Four officers investigated for an illegal search in 2017 argued they have a right to see civilian investigator's notes and records before sitting down for an interview. Credit: Darwin BondGraham

The city of Oakland won a significant legal battle against the union that represents its police officers last week after a panel of three state appeals court justices ruled that officers being actively investigated for misconduct do not have the right to obtain confidential records pertaining to their case.

The decision struck down an interpretation of state employment law that the Oakland Police Officers Association and other police unions have advocated for, and which some courts have adopted, that requires police departments and civilian police oversight boards to hand over such documents to officers who are under investigation. Doing so, argued Oakland City Attorney Barbara Parker, could undermine the search for the truth and prevent a city from holding police officers accountable for wrongdoing.

“We are thrilled with the Court of Appeals’ decision,” said Parker in a statement to The Oaklandside. “It is the long-awaited result of our office’s partnership with Oakland’s Community Policy Review Agency to protect the integrity and effectiveness of police misconduct investigations. The decision will help to ensure that police-misconduct investigations in Oakland and throughout California are controlled by investigators rather than by the subject officers and their attorneys.”

John Alden, the executive director of Oakland’s Community Police Review Agency, called the decision a “game changer” for police oversight.

The Oakland Police Officers Association and its attorney did not respond to a request for comment about the court’s decision.

Ultimately, the decision came down to how the court interpreted a brief section of the state Public Safety Officers Procedural Bill of Rights Act, a law adopted in the mid-1970s that gave police officers significant job protections and limited the ability of their employers to investigate them for misconduct. According to the law, anytime an officer is interrogated by their employer and a recording is made, a copy of the recording has to be given to the officer “if any further proceedings are contemplated or prior to any further interrogation at a subsequent time.” The law also reads that police officers “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.”

Police unions have interpreted these lines to mean that investigators have to hand over their notes and reports about a case before conducting a second interview with an officer who is suspected of wrongdoing.

The appeals court disagreed, saying that requiring this “could severely hamper” a city’s investigation of police misconduct and “therefore undermine the public’s confidence in the integrity of the law enforcement agency.”

While officers do have a right to obtain a recording of their first interview before they’re interrogated a second time, wrote the justices, they don’t have the right to other records if investigators determine they’re confidential.

The case is especially relevant to Oakland, which has two separate offices that investigate police misconduct: Oakland’s Community Police Review Agency, which was created by voters in 2016 and is staffed with civilian investigators who work under the guidance of the Police Commission, and OPD’s Internal Affairs Division, where police investigators work under the supervision of a captain who reports directly to the chief. The two offices are independent of each other and conduct separate but parallel investigations whenever officers are accused of violating city policy.

If the court had ruled in favor of the union, both the CPRA and IAD would be required to give up all of the case files in their possession related to an active investigation when requested, if they were the second agency to interrogate an officer. Oakland’s CPRA is almost always second in line to internal affairs to interview officers accused of misconduct.

A warrantless search and coverup

Last week’s court decision is the result of a 2017 police misconduct case involving four Oakland police officers.

It started when two Oakland officers showed up at an apartment building to conduct a welfare check on a man who had reportedly been drinking, was suicidal, and had a firearm. The officers detained the man outside of his apartment and found a weapon on him. They then asked the man if they could conduct a security sweep of his apartment to make sure no other persons were inside, and after a brief look around, the police found the apartment unoccupied. But then, without having a search warrant in hand, one of the officers reentered the apartment two more times without the man’s permission, conducted an allegedly illegal search, and confiscated another weapon. Several more officers arrived and the man was sent in an ambulance to a hospital on a psychiatric hold. After he was gone, one of the arresting officers wrote a warrant to search the apartment, after the fact. The group of officers then searched the man’s home again and confiscated more items. OPD and the city haven’t released the names of the officers or the man who was detained.

OPD’s Internal Affairs Division opened an investigation after the man filed a complaint against the officers, and ultimately decided that their actions didn’t warrant discipline. Instead, IAD recommended the officers receive training.

Nine months after the incident, Oakland’s Civilian Police Review Agency was still conducting its separate investigation, and CPRA’s then-director Anthony Finnell requested an interview with the four officers. Although the officers had previously been interviewed by OPD’s internal affairs investigators, CPRA had yet to sit down and talk to them.

Justin Buffington of the Rains Lucia Law Firm, which represents the Oakland Police Officers Association, agreed to the interviews but asked Finnell to first hand over copies of his notes, reports, and complaints, as well as the tapes of the interviews already conducted by OPD’s Internal Affairs Division.  Finnell refused.

“Upon the advice of counsel, the CPRA denies your request for ‘reports and complaints’ and will not produce said material,” Finnell wrote in an email to Buffington at the time.

“Unfortunately, I will be forced to litigate this matter,” Buffington wrote back.

