The Rights of Police Officers
At Operating Engineers, we feel it is extremely important for you to know and be familiar with your rights as a public safety officer within California law. As a law enforcement officer you are protected by the Public Safety Officers’ Procedural Bill of Rights Act, Government Code §3300-3311, et. seq. Abbreviated portions of the POBR are provided in this manual. To seek a more thorough description of these sections, please contact your local business representative.
3301. Definition: Legislative Findings and Declaration:
For the purposes of this chapter, the term "Public Safety Officer" means all peace officers specified in Sections 830.1, 830.2, 830.3, 830.31, 830.32, 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. In order to assure that stable relations are continued throughout the State and to further assure that effective services are provided to all people of the State, it is necessary that this chapter be applicable to all public safety officers, as defined in this section, wherever situated within the State of California.
3302. Political Activity; Membership on School Board:
(a) Except as otherwise provided by law, or whenever on duty or in uniform, no public safety officer shall be prohibited from engaging, or be coerced or required to engage, in political activity.
(b) No public safety officer shall be prohibited from seeking election to, or serving as a member of, the governing board of a school district. (i.e. Public Safety Officers have the right to engage in political activity as long as they are off-duty and / or out of uniform.)
3303. Investigations and Interrogations; Conduct; Conditions; Representations: Reassignment:
If any public safety officer is under investigation and subjected to interrogation by their commanding officer or any other member of the employing agency, that could lead to punitive action, the investigation shall be conducted under the below conditions:
(a) The interview/interrogation shall be conducted at a reasonable hour, preferably at a time when the public safety officer is on duty . If the interrogation does occur during off duty time, the public safety officer shall be compensated for any off duty time in accordance with the regular department procedures, and the public safety officer shall not be released from employment for any work missed.
(b) The officer under investigation shall be informed prior to the interrogation of the rank, name, and command of the officer in charge of the interrogation, in addition to any and all other persons that may be present during the interrogation. All questions directed to the public safety officer under interrogation, shall be asked by no more than two interrogators at one time.
(c) The officer under investigation shall be informed of the nature of the investigation prior to any interrogation.
(d) The interrogation session shall be for a reasonable period taking into consideration gravity and complexity of the issue being investigated. The officer under interrogation shall be allowed to attend to his or her own personal physical necessities.
(e) The officer under interrogation shall not be subjected to offensive language or threatened with punitive action. Any officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action. No promise of reward can be made as an inducement to answering any questions during the interrogation. The officer cannot be subjected to visits by the press or news media without his or her express consent, nor can his or her home address or photograph be given to the press or news media without the officer’s express consent.
(f) Statements made during interrogation by a public safety officer under duress, coercion, or threat of punitive action shall be inadmissible in any subsequent civil proceedings.
This subdivision is subject to the following qualifications:
(1) This subdivision cannot limit the use of statements made by an officer when the employing public safety department is seeking civil sanctions against any public safety officer, including disciplinary action brought under Section 19572.
(2) This subdivision shall not prevent the admissibility of statements by the officer under interrogation in any civil action, which includes administrative actions, brought by that officer, or that officer’s exclusive representative, arising out of a disciplinary action.
(3) This subdivision shall not prevent statements made by an officer under interrogation from being used to impeach the testimony of that very officer after an in-camera review to determine whether the statements serve to impeach the testimony of the officer.
(4) This subdivision shall not otherwise prevent the admissibility of statements made by a public safety officer under interrogation if that officer subsequently is deceased.
(a) The complete interrogation of an officer may be recorded. If the investigation / interrogation is tape-recorded, the public safety officers shall have access to the tape if any further proceedings are determined to be necessary and / or prior to any further interrogation at a subsequent time. The officer is entitled to a transcribed copy of any notes made by a stenographer, reports, or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered into the officer’s personnel file. In addition, the officer being interrogated shall have the right to bring his or her own recording device and record any and all portions or aspects of the interrogation.
