3 STRIKES YOU’RE OUT – Appellate Court Held Inglewood Police Department Violated Gov. Code Section 3304(d)(1)

 This is a follow-up to two prior articles that were previously published by PORAC involving the reinstatement of an Inglewood Police Officer per a neutral hearing officer and the Los Angeles County Superior Court. A neutral hearing officer previously held the Inglewood Police Department (“IPD”) failed to complete its internal investigation and notify Appellant of its intent to discipline within the requisite one year statute of limitations outlined in Government Code section 3304(d)(1). The Inglewood City Council overturned the Hearing Officer’s decision and refused to reinstate the officer. As a result, Dawson & Riley, LLP filed and successfully won a Petition for Writ of Mandate in Superior Court overturning the City Council’s decision based on the Department’s violation of the one year statute of limitations. However, the City refused to accept the decision and continued to pursue its faulty arguments claiming that the one year statute of limitations should have been tolled for a non-existent criminal investigation of Appellant. The Second District Court of Appeal agreed that both arguments by the City were faulty and affirmed the Superior Court’s reinstatement of Appellant with full back pay.

The underlying case involved a solo vehicle accident of an IPD police officer (Appellant), due to a bus pulling out in front of him, on August 20, 2013. Appellant was placed on IOD during his recovery from the accident. While out on IOD he was interviewed by IPD’s traffic investigator regarding the accident. After he returned to work on modified duty, he was eventually interviewed by Internal Affairs Department regarding the incident. By the time the Department sought to issue the Notice of Intent, it had missed the one year deadline by nine (9) days. Under Government Code § 3304(d)(1), no punitive action may be imposed upon any public safety officer for alleged misconduct unless the public agency investigating the allegations completes its investigation and notifies the public safety officer of its proposed disciplinary action within one year of discovering the alleged misconduct.

The statute of limitations violation was addressed with the Chief of Police during Appellant’s Skelly hearing. The Chief never brought up any specific defenses to the violation; rather, he simply stated that he did not agree. It was not until the appeal hearing that IPD first attempted to claim that the statute of limitations should be tolled pursuant to Government Code § 3304(d)(2)(A) – a criminal investigation of an officer. The IPD claimed a number of other exceptions to the statute of limitations violation; however, the only one that it continued to pursue with the Court of Appeals was related to the alleged criminal investigation.

At no time was Appellant ever informed that he was under criminal investigation. In fact, when he was contacted by the IPD traffic investigator and questioned regarding the accident, he was never informed of his Constitutional rights as required by Government Code § 3303(h) had there been a chance that he would be charged with a criminal offense.  The City claimed that the accident investigation “could have” constituted a criminal investigation; thus the statute of limitations should be tolled pursuant to Government Code § 3304(d)(2)(A).  However, the Department’s traffic investigator testified that he never conducted a criminal investigation into Appellant’s actions. The City tried to discredit its own witness by claiming that the subjective mindset of its own investigator was not indicative of whether the matter could have been criminally investigated. The Appellate Court completely disagreed.

The City contended that Government Code § 3304(d)(2)(A) does not require that the conduct prove to be criminal. Rather, it claimed the standard is simply whether the conduct is “potentially criminal” and therefore whether it could have conducted a criminal investigation of Appellant. Per the Appellate Court, “[a]n investigation is something people create when they decide to investigate something. We can discover the scope of these human creations by asking their authors. If investigators do not intend an investigation to encompass certain misconduct, the investigation presumably does not encompass that misconduct.” The Court ruled that if the traffic investigator said he did not criminally investigate Appellant, then he did not. The Appellate Court went on to conclude that because the investigator did not investigate Appellant criminally, the City did not delay its disciplinary investigation. Since the traffic investigator “was not aiming to build a criminal case against [Appellant]…the law set a faster tempo for his noncriminal work.”

The City relied on Crawford v. City of Los Angeles (2009) 175 Cal.App.4th 249, 255 to claim that a criminal investigation need only examine potentially criminal conduct. However, as the Court held, “no investigator in Crawford said ‘I did not criminally investigate this officer’s conduct.’ Crawford is not on point.” Crawford stands to say that if a criminal investigation actually occurs but ultimately does not rise to the filing of charges against an officer then the time period of the investigation is still tolled since the alleged misconduct was potentially criminal; however, a criminal investigation had to have occurred, which is not what was done by IPD.

The City’s second faulty argument was its misreading of Daugherty v. City & County of San Francisco (2018) 24 Cal.App.5th 928, which the City said was its “most important case.” “Daugherty held subdivision (d)(2)(A) applied where officers received disciplinary charges for exchanging offensive text messages uncovered in a criminal corruption investigation. (Id. at pp. 935–936.) Although the disciplined officers were not “targets” of the corruption investigation, the “text messages were examined for ‘possible connection’ between” the disciplined officers and “those involved in the criminal conspiracy.” (Id. at p. 961, quoting Richardson v. City & County of San Francisco Police Commission (2013) 214 Cal.App.4th 671, 694 [holding tolling appropriate while officer’s misconduct under criminal investigation for “any possible connection” to a check fraud case].) However, Daugherty is not analogous to the case at hand.

Appellant was not investigated for a conspiracy. Rather, the only criminal investigation was the hit and run by the bus driver, who was at fault for Appellant’s traffic accident. Appellant was never the subject of the criminal investigation. The City claimed that Government Code section 3304(d)(2)(A) should be interpreted to apply to any person’s misconduct that is criminally investigated, regardless of whether the person is a peace officer. The Court of Appeals agreed with Appellant that the argument “does not fit statutory text.” The Court held that “Section 3304 deals with the discipline of misconduct by public safety officers, not other persons.” Thus the City’s second argument also failed.

The Appellate Court affirmed the Superior Court’s decision ordering Appellant’s reinstatement with full back pay due to the Department’s violation of Government Code § 3304(d)(1). After nearly five years of litigation, Appellant has returned to work as an Inglewood Police Officer and grateful to the Legal Defense Fund and his attorneys at Dawson & Riley for their relentless pursuit of justice.

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