Oakland Police Officers' Assn. v. City of Oakland

Filed 5/13/21 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
OAKLAND POLICE OFFICERS’ A158662
ASSOCIATION et al.,
Plaintiffs and Respondents, (Alameda County Super. Ct.
No. RG19002328)
v.
CITY OF OAKLAND, ORDER MODIFYING OPINION
AND DENYING REHEARING
Defendant and Appellant.
[NO CHANGE IN JUDGMENT]
It is ordered that the opinion filed herein on April 26, 2021, be modified
as follows:
1. On page 22, in the first full paragraph beginning with “Under this
construction…,” remove the word “may” and replace it with “must”, so that
the paragraph shall now read as:
“Under this construction of subdivision (g), and consistent with City of
Pasadena, no materials identified in subdivision (g) must be disclosed prior to
an initial interrogation of a peace officer.”
The modification does not change the appellate judgment. (Cal. Rules
of Court, rule 8.264(c)(2).)
Respondent’s petition for rehearing is denied.
Dated:
____________________________
Humes, P.J.
1
Alameda County Superior Court
The Honorable Frank Roesch
Counsel:
Barbara J. Parker, City Attorney, Ryan Richardson, Special Counsel,
Jennifer Logue, Supervising City Attorney, Hanson Bridgett, Adam Hofmann
for Defendant and Appellant.
Rains, Lucia Stern St Phalle & Silver, Zachery A. Lopes and Timothy Talbot
for Plaintiffs and Respondents.
Liebert Cassidy Whitmore, J. Scott Tiedmann, Alex Y. Wong for League of
California Cities and Los Angeles County Police Chief’s Association as
Amicus Curiae on behalf of Defendant and Appellant.
2
Filed 4/26/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
OAKLAND POLICE OFFICERS’
ASSOCIATION et al.,
Plaintiffs and Respondents, A158662
v. (Alameda County Super. Ct.
CITY OF OAKLAND, No. RG19002328)
Defendant and Appellant.
This appeal concerns the meaning of certain requirements described in
section 3303, subdivision (g) of the Public Safety Officers Procedural Bill of
Rights Act (Gov. Code,1 § 3300 et seq., POBRA), mandating the disclosure of
complaints, reports, and other materials to a peace officer under investigation
for misconduct. In December 2017, a citizen filed a complaint against officers
from the Oakland Police Department (Department), alleging that the officers
violated the citizen’s rights in various ways while conducting a mental health
welfare check. Following an internal investigation, the Department cleared
the officers of misconduct. The Oakland Community Police Review Agency
(CPRA), a civilian oversight agency with independent authority to investigate
claims of police misconduct, conducted its own investigation.
1All statutory references are to the Government Code unless otherwise
specified.
1
Before the CPRA’s formal interrogation of the officers, counsel for the
officers demanded copies of all “reports and complaints” prepared or compiled
by investigators pursuant to section 3303, subdivision (g). The CPRA refused
to disclose these materials. Based on its investigation, the CPRA determined
that officers knowingly violated the complainant’s civil rights by entering the
residence and seizing property without a warrant, and then actively
concealed this violation from investigators.
The officers and their police union filed a petition for writ of mandate
alleging that the City of Oakland (City) violated their procedural rights by
refusing to disclose reports and complaints prior to holding the supplemental
interrogations. The Fourth District Court of Appeal previously considered
the same issue in Santa Ana Police Officers’ Association v. City of Santa Ana
(2017) 13 Cal.App.5th 317, 328 (City of Santa Ana), holding that POBRA
requires the disclosure of such materials after an initial interrogation and
“ ‘prior to any further interrogation.’ ” Feeling constrained by City of Santa
Ana, the trial court below granted the petition and ordered the City to
disregard the interrogation testimony in any current or future disciplinary
proceedings against the officers.
We conclude that mandatory disclosure of complaints and reports prior
to any subsequent interrogation of an officer suspected of misconduct is
inconsistent with the plain language of the statute and undermines a core
objective under POBRA—maintaining the public’s confidence in the
effectiveness and integrity of law enforcement agencies by ensuring that
internal investigations into officer misconduct are conducted promptly,
thoroughly, and fairly. Under our reading of section 3303, subdivision (g), an
investigating agency’s disclosure obligations should instead be guided by
whether the agency designates otherwise discoverable materials as
2
confidential. While confidential materials may be withheld pending the
investigation—and may not be used as the basis for disciplinary proceedings
absent disclosure—nonconfidential material should be disclosed upon
request. Accordingly, we reverse the judgment and remand the matter for
further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Investigation
A welfare check conducted by officers in December 2017 resulted in a
citizen complaint alleging an unlawful search and seizure, excessive use of
force, harassment, discrimination, and property damage. On the date in
question, Officer Doe 1 and Officer Doe 2 responded to the citizen’s residence
after a report was made that the citizen had been drinking, was suicidal, and
was armed with a firearm. Smelling alcohol on the citizen, the officers
handcuffed and conducted a body search, confiscating a weapon. Officer Doe
2 then asked the citizen for permission to check if anyone was in the
residence. The citizen consented, and Doe Officer 2 did a quick protective
sweep, finding no one inside. While Officer Doe 1 placed the citizen in a
patrol vehicle, Officer Doe 2 re-entered the residence. Officer Doe 2 then
exited the residence and asked the citizen about the presence of a weapon.
After the citizen refused to disclose the location of a weapon, Officer Doe 2
entered the residence for a third time, locating and confiscating a weapon.
Officer Doe 3, Officer Doe 4, and a fifth officer arrived after the citizen
had been placed in the patrol vehicle. A mobile crisis team also arrived and
placed the citizen on a psychiatric hold pursuant to Welfare and Institutions
Code section 5150. After the citizen was transported, Officer Doe 1 prepared
a search warrant and affidavit to search the residence in accordance with
3
Welfare and Institutions Code section 8102.2 The Doe Officers and an
additional officer conducted a search of the residence and confiscated a
number of items.
As part of the Department’s investigation, internal affairs took the
citizen’s statement and reviewed existing body worn camera footage and
relevant documents. The Doe Officers were separately interrogated by the
Department in April and May of 2018. The Doe Officers were cleared of any
wrongdoing by the Department in June 2018. However, investigators noted
two areas of concern. First, Doe Officer 2 should have waited for a third
officer to arrive before conducting a protective sweep of the house. Second, a
search warrant should have been obtained prior to searching the citizen’s
residence and seizing a weapon. The Department recommended training for
certain of the officers involved.
In September 2018, the CPRA notified each of the Doe Officers that
they would be re-interviewed concerning the same December 2017 incident.