(b) If at any time during the interrogation of a public safety officer it is deemed that they may be charged with a criminal offense, the officer shall be immediately informed of his or her constitutional rights.
(c) Whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at their request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation proceedings. The requested representative shall not be a person subject to the same investigation. The representative 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.
(d) No 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.
3304. Lawful Exercise of Rights: Insubordination: Administrative Appeal:
(a) Public safety officers under investigation shall not be denied promotion, subjected to punitive action, or threatened with any such treatment, because of the officer’s lawful exercise of his or her rights granted under this chapter, or the exercise of any rights under any existing administrative grievance procedure.
(b) No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.
(c) No chief of police may be removed by a public agency, or appointing authority, without providing the chief of police with written notice and the reason or reasons therefore and an opportunity for administrative appeal.
(d) For the purposes of this subdivision, the removal of a chief of police by a public agency or appointing authority for the purpose of implementing the goals or policies, or both, of the public agency or appointing authority, for reasons including, but not limited to, incompatibility of management styles or as a result of a change in administration, shall be sufficient to constitute "reason or reasons."
(e) Nothing in this subdivision shall be construed to create a property interest, where one does not exist by rule or law, in the job of chief of police.
(f) Except as provided in this subdivision and subdivision (g), 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 (1) 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. This one-year limitation period shall apply only if the act, omission, or other misconduct occurred on or after January 1, 1998. 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 disciplinary action within that year, except in any of the following circumstances:
(1) If the act, or omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the one year time period.
(2) If the public safety officer waives the one year time period in writing, the time period shall be tolled for the period of time specified in the written waiver.
(3) If the investigation is a multi-jurisdictional investigation that requires a reasonable extension for coordination of the involved agencies.
(4) If the investigation involves more than one employee and requires a reasonable extension.
(5) If the investigation involves an employee who is incapacitated or otherwise unavailable.
(6) If the investigation involves a matter in civil litigation where the public safety officer is named as a party defendant, the one-year time period shall be tolled while the civil action is pending.
(7) If the investigation involves a matter in criminal litigation where the complainant is a criminal defendant, the one year time period shall be tolled during the period of that defendant’s criminal investigation and prosecution.
(8) If the investigation involves an allegation of workers’ compensation fraud on the part of the public safety officer.
(a) Where a pre-disciplinary response or a grievance procedure is required or utilized, the time for this response or procedure shall not be governed or limited by this chapter.
(b) If, after investigation and any pre-disciplinary response or procedure, the public agency decides to impose discipline, the public agency shall notify the public safety officer in writing of its decision to impose discipline, including the date that discipline will be imposed, within thirty (30) days of its decision, except if the public safety officer is unavailable for discipline.
(c) Notwithstanding the one (1) year time period specified in subdivision (c), an investigation may be reopened against a public safety officer if both of the following circumstances exist:
(1) Significant new evidence has been discovered that it is likely to affect the outcome of the investigation.
(2) One of the following conditions exist:
(a) The evidence could not reasonably have been discovered in the normal course of investigation without resorting to extraordinary measures by the agency.
(b) The evidence resulted from the public safety officer’s pre-disciplinary response or procedure.
(c) For those members listed in subdivision (a) of Section 830.2 of the Penal Code, the thirty (30) day time period provided for in this subdivision (e) shall not commence with the service of a preliminary notice of adverse action, should the public agency elect to provide the public safety officer with such a notice.
3304.5. Administrative Appeal Rules:
An administrative appeal instituted by a public safety officer under this chapter shall be conducted in conformance with rules and procedures adopted by the local public agency.
3305. Comments Adverse to Interest; Entry in Personnel File or in Other Record; Opportunity to Read and Sign Instrument; Refusal to Sign
No public safety officer shall have any comment adverse to his interest entered into his personnel file, or any other file used for any personal purposes by his employer, without the public safety officer having first read and signed the instrument containing the adverse comment indicating he or she is aware of such comment, except that such entry may be made if after reading such instrument the public safety officer refuses to sign it. Should the public safety officer refuse to sign, that fact shall be noted on that document and signed or initialed by said officer.
