Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Mike's Studies > Basics > Flashcards

Basics Flashcards

1
Q

Who does the California POBR apply to?

A

POBAR applies to all peace officers specified in Sections 830.1, 830.2, 830.3, 830.31, 830.33, except subdivision (e), 830.34, 830.35,, except subdivision (c), 830.36, 830.37, 830.38, 830.4, and 830.5 of the penal code

Probationary peace officers do not have right to administrative appeals of punitive actions.

Cal POBAR does not apply to officers not listed by statute, so federal officers are not covered.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is the POBAR?

A

A law that specifies basic procedural rights and protections which must be afforded to all public safety officers by the agencies that employ them when the employees are subject to investigation or discipline

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Where do I find POBAR?

A

Cal. Government code 3300 - 3313

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

When do POBAR rights apply?

A

When the peace officer employee is under investigation and subjected to interrogation that could lead to punitive action.

Not in criminal investigations; POBAR does not apply to an investigation concerned solely and directly with alleged criminal activities

Not in normal course of duty or other routine contact with a supervisor

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What is a complaint?

A

A formal accusation taken by a department from a citizen, or another employee, or a superior officer alleging a peace officer employee engaged in misconduct.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What penal code requires every law enforcement agency in CA to establish a procedure to investigate “complaints” against peace officers made by members of the public?

A

Cal Penal Code 832.5

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is punitive action under POBAR?

A

Any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Is an interrogation the same as an interview?

A

Yes. For the purposes of the POBAR, the terms interview and interrogation are interchangeable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

When can an interview/ interrogation take place?

A

At a reasonable hour, preferably at a time when the public safety officer is on duty, or during the normal waking hours for the public safety officer, unless seriousness of the investigation requires otherwise

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What if I can’t wait until the employee comes back from days off?

A

If the interrogation does occur during off-duty time of the public safety officer being interrogated, the public safety officer shall be compensated for any off-duty time in accordance with regular department procedures

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Must I identify myself prior to the interrogation?

A

Yes. The public safety officer under investigation shall be informed prior to the interrogation of the rank, name, and command of the officer in charge of the interrogation, the interrogating officers, and all of persons to be present during the interrogation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

How many people can ask questions during an interrogation?

A

All questions directed to the public safety officer under investigation shall be asked by and through no more than two interrogators at one time

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Does a peace officer have to be told why he is being investigated?

A

Yes. The officer under investigation shall be informed of the nature of the investigation prior to any interrogation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Are peace officers allowed bathroom breaks during the interrogation?

A

Yes. The person under interrogation shall be allowed to attend to his or her own personal physical necessities

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Is it OK to promise not to discipline an employee if he answers the questions?

A

No. No promise of reward shall be made as an inducement to answering any questions

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Is an employee entitled to pre-interrogation discovery?

A

No. After an interrogation, peace officers are entitled to “copy of notes made by a stenographer or to any reports or complaints made by investigators or other persons”

Usually only after charged and findings made.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is a disclosable report?

A

The final written report of the investigator

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What is a disclosable complaint?

A

A formal allegation against a party

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Can an interview be tape recorded?

A

Yes. The complete interrogation of a public safety officer may be recorded.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Is a peace officer entitled to a copy of the tape?

A

Yes. The public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Can a peace officer bring his own tape recorder?

A

Yes. The public safety officer being interrogated shall have the right to bring his own recording device and record any and all aspects of the interrogation.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Does a peace officer need to be admonished?

A

Yes. If prior to or during the interrogation of a public safety officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights” against self incrimination.

If a peace officer refuses to answer on the ground that the answers may be self incriminating, the deputy must be given a LYBARGER WARNING or GARRITY, that he is being ordered to answer, and his statement cannot be used against him in a subsequent criminal proceeding.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What if a peace officer refuses to answer my questions after being fully admonished?

A

Give a direct order to answer the questions. If he refuses to answer, then write the case for insubordination.

An employee can be disciplined for refusing to answer after being admonished

24
Q

If a peace officer agrees to answer questions after being admonished, Can his answers be used against him in a criminal case?

A

Under almost all circumstances the answer is NO, the answers cannot be used in a criminal case against the officer because the statement is considered coerced.

25
Q

Is a peace officer entitled to a representative during an interrogation?

A

Yes. Whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at his request shall have the right to be represented by a representative of his choice.

26
Q

Can a “public safety statement’ be taken before the employee talks to a representative?

