There is a widely held belief that the law operates as a sort of magic talisman: utter a few sacred legal words or phrases, like "attorney-client privilege" or, closer to home, "Peace Officers' Bill of Rights" (POBRA), and no harm can befall you, much like wielding a crucifix against a vampire. In reality, the law is far more nuanced in its application than salutary effects produced by the ritual incantation of some prophylactic phrases.
Two recent cases out of the Fourth District Court of Appeal (the state appellate court with jurisdiction over the greater Los Angeles metropolitan area) serve to drive this point home all too clearly. In the first, Perez v. City of Los Angeles (167 Cal.App.4th 118), the court upheld the termination of an LAPD field training officer (FTO) on the basis of physical evidence obtained during what the Department conceded was an interrogation conducted in violation of POBRA.
However, the physical evidence was dramatic: concerned about the FTO's having pointed her service weapon at a trainee in a misguided demonstration of the speed with which a suspect can overtake an officer, the interrogating lieutenant and sergeant asked the FTO - without affording her any POBRA rights - how she had pointed her gun at the trainee. The FTO responded, "I did this," and proceeded then to pull out her loaded firearm and point it at the sergeant "between his lower stomach and his chin[,] approximately three and one-half to four feet away." The presumably dumbstruck lieutenant promptly ordered the FTO to reholster her weapon. Termination followed in relatively short order.
The instructive point to take from this case is a recognition that the law does not operate in a vacuum. Context is everything, and no legal phrase acts as a sacred formula to safeguard its invoker in every situation, no matter how extreme. As the Fourth District explained, "[T]he acronym POBRA is not a magic word which makes physical misconduct disappear." An officer cannot shield what the court determined to be "life-threatening misconduct," even if performed during an unlawful interrogation.
Many will find the second case even more disquieting than the first, insofar as it reaches into what traditionally has been considered a sacrosanct sphere of personal privacy: communications between spouses. In Riverside County Sheriff's Department v. Zigman (2008 WL 5341001), the court concluded that the marital communications privilege does not apply in police administrative investigations and hearings. A Riverside County sheriff's deputy received an eight-hour suspension for failing to report that her husband, also a Riverside sheriff's deputy, had been using methamphetamines. An arbitrator had thrown out the suspension because it was based on what the arbitrator believed to be the inadmissible evidence of the deputy's conversation with her husband.
The Fourth Appellate District disagreed, citing a line of cases that require officers to "choose their duties over constitutional and statutory privileges enjoyed by other citizens [because] officers are the guardians of peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintaining law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them." (Zigman citing Titus v. Civil Service Comm