Friday, December 28, 2007
Court Affirms Dismissal of Deputies’ Suit Against Sheriff
By STEVEN M. ELLIS, Staff Writer
The Los Angeles County Sheriff’s Department did not violate the civil rights of deputies when it ordered them to remain after their shift and cooperate with a criminal investigation into their conduct, the Ninth U.S. Circuit Court of Appeals held yesterday.
Affirming the decision of U.S. District Judge Stephen V. Wilson of the Central District of California, a divided panel of the court ruled that a law enforcement agency has authority as an employer to direct its officers to remain on duty and to answer questions from supervisory officers as part of a criminal investigation into alleged misconduct.
As a result, the court held, the department’s actions did not violate the deputies’ Fourth Amendment right to be free from unreasonable seizures, their Fifth Amendment due process right against compelled self-incrimination, or their Fourteenth Amendment due process rights to be free from coercive police questioning and governmental conduct that shocks the conscience.
However, in a partial dissent, Chief Judge Alex Kozinski wrote that a triable issue of fact existed whether the department had violated the deputies’ rights because a jury could conclude that the department’s actions constituted both an arrest without probable cause, and retaliatory conduct intended to induce the deputies to give up their right against self-incrimination.
The matter arose when five deputies brought suit against the department alleging that they were improperly detained and later punished through involuntary shift transfers for failing to give non-privileged statements in connection with an internal criminal civil rights investigation of their possible misconduct while on uniformed patrol duty.
The investigation centered around a complaint by a civilian on who alleged that a uniformed deputy assaulted him without provocation. Department supervisors immediately initiated a misconduct investigation, and advised the deputies that they were not to leave at the end of their shift until they had spoken with internal affairs investigators.
The deputies were placed in unlocked rooms, where they were offered food and water. They were not required to relinquish their weapons or badges, and were allowed to talk with each other, sleep, make and receive telephone calls, and travel to the bathroom unescorted.
The deputies were never formally placed under arrest, searched, physically restrained, or otherwise subjected to the use of force, and no deputy asked permission to leave the station. While waiting to be interviewed, the deputies completed overtime slips, and they later received compensation for all time spent at the station beyond their regular shift.
According to the deputies, they were then called into their captain’s office, where he announced in a harsh, accusatory manner that he knew that one of them had used excessive force, that the others were covering it up, and that one or more of them could be criminally prosecuted or fired. Later that day, the lead criminal investigator assigned to the case began interviewing each deputy individually, advising them that although they were not yet formally considered suspects, they could not be eliminated as suspects either.
After each deputy declined to give a statement on the advice of counsel, the investigator terminated the interview and told the deputies that they were free to leave. However, as none of the deputies could initially be cleared of wrongdoing, they were each reassigned from street patrol to station duties pending completion of the investigation.
Over the next year, the department conducted a thorough investigation in coordination with the Los Angeles County District Attorney’s Office and the U.S. Attorney’s Office for the Central District of California, and ultimately compelled statements from four of the officers. However, no charges were brought against any of the deputies and all five were eventually reassigned to their pre-investigation duty assignments.
The deputies alleged that the department’s actions violated their Fourth Amendment right to be free from unreasonable seizures, their Fifth Amendment due process right against compelled self-incrimination, and their Fourteenth Amendment due process rights to be free from coercive police questioning and governmental conduct that shocks the conscience.
However, the district court held that the department had not violated the deputies’ rights, and granted summary judgment in its favor.
Writing for the majority, Judge Richard C. Tallman affirmed Wilson’s decision. He concluded that the deputies were not “seized” under the Fourth Amendment because they had not been treated like criminal suspects, and should have known—given their training, years on force, and familiarity with department procedures and protocol—that they might have been subject to discipline if they left in defiance of the supervisor’s orders, but that they could not be forcibly detained absent a full, physical arrest.
Tallman also opined that the department did not violate the deputies’ Fifth Amendment right against self-incrimination by forcing them to choose between giving a voluntary, non-immunized statement and retaining their job assignments because the deputies had not been compelled to answer the investigator’s questions or waive their immunity at the outset of the investigation.
He said this conclusion was bolstered by the facts that reassignment from field work to desk duty was not equivalent to termination, the deputies were never charged with a crime, and the deputies’ statements were never used against them.
Tallman further said that the department had not violated the deputies’ Fourteenth Amendment substantive due process rights because it had a legitimate need to determine whether the deputies had engaged in criminal behavior under color of office and had a duty, at least until the investigation was resolved, to protect the public from potential further assaults by reassigning the deputies involved in the incident to station duty. He said that reassignment did not transform questioning into a coercive police investigation, and that it did not shock the conscience or run counter to “decencies of civilized conduct.”
Judge Andrew J. Kleinfeld joined Tallman in his opinion.
However, Chief Judge Alex Kozinski said in his dissent that the deputies had presented a triable issue of fact on their Fourth Amendment claim.
“[W]here the employer brings in criminal investigators, yells at the employees, accuses them of crimes, threatens them with criminal punishment and does not make it clear that they’re not under arrest, a reasonable jury could find that the employees were seized.”
Kozinski also said that a triable issue of fact existed on the deputies’ Fifth Amendment claim because they had been subjected to a game of “cat and mouse” that was intended to put economic pressure on them to give up their right against self-incrimination.
Roger H. Granbo Jr. of the Los Angeles Office of County Counsel told the MetNews that the ruling was “a good decision, the right decision, and an important decision.”
“It lets the sheriff’s department know that it should aggressively investigate conduct within the department, and tells the rank and file that they need to cooperate,” he said.
However, plaintiffs’ counsel Elizabeth J. Gibbons said that the majority had not understood the Fifth Amendment issue as well as the dissent because it focused on whether statements had been obtained, as opposed to whether the deputies had been the subject of retaliation.
She also contended that the majority had relied on factual inaccuracies with respect to the detention issue, and predicted that her clients would seek a motion for reconsideration in order to correct the alleged errors.
“If this is going to be the law,” she said, “we want the facts to be correct.”
The case is Aguilera v. Baca, No. 05-56617.
Copyright 2007, Metropolitan News Company