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. 5^th 317.