A

Yes. However questions must be limited to public safety:

Number and directions of rounds
Injuries 
Witnesses
Location and time of discharge
Suspects
Location of firearms / weapons
27
Q

Can multiple employees involved in an incident be separated under investigation?

A

Yes. There is no right to consult with legal counsel and or labor representatives collectively or in groups.

28
Q

What if a representative is unavailable at the scheduled time?

A

The investigator should attempt to agree with the representative on a mutually agreeable time without having unreasonable delay based upon the seriousness of the offense. If canceled multiple times or necessary urgency, and representative of choice not available, set time and advise employee to seek an available representative

29
Q

Can a representative also be accused in the same case?

A

No. The representative shall not be a person subject to the same investigation

30
Q

Can a representative speak during an investigation?

A

Yes. but a representative should not be answering questions for the employee. If a rep provided information, always confirm it with the employee

31
Q

Can a rep who is a police officer be compelled to tell what the officer has told him?

A

No,

in non-criminal matters: “the rep shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from the officer under investigation for non criminal matters”

If criminal matter: Peace Officer Rep can be compelled to disclose.
Why: peace officer first, rep second.
(The accused peace officer will use a lawyer)

32
Q

What if I just want to talk to the peace officer? Is that an interrogation requiring a representative?

A

No.
The sections requiring a representative do “not apply to any interrogation of a public safety officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety officer, nor shall this section apply to an investigation concerned solely and directly with alleged criminal

33
Q

Can I reassign a peace officer while the investigation is being conducted?

A

Yes.
However, “[n]o public safety officer shall be loaned or temporarily reassigned to a location or duty assignment if a sworn member of his or her department would not normally be sent to that location or would not normally be given that duty assignment under similar circumstances.”

34
Q

Can I give a peace officer a lie detector test?

A

You can offer, but “[n]o public safety officer shall be compelled to submit to a lie detector test against his or her will.” § 3307
AND
No comment shall “be entered anywhere in the investigator’s notes or anywhere else that the public safety officer refused to take, or did not take, a lie detector test….”

35
Q

Can I ask about a peace officer’s financial records during an investigation?

A

No: “No public safety officer shall be required or requested for purposes of job assignment or other personnel action to disclose any item of his property, income, assets, source of income, debts or personal or domestic expenditures…” § 3308
“unless such information is obtained or required under state law or proper legal procedure, tends to indicate a conflict of interest with respect to the performance of his official duties…or is necessary to ascertain the desirability of assigning the public safety officer to a specialized unit in which there is a strong possibility that bribes or other improper inducements may be offered.” § 3308

36
Q

Is it a crime to tamper with evidence in order to harm a peace officer?

A

Yes.
“Any person who knowingly alters, tampers with, conceals, or destroys relevant evidence in any disciplinary proceeding against a public safety officer, for the purpose of harming that public safety officer, is guilty of a misdemeanor.” Penal Code §135.5

37
Q

Can I disclose my investigation of a peace officer to someone outside of the department?

A

No:
“Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed…”
Penal Code § 832.7 (Exceptions, for courts to determine). Remember this for later.

38
Q

How long do I have to complete my investigation?

A

One Year.
“No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.” § 3304(d)

39
Q

How long do I REALLY have to complete my investigation?

A

Limited Exceptions to one year rule:
(A) If the allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or prosecution is pending shall toll the one- year time period.
(B) If the public safety officer waives the one-year time period in writing, the time period is tolled as specified.
(C) If the investigation is a multijurisdictional investigation that requires a reasonable extension for coordination of the involved agencies.
(D) If the investigation involves more than one employee and requires a reasonable extension.
(E) If the investigation involves an employee who is incapacitated or otherwise unavailable.
(F) If the investigation involves a matter in civil litigation where the public safety officer is named as a party defendant, then tolled while that civil action is pending.
(G) If the investigation involves a matter in criminal litigation where the complainant is a criminal defendant, then tolled during the period of that defendant’s criminal investigation and prosecution.
(H) If the investigation involves an allegation of workers’ compensation fraud on the part of the public safety officer.

40
Q

Does a person authorized to initiate an investigation have to know or suspect the identity of the officer who allegedly committed the misconduct before the limitations period begins?

A

No. Ignorance of the accused officer’s identity does not postpone the commencement of the one-year limitations period under Government Code § 3304, subdivision (d)(1). Pedro v. City of Los Angeles, 229 Cal. App. 4th 87

41
Q

If the Department intends to impose discipline, when does the employee need to be notified?

