Criminal Defense of California Police Officers

California police officers may face criminal and civil liability for illegal acts and instances of misconduct. For example, a peace officer may experience criminal charges for

• unlawful assault,
• DUI, and
• instances of domestic violence.

A cop may also have to defend him-/herself in a Section 1983 civil lawsuit.

If an officer is suspected of committing a crime or some inappropriate act, law enforcement may open an internal affairs investigation with respect to that officer. Depending on what the investigation uncovers, it may result in the

• termination of employment,
• suspension from work, or
• criminal charges.

In the event of a criminal charge, specific action can take place if an officer is convicted of that charge. In cases of felony convictions, the officer’s employment is typically terminated. A police department can also take adverse action against a cop convicted of a misdemeanor offense that involves moral turpitude (for example, a crime involving fraud, dishonesty, or the corruption of others).

“Adverse action” includes dismissal, suspension, demotion, or salary reduction.

If a police department decides to take adverse action against an officer for an act of misconduct or a conviction, the officer has the right to appeal that decision. An appeal means the officer attends an administrative hearing before an administrative law judge.

During the hearing, the department and the affected officer submit evidence and argue their respective cases. A judge will normally recommend discipline if he/she finds, by a preponderance of evidence, that:

1. the officer’s acts are worthy of discipline, and
2. the department’s proposed discipline is appropriate for the officer’s actions.

Note that an attorney can play an enormous role in cases involving police misconduct. For example, a lawyer can:

• represent police officers in criminal or civil court,
• try to fight a criminal conviction so that it does not lead to disciplinary action, and
• defend officers at their administrative hearing to help contest an adverse action.

Our California criminal defense attorneys will highlight the following in this article:

• 1. Are California police officers immune from the law?
• 2. Internal investigations and what happens if police misconduct?
• 3. What rights do cops have in internal affairs investigations?
  • 3.1. POBRA
  • 3.2. Lybarger admonishment
  • 3.3. Constitutional rights
• 4. What happens if a peace officer is convicted of a crime?
  • 4.1. Felony offenses
  • 4.2. Misdemeanor offenses
• 5. What can an officer do if facing disciplinary action?
• 6. How can a lawyer help?

1. Are California police officers immune from the law?

No. California officers face both criminal and civil liability for unlawful acts and instances of misconduct. This is true for wrongful acts committed on and/or off duty.

Examples of when an officer may face criminal liability are when the officer commits:

• murder (if, for instance, an officer kills somewhen via an unauthorized fatal shooting while on duty),
• an unlawful assault under color of authority (per California Penal Code Section 149),
• a driving under the influence offense, or
• domestic violence.

As to civil liability, alleged victims of police misconduct can sue for state torts like:

• assault,
• battery, and
• emotional distress.

Police officers can also face Section 1983 civil lawsuits.

If a police officer faces either criminal charges or a civil suit, he/she should seek the help of a criminal defense or personal injury attorney for help. Legal defenses are available for police officers in both criminal and civil cases.

2. Internal investigations and what happens if police misconduct?

Under California law, if an officer commits some type of misconduct, law enforcement conducts an internal affairs investigation. Depending on the facts of the case, law enforcement conducts either an administrative investigation or a criminal investigation.

Administrative internal affairs investigations focus on whether an officer engaged in noncriminal work-related misconduct. They are internal matters that can result in:

• employment termination,
• suspension, or
• some other type of discipline.

Criminal internal affairs investigations focus on whether an officer committed a crime. They can result in:

• criminal prosecution by a California district attorney, and
• possible county jail time or a term in state prison.

Example: A Southern California resident files a complaint against Officer Carroll alleging harassment and foul language. This is a disciplinary matter, not a criminal one. The department’s internal affairs division will investigate to determine if Officer Carroll violated department rules.

Compare this with the scenario where Officer Carroll is suspected of various robberies and selling narcotics obtained during the course of his peace officer duties. The allegations are criminal in nature, so the department’s criminal internal affairs division will investigate it.

Note that sometimes other entities, in addition to an internal affairs department, may conduct an investigation into instances of police misconduct.

For example, federal officials may conduct an investigation when there is a possible federal criminal civil rights violation, as happened in the Rodney King case.

By policy, a district attorney’s office will investigate all cases of officer-involved shootings and in-custody deaths.¹ Further, police commissions, inspector generals, and other watchdog entities can provide additional oversight.

3. What rights do cops have in internal affairs investigations?

Police officers have certain rights if they become the subject of an internal affairs investigation – either administrative or criminal in nature. These include:

1. POBRA rights,
2. the Lybarger admonishment, and
3. constitutional rights.

3.1. POBRA

When it comes to investigative interrogations, officers have rights provided by the Public Safety Officers Procedural Bill of Rights Act (POBRA).