Prior to these supplemental interrogations, counsel for the Doe Officers
sought discovery of relevant reports and complaints under POBRA and the
City of Santa Ana decision.3 Although the CPRA agreed to provide
recordings and transcribed notes from the prior interrogations conducted by
the Department, it refused to produce any other materials and insisted that
the Doe Officers either sit for further interrogations or face possible punitive
action.
2 Welfare and Institutions Code section 8102 allows for the confiscation
of any firearm or other deadly weapon from a person who has been detained
for examination of his or her mental condition.
3There is no dispute that the Doe Officers were all public safety officers
for purposes of POBRA.
4
All four Doe Officers submitted to further interrogations in November
2018. Based in part on those interrogations, the CPRA found that the Doe
Officers had violated the citizen’s civil rights and recommended discipline.
Specifically, the CPRA concluded that the Doe Officers knowingly violated
the citizen’s Fourth Amendment rights by re-entering the citizen’s residence
without a warrant or the existence of exigent circumstances. The CPRA also
found that the Doe Officers gave misleading statements to investigators,
omitted material details, and worked together in an attempt to conceal their
misconduct. The agency sustained multiple findings of misconduct against
certain Doe Officers and recommended that the Department implement a
number of changes to its policies regarding searches and seizures.
B. Trial Court Proceedings
Oakland Police Officers’ Association and the Doe Officers (collectively,
petitioners) filed the instant action in January 2019, claiming that the City
violated the officers’ procedural rights by refusing to disclose all relevant
“reports and complaints” prior to subsequent interrogations by the CPRA.
Petitioners sought a writ of mandate ordering the City to comply with section
3303, subdivision (g), destroy any recordings of the unlawful interrogations,
and cease any disciplinary proceedings against the Doe Officers. They
further requested a declaration that the Doe Officers’ statutory POBRA
rights had been violated and sought civil penalties with respect to those
violations.
While these proceedings were pending in the trial court, the parties
agreed to the following stipulated facts:
(1) “The interviews of Officer Doe 1, on or about November 14, 2018,
Officer Doe 2, on or about November 13, 2018, Officer Doe 3, on or about
November 9, 2018, and Officer Doe 4, on or about November 13, 2018, were
5
‘further interrogation[s]’ under the meaning of Government Code section
330[3](g).”
(2) “Prior to these further interrogations, counsel for Officer Does 1
through 4, Justin Buffington, requested that [City] turn over reports and
complaints as discussed within Government Code section 330[3](g) and Santa
Ana Police Officers Association v. City of Santa Ana (2017) 13 Cal.App.5th
317.”
(3) “Before those further interrogations, and at the time of Justin
Buffington’s requests for reports and complaints, the City was in possession
of reports and/or complaints as discussed within Government [C]ode section
330[3](g).”
(4) “On November 5, 2018, Anthony Finnell sent an email to Justin
Buffington and Joan Saupe, which stated, ‘Upon the advice of counsel, the
CPRA denies your requests for “reports and complaints” and will not produce
said material. (See Pasadena Police Officers Association v. City of Pasadena,
797 P.2d 608 (1990).)’ Mr. Finnell’s email also set a schedule for three
officers to be interviewed and stated, ‘Refusal to submit to the interviews
may subject your clients to punitive action. (Gov. Code sec. 3303(e).)’ ”
(5) “On November 6, 2018, Mr. Buffington sent an email to Mr. Finnell,
which stated, ‘The Pasadena case only applies to pre-interrogation discovery,
not post-interrogation discovery. In fact, the Santa Ana case harmonizes and
relies on the Pasadena case in determining that officers are entitled to
reports and complaints. Furthermore, the California Supreme Court declined
to hear an appeal of the Santa Ana case, making it settled law.
Unfortunately, I will be forced to litigate this matter in Alameda County
Superior Court. Please be advised that reliance on the advice of counsel is
not a valid defense.’ ”
6
After hearing, the trial court granted the writ petition, reasoning as
follows: “The Court is bound by Santa Ana, which plainly holds that ‘reports
and complaints also must be produced “prior to any further interrogation.” ’
[Citation.] This holding is not inconsistent with the Supreme Court’s holding
in Pasadena Police Officers’ Association v. City of Pasadena [hereafter
‘Pasadena POA’] (1990) 51 Cal.3d 564, which addressed only whether notes
and reports must be produced before the initial interrogation. The Court is
bound by the holding in Santa Ana, notwithstanding the conflict between
that case’s holding and the Supreme Court’s reasoning in Pasadena POA that
‘granting discovery before interrogation could frustrate the effectiveness of
any investigation, whether criminal or administrative’ (id. at p. 578) and
would be ‘contrary to sound investigative practices’ (id. at p. 579) [citation].”
(Italics added.) In the resulting judgment and writ of mandate, the trial
court ordered the City to comply with section 3303, subdivision (g), and
“disregard, in any current or future proceedings, the interrogation testimony
gathered from Doe Officers without prior compliance” with that statute as
interpreted by City of Santa Ana. The court further ordered that the City
could not “hold disciplinary hearings for Doe Officers until final judgment is
entered in this matter, following either the expiration of [City’s] time to
appeal or issuance of a remittitur by the Court of Appeal.”
This appeal followed. After briefing was completed, we granted a
request by the League of California Cities and the Los Angeles County Police
Chiefs’ Association to file an amicus brief supporting the City’s position.4
4 We granted a related request by amici curiae for judicial notice of the
legislative history underlying section 3303 on that same date. (Evid. Code, §§
452, subd. (c) & 459, subd.(a); see, e.g., Stewart v. Rolling Stone LLC (2010)
181 Cal.App.4th 664, 676, fn.8.) The judicial notice requests by the parties
filed February 6, 2020 and March 17, 2020—which were both deferred
7
Following oral argument in this matter, we requested supplemental briefing
concerning the applicability of the confidentiality provision in section 3303,
subdivision (g) to this appeal. With the parties’ supplemental letter briefs
now received, the matter is resubmitted and before us for decision.
DISCUSSION
This appeal concerns the interpretation of disclosure requirements
described in section 3303, subdivision (g), and in particular whether
investigative reports or complaints must be disclosed to a peace officer under
investigation for misconduct prior to any further interrogation of that officer.
On an appeal from an order granting mandamus relief, we are not bound by
the trial court’s interpretation of statutory or decisional law. We review such
questions of law de novo. (Daugherty v. City and County of San Francisco
(2018) 24 Cal.App.5th 928, 944 (Daugherty).)
