OFFICER-INVOLVED SHOOTING
PROMPTS CHANGES TO ROHNERT PARK POLICIES FOR CRITICAL INCIDENTS AND
ADMINISTRATIVE INVESTIGATIONS
By Christopher W. Miller,
Esq.
An officer-involved
shooting in Rohnert Park last May has led to recent, pro-officer changes
to the critical incident and administrative investigation procedures
used by the Rohnert Park Department of Public Safety and the Rohnert
Park Public Safety Officers’ Association.
In the early morning
hours of May 4, 2000, Sergeant Donald Wagner and other Rohnert Park
officers were dispatched to a mobile home park in response to several
calls of shots being fired. Moments after he arrived in the area, Wagner
confronted a suspect, Robert Camacho, who was walking across the nearby
expressway. The man was armed and pointed his revolver directly at the
sergeant in response to an order to drop the gun.
Fearing for his life,
Wagner fired several shots at Camacho, who returned fire while backing
away through a field. He did not go down until one of Wagner’s rounds
struck him in the head. Another officer also fired a shot. Officers at
the scene discovered Camacho was wearing body armor and had several
weapons at his residence. He later died of the head wound.
Critical Incident
Protocol Used to Obtain Officers’ Voluntary Statements
The Sonoma County
protocol for officer-involved critical incidents called for the officers
involved in the shooting to give voluntary, rather than compelled,
statements to sheriff’s department homicide investigators, while
internal affairs investigators watched and listened from another room.
Wagner submitted to this procedure because he preferred to be
interviewed by the sheriff’s department investigators rather than his
own department. Neither Wagner nor the other officer involved in the
shooting was ever interviewed by internal affairs.
A statement taken from an
involved officer in a critical incident investigation is
"compelled" only when the officer has been (1) ordered to
cooperate or face disciplinary action, including termination; and (2)
warned any statements the officer gives cannot be used in a subsequent
criminal proceeding against the officer. (Lybarger v. City of Los
Angeles (1985) 40 Cal.3d 822, 829.) The officer must be advised of Miranda
rights before or during the interrogation if the officer may be charged
with a criminal offense. (Govt. Code § 3303, subd. (h); Lybarger v.
City of Los Angeles at p. 829.)
Any compelled statements
the officer gives cannot be used in a subsequent criminal proceeding
against the officer. (Garrity v. New Jersey (1967) 385 U.S. 493,
500; Lybarger v. City of Los Angeles at p. 829; but see People
v. Gwillim (1990) 223 Cal.App.3d 1254, 1269-1270 [prosecutor has a
statutory right under Penal Code section 832.7 to a copy of the officer’s
statement].)
The statement so
compelled is protected against use in any civil proceeding as well:
No statement made
during interrogation by a public safety officer under duress,
coercion, or threat of punitive action shall be admissible in any
subsequent civil proceeding. (Govt. Code § 3303, subd. (f),
exceptions omitted.)
Voluntary Statements Are
Not Protected
Voluntary statements by
officers involved in critical incidents are not protected in any way
should the officer be subject to a civil or criminal action arising out
of the same incident. The practice in Sonoma County and many other
jurisdictions of treating an officer involved in a critical incident as
a "witness" or "victim" for the purpose of obtaining
a voluntary statement is an unfortunate fiction which ignores the
potential civil and criminal consequences for the officer.
As the courts have
recognized, "[t]he focus is clearly and directly upon the officer
and the other participants of [sic] the incident" when an officer
uses deadly force. (Long Beach Police Officer Association v. City of
Long Beach (1984) 156 Cal.App.3d 996, 1010.) The conduct of the
suspect or decedent in the case may be relevant to determining whether
the officer’s use of force was justified, but that conduct does not
necessarily absolve the officer of potential liability.
Officers involved in
critical incident investigations are potential subjects of civil and
criminal proceedings against them for their role in the incident. Only Miranda
warnings and a compelled statement suffice to protect the involved
officer’s rights.
It would be absurd if
an officer who has committed a minor infraction is subject to
inconsequential punitive action, and is entitled to representation
and counseling under section 3303, subdivision (h), while an officer
who has just been involved in a shooting incident and faces
potentially grave penal sanctions is not entitled to an advisor
prior to the filing of a potentially incriminating report. (Long
Beach Police Officer Association v. City of Long Beach (1984)
156 Cal.App.3d 996, 1011.)
Therefore, the Rohnert
Park Public Safety Officers’ Association, on the advice of its
counsel, has adopted the practice of advising a subject officer in a
critical incident investigation to decline to give statements unless
compelled to do so pursuant to Government Code section 3303 of the
Public Safety Officers’ Procedural Bill of Rights Act (POBR) and Lybarger.
Chief Refuses to
Provide Officers With Criminal and Administrative Investigations
Once the Sonoma County
Sheriff’s Department completed its review of the shooting with a
finding that Wagner’s actions were justified, he requested a copy of
the investigation. Rohnert Park’s chief, however, refused to allow the
sheriff’s department to provide Wagner with the investigation. The
chief yielded after counsel reminded him the statements the officers
gave to the criminal investigators were intended by the agreement of all
parties to be sufficient for both the criminal investigation and the
administrative investigation. The officers were entitled to the rest of
the sheriff’s investigation because the investigation, once concluded,
no longer was confidential or protected by the "official
information" privilege. (See Evid. Code § 1040; County of
Orange v. Superior Court (2000) 79 Cal.App.4th 759, 763.)
Yet when the internal
affairs investigation was completed over eight months after the
shooting, the chief again refused to turn over the investigation to the
officers. He offered merely an opportunity to review the report.
Government Code 3303(g)
and Pasadena Police Officers’ Association v. City of Pasadena
(1990) 51 Cal.3d. 564, however, together give officers a
post-interrogation right to a copy of non-confidential investigative
reports and other documents related to the investigation. There must be
a statutory basis for any claim of confidentiality. (County of
Riverside v. Superior Court (2000) 103 Cal.Rptr.2d 62, 68-69.) The
right to a copy of the internal affairs investigation arises even when
no misconduct charges are made against the officer.
Chief Concedes to
Changes in Internal Affairs Procedure
Faced with the officers’
insistence, through counsel, on a copy of the internal affairs
investigation, the chief agreed to a change in internal affairs policy
whereby any officer whose internal affairs investigation is resolved as
unfounded, exonerated, or not sustained will be provided with a copy of
the internal affairs investigation upon conclusion of the investigation.
The package provided to the officer will not include any confidential
information related to the complainant or witnesses, e.g., the identity
of a citizen complainant or confidential informant.
The officer statement
policy adopted by the RPPSOA protects the involved officer’s interests
by postponing the availability of the officer’s statement to a time
when all parties have had an opportunity to evaluate the officer’s
liability. A compelled statement may be released to the district
attorney -- with the officer’s permission -- at a later date to clear
the shooting. But an officer who has voluntarily given a statement will
have lost the ability to protect that statement against disclosure
should a criminal prosecution ensue.
Wagner received a
commendation from a local civic group for his actions in the Camacho
shooting. Both he and the Rohnert Park Public Safety Officers
Association also are to be commended for taking a principled stand in
defense of peace officer rights in this case.
Christopher W. Miller
is a former deputy district attorney who now provides representation to
PORAC LDF clients throughout northern California as an attorney with
Mastagni, Holstedt, Chiurazzi & Amick in Sacramento.
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