POBRA sets out conditions under which interrogations must take place if they might lead to “punitive actions,” like dismissals or demotions.²

For example, POBRA sets forth the following protections:

• an interrogation must generally be conducted at a reasonable hour, preferably while the officer is on duty, and for a reasonable period,
• an investigator must inform the officer being interrogated with the investigator’s name and rank,
• interrogation questions must be asked by no more than two interrogators at a time and the officer being interrogated must not be subjected to offensive language, and
• prior to the interrogation, the investigator must tell the suspected officer of the nature of the investigation.³

3.2. Lybarger admonishment

The Lybarger admonishment is protection that was established in the California legal case of Lybarger v. City of Los Angeles.⁴

According to the case, if investigators in the course of an internal affairs investigation believe that an officer might face criminal charges, investigators must read the officer his/her Miranda warnings. If the officer stays silent after being ordered to cooperate, the officer must be admonished that:

1. his/her silence can be deemed insubordination, leading to administrative discipline, and
2. any statement made under the compulsion of the threat of such discipline cannot be used against him/her in any subsequent criminal proceeding.⁵

3.3. Constitutional rights

The U.S. and California State Constitution provide suspected officers with various rights in the scope of an internal affairs investigation.

For example, officers have:

• a Fourth Amendment constitutional right against unreasonable searches and seizures, and
• a Sixth Amendment constitutional right to counsel.

These protect officers from being:

• arrested without probable cause,
• subjected to unreasonable detention,
• denied access to counsel, or
• otherwise forced to endure conscience-shocking treatment at the hands of law enforcement.

4. What happens if a peace officer is convicted of a crime?

If an officer is charged in a criminal case and later convicted, the outcome of the conviction depends on whether the officer was convicted of a:

• misdemeanor offense, or
• felony offense.

4.1. Felony offenses

California law says that a felony conviction will disqualify a person from being a peace officer.^{6 7}

4.2. Misdemeanor offenses

Local chiefs and sheriffs usually determine what happens when an officer is convicted of a misdemeanor crime. They can take a host of different actions, including

• firing the convicted officer,
• suspending him/her, or
• docking pay.⁸

Note, though, that Gov. Code 19572k provides some more concrete instructions for what happens in misdemeanor cases.

Per this law, a state agency can take adverse action against a state employee who gets convicted for a misdemeanor offense involving moral turpitude.

California law defines a crime of moral turpitude as one that involves:

• fraud or dishonesty,
• the corruption of others, or
• particularly egregious acts.⁹

Under California Government Code Section 19570, a state agency can take the following adverse actions against a convicted employee:

• dismissal of employment,
• suspension,
• demotion, or
• salary reduction.¹⁰

In deciding which action to take, an agency will consider some of the following factors:

• the actual or potential harm to public service that the officer caused,
• the circumstances of misconduct, and
• the likelihood of reoccurrence.¹¹

5. What can an officer do if facing disciplinary action?

A police officer’s misconduct or misdemeanor conviction may result in disciplinary action by the officer’s department or the California State Personnel Board (SPB).

Note, though, that if a department or the SPB wants to take disciplinary action, the officer can appeal that decision. An appeal means that the officer is entitled to attend a settlement hearing before an administrative law judge.

A hearing is like a mini criminal or civil trial. The subject officer and his/her police department (or internal affairs division) may offer evidence on their respective behalf.

The judge will typically recommend an adverse action if the department shows:

1. the suspected officer took some act which qualifies for an adverse action,
2. the department has proper grounds to discipline the officer, and
3. the specific adverse action taken by the department is appropriate.¹²

Note that the burden of proof at an evidentiary hearing is “by a preponderance of evidence.” This is a lower standard than the “beyond a reasonable doubt” standard used in California criminal cases.¹³

6. How can a lawyer help?

Attorneys play a critical role in helping police officers suspected of misconduct or criminal acts.

For example, a skilled lawyer can represent the cop in criminal or civil court.

With respect to criminal cases, a criminal defense attorney can try to get an acquittal, or a case dismissed, so that there is no conviction that triggers discipline. A lawyer can also try to get a felony charge reduced to a misdemeanor so that, if a conviction occurs, the officer is not automatically fired.

Lawyers can also represent peace officers at administrative hearings to fight any proposed disciplinary actions. If discipline gets imposed, an attorney can help the officer appeal that decision.

For additional help…

If you are a police officer facing disciplinary action by your employer, we invite you to contact our criminal defense firm at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.

Our lawyers also represent clients throughout California, including those in Los Angeles, San Diego, San Francisco, Pasadena, and Sacramento.

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