I. Relevant Law
A. Public Safety Officers Procedural Bill of Rights Act
Initially enacted in 1976 (Stats. 1976, ch. 465, § 1, p. 1202), POBRA
“sets forth a list of basic rights and protections which must be afforded all
peace officers [citation] by the public entities which employ them. It is a
catalogue of the minimum rights [citation] the Legislature deems necessary
to secure stable employer-employee relations.” (Baggett v. Gates (1982) 32
Cal.3d 128, 135; White v. County of Sacramento (1982) 31 Cal.3d 676, 681
[POBRA “is concerned primarily with affording individual police officers
certain procedural rights during the course of proceedings which might lead
to the imposition of penalties against them”].) “These procedural
protections . . . serve the legislative goal of stable employer-employee
pending consideration of this appeal—are denied as unnecessary to our
resolution of the case.
8
relations, for ‘[e]rroneous action can only foster disharmony, adversely affect
discipline and morale in the workplace, and thus ultimately impair employer-
employee relations and the effectiveness of law enforcement services.’ ”
(Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 584
(City of Pasadena).)
Section 3303 “prescribes protections that apply when a peace officer is
interrogated in the course of an administrative investigation that might
subject the officer to punitive action, such as ‘dismissal, demotion,
suspension, reduction in salary, written reprimand, or transfer for purposes
of punishment.’ ” (City of Pasadena, supra, 51 Cal.3d at p. 574, quoting §
3303; see Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1283
(Gilbert) [same].) “To ensure fair treatment of an officer during an internal
affairs interrogation, section 3303 requires that the employing agency notify
the officer to be interrogated of the identity of the interrogating officers (§
3303, subd. (b)), and of ‘the nature of the investigation prior to any
interrogation’ (§ 3303, subd. (c)). It also prohibits abusive interrogation
techniques. (§ 3303, subds. (a) [interrogation to be conducted at a reasonable
hour], (b) [no more than two interrogators], (d) [length of the interrogation
session not to be unreasonable; subject must be allowed to attend to physical
necessities], and (e) [no abusive language, promises or threats].) If the
interrogation focuses on matters likely to result in punitive action against the
peace officer, section 3303 allows the officer to designate a representative to
be present at the interrogation, provided that the representative is not
someone subject to the same investigation. (§ 3303, subd. (h) [now subd. (i)].)
If criminal charges are contemplated, section 3303 requires immediate
advisement of the so-called Miranda rights. (§ 3303, subd. (g) [now subd.
(h)].)” (City of Pasadena, supra, 51 Cal.3d at p. 574.)
9
Balanced against the need to afford peace officers a fair process, these
procedural safeguards also reflect the institutional and public importance of
ensuring prompt, thorough, and impartial investigations of police misconduct
claims. (City of Pasadena, supra, 51 Cal.3d at p. 572; see also Daugherty,
supra, 24 Cal.App.5th at p. 947 [“ ‘The various procedural protections
provided by POBRA “balance the public interest in maintaining the efficiency
and integrity of the police force with the police officer’s interest in receiving
fair treatment.” ’ ”].) As the Supreme Court explained more than forty years
ago when it interpreted the same POBRA provision at issue in this appeal:
“To keep the peace and enforce the law, a police department needs the
confidence and cooperation of the community it serves. Even if not criminal
in nature, acts of a police officer that tend to impair the public’s trust in its
police department can be harmful to the department’s efficiency and morale.
Thus, when allegations of officer misconduct are raised, it is essential that
the department conduct a prompt, thorough, and fair investigation. Nothing
can more swiftly destroy the community’s confidence in its police force than
its perception that concerns raised about an officer’s honesty or integrity will
go unheeded or will lead only to a superficial investigation.” (City of
Pasadena, supra, 51 Cal.3d at p. 568.)
The Supreme Court has thus recognized that “[l]imitations on the
rights of those employed in law enforcement have long been considered ‘a
necessary adjunct to the [employing] department’s substantial interest in
maintaining discipline, morale and uniformity[,]’ ” especially when
“preservation of public confidence in the trustworthiness and integrity of its
police force is at stake.” (City of Pasadena, supra, 51 Cal.3d at p. 577.) For
example, POBRA requires officers to comply with administrative
interrogations, and the refusal to sit for an interrogation or to answer
10
questions may be grounds for punitive action. (Id. at p. 574; see § 3303, subd.
(e) [“an officer refusing to respond to questions or submit to interrogations
shall be informed that failure to answer questions directly related to the
investigation or interrogation may result in punitive action”].) With this
background in mind, we review the Supreme Court’s opinion in City of
Pasadena and subsequent appellate decisions that have construed the
POBRA provision at issue in this appeal—section 3303, subdivision (g).
B. Judicial Construction of Section 3303, Subdivision (g)
Subdivision (g) prescribes rules for the discovery of materials related to
an interrogation of a peace officer for alleged misconduct. It provides as
follows: “The complete interrogation of a public safety officer may be
recorded. If a tape recording is made of the interrogation, the public safety
officer shall have access to the tape if any further proceedings are
contemplated or prior to any further interrogation at a subsequent time. The
public safety officer shall be entitled to a transcribed copy of any notes made
by a stenographer or to any reports or complaints made by investigators or
other persons, except those which are deemed by the investigating agency to
be confidential. No notes or reports that are deemed to be confidential may
be entered in the officer’s personnel file. The public safety officer being
interrogated shall have the right to bring his or her own recording device and
record any and all aspects of the interrogation.”
In City of Pasadena, the Supreme Court considered the “narrow issue”
of whether subdivision (g) (then subdivision (f)) grants “preinterrogation
discovery rights to a peace officer who is the subject of an internal affairs
investigation.” (City of Pasadena, supra, 51 Cal.3d at pp. 568-569.) An
investigator had interviewed Officer Ford during an internal affairs
investigation into possible insubordination by Officer Diaz. When Officer
11
Diaz appeared for a scheduled administrative interrogation, he argued that
he was not required to answer any questions until he was given access to the
notes from the Ford interview. The investigator refused to disclose the notes.
(Id. at p. 570.) Following a lawsuit by the officer, the trial court concluded
that the statute required preinterrogation disclosure of “reports and
complaints” such as the notes of the Ford interview. (Id. at p. 571.) The
court of appeal affirmed, concluding that a public safety officer who is the
subject of an internal affairs investigation is entitled under POBRA to “copies
of nonconfidential reports and complaints” prior to being interrogated. (Ibid.)
The Supreme Court reversed. It concluded that “in allowing an officer
under administrative investigation access to reports and complaints, the
Legislature intended the right to such access to arise after, rather than
before, the officer’s interrogation.” (City of Pasadena, supra, 51 Cal.3d at p.