3306. Response to Adverse Comment:
A public safety officer shall have thirty (30) days within which to file a written response to any adverse comment entered in his personnel file. Such written response shall be attached to, and shall accompany, the adverse comment.
3306.5 Inspection of Personnel Files; Availability; Correction of information;and Requests:
(a) Every employer shall, at reasonable times and at reasonable interviews, upon the request of a public safety officer, during usual business hours, with no loss of compensation to the officer, permit that officer to inspect personnel files that are used or have been used to determine that officer’s qualifications for employment, promotion, additional compensation, or termination, or other disciplinary action.
(b) Each employer shall keep each public safety officer’s personnel file or a true and correct copy thereof, and shall make the file or copy thereof available within a reasonable period of time after a request therefore by the public safety officer.
(c) If, after examination of the officer’s personnel file, the officer believes that any portion of the material is mistakenly or unlawfully placed in the file, the officer may request, in writing, that the mistaken or unlawful portion be corrected or deleted. Any request made pursuant to this subdivision shall include a statement by the officer describing the corrections or deletions requested. A statement submitted pursuant to this subdivision shall become part of the personnel file of the officer.
(d) Within (30) calendar days of receipt of a request made pursuant to subdivision (c) above, the employer shall either grant the officer’s request or notify the officer of the decision to refuse to grant the request. If the employer refuses to grant the request, in whole or in part, the employer shall state in writing the reasons for refusing the request, and that written statement shall become part of the personnel file of the officer.
3307. Polygraph Examination; Right to Refuse:
(a) No public safety officer shall be compelled to submit to a lie detector/ polygraph or voice stress analyzer test against his or her will. No disciplinary action or other recrimination shall be taken against a public safety officer refusing to submit to a lie detector test, nor shall any comment be entered anywhere in the investigator’s notes or anywhere else that the public safety officer refused to take, or did not take, any of the above tests, nor shall any testimony or evidence be admissible at a subsequent hearing, trial, or proceeding, judicial or administrative, to the affect that the public safety officer refused to take, or was subjected to, any of the above tests.
(b) For the purpose of this section, "lie detector" means a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or any other similar device, whether mechanical or electrical, that is used, or the result of which are used, for the purposes of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual.
3307.5. Photograph / Identity; Internet Use:
(a) No public safety officer shall be required as a condition of employment to consent to the use of his or her photograph or identity as a public safety officer on the Internet for any purpose if that officer reasonably believes that the disclosure may result in a threat, harassment, intimidation, or harm to that officer or his or her family.
(b) Based upon the public safety officer’s reasonable belief may result in a threat, harassment, intimidation, or harm, the officer may notify the department or other public agency to cease and desist from that disclosure. After the notification to cease and desist, the officer, a district attorney, or a United States attorney may seek an injunction prohibiting any official or unofficial use by the department or other public agency on the Internet of the officer’s photograph or identified as a public safety officer. The court may impose a civil penalty in an amount not to exceed five hundred dollars ($500.00) per day commencing two (2) working days after the date of receipt of the notification to cease and desist.
3308. Financial Disclosure; Right to Refuse; Exceptions:
No public safety officer shall be required or requested for the purposes of job assignment or other personal action to disclose any item of their property, income, assets, source of income, debts for personal or domestic expenditures (including those of any member of his or her family or household) 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 or her official duties, or is necessary for the employing agency 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.
3309. Search of Locker or Storage Space; Consent; Search Warrant:
No public safety officer shall have his or her locker, or other space for storage that may be assigned to him or her searched except in his or her presence, or with his or her consent, or unless a valid search warrant has been obtained or where the public safety officer has been notified that a search will be conducted. This section shall apply only to lockers or other space for storage that are owned or leased by the employing agency and utilized by the public safety officer.
3309.5. Local Public Safety Officers; Applicability of Chapter; Jurisdiction; Remedies:
(a) It shall be unlawful for any public safety department to deny or refuse to any public safety officer the rights and protections guaranteed to them by this chapter.
