Is POBRA next?
The anti-police forces have succeeded in changing California’s use of force law. The League and other labor organizations protected you from the more radical changes demanded by the ACLU and its ilk, but their stated motivations for the attack on law enforcement have not gone away. Namely, not enough officers are going to jail, in their opinion, for excessive use of force. The idea for making it easier to jail officers makes a weakening of your rights the next obvious target in their crusade.
In 1976, California passed the Public Safety Officers Procedural Bill of Rights Act (POBRA). The story goes that Jerry Brown, while running for election for governor, contacted the League and asked what he could do for law enforcement that would make him look favorable to officers and police-supporting voters. The League and other unions responded: a police officer bill of rights!
Jerry (later known as Governor Moon-beam) subsequently signed the bill, but getting it to him wasn’t easy. LAPD at the time had a long history of abusing officers in personnel complaint investigations. To educate the legislature as to why the bill was needed, the League sent a letter to the Senate Judiciary Committee on July 25, 1975, stating, “It is not our intent then, nor is it our intent now, to build legal loopholes or to protect officers who are guilty of wrong doing. However, in the past, as well as the present, officers have been subject to interrogation and terror tactics that would remind one of the terror tactics employed by Nazi Germany in World War II.”
In support of the language, the letter gave two examples. The first was a sergeant (later cleared of wrongdoing) who was kept in a small room for long periods of time without the ability to communicate with anyone, and who became disabled. His psychiatrist was quoted as saying, “He has been subjected to overwhelming stress of investigation by the bureau of Internal affairs of the LAPD…. The experience has produced a major mental disorder; depressive neurosis with major suicidal tendencies. He is seriously ill and in need of immediate psychiatric assistance. He may require hospitalization…. His illness is not due to any predisposing factors. It is due directly to the sustained sense of “stain”
on his whole sense of worth as a good cop. The overly vigorous use of suspicion, doubt, threats, and warnings used on [sergeant] by a superior officer incenses the American concept of ‘innocence’ till proven guilty. [Sergeant] has a 100% industrial injury.”
The second example was another sergeant who won a heart disability award based upon a method of vigorous interrogation without benefit of counsel and without knowing what the specific charge was. Furthermore, the letter stated, “There are many more cases which exist to show the abuse of power which has been given to the Internal Affairs Division by many of the police departments. We have knowledge of unlawful searches
and seizures, removal of an officer from his home for the purpose of interrogation which if done by persons other than Internal Affairs personnel would have been viewed as a kidnapping.”
The letter goes on to mention that LAPD did more polygraphs than any other agency in California, and put one officer through eight polygraphs. Another officer was forced to reveal all of his assets and liabilities as well as those of his wife and other members of his family. Not to mention illegal searches of officers’ vehicles, lockers and desks. All of this, the letter said, led to turning local police departments into “dungeons of despair.”
The League flew officers to Sacramento to personally testify as to how they were treated. Even the ACLU came to the support of officers. On Aug. 8, 1975, they sent a letter of support that said, “The American Civil Liberties Union has always supported the due process rights of every individual. We are pleased to see these rights extended to public safety officers. Considering the tremendous pressures on everyone involved with law enforcement today, this legislation is particularly important.”
Democrat Assemblyman James Keysor sponsored the bill. Sheriff Sherman Block, LAPD Chief Ed Davis, Mayor Tom Bradley, the City of Los Angeles and almost all California chiefs of police opposed the bill vociferously. The Assembly, however, passed it 49 to 19 (18 of the 19 no votes were Republicans). The Senate passed it 21 to 13 (13 Democrats
for, seven against—eight Republicans for, six against).
Given this, you would think that the present Democrat majority in Sacramento would be more resistant to the attack on POBRA. LAPD Chief Davis urged Governor Brown to veto the bill, but Jerry followed through and signed it.
Beginning in 1976, we had a bill of rights. Only not quite. LAPD decided that, as a charter city, the city of Los Angeles was not required to recognize the bill because of “home rule.” Home rule, to the Department, meant that local rules superseded state law. The statute was ignored, and nothing changed in Los Angeles on how officers were treated.
Thanks to the research and smarts of then League Director Ken Risen (also an attorney), this had been anticipated. The League had gone to Assemblyman Keysor and added a short sentence to the language of the bill that said police officer rights were a matter of statewide concern.
Eight years later, the Bomb Squad blew up the Department’s home rule theory, so to speak, with the help of that language. In 1982, the California Supreme Court decided the case of Baggett v. Gates. The Department was investigating information that the Bomb Squad had engaged in various acts of misconduct. The officers were subjected to mandatory interviews lasting from 4 to 11 hours. One officer was on vacation. He was ordered in to Internal Affairs, but could not respond because of a family illness. So, Internal Affairs responded to his home and only ended the interrogation when his family member died. The investigation failed to substantiate some of the alleged acts of misconduct and revealed that the remaining acts had occurred over a year earlier and were out of statute. Nevertheless, the Department downgraded the officers anyway, and they lost their PIII+III pay.
A requested appeal was denied by the Department. The officers filed a lawsuit citing the
Public Safety Officers Procedural Bill of Rights Act requirement that punitive action against an officer requires an appeal. The Department answered that they were a charter city and POBRA did not apply to them because of home rule. Not so, said the Supreme Court! Police officer rights are a matter of state- wide concern. Baggett and his partners
received back pay and a hearing.
From 1982 on, LAPD officers have had bill of rights protection. This is not satisfactory to the current ACLU and police activists.
As far back as 2009, protests have been made in Sacramento to repeal POBRA. Now ex-Assemblyman James Keysor jumped on the bandwagon and was quoted in a newspaper as saying that his legislation had escalated into a far bigger thing than he could have imagined, and “now it is hard to get rid of undesirables.”
The theme continues to this day, and legislatures are being approached with the idea of eliminating or watering down POBRA. Law enforcement is under organized and well-financed assault by those who have no concern about victims’ rights or your rights to the detriment of law-abiding people. Witness what is happening to San Francisco and what is headed toward Los Angeles. Let’s not return to pre-1976 treatment of officers. Be politically aware and fight back. You can be sure that this is what the League will do.
Be legally careful out there.