569.) Looking first to the statutory language, the Court noted that
subdivision (f) (now subdivision (g)) does not specify when an officer’s
entitlement to “reports and complaints” arises. (Id. at 575.) It observed,
however, that the provision also grants an officer access to any recording of
the officer’s interrogation, as well as to transcribed stenographer’s notes
memorializing the interrogation, both of which logically could only be
provided after an interrogation. (Id. at pp. 575-576.) Moreover, since “the
Legislature placed the provision regarding disclosure of reports and
complaints and the provision specifying entitlement to transcribed notes in
the same sentence in subdivision [(g)],” the Court determined “that the
Legislature must have intended the discovery rights in each instance to be
coextensive, entitling the officer to copies of reports and complaints and
transcribed stenographer’s notes after the interrogation.” (Id. at p. 576.)
12
The Supreme Court further reasoned that when the Legislature has
required that certain acts described in section 3303 be performed before the
interrogation, it used the words “ ‘prior to.’ ” (City of Pasadena, supra, 51
Cal.3d at p. 576; see, e.g., § 3303, subd. (c) “[[t]he public safety officer . . .
shall be informed of the nature of the interrogation prior to any
interrogation”].) In contrast, “the words ‘prior to’ do not appear in that part
of subdivision [(g)] requiring disclosure of reports and complaints.” (Ibid.)
“When the Legislature ‘has employed a term or phrase in one place and
excluded it in another, it should not be implied where excluded.’ ” (Ibid.)
Thus, the omission of the phrase “prior to” in the sentence mandating
disclosure of reports and complaints indicated that the Legislature intended
for such disclosures to occur after an interrogation. (Ibid.)
Buttressing the Supreme Court’s textual analysis was its discussion of
the legislative purpose underlying POBRA. The Supreme Court emphasized
the Legislature’s intent to strike a balance between safeguarding a peace
officer’s procedural rights and maintaining “public confidence in the
trustworthiness and integrity of its police force” through prompt, thorough,
and fair investigations of officer misconduct. (City of Pasadena, supra, 51
Cal.3d at pp. 572, 577.) The Court explained that, while some of the rights
afforded police officers under POBRA “resemble those available in a criminal
investigation,” POBRA also evinces “a recognition by the Legislature that a
law enforcement agency should retain greater latitude when it investigates
suspected officer misconduct than would be constitutionally permissible in a
criminal investigation.” (Id. at p. 577; see also ibid. [“the Legislature looked
to criminal procedure as a model for [POBRA] but then provided somewhat
reduced protections”].) The Court concluded that disclosure of investigative
reports and other materials before an interrogation was “not essential to the
13
fundamental fairness of an internal affairs investigation” and, indeed, was
“without precedent.” (Id. at p. 578.) In a criminal investigation, for example,
the right to discovery “does not arise until charges have been filed and the
suspect becomes an accused.” (Ibid.) Moreover, granting discovery before
interrogation “could frustrate the effectiveness of any investigation” (ibid),
“might color the recollection of the person to be questioned or lead that
person to conform his or her version of an event to that given by witnesses
already questioned” (id. at p. 579), and “would be contrary to sound
investigative practices.” (Ibid.)
In sum, “entitlement to preinterrogation discovery is neither apparent
from the language of subdivision [(g)] nor fundamental to the fairness of an
internal affairs investigation.” (City of Pasadena, supra, 51 Cal.3d at p. 579.)
Further, mandating such discovery “might jeopardize public confidence in the
efficiency and integrity of its police force.” (Ibid.) The Supreme Court thus
held that “the Legislature intended subdivision [(g)] to require law
enforcement agencies to disclose reports and complaints to an officer under
an internal affairs investigation only after the officer’s interrogation.”5 (Ibid.)
Following the City of Pasadena opinion, several appellate courts have
addressed the scope of the “reports and complaints” disclosure requirement
under section 3303, subdivision (g). In San Diego Police Officers Assn. v. City
of San Diego (2002) 98 Cal.App.4th 779 (City of San Diego), the Fourth
District Court of Appeal concluded that reports and complaints subject to
disclosure under this provision “include all materials that contain reports of
5 Because the high court concluded that preinterrogation disclosure was
not required by subdivision (g), it declined to consider the agency’s argument
that the materials at issue were confidential because their disclosure prior to
the interrogation “would impair the investigator’s ability to evaluate the
credibility of [the officer].” (City of Pasadena, supra, 51 Cal.3d at p. 580.)
14
or complaints concerning the misconduct that is the subject of the
investigation,” including tape-recorded interviews of witnesses and raw notes
of investigators. (Id. at pp. 782-784.) The appellate court reasoned that if
“an accused officer is entitled to only the written complaints filed by third
persons and the final written report prepared by investigators, but not to the
underlying materials that might tend to show the complaints or reports were
inaccurate, incomplete, or subject to impeachment for bias, the officer’s
ability to establish a defense at the administrative hearing could be
hampered and the rights protected by [POBRA] undermined.” (Id. at p. 784.)
The Sixth District Court of Appeal disagreed with this view in Gilbert,
supra, 130 Cal.App.4th 1264. According to the Gilbert court, both “report”
and “complaint” as used in the statute “suggest a more formal presentation
than the raw or original source materials from which a report may be drawn.”
(Id. at p. 1286.) In rejecting an officer’s right to discovery of investigators’
notes, the appellate court explained: “The only ‘notes’ to which such officer is
expressly entitled under section 3303, subdivision (g), are the ‘notes made by
a stenographer,’ who was implicitly present at the officer’s interrogation.
Fair treatment of such officer does not require that all the material amassed
in the course of the investigation, such as raw notes, written communications,
records obtained, and interviews conducted, be provided to the officer
following the officer’s interrogation.” (Id. at pp. 1286-1287; see also Davis v.
County of Fresno (2018) 22 Cal.App.5th 1122, 1135-1138, (Davis) [noting but
declining to address split of authority on scope of “reports” and “complaints”
under section 3303, subdivision (g)].)
Most recently, in City of Santa Ana, supra, 13 Cal.App.5th 317, the
Fourth District Court of Appeal considered the same question of statutory
interpretation presented by this appeal. Two police officers were investigated
15
for alleged misconduct which occurred during the execution of a search
warrant at a marijuana dispensary. (Id. at pp. 321-322.) Unbeknownst to
the officers, hidden cameras had recorded them during the search. (Id. at p.
322.) After certain portions of the recordings were released to the media by
the dispensary owners, an investigation was initiated and both officers were
interrogated. (Id. at pp. 322-323.) Additional portions of the recordings were
subsequently obtained, and the officers were notified that they would be re-
interrogated concerning the newly acquired recordings. (Id. at p. 323.) The
officers’ request for discovery materials prior to the second interrogations was
rejected. (Ibid.) The officers then filed suit in superior court, alleging in part
that the refusal to produce discovery under section 3303, subdivision (g) was
a violation of POBRA.6 (Id. at pp. 323, 326.) The trial court sustained the
city’s demurrer without leave to amend with respect to both causes of action.