A

“In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed discipline by a Letter of Intent or Notice of Adverse Action articulating the discipline” within one year.
The requirement to notify a public safety officer of proposed discipline within the year means the officer has to receive actual notice.

42
Q

When discipline is issued, when does the employee have to receive it?

A

Within 30 days of agency’s decision.

“If … agency decides to impose discipline, agency shall notify officer in writing of its decision to impose discipline, including the date it will be imposed, within 30 days of its decision, except if the officer is unavailable for discipline.” § 3304(f)

43
Q

What is the peace officer’s right when subjected to a punitive action?

A
  1. Peace officer must receive an “opportunity for an administrative appeal”. Peace officer has opportunity to:
    ~Establish a formal record of the circumstance surrounding discipline;
    ~Attempt to convince employing agency to reverse its decision by demonstrating the falsity of charges that led to punitive action, or proof of mitigating circumstances. § 3304
44
Q

What type of administrative appeal is required under POBR? § 3304

A

Administrative appeal shall be conducted in conformance with rules and procedures adopted by the public agency (e.g. civil service hearing); however,

◦ Where a punitive action does not impact officer’s pay (e.g. reprimand or punitive transfer without pay reduction), agency may provide a hearing that does not afford the peace officer a right to confront and cross-examine witnesses.
◦ Probationary employees have no appeal rights under section 3304.

45
Q

Can I search a peace officer’s locker, desk or other personal space?

A

No. “No public safety officer shall have his locker, or other space for storage that may be assigned to him searched, EXCEPT:

◦ If a valid search warrant has been obtained;

◦ where he has been notified that a search will be conducted; or

◦ in his presence; or

◦ with his consent.

46
Q

Can I order a peace officer to consent to a search of his personal car or home?

A

No.

No authority permits an administratively coerced search of location other than those under department control. LAPPL v. Gates 907 F.2d 879

47
Q

Can an agency drug test a peace officer employee?

A

MAYBE:

You must follow your local agency’s drug testing policy!

48
Q

When is a public safety officer prohibited from participation in political activities?

A

No public safety officer shall be prohibited from engaging in political activity:

◦ Except:
▪ Where prohibited by law; 
▪ When on duty;
▪ When in uniform
§ 3302
49
Q

Can a a public safety officer be required to participate in political activities?

A

No public safety officer shall be coerced or required to engage in political activity.
§ 3302

50
Q

Are peace officers entitled to review their own files?

A

Yes.

Officer has right to inspect personnel files that are used or were used to determine qualification for employment, promotion, additional compensation or termination or other disciplinary action.
Officer has right to request correction or deletion of material the officer believes was mistakenly or unlawfully placed in file. Agency has 30 days to respond.
Officer has right to receive notice of adverse comments entered into their file and 30 days to respond.
§§ 3305-3306.

51
Q

Are peace officers’ personnel records deemed confidential?

A

Some are:
Not provided in POBR

Rather, the laws are:
Penal code sections 832.5 et seq. and
Evidence Code sections 1043 and 1045 Exceptions:
Discovery & SB1421

Discovery of Peace Officer Records

via Pitchess motions

52
Q

SB 1421:

A

~Use of force involving death or GBI

~Discharge of a firearm

~Sustained dishonesty relating to the reporting, investigation, prosecution of a crime or dishonesty regarding a partner of above.

~Sustained sexual assault of a member of the public.

53
Q

Are federal officers covered by Cal POBAR

A

No.

Cal POBAR does not cover federal officers rights

54
Q

Do Probationary peace officers have the right to administrative appeals of punitive actions.

A

No.

Probationary peace officers DO NOT have right to administrative appeals of punitive actions.

55
Q

Does POBAR apply to an investigation concerned solely and directly with alleged criminal activities

A

No. POBAR does not Does POBAR apply to an investigation concerned solely and directly with alleged criminal activities

56
Q

Do Probationary peace officers have the right to administrative appeals of punitive actions following a POBAR investigation?

A

Probationary peace officers DO NOT have right to administrative appeals of punitive actions.

57
Q

Does POBAR apply to an investigation concerned solely and directly with alleged criminal activities?

A

NO. Not in criminal investigations; POBAR does not apply to an investigation concerned solely and directly with alleged criminal activities

Mike's Studies (4 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions