November 2022 Warning Bells article
If you have ever been interviewed in a personnel complaint, and you had a knowledgeable representative, you are probably familiar with the Lybarger statement. At least you have heard of it. Do you know what Lybarger actually is? Where it comes from? What it means? Why it is important? Read on.
Michael Lybarger was an LAPD officer assigned to 77th Vice in 1980. He was working on arresting bookmakers. According to the LA Times, Internal Affairs had information that four vice squad officers in the 77th Street Division were suspected of “allegedly allowing suspected bookmakers to operate freely, if the bookies would submit to occasional arrests that made the officers look good–a so-called “arrest-by-appointment” arrangement.”
Although the article appears to assign a selfish motive of making themselves look good, the reality is probably something else. There are many bookmakers operating in a division. Bookmakers know what other bookmakers are doing and where they are doing it. If one bookmaker can be convinced to supply information on the many other bookmakers, allowing that one bookmaker to operate, on condition of giving information on the others, results in the ability to close down many bookmakers instead of only one. And, of course, the informant bookmaker’s operation must suffer the occasional arrest to avoid the suspicion of his fellow bookmakers. Neither Internal Affairs nor the District Attorney were sympathetic despite similar tactics used by federal agencies dealing with organized crime and other threats to security.
And so, Officer Lybarger was confronted with five investigators ordering him to submit to an interview on pain of being charged with insubordination. He had an attorney who advised him that he should refuse to answer any questions because he was going to be charged with false arrest, false imprisonment, falsification of records, and conspiracy. All felonies. Lybarger followed his attorney’s advice and refused to submit to an interrogation although Internal Affairs still kept him for 14 hours.
The Department sent Officer Lybarger to a Board of Rights and terminated him for insubordination. Lybarger appealed his termination to Superior Court. He lost. He appealed to the Second District Court of Appeals. He lost. Finally, he appealed to the California Supreme Court. He won and the Lybarger statement was born.
The controversial Chief Justice Rose Bird even supported Lybarger and filed a separate concurring opinion. Within a year she would lose her seat on the court by losing a retention election for her far-left views.
The gist of the decision was that Lybarger had not been told that his statement could not be used against him in a criminal case. The court said “Although appellant was properly advised of the adverse effect of his silence, he was never told of the extent of the protection afforded to any statements he might make. That omission was critically important here…Yet had appellant understood that his statements during the administrative interview could not be used against him in a criminal proceeding, he might well have elected to cooperate rather than remain silent”
It took six years for the Supreme Court to arrive at this decision. In the meantime, all four of the 77th Vice officers were criminally filed on by the District Attorney. Two years later, the officers pled no contest to misdemeanor counts of filing a false police report in exchange for the DA dropping the felony conspiracy charges. The officers were each placed on two years’ probation and fined $150.
Officer Lybarger, after the six years, was reinstated as an officer and received back pay in six figures. Two of the other vice officers received stress related disability pensions according to the LA Times article. The fourth officer, Officer Williams, was not so fortunate.
Officer Williams when confronted by Internal Affairs was also improperly advised of his rights. Like Lybarger, he was told that if he did not cooperate, he would be charged with insubordination. Like Lybarger, he was not told that his statements could not be used against him in a criminal case. Unlike Lybarger, Officer Williams decided to cooperate with IA and submitted to an interview. He was sent to a Board of Rights for his acts with the bookmakers, but not insubordination. He was subsequently terminated.
He appealed to the Superior Court and he won. The City Attorney appealed to the Second District Court of Appeals, and he won again. The City Attorney then appealed to the California Supreme Court, and he lost. It was 1988 and Rose Bird was gone.
The Supreme Court admitted that William’s rights had been violated. He should have been told that his compelled statement could not be used against him in a criminal case. However, the violation of his rights had no effect on his termination. Unlike Lybarger, who chose not to cooperate and was discharged for insubordination and may have cooperated had he been told his statements could not be used against him, Williams had cooperated. The additional advisement would only have reinforced his decision to cooperate. He did cooperate and so no harm-no foul by the violation. The lower court was overturned, and William’s termination was upheld.
You can never tell in which direction an investigation is going to go. Consider the Lybarger statement the same way you consider your bullet proof vest.
What can you learn from all of this? You can never tell in which direction an investigation is going to go. Consider the Lybarger statement the same way you consider your bullet proof vest. You wear your vest even when you don’t think you are going to get shot, but it is a recognition that it could happen. You should read the Lybarger card to a personnel investigator every time you are interviewed. A statement that you are ordered to make has built in protections. It can’t be used against you in a criminal case and even in a civil case it gives you some protection under 3303 (f) and lawsuits are not unusual.
The League has a card that can be carried and read prior to any investigation or clip this one.
https://warningbells.com/wp-content/uploads/2022/10/Lybarger-card.jpg
There is no need to take any unnecessary chances, especially in today’s anti-police atmosphere. Also, you have the right to an attorney prior to an interview. That attorney is part of your membership in the League’s Legal Plan. Almost every officer belongs. If you are an exception, you should hear Warning Bells. Call the Legal Section at the League and get enrolled. (866-LAPPL4U) The career you save may be your own.
Be legally careful out there.