(b) The superior court shall have initial jurisdiction over any proceedings brought by any public safety officer against any public safety department for alleged violations of this chapter.
(c) In any case where the superior court finds that a public safety department has violated any of the provisions of this chapter, the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, included, but not limited to, the granting of a temporary restraining order, preliminary, or permanent injunction prohibiting the public safety department from taking any punitive action against the public safety officer.
3310. Procedures of Public Agency Providing Same Rights or Protections; Applications of Chapter:
Any public agency which has adopted, through action of its governing body or its official designee, any procedure which at a minimum provides to peace officers the same rights or protections as provided pursuant to this chapter shall not be subject to this chapter with regard to such a procedure.
3311. Mutual Aid Agreements; Effect of Chapter Upon:
Nothing in this chapter shall in any way be construed to limit the use of any public safety agency or any public safety officer in the fulfilling of mutual aid agreements with other jurisdictions or agencies, nor shall this chapter be construed in any way to limit any jurisdictional or inter-agency cooperation under any circumstance where such activity is deemed necessary or desirable by the jurisdictions or the agencies involved.
Important Penal Codes For The Law Enforcement Officer
135.5. Evidence Tampering:
Any person who knowingly alters, tampers with, conceals, or destroys relevant evidence in any disciplinary proceedings against a public safety officer, for the purpose of harming that public safety officer, is guilty of a misdemeanor.
148.6. Misconduct Allegations:
(a) (1) Every person who files any allegation of misconduct against any peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, knowing the allegation to be false, is guilty of a misdemeanor.
(2) Any law enforcement agency accepting an allegation of misconduct against a peace officer shall require the complainant to read and sign:
You have the right to make a complaint against a police officer for any improper police conduct. California law requires this agency to have a procedure to investigate citizens’ complaints. You have the right to a written description of this procedure. This agency may find after investigation that there is not enough evidence to warrent action on your complaint; even if that is the case, you have the right to make the complaint and have it investigated if you believe an officer behaved improperly. Citizen complaints and any reports or findings relating to complaints must be retained by this agency for at least five years.
(3) The advisory shall be available in multiple languages.
(b) Every person who files a civil claim against a peace officer or a lien against his or her property, knowing the claim or lien to be false and with the intent to harass or dissuade the officer from carrying out his or her official duties, is guilty of a misdemeanor. This section applies only to claims pertaining to actions that arise in the course and scope of the peace officer’s duties.
502: It is a misdemeanor to access computers without permission. ( i.e. local, CLETS, DMV.)
632: "Confidential communications", conversations between the officer and their supervisor, co-workers, chief, etc. cannot be secretly recorded utilizing a tape-recorder and / or other digital recording device.
12021 (c): Ten year prohibition to possess firearm for misdemeanor convictions including 240, 242, 273.5, and 417 PC, etc.
Other Important Governmental Codes
Civil Code 56.10.
Department/employer doctor, (includes psychologist) cannot release information to department/employer without your signed release except "fit or not fit" for duty. Pettus v. Cole (1996).
Civil Code 56.20 (b)
You cannot be disciplined for failure to sign a release.
18U.S.C 922 (g) (9), Federal Gun Control Act.
Any misdemeanor conviction for domestic violence on spouse or child is equal to lifetime prohibition to possess a firearm.
Your employer cannot:
- Use more than two interrogators at one time
- Provide home address/phone number to news media without consent
- Provide your photograph to media without your consent
- Force you to take a lie detector test
- Discipline you for refusing to take a lie detector test
- Make a reference or comment regarding your refusal to take a lie detector test
- Subject you to news media without your consent
- Conduct an unreasonably long interrogation
- Utilize any offensive language, promised rewards or threats
- Interrogate / question you off duty without compensation
- Refuse to allow you to attend to your personal physical needs
- Search your locker without a search warrant, without your consent, unless they have advised you or unless you are present.