One of the key protections for a peace officer in the Public Safety Officers Procedural Bill of Rights Act (“POBR”) is the right to have a representative whenever an interrogation could lead to punitive action against the officer. This protection is not limited to interrogations performed by Internal Affairs, but covers questioning by any supervisor who can recommend discipline against an officer. This prevents a department from circumventing the rule by having an ordinary supervisor ask an officer what might be mistaken for inconspicuous questions.

However, this protection found in Government Code section 3303(i) contains a broad exception. The exception applies “to any interrogation of a public safety officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety officer.” So, whether the right to representation is triggered depends largely on what the supervisor knew at the time of questioning the officer. Several court decisions over the years have addressed this exception. This January, the Second District Court of Appeal based in Los Angeles ruled on an appeal in which officers disputed the application of this exception.

In Lozano v. City of Los Angeles (2022) 73 Cal.App.5th 711, two Los Angeles Police Department officers did not respond to a radio call for a robbery-in-progress at a nearby mall. The officers’ patrol car was parked in an alley next to the store being robbed when the call was broadcasted over the radio. As an LAPD captain responded to the robbery, he saw the officers’ patrol car reverse down the alley and leave the area. The officers then put themselves out on a self-initiated call for service nearby. An LAPD sergeant in the watch commander’s office at the time saw the officers’ unit was located nearby and radioed them to respond to the mall to assist the captain. The officers did not answer the radio. Another LAPD unit had to break away from a homicide crime scene and drive Code 3 from across the division to assist at the mall.

When the sergeant returned to the station, he learned the two officers self-initiated their call for service at approximately the same time that the captain arrived on scene at the robbery. This seemed peculiar to him. He contacted the officers and arranged to meet them later that evening at a 7-Eleven parking lot where they were conducting an unrelated investigation. The sergeant asked the officers if they had heard the call for backup at the robbery-in-progress at the mall. One officer said he did not hear the radio traffic. The other officer said he heard the captain arrive at the mall but he did not hear a request for backup. The sergeant asked if their radios were working and counseled the officers regarding the importance of listening to the radio. The officers explained that loud music in the nearby park can make it difficult to hear the radio. The sergeant reiterated that the best practice was to be in a location where they could hear the radio.

The next day, the sergeant, still uneasy about the timing of the officers’ self-initiated call for service, decided to review their patrol unit’s digital in-car video system (“DICVS”) recording to find out what they did on an average day. The sergeant’s (and subsequently Internal Affairs’) review of the DICVS recording revealed that it was the officers’ patrol unit that the captain saw reverse down the alley near the mall. As the officers were leaving the scene, they discussed the robbery-in-progress call for several minutes. They ultimately decided that they did not want to help the captain. They made no attempt to respond over the radio when their unit was called. One officer said: “Aw, screw it,” and they proceeded to self-initiate a call nearby to conceal that they had decided not to respond to the robbery call. Yet, for approximately the next 20 minutes, the officers proceeded to play Pokémon Go on their cellphones.

Following the sergeant’s discovery of the officers’ misconduct, and an Internal Affairs investigation, both officers were terminated from the LAPD. The officers filed a lawsuit challenging the City’s decision to terminate their employment.

Among the many counts of misconduct against the officers was that they made misleading statements to the sergeant while in the 7-Eleven parking lot when they were asked whether they heard the radio broadcast of the robbery-in-progress. The officers sought to have this charge dismissed by alleging that the sergeant’s questioning violated their rights under the POBR. They argued the sergeant knowingly interrogated them about matters that could lead to punitive action without giving them the opportunity to have a representative present. The City responded that the sergeant’s questioning did not violate the POBR. The City argued that the questioning was in the normal course of the sergeant’s duty to provide counseling and instruction and was routine and expected of a supervisor.

Both the trial court and the Court of Appeal agreed with the City. The trial court found that the sergeant met with the officers as part of his normal duty to provide counseling, instruction, or informal verbal admonishment to subordinate officers. The Court of Appeal agreed, ruling that reasonable inferences based on the sergeant’s perception of the events supported the trial court’s finding. The most significant factor was that the sergeant did not have evidence that officers had committed a crime or egregious misconduct when he first met with them to discuss the radio call. At the time, the sergeant had no reason to know the DICVS had recorded the officers’ conversation regarding the captain or the mall robbery. The officers had been instructed to activate the DICVS “during the initiation” of activities, and to deactivate the unit after the “incident or field contact has stabilized or the contact has ended.” Nevertheless, by happenstance the DICVS did capture the officers’ conversations. And it was uncovering this evidence of the officers’ misconduct—after his meeting with the officers—that led the sergeant to initiate formal disciplinary action against them.

This case illustrates that whether an officer has the right to have a representative present during an interrogation depends on what knowledge and evidence the interrogator had at the time. Other factors that tend to turn routine questions into an investigation include: the investigative steps the interrogator took prior to questioning the officer; the seriousness of the misconduct and corresponding potential for disciplinary action if the allegation were to be sustained; the likelihood that the matter will be forwarded to an internal investigation unit; and whether the matter will be documented in writing. See the decision in City of Los Angeles v. Superior Court (Labio) (1997) 57 Cal.App.4th 1506 for authority on this point. These factors will distinguish training or educational meetings about apparent minor infractions where there is no evidence that the supervisor had the intention to punish the officer and only sought to make sure the officer knew the proper procedure for future action. In cases like this, including Lozano and Steinert v. City of Covina (2006) 146 Cal.App.4th 458 (which the Court of Appeal cited in Lozano) the POBR protection does not apply.

The takeaway from this case is that if you are an officer being questioned by a supervisor about something that you know or think might lead to discipline, you should immediately ask for a POBR representative to be present. The officers in Lozano did not do this, and instead sought to further conceal their misconduct by nonchalantly replying to the sergeant’s questions as if they had nothing to hide. This led to them facing an additional charge of dishonesty, which can be career-ending. It would have been wiser for them to recognize that they might have to face discipline for their conduct and to request representation before being interrogated. Often, involving a representative, such as an attorney, can be the difference between minor discipline and a career-ending termination.

If you have any questions about this alert, please contact Scott Thorne in our Sacramento office.