Shortly after this exchange, the four officers were compelled to sit down for interviews with CPRA investigators (police can be fired for refusing to answer questions from their employer). The CPRA investigators had discovered inconsistencies between the officers’ version of events in their interviews with OPD and other records, including the search warrant and body cam videos. 

Three of the officers had told OPD’s investigators that one particular weapon was recovered during the first sweep, which the man had agreed to. But body camera footage proved that they’d picked it up after reentering and searching the apartment illegally. One of the officers also admitted to CPRA investigators that the prior interview they gave to OPD included false information about how the search was conducted, according to court records.

CPRA concluded that the officers knowingly violated the man’s Fourth Amendment rights against illegal searches and seizures, and then worked together to conceal the violation by lying to internal affairs.

OPOA files suit, the city appeals

In January 2019, the Oakland Police Officers Association filed a lawsuit against the city in Alameda County Superior Court, seeking to force Oakland and CPRA to destroy all records of the second interviews and to block any discipline arising from CPRA’s findings. OPOA also asked that the city be made to pay $25,000 in damages to each of the officers for “malicious violation” of their rights.

Five months later, Superior Court Judge Frank Roesch sided with the police union on the question of when notes and reports have to be handed over to officers who are under investigation, citing a previous appeals court decision from a southern California police misconduct case. In that case, several Santa Ana police officers were recorded by hidden surveillance cameras destroying and stealing property from a marijuana dispensary during a raid. After the city tried to fire two of the officers, they filed a lawsuit alleging they hadn’t been given copies of internal affairs investigators’ notes prior to the second time they were interviewed. A superior court judge sided with the city and upheld their termination. But the case was appealed by the officers, and a three judge panel from the 5th District Court of Appeals ruled in their favor.

Roesch, however, dismissed OPOA’s requests that the four Oakland officers each receive monetary damages. He also did not prohibit Oakland from disciplining the officers; he only required that the second interviews not be used to reach that decision.

Oakland City Attorney Barbara Parker said at the time that she felt the ruling was a barrier to police accountability and that her office would appeal the decision in order to try to overturn the precedent established in the Santa Ana case.

Oakland filed its appeal in October 2019, and the state justices heard arguments from the Oakland Police Officers Association and the city over the course of last year. Joining Oakland in its opposition was the League of California Cities and the Los Angeles Police Chiefs Association. Both groups noted in their court briefs that allowing the officers access to investigative records was bound to undermine police misconduct investigations. Attorneys for the police officers union countered by calling these “hypothetical and distorted local policy concerns.” 

“The proper forum to address the League’s purported policy concerns is the Legislature, not this Court,” attorneys for the police union wrote, meaning that if police oversight boards and law enforcement agencies don’t want to hand over records in the midst of an investigation they would need to change state law.

Access to confidential records was never intended

In reaching their decision, the 1st District Appeals Court justices examined the history of how the police officers bill of rights was drafted and passed by the state legislature in the mid-1970s and found that, contrary to the OPOA’s assertions, the legislature did not actually intend for officers to have access to confidential records during an investigation. In fact, the bill was amended in August 1975 so that officers would not have a right to investigators’ notes, copies of complaints, and reports, if they were deemed confidential. The amendment was made after several groups representing law enforcement executives sent a letter to the bill’s author, Jim Keysor, pointing out that the legislation “in its present form would significantly hinder law enforcement agencies in conducting internal affairs investigations and citizen complaints against law enforcement officers.”

“By granting investigating agencies the authority to withhold confidential materials, the Legislature intended to strike a balance” between police officers’ rights and a city’s ability to supervise its employees and “safeguard the integrity of its internal investigations,” the appeals court justices wrote.

In Oakland, requiring disclosure of notes, reports, and complaints before an interrogation “would hamstring investigators by allowing officers to alter their testimony in light of the disclosures,” they added. ” This would have been especially true in the 2017 illegal search and seizure case in Oakland, “had the CPRA been required to disclose the requested materials.”

None of the officers in that case have yet been punished, due in part to a delay caused by the police union’s lawsuit. Now that the case has been settled, CPRA’s findings could lead to discipline for the officers involved. Under Oakland’s current rules, because the Police Commission’s investigators reached a different conclusion than OPD’s internal affairs investigators in this case, three members of the Police Commission will need to form a special committee to consider all the evidence and make a final decision.

CPRA’s director Alden said he can’t comment on what might come next in the case of the four officers. But he said the appeals court’s decision will make police oversight much more effective across the state. He added that he won’t be surprised if the OPOA petitions the state supreme court to review the case, however.

Before joining The Oaklandside as News Editor, Darwin BondGraham was a freelance investigative reporter covering police and prosecutorial misconduct. He has reported on gun violence for The Guardian and was a staff writer for the East Bay Express. He holds a doctorate in sociology from UC Santa Barbara and was the co-recipient of the George Polk Award for local reporting in 2017. He is also the co-author of The Riders Come Out at Night, a book examining the Oakland Police Department's history of corruption and reform.