(Id. at p. 323.)
The appellate court reversed on the POBRA claim, noting that
subdivision (g) of section 3303 “plainly states” with respect to any tape
recording of the first interrogation that “ ‘the public safety officer shall have
access to the tape . . . prior to any further interrogation at a subsequent
time.’ ” (Id. at p. 327, italics omitted.) Since the police officers had not been
provided these tape recordings, their complaint stated a cause of action under
POBRA on this basis alone. (Ibid.)
As for the disclosure of reports and complaints, the appellate court
acknowledged that section 3303, subdivision (g) “ ‘does not specify when an
officer’s entitlement to the reports and complaints arises.’ ” (City of Santa
Ana, supra, 13 Cal.App.5th at p. 327.) Citing City of Pasadena, the court
6The officers also asserted a statutory privacy claim that the appellate
court ultimately concluded was not cognizable. (City of Santa Ana, supra, 13
Cal.App.5th at pp. 324-326.)
16
noted that the Supreme Court had found that copies of tape recordings and
transcribed notes of the first interrogation must necessarily be provided after
the interrogation, the disclosure requirement for reports and complaints was
located in the same sentence as the disclosure requirement for stenographer’s
notes, and the Court had remarked that the discovery rights to “ ‘copies of
reports and complaints and transcribed stenographer’s notes after the
interrogation’ ” were “ ‘coextensive’.” (Id. at p. 328.) The appellate court thus
concluded: “Because discovery rights to reports and complaints are
coextensive with discovery rights to tape recordings of interrogations, and
tapes recordings must be produced ‘prior to any further interrogation,’ then it
follows that reports and complaints also must be produced ‘prior to any
further interrogation.’ ” (Id. at p. 328.) We respectfully disagree with this
analysis for the reasons set forth below.
II. Timing of Disclosures Mandated by Section 3303, Subdivision (g)
“ ‘The fundamental rule of statutory construction is that a court should
ascertain the intent of the Legislature so as to effectuate the purpose of the
law.’ ” (Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th
1294, 1303 (City of Upland).) “Because the statutory language is generally
the most reliable indicator of legislative intent, we first examine the words
themselves, giving them their usual and ordinary meaning and construing
them in context.” (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 268,
superseded by statute on other grounds as stated in Bernard v. City of
Oakland (2012) 202 Cal.App.4th 1553, 1561 at fn. 5.) We are required to
read a statute’s provisions “as a whole” and to “harmoniz[e] ‘statutes or
statutory sections relating to the same subject . . . both internally and with
each other, to the extent possible.’ ” (City of Pasadena, supra, 51 Cal.3d at p.
575.)
17
“ ‘[S]tatutes must be construed so as to give a reasonable and common-
sense construction consistent with the apparent purpose and intention of the
lawmakers—a construction that is practical rather than technical, and will
lead to wise policy rather than mischief or absurdity. [Citation.] In
approaching this task, the courts may consider the consequences which might
flow from a particular interpretation and must construe the statute with a
view to promoting rather than defeating its general purpose and the policy
behind it.’ ” (City of Upland, supra, 111 Cal.App.4th at p. 1303.) When “ ‘the
language permits more than one reasonable interpretation, . . . the court
looks “to a variety of extrinsic aids, including the ostensible objects to be
achieved, the evils to be remedied, the legislative history, public policy,
contemporaneous administrative construction, and the statutory scheme of
which the statute is a part.” ’ ” (S.B. Beach Properties v. Berti (2006) 39
Cal.4th 374, 379.)
A. Disclosure of Reports and Complaints Before a Subsequent
Interrogation is Not Required by Plain Meaning of Subdivision (g)
Subdivision (g) of section 3303 permits the “complete interrogation of a
public safety officer” to be recorded by the investigating agency as well as by
the officer through a personal recording device. The provision then states: “If
a tape recording is made of the interrogation, the public safety officer shall
have access to the tape if any further proceedings are contemplated or prior
to any further interrogation at a subsequent time. The public safety officer
shall be entitled to a transcribed copy of any notes made by a stenographer or
to any reports or complaints made by investigators or other persons, except
those which are deemed by the investigating agency to be confidential.”
There is only one express timing directive in this statutory language—
namely, a police officer whose interrogation has been recorded must be
granted access to that recording “if any further proceedings are contemplated
18
or prior to any further interrogation at a subsequent time.” (§ 3033, subd. (g),
italics added; see City of San Diego, supra, 98 Cal.App.4th at p. 785 [noting
that “[t]he express mention in section 3303, subdivision (g) of the tape
recording of an officer’s interview covers the distinct mandate that requires a
single category of material (any tape recording of the first interview of the
accused officer) be provided before the officer may be re-interviewed,” some
italics added].) In contrast, the plain language of the statute “does not
specify when an officer’s entitlement to the reports and complaints arises.”
(City of Pasadena, supra, 51 Cal.3d at p. 575; see also Gilbert, supra, 130
Cal.App.4th at pp. 1292-1293 [same].)
The discovery obligation for the other three types of material—
stenographer’s notes, reports, and complaints—is contained in the next
sentence and does not provide a time frame for disclosure. As the Supreme
Court observed, the phrase “prior to” is absent from this sentence, a notable
omission given that when the Legislature wanted certain acts described in
section 3303 to take place before an interrogation, it used the words “ ‘prior
to.’ ” (City of Pasadena, supra, 51 Cal.3d at p. 576 [“When the Legislature
‘has employed a term or phrase in one place and excluded it in another, it
should not be implied where excluded.’ ”].) Applying this statutory canon, it
is apparent that the Legislature did not intend to establish a post-
interrogation deadline for the disclosure of “reports or complaints” as it had
in the preceding sentence for tape recordings “prior to any further
interrogation.” (§ 3303, subd. (g); see City of San Diego, supra, 98
Cal.App.4th at p. 785 [opining that the maxim expressio unius est exclusio
alterius “would support the claim that City need not provide [the other three]
categories of materials before re-interviewing an officer”].)
19
City of Santa Ana concluded that because certain discovery materials
(tape recordings and stenographer notes) can only be produced following an
initial interrogation, all four types of materials should be treated in like
manner and disclosed at the same time after the initial interrogation. (City
of Santa Ana, supra, 13 Cal.App.5th at p. 328.) The appellate court relied in
particular on the Supreme Court’s conclusion that discovery rights for these
materials were “ ‘coextensive’.” (Ibid.) In our view, however, the Supreme
Court’s characterization of these discovery obligations as “coextensive”
pertained to the narrow issue before the Court—whether certain discovery
materials must be disclosed prior to an initial interrogation when other
materials logically cannot be. City of Pasadena should not be overread to
mean that subdivision (g)’s discovery obligations following an initial
interrogation were meant to operate in lockstep. A plain reading of the
statute does not support this construction, and it ignores the Supreme
Court’s own analysis of the omitted phrase ‘prior to’ in that portion of
subdivision (g) discussing the disclosure of “reports and complaints.”
