jersey v. Portash (1979) 440 U.S. 450, 451, Joseph Portash was a mayor who was subpoenaed to testify before a grand jury. Portash expressed his intention to claim his Fifth Amendment right against self-incrimination. The prosecutors and Portash’s lawyers then agreed that, if Portash testified before the grand jury, neither his statements nor any evidence derived from them could be used in a subsequent criminal proceeding. This use and derivative use immunity is the same immunity granted to officers for compelled administrative statements, as previously discussed. The U.S. Supreme Court ruled that a person’s testimony under a grant of immunity cannot constitutionally be used to impeach him when he is a defendant in a later criminal trial (Id. at 459-460). The court in Portash (at p. 459) ruled that:
The Fifth and the Fourteenth Amendments provide that no person “shall be compelled in any criminal case to be a witness against himself.” As we reaffirmed last Term, a defendant’s compelled statements, as opposed to statements taken in violation of Miranda, may not be put to any testimonial use whatever against him in a criminal trial. “But any criminal trial use against a defendant of his involuntary statement is a denial of due process of law.”
The U.S. Supreme Court reiterated this position in Kansas v. Ventris (2009) 556 U.S. 586, 590, “[t]he Fifth Amendment guarantees that no person shall be compelled to give evidence against himself, and so is violated whenever a truly coerced confession is introduced at trial, whether by way of impeachment or otherwise.”
Therefore, an officer’s compelled administrative statement may not be introduced at that officer’s subsequent criminal trial to impeach that officer if the officer elects to testify.
Consequences of Amended Penal Code §832.7
Effective January 1, Penal Code §832.7 was amended to contain a multitude of exceptions to the maintenance of confidentiality of peace officer personnel records for certain listed categories of internal affairs investigations and to make those records available for public inspection pursuant to the California Public Records Act. The records now subject to disclosure include, among other things, investigative reports, transcripts or recordings of interviews, all material compiled and presented to any other body charged with determining whether the officer’s action was consistent with law and agency policy and copies of all disciplinary records relating to the incident (“Senate Bill 1421 Makes 4 Separate Categories of Internal Affairs Investigations Subject to Disclosure as ‘Public Records’,” Mellk, Gidian and Rains, Michael, The Vanguard, November 2018, pp. 22-23).
Penal Code §832.7 may be construed to require public release of an officer’s compelled administrative statement. In Kastigar v. U.S. (1972) 406 U.S. 441, 453, the U.S. Supreme Court held that the government can compel witness testimony upon an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring use and derivative use immunity (People v. Gwillim  223 Cal.App.3d 1254, 1266). Once a defendant establishes that he has testified pursuant to a grant of use and derivative use immunity to the matter related to the prosecution, the prosecution has the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony (Kastigar at p. 460).
Construing a district attorney’s access to an officer’s compelled statement, the Sixth District Court of Appeal in People v. Gwillim (1990) 223 Cal.App.3d 1254, 1270, wrote:
“We are compelled, however, to add the following caveat: Although the district attorney may have a statutory right under section 832.7 to obtain a police officer’s immunized statements, we do not hold that the district attorney must or should receive such a statement. Depending on the nature of the immunized statement and the circumstances of a given case, a district attorney with knowledge of defendant’s immunized statement may be unable to show that a criminal case can be prosecuted without use of the statement. For this reason, the district attorney’s decision whether to receive an immunized statement under the authority of section 832.7 should be made in contemplation of the risk involved.”
In Gwillim, the court ruled that the “district attorney is bound by this immunity agreement and may not use defendant’s statement to advance the criminal prosecution in any way” (Gwillim at 1272-1273).
As previously discussed, an officer must be granted use and derivative use immunity in order to be compelled to submit to an administrative interview when the officer may be charged with a criminal offense. Penal Code §832.7 contains subsections that discuss justifications to delay release of the records. However, if an officer’s compelled administrative statement is released to the public, a prosecutor at a later criminal trial of that officer may face the heavy, and possibly insurmountable, burden of the requirements of Kastigar.
This article provides a guide regarding the potential use of compelled administrative statements in subsequent criminal prosecutions. Of course, should you be in a situation where you are notified that your department wants to interview you regarding any matter that could potentially result in criminal charges, you should immediately contact PORAC LDF in order to have an attorney represent you and protect your rights.
About the Author
Steven N. Welch is a member of the Rains Lucia Stern St. Phalle & Silver Legal Defense Group. Steve represents peace officers in administrative investigations, disciplinary appeals, critical incident investigations and criminal investigations.
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- Brian Schopf Elk Grove POA
Keep up the good work.
- Richard Salcido Brea PA
LDF is a great organization that not only helps their clients but many of those around them such as coworkers and family members.
- Patrick Beggs Fresno Co DSA
Good service. Thank you.
- Shaun Luciano LA School PA
LDF assisted by taking a stressful situation and calmed it down by thoroughly explaining the entire process. It was nice to know that I had an ally when I was sure that I was alone.
- 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.
- Anthony Gregori Sonoma Co Jr College P O A
Excellent work and well worth it.
