Is 52 seconds too much to ask?
It takes 52 seconds to read the League card at the beginning of an Internal Affairs interview. Apparently for some in IA management, that is just too time-consuming. “I don’t have to answer those questions” has been the response of some IA investigators.
The League card has been published for over a decade and has been read into the record in hundreds of thousands of interviews. Similar language has been read into the record for decades before that. I am not aware of it having caused any problems, but it appears that this may be the next battleground over your rights.
Why has the League advised all its members to read the League card at the beginning of every interview?
The League card, when read before the interview begins, provides the basic language necessary to ensure that the officer has the protections given under the law when compelled to make a statement. Doesn’t the Lybarger admonition commonly read by Internal Affairs also do that? Yes, in a more limited way, and only if properly read.
The problem is that we have more than 9,000 members who have various degrees of experience in understanding the disciplinary system, ranging from the newest P-1 to veterans. Can we be sure that every member being interviewed understands enough to make an accurate assessment as to whether the Internal Affairs investigator is providing them with the protection they are entitled to? Maybe the investigator skips the Lybarger admonition. Maybe it is not entirely read, or incorrectly read. How do we train our thousands of members to be sophisticated enough in disciplinary matters to be able to recognize when Internal Affairs has been negligent, deficient or even nefarious?
We answer that question by having one simple rule: Always read the League card. Then it doesn’t matter whether our newest recruit is sophisticated in the ways of the Department because he or she is still protected. The cost? Fifty-two seconds of interview time. That is cheap insurance.
The LAPD is not the only one who may be listening to your personnel complaint interview
Virtually every personnel complaint interview is tape-recorded. Internal Affairs is making a record. That record is used for Department purposes, of course, but it does not necessarily end there. Although there are privacy protections for a compelled interview in the law, there are also ways for those outside LAPD to get copies of those interviews and to use them for other purposes. Other law enforcement agencies such as the FBI, the attorney general, district attorney, grand juries and others may get tapes of those interviews. Then, of course, there are the plaintiffs who sue you in state and federal court who get the interviews by subpoena for use against you in civil court.
The Lybarger admonition given by IA is divided into criminal and non-criminal admonitions. They focus on establishing on record that if you do not answer the questions, you can be terminated for insubordination. In the portion read by the officer, the criminal admonition does mention that your statements cannot be used against you in a criminal prosecution, but it is silent about that issue in the non-criminal admonition. Can this result in an ambiguity? Ambiguities are not good when it comes to your rights. If you read the League card, there is no possible ambiguity, even if questions No. 1 and No. 2 seem repetitious (at the expense of less than 10 seconds).
What the Lybarger admonition does not have is any mention of the Public Safety Officers Procedural Bill of Rights Act (POBRA). The League card specifically names this act on the record for those who may be listening to this tape outside of the Department. There are protections in POBRA regarding the use of the compelled statement in both criminal and civil proceedings and each interrogated officer should want everyone to know that the act applies. Even if a plaintiff’s attorneys are given the compelled statements, POBRA places restrictions on their use.
The League card, but not the Lybarger admonition, also puts on the record the state of mind of the officer. “For those reasons, and those reasons alone, I will give you a statement.” A clear record of why the officer is answering the questions may be a factor in the legal analysis of the use of the statements in other proceedings.
Furthermore, the League card, but not the Lybarger admonition, mentions on the record the fact that both case law and the LAPD manual require cooperation with a criminal investigation. This establishes for the record that any subsequent questions down the line concerning a criminal investigation are also compelled. There are many cases, but the main one in California is Christal v. Police Commission, (1939) 33 Cal. App. 2d 564. And the LAPD manual goes even further by requiring that any knowledge or information that could prevent or assist in detecting a crime, or lead to apprehension or punishment of those who have transgressed the law, be reported to a supervisor (LAPD Manual 1/210.47). The existence of these factors may not be known to all of those persons down the road who may be given your compelled statement. They should know about these principles before they try to use the statements for their own purposes. What better way to announce their existence than in the first minutes of the recorded interview?
The League card is educational
There are also many civilians in the LAPD review process who may lack familiarity with police officer rights. This is especially true of use of force investigations, which are reviewed by the inspector general’s staff and the Police Commission staff. Reminders of the principles at stake are not a bad thing.
Finally, the officers themselves are educated when they read the League card into the record. A representative may not be present at all interviews. The League card reminds the officer what his or her rights are in the interview as well as establishes a record on tape. That also is not a bad thing.
The League card reading helps establish the fairness of the investigation
The disciplinary process does not need to be a battleground. Every officer understands the need to have a disciplinary system and the need for the Department to investigate complaints. The battle seldom surrounds the need to investigate. Almost always it surrounds the treatment of the officer by the Department during the investigation.
What is ignored by the hardcore disciplinarians is that each contact by Internal Affairs investigators with the P-2s being investigated establishes an attitude in the minds of these young officers (and all their friends) on the fairness of the process. Many Internal Affairs investigators are excellent in assuaging a young officer’s fears by their treatment of the officer before and during the interview. They explain the process, acknowledge the officer’s rights and are respectful in their interrogation while still asking all the necessary questions. The officers leave the interview feeling that they were treated fairly. Even if the complaint is sustained, the officers at least feel that they were able to tell their side of the story and the complaint was fairly investigated.
Contrast this with the situation where the investigator starts off with telling the officer that the League card reading is not going to be acknowledged. Forget the legal arguments, what is the officer going to read into this? Hundreds of thousands of interviews for decades have started with the officer asking these questions, and now this officer is being told it is not going to happen in his or her interview. What questions go through the officer’s mind? Is this investigator such an egomaniac that he/she cannot bear to be questioned by a mere P-2? Are the questions not going to be answered because there is a plan to violate the officer’s rights? Is there something going on here that is not being disclosed which causes the investigator to refuse to answer? No matter what the answer is, the officer’s feeling about a fair investigation is going out the window.
Join the legal plan and get an attorney
You cannot force the Internal Affairs investigator to answer any of the League card questions. If you run into this problem, I recommend that you finish reading the card. By doing so, you are still protected. Our advice to always read the League card remains the same. If the expenditure of 52 seconds of interview time bothers the investigator, it should bother you. Be careful.
If it turns out your rights were violated, the refusal to answer the questions in the League card by the investigator might be used as evidence to prove the malice necessary to obtain the $25,000 penalty against the Department specified in POBRA for violating the statute. Who knows? There is a silver lining in every cloud.
The League and the Department are meeting over the concerns of each in an attempt to arrive at a mutually beneficial standard procedure that satisfies both sides. Talking it over before it becomes a battle is always a good idea. I hope that this will work out.
In the meantime, read the card. We will let you know if there have been any changes. League cards can be obtained at the League on the second floor at the legal window. You can also download an image of the card at my website at www.warningbells.com.
Be legally careful out there.