The plain language of subdivision (g) thus establishes only that a police
officer is entitled to nonconfidential stenographer’s notes, reports, and
complaints “[w]hen [the officer] is under investigation and subjected to
interrogation . . . that could lead to punitive action”—that is, at some point
during the investigation. (See City of Pasadena, supra, 51 Cal.3d at p. 575
[noting that subdivision (g) “defines only disclosure requirements incident to
an investigation; it does not address an officer’s entitlement to discovery in
the event he or she is administratively charged with misconduct”].)
The question remains, when should such materials be discovered? One
appellate court concluded that, since subdivision (g) “does not specify any
time frame for disclosure,” . . . “a reasonable, post-interrogation time frame
20
is implied.” (Gilbert, supra, 130 Cal.App.4th at p. 1293.) Another court
opined that, while the statute supports the conclusion that only the tape
recording of the first interview must be provided before an accused officer is
re-interviewed, it does not support a claim that an agency “need never
provide other types of materials to an accused officer.” (City of San Diego,
supra, 98 Cal.App.4th at p. 785.) In its appellate briefing, the City contends
that “the commencement of [a] formal disciplinary hearing[]” is a reasonable
deadline to disclose “reports and complaints” against an officer, i.e., at the
end of the agency’s investigation. Amici curiae join in this view.
As we explain next, we conclude the statutory language and legislative
history of subdivision (g) offer a different answer, one based on the
investigating agency’s statutory right to withhold certain materials it deems
confidential from disclosure.7
B. Confidentiality as the Touchstone for Disclosure of Subdivision (g)
Discovery Materials
Under the statute, an agency’s disclosure obligations extend only to
nonconfidential stenographer’s notes, reports, and complaints. (§ 3303, subd.
(g) [“The public safety officer shall be entitled to a transcribed copy of any
notes made by a stenographer or to any reports or complaints made by
investigators or other persons, except those which are deemed by the
investigating agency to be confidential,” italics added]; see also Gilbert, supra,
7 We recognize that a blanket rule permitting all notes, reports, and
complaints to be held until the end of the investigation would be both
predictable and convenient for investigating agencies. However, nothing in
the statutory language supports this construction of section 3303, subdivision
(g). Given the balance the Legislature was attempting to strike between a
fair process for officers entitled to disclosable materials and a robust
investigation, we see no basis for allowing an agency to withhold
nonconfidential materials for reasons of convenience.
21
130 Cal.App.4th at p. 1290 [subdivision (g) “empowers the investigating
agency to deem reports confidential and excepts items so designated from the
agency’s disclosure obligation”].) Moreover, the broad statutory language of
subdivision (g) places no express restrictions on an investigating agency’s
power to designate stenographer’s notes, reports, and complaints as
confidential. (See ibid. [noting that nothing in subdivision (g) “limits an
investigating agency’s power to designate reports confidential to materials
protected by statutory privilege”].) Thus, an investigating agency may deem
such materials confidential if it finds that doing so satisfies a statutory basis
for confidentiality (e.g., Evid. Code § 1040-1041), or if disclosure would
otherwise interfere with an ongoing investigation.8 Furthermore, nothing in
section 3303 prohibits an agency from de-designating a record previously
deemed confidential when the basis for confidentiality no longer exists, such
as the end of the investigation or some other circumstance.
Under this construction of subdivision (g), and consistent with City of
Pasadena, no materials identified in subdivision (g) may be disclosed prior to
an initial interrogation of a peace officer. Thereafter, any tape recording
made of the interrogation must be disclosed “if any further proceedings are
contemplated or prior to any further interrogation at a subsequent time.” (§
3033, subd. (g).) Stenographer’s notes, reports, and complaints should also be
8 Related statutory provisions recognize the need for confidentiality of
records to protect an ongoing investigation. (See, e.g., Pen. Code § 832.7,
subd. (b)(7)(C) [delaying public disclosure of peace officer personnel records
related to discharge of a firearm or use of force incident involving death or
great bodily injury “until the investigating agency determines whether the
use of force violated a law or agency policy”]; subd. (b)(1)(B) & (C) [limiting
public disclosure of records regarding other incidents to those “in which a
sustained finding was made by any law enforcement agency or oversight
agency”].)
22
disclosed upon request unless the investigating agency designates any such
material as confidential to protect the integrity of an ongoing investigation.
For example, there appears to be no reason why stenographer’s notes
related to a taped interrogation that was disclosed to the public safety officer
would need to remain confidential from that officer. Here, the City disclosed
the tapes and transcribed notes of the initial interrogations to each of the Doe
Officers in this case upon request but cautioned that the materials could not
be shared among the officers. It is thus conceivable that an investigating
agency might deem it necessary to withhold the recordings and
stenographer’s notes of other officer interrogations or witness interviews from
an officer under investigation during an active investigation to preserve the
confidentiality of those discussions. Reports and complaints might also be
withheld if disclosure would reveal confidential sources or other sensitive
information. If, however, punitive action is contemplated at the conclusion of
an investigation, the agency must decide whether to de-designate and
disclose any confidential materials to the officer or decline to bring
misconduct charges on the basis of those materials. (See Gilbert, supra, 130
Cal.App.4th at pp. 1280, 1290.)
Even if punitive action is not pursued at the end of an investigation,
the designation of material as confidential carries other consequences. Under
subdivision (g), “No notes or reports that are deemed to be confidential may
be entered in the officer’s personnel file.” This provision suggests that “the
employing department may not make adverse personnel decisions concerning
the officer based on reports, or the portions thereof, deemed confidential and
not made available to the officer.” (Gilbert, supra, 130 Cal.App.4th at p.
1290.) Other POBRA provisions support this view. (See § 3305 [adverse
comment may not be added to peace officer’s personnel file without review
23
and acknowledgement by the officer]; § 3306 [affording officer thirty days to
file written response to any adverse comment entered in personnel file].)
We are aware that prior cases have found a police officer’s right to view
adverse comments under section 3305 broadly applicable, even in the face of
an assertion of confidentiality by the investigating agency. (See County of
Riverside v. Superior Court (2002) 27 Cal.4th 793; Sacramento Police Officers
Assn. v. Venegas (2002) 101 Cal.App.4th 916; Seligsohn v. Day (2004) 121
Cal.App.4th 518.) These cases are distinguishable because they arose in the
context of police officers requesting access to investigative records and
complaints under sections 3305 and 3306 after the investigations had ended
and no further action was taken. Animating these court decisions was the
unfairness in allowing law enforcement agencies to maintain undisclosed
allegations in a separate confidential file with potential consequence for
future personnel decisionmaking. (See Riverside, supra, 27 Cal.4th at pp.
