Police Officer Bill of Rights Does Not Apply to Independent DA Investigation

Sergeant Mark Lopez was president of the Scotts Valley Police Officers Association (SVPOA) Charitable Foundation and was accused of embezzling funds. Lopez had written a check to pay for his personal water bill as well as several checks for a scholarship for his daughter. The Chief of police elected to have the District Attorney’s (DA) Office investigate the matter. Lopez was questioned by two investigators in the DA’s office, and asserted that he felt that he had no choice but to answer the questions, because his commanding officer had taken his weapon and directed him to sit. At no point during the interview was Lopez advised of his rights under California’s Police Officer’s Procedural Bill of Rights (POBRA).

The DA eventually decided not to prosecute Lopez but the City terminated him for embezzlement. Lopez challenged the termination, stating that his POBRA rights were violated during the interview. The California Court of Appeals rejected Lopez’s claim. The Court stated that the POBRA violation does not apply to an interrogation of a public safety officer in the normal course of duty by a supervisor or any other public safety officer, nor does it apply to an investigation concerned solely and directly with alleged criminal activities. The DA’s office has no authority to discipline or terminate Lopez and is an outside agency not subject to POBRA.

The Court states that the DA’s investigators submitted sworn declarations that they were acting independent of the Police Department. Lopez was never threatened with discipline if he did not comply with the interview nor was he informed that he was not free to leave. Here, the Court believes that the investigation was independent and not a joint effort with the Police Department. It follows that the procedural safeguards afforded to Lopez under POBRA did not apply to the interview conducted by the DA’s office, as POBRA does not apply to independent investigations conducted by outside agencies.

Lopez v. City of Scotts Valley, 2015 WL 5692369 (Cal. App. 2015)