On October 18, 2017, the California Supreme Court denied review of Santa Ana Police Officers Association, et al. v. City of Santa Ana et al., a decision from the Fourth District Court of Appeal involving information (sometimes referred to as “discovery”) that must be provided to a law enforcement officer in connection with a disciplinary interrogation under the Public Safety Officers Procedural Bill of Rights Act (POBRA).  Whereas most agencies understand that officers have a right to recordings, notes, reports and complaints after an interrogation takes place (see Pasadena Police Officers Association v. City of Pasadena), under the new Santa Ana decision, officers also have a right to recordings, notes, reports and complaints prior to a second interrogation.

In Santa Ana, two police officers were being investigated for alleged misconduct while executing a search warrant at a marijuana dispensary.  After the officers were interrogated as part of the investigation, the City obtained new video recordings of the officers’ conduct during the execution of the search warrant.  The recordings were from hidden video cameras at the marijuana dispensary that officers failed to disable while executing the search warrant.  After receiving the new footage, the City sought to interrogate the officers a second time.

Prior to the second interrogation, counsel for the officers requested that the City provide the officers with materials pursuant to section 3303(g) of the POBRA, which states (in relevant part): “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.”  The City did not provide materials in response to the officers’ request and proceeded with second interrogations.

In response, the Santa Ana Police Officers Association (POA) et al. sued the City under two theories: (1) that use of the hidden video recordings violated the officers’ privacy rights under the California Invasion of Privacy Act and (2) that the City’s failure to turn over the hidden video records prior to the officers’ second interrogations violated the Section 3303(g) of the POBRA.  The trial court dismissed both claims.  The Court of Appeal affirmed dismissal of the privacy claim, but found that the POA stated a claim for relief under the POBRA.  Specifically, the Court agreed with the POA’s argument that section 3303(g) of the POBRA required the City to produce the recording of the first interrogation and “any reports of complaints made by investigators or other persons” prior to the second interrogation, which included the secret video footage obtained by the City after the first round of interrogations.

Prior to Santa Ana, most agencies looked to a 1990 California Supreme Court case Pasadena Police Officers Association v. City of Pasadena for guidance as to the information an officer must be provided prior to interrogation.  Under Pasadena, officers are entitled to recordings, notes, reports and complaints after an interrogation takes place.  However, under Santa Ana, agencies must exercise caution in the event a second interrogation is necessary.  Under the law announced in Santa Ana, unless all recordings, notes, reports and complaints are provided prior to the second interrogation, the interrogation may violate the officers’ POBRA rights.

Importantly, the Court in Santa Ana did not find that the City in fact violated the officers’ POBRA rights.  Rather, the Court found that the officers stated a viable claim under the POBRA and could therefore proceed with their lawsuit.

The case is Santa Ana Police Officers Association et al., v. City of Santa Ana et al. (2017) 13 Cal. App. 5th 317.

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Photo of Lisa S. Charbonneau Lisa S. Charbonneau

Lisa represents and advises Liebert Cassidy Whitmore clients in all matters pertaining to labor and employment law. She represents LCW clients in employment litigation throughout the state and advises clients on issues ranging from state and federal wage and hour law compliance to the interactive process to the mandates of the Meyers-Milias-Brown Act.

Lisa has appeared in state and federal courts throughout the Bay Area, as well as before the California Labor Commissioner, the Equal Employment Opportunity Commission, and the California Commission on Teacher Credentialing. Prior to joining LCW, Ms. Charbonneau represented private employers and public and private employees in litigation matters ranging from wage and hour class actions to public employee dismissal proceedings to individual discrimination lawsuits.

Lisa received her JD from U.C. Hastings College of the Law in 2006 and was admitted to the California State Bar in December of that year. While at Hastings, Lisa served as an Equal Justice America fellow and received a grant to work on community economic development issues for the City of Detroit. Lisa earned her Bachelor of Arts with Honors in Government from Wesleyan University in Middletown, Connecticut, and soon after that worked at a political magazine, The American Prospect, until she began to pursue her law degree.

Lisa was recognized as a “Rising Star” by Northern California Super Lawyers in 2012, 2013 and 2014, and in 2010 received a Community Partner Award for pro bono work with the Transgender Law Center in San Francisco, California. She is a member of the California State Bar’s Litigation Section and Women Lawyers of Alameda County.