796-797, 799.)
That is not the situation here. For the confidentiality clause in
subsection (g) of section 3303 to apply, an officer must be “under
investigation and subjected to interrogation” (§ 3303), and must therefore be
informed “of the nature of the investigation prior to any interrogation” (id,
subd. (c)). To harmonize these provisions, we conclude that an officer’s
review and comment rights under sections 3305 and 3306 do not extend to
review of materials temporarily deemed confidential by an agency under
section 3303 for purposes of an active investigation. Nothing in this opinion
is meant to absolve an investigating agency from compliance with those
statutes once the investigatory period has ended.
24
C. Section 3303’s Legislative History Supports This Construction
An examination of section 3303, subdivision (g)’s legislative history
further confirms that the Legislature intended for the confidentiality
provision to serve as a counterpoint to an agency’s disclosure obligations.
Balanced against the public safety officer’s disclosure rights under
subdivision (g) is the broad latitude given to an investigating agency to
declare otherwise discoverable materials confidential so as to ensure the
efficacy and integrity of police misconduct investigations.
As originally introduced on December 19, 1974, then-subdivision (f) of
section 3303 provided in relevant part: “The complete interrogation of a
public safety officer shall be recorded and there shall be no unrecorded
questions or statements. If a tape recording is made of the interrogation, the
public safety officer shall have access to the tape if any further proceedings
are contemplated or prior to any further interrogation at a subsequent time.
The public safety officer shall be entitled to a transcribed copy of any notes
made by a stenographer or to any reports made by investigators.” (Assem.
Bill No. 301 (1975-1976 Reg. Sess.) as introduced Dec. 19, 1974 at p. 3 (A.B.
301).) The bill as initially proposed broadly authorized the disclosure of
stenographer’s notes and investigator’s reports to public safety officers under
investigation, but it did not provide any basis for investigating agencies to
protect the integrity of their investigations by withholding sensitive
information.
Opposition to A.B. 301 focused on the bill’s negative impact on internal
affairs investigations. (See Rodney J. Blonien, Cal. Peace Officers’ Assn. &
Cal. District Attorneys’ Assn. & Cal. State Sheriff’s Assn., letter to
Assemblyman Keysor, Apr. 18, 1975 [A.B. 301 “in its present form would
significantly hinder law enforcement agencies in conducting internal affairs
25
investigations and citizen complaints against law enforcement officers. The
constraints this bill imposes would be detrimental to the protection of society
and to the law enforcement profession as a whole.”]; Sen. Democratic Caucus,
3d. Reading File of Assem. Bill 301 (1975-1976 Reg. Session) as amended on
June 4, 1975 [noting as arguments in opposition that the bill “inhibits law
enforcement agency in ascertaining criminal violations of peace officers” and
“may inhibit confidential sources reporting against police [by] allowing rights
to any reports made by investigators”].) As the Assembly’s Third Reading
Report summarized: “This bill is opposed by most major law enforcement
organizations largely because it imposes what many feel are excessive or
unrealistic restrictions on law enforcements’ ability to supervise and, when
necessary, discipline its members.” (A.B. 301, Assem. 3d Reading Report of
bill as amended June 4, 1975.)
The proposed subdivision was then amended in August 1975 to
mandate recording of interrogations only “where practical” and to limit
disclosures to public safety officers as follows: “The public safety officer shall
be entitled to a transcribed copy of any notes made by a stenographer or to
any reports made by investigators, except those which are deemed by the
agency to be confidential. No notes or reports which are deemed to be
confidential may be entered in the officer’s personnel file.” (A.B. 301, as
amended Aug. 25, 1975 at p. 18.) A final amendment in August 1976 made
recording of interrogations discretionary and expanded the materials subject
to disclosure. As adopted, the subdivision read in relevant part: “The
complete interrogation of a public safety officer may be recorded. . . . The
public safety officer shall be entitled to a transcribed copy of any notes made
by a stenographer or to any reports or complaints made by investigators or
other persons, except those which are deemed by the investigating agency to
26
be confidential. No notes or reports which are deemed to be confidential may
be entered in the officer’s personnel file.” (A.B. 301, as amended in
conference Aug. 12, 1976 at p. 4.; see also Stats 1976, ch. 465, §1.)
As the legislative history demonstrates, by granting investigating
agencies the authority to withhold confidential materials, the Legislature
intended to strike a balance between a police officer’s entitlement to relevant
discovery and the agency’s ability to supervise its employees effectively and
to safeguard the integrity of its internal investigations. Indeed, even as the
Legislature amended A.B. 301 to include the confidentiality provision, it
added a further protection for peace officers by forbidding confidential
materials to be entered into a personnel file. Thus, under our reading of
subdivision (g), the timing of post-interrogation disclosure of notes,
complaints, and reports against a peace officer is guided by an investigating
agency’s exercise of its discretion to designate certain materials as
confidential in furtherance of its investigative objectives and to release
nonconfidential materials upon request of the officer under investigation.9
9
In supplemental briefing, petitioners contend that the confidentiality
clause was added to address a concern raised by opponents of A.B. 301 who
argued that the bill “may inhibit confidential sources reporting against police
[by] allowing rights to any reports made by investigators.” (Sen. Democratic
Caucus, 3d Reading File Assem. Bill 301 (1975-1976 Reg. Session) as
amended on June 4, 1975.) Petitioners thus argue that confidentiality should
be limited to protecting confidential sources. This claim ignores the first
sentence of the committee report which discusses more generalized opposition
that the legislation as drafted “inhibits [a] law enforcement agency in
ascertaining criminal violations of peace officers.” (Ibid.) Nothing in the
broad language of the statute or this legislative history suggests that the
confidentiality clause was intended to operate so narrowly.
27
D. Consistency With POBRA
As stated above, we must construe a statute “ ‘with a view to promoting
rather than defeating its general purpose and the policy behind it.’ ” (City of
Upland, supra, 111 Cal.App.4th at p. 1303.) We reject a construction of
section 3303, subdivision (g), which would automatically require disclosure of
reports and complaints “prior to any further interrogation at a subsequent
time.” (§ 3303, subd. (g).) Such an interpretation is not required by the
language of subdivision (g), and as we explain now, it undermines a core
objective under POBRA of fostering public confidence in our law enforcement
agencies. On the other hand, a reading of subdivision (g) which requires
disclosure of nonconfidential materials upon request while permitting an
investigating agency to withhold confidential materials during an
investigation strikes the proper balance between “fundamental fairness for
police officers” and “the necessity for internal affairs investigations to
maintain the efficiency and integrity of the police force serving the
community.” (City of Pasadena, supra, 51 Cal.3d at p.572.)