- Katie Angermiller Tuolumne Co DSA
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!
- Rachel Tyner Transit EOA of San Diego
All the LDF representatives were very courteous and attentive with a punctual response to all of my concerns, inquiries and appointment scheduling. My representative was very informative about the legalities and kept in contact with me regularly. He was also very patient and straight forward. I would definitely want to use the LDF again and felt more confident through my proceedings because I had representation!
- James Hika Border Patrol Supervisors Association
They did a great job!
- Juan Pascua, Jr. San Diego Co DSA
Very helpful and very informative!
- Gary J. Foppiano Oakland POA
[My representative] has been in my corner for 28 years. I have been represented by this firm probably 6 times in my career from minor to major discipline cases with a great outcome for me. They're batting 100%
- Jay Garacochea Culver City POA
[My representative] not only did he do a great job but he listened to my concerns. He did not force his views or game plan and we worked well w/ each other. We agreed on a goal and achieved it.
- David Heller Yolo County DSA
The charges against me, if sustained, would have likely ended my LE career. I was rightfully exonerated on all charges. I was well represented by [My Representative] and thank him for a job well done!!
- 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!
- Linda Mendez Imperial Co Prob and Corr
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!
- Shandon Murphy San Mateo POA
Great work! Thank you so much!
- Michael Kan Palo Alto POA
I have always been and will continue to be a strong supporter of LDF and would not work as a police officer without it. I am extremely happy with the service I have received both from LDF and [my representative].
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- Chris Moore Palo Alto POA
No Complaints. Great Resource.
- Roy Iler San Benito CO LEM
[My representative] always returned phone calls and let me know if he was contacted with information.
- Sherri Coral Riverside Community College
He was very professional. I trusted him to defend and he did! I am very thankful he was here for me.
- Melvarene Hayes LA Airport POA
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.
- Dennis Leach National City POA
[My Representative] is a knowledgeable attorney and I would highly recommend him to anyone needing representation.
- Kim Jasper Alhambra POA
Excellent service, prompt and courteous.
- Paul Hernandez LA Gen Services POA Inc.
[My Representative] was very helpful in my situation and I can't thank him enough.
- 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.”
- Carlos Gonzalez Oakland POA
Very well informed group.
- Kristen Patterson Contra Costa Co Prob. Assn.
[My representative] was helpful and made me feel supported. I got the results I desired. Very pleased with the process.
- Korey Lankow Assn Highway Patrol of Arizona
Outstanding service from bottom-to-top.
- Tigran Topadzhikyan Glendale POA
[My representative] is an excellent attorney. I would use him again. He communicates with his clients and is very competent.
- Gina Romines San Joaquin Co Corr POA
I couldn't have been more satisfied with the representative!
- 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.
- 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.
- Wendy Morrow Chico Public Safety Association
I had never been through an I.A. in my 21 years. I was scared and ashamed and humiliated. ( My attorney ) was excellent. He helped me through one of the worst times of my life. Had great outcome and I am grateful.
- Christine Farmer Tehama Co DSA
Mine was a fairly simple situation and I may not have needed representative. I am glad I called for help, it gave me peace of mind and reassurance.
- Heather Fontes San Joaquin Co POA
I appreciated the thorough follow up by LDF staff. Many thanks and blessings for the work by LDF.
- 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.
- Kim Prout Upland Firefighters Assoc
It was great comfort to know somebody would be there for me in this matter. I was able to finally sleep @ night & wake up with confidence that I would be ok. Thanks.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- Gary Silva East Bay Region Parks POA
Thank you for providing this service. My experience with LDF was very much to my satisfaction.
- 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.
- 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.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- Erick Gaunt Palos Verdes POA
- 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
- Brian Markert Lakewood Police Indp Guild
I feel that I was very well represented by the LDF regarding a fatal officer involved shooting. Both attorneys assigned to assist me - our guild attorney plus a criminal defense attorney - were very aggressive and helpful. Their work was instrumental in helping me to navigate the criminal and internal investigations so that I could return to full duty status.
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.
- John Tinder Chino POA
Having an LDF attorney who is experienced, knowledgeable and professional is an outstanding quality. [My representative ]exhibit all of these qualities and more. They are outstanding and I would not entrust my career to anyone else!
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- 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.
- Dwayne Sue Oakland POA
[My representative was] great! She kept me informed and was very professional. She would be my choice if I should need her services in the future! (But I hope I won't) Thanks!
- Eric White Emeryville POA
Very satisfied with the LDF services provided. Thank you.
- Ron Ruddy Riverside POA
- Miguel Suarez Monterey Co DSA
[My representative] was very knowledgeable and courteous. He knew his stuff, and I couldn't have asked for a better guy to be on my side on this matter. Thanks.
- Raymond Fisher Colorado State Patrol Assn
I have known for sometime that PORAC would provide the services I needed at the time I needed them. This is a professional competent organization prepared to handle the appropriate legal matters our officers face in today's environment.
- Jeff Stanley Upland POA
Excellent program, no one should be without this coverage.
- 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.”
- 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!
- 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.