As City of Pasadena explained, while many of the protections in
POBRA resemble those available in a criminal investigation, the Legislature
recognized that investigating agencies must be afforded broad latitude when
investigating suspected officer misconduct. (City of Pasadena, supra, 51
Cal.3d at p. 577.) The Court concluded that preinterrogation discovery was
“not essential to the fundamental fairness of an internal affairs
investigation,” and, indeed, was “without precedent.” (Id. at p. 578.) In this
case, requiring the disclosure of reports and complaints during an active
investigation of officer misconduct would similarly represent a significant
expansion of police officers’ POBRA rights as compared to the discovery
rights afforded criminal defendants. (Id. at p. 577.) And, like the Supreme
28
Court in City of Pasadena, we see no reason such a broad reading of
subdivision (g) would be “essential to the fundamental fairness of an internal
affairs investigation.” (Id. at p. 578.)
Indeed, mandating such discovery prior to the subsequent interrogation
of an officer could severely hamper the agency’s investigation, and therefore
undermine the public’s confidence in the integrity of the law enforcement
agency. “Underlying every administrative inquiry into suspected officer
misconduct is the obligation of the law enforcement agency to assure public
confidence in the integrity of its officers. The purpose of the inquiry is to
determine whether there is any truth to the allegations of misconduct made
against an officer and, if so, whether to commence disciplinary proceedings.”
(City of Pasadena, supra, 51 Cal.3d at p. 578.) Granting premature discovery
during an investigation could “frustrate the effectiveness” of the
investigation, thereby impairing “the reliability of such a determination and
the effectiveness of the agency’s efforts to police itself.” (Id. at pp. 578-579.)
For example, disclosures made before a subsequent interrogation
“might color the recollection of the person to be questioned or lead that
person to conform his or her version of an event to that given by witnesses
already questioned.” (Id. at p. 579; see Davis, supra, 22 Cal.App.5th at p.
1134 [noting preinterrogation disclosure “might hamper the investigation by
allowing the officer being investigated to craft answers that fit or explained
the evidence”].) In addition, “[d]uring an interrogation, investigators might
want to use some of the information they have amassed to aid in eliciting
truthful statements from the person they are questioning. Mandatory
preinterrogation discovery would deprive investigators of this potentially
effective tool.” (City of Pasadena, supra, 51 Cal.3d at p. 579.) Simply put,
29
disclosing “crucial information about an ongoing investigation” prior to
interrogation “would be contrary to sound investigative practices.” (Ibid.)
The Supreme Court’s observations in City of Pasadena apply with equal
force under the circumstances of this appeal. The CPRA is a civilian
oversight agency with independent authority to investigate claims of police
misconduct in the City of Oakland. (See generally, Oakland City Charter,
§604). As the City points out, “the CPRA’s very existence is consonant with
POBRA’s purpose to improve the public’s confidence in Oakland’s police
force.” To require an independent investigative agency to disclose notes,
reports or complaints in its possession before it can interrogate police officers
itself would hamstring investigators by allowing officers to alter their
testimony in light of the disclosures, casting doubt on the integrity and
seriousness of the investigation.
Such concerns are magnified in situations, such as here, where the
CPRA disagreed with the Department’s internal investigation and found
significant discrepancies in the testimony of the various Doe officers.10 These
alleged discrepancies may not have materialized, and other avenues of
investigation left undeveloped, had the CPRA been required to disclose the
requested materials under the rule announced by the City of Santa Ana
court. The Supreme Court’s admonition in City of Pasadena bears repeating:
“Nothing can more swiftly destroy the community’s confidence in its police
force than its perception that concerns raised about an officer’s honesty or
integrity will go unheeded or will lead only to a superficial investigation.”
City of Pasadena, supra, 51 Cal.3d at p. 568.)
10 We express no opinion on the allegations made against the Doe
Officers, who have not had an opportunity to contest any charges against
them.
30
In sum, we conclude that requiring reports and complaints to be
provided to a police officer under subdivision (g) of section 3303 “prior to any
further interrogation” is inconsistent with the plain language of section 3303,
subdivision (g), and undercuts a core purpose of POBRA of ensuring that
investigations into officer misconduct are conducted with the seriousness,
diligence, and fairness that is required of these positions of public
trust. Instead, we conclude that tying the disclosure of reports and
complaints to the confidential nature of these materials will protect the
integrity and effectiveness of such investigations while allowing police
officers prompt access to all materials to which they are entitled under
section 3303, subdivision (g).
Constrained by the City of Santa Ana decision, the trial court below
determined that the City was required to provide relevant reports and
complaints to the Doe Officers “prior to any further interrogation at a
subsequent time” (§ 3303, subd. (g)). In light of our disagreement with City of
Santa Ana, we reverse the judgment below. The record indicates that the
materials at issue were withheld “ ‘on advice of counsel.’ ” Therefore, it is
unclear whether the City might have sought to withhold the requested
materials for reasons of confidentiality under section 3303, subdivision (g).
On remand, the trial court shall determine whether the City had a
basis for withholding otherwise discoverable reports and complaints due to
their confidential nature as that concept is explained herein. Petitioners
must demonstrate that the City had a present duty under section 3303,
subdivision (g), to disclose the requested materials to establish entitlement to
mandamus relief. (See Gilbert, supra, 130 Cal.App.4th at p. 1291.) Should
disciplinary proceedings be commenced or resumed, the City may not make
adverse personnel decisions concerning the Doe Officers based on any
31
confidential materials, or the portions thereof, that have not been de-
designated and made available to the Doe Officers.
DISPOSITION
The judgment and writ of mandate are vacated, and the matter is
remanded to the trial court to fashion new relief consistent with this opinion.
City is entitled to its costs on appeal.
32
SANCHEZ, J.
We concur.
HUMES, P.J.
MARGULIES, J.
(A158662)
33
Alameda County Superior Court
The Honorable Frank Roesch
Counsel:
Barbara J. Parker, City Attorney, Ryan Richardson, Special Counsel,
Jennifer Logue, Supervising City Attorney, Hanson Bridgett, Adam Hofmann
for Defendant and Appellant.
Rains, Lucia Stern St Phalle & Silver, Zachery A. Lopes and Timothy Talbot
for Plaintiffs and Respondents.
Liebert Cassidy Whitmore, J. Scott Tiedemann, Alex Y. Wong for League of
California Cities and Los Angeles County Police Chief’s Association as
Amicus Curiae on behalf of Defendant and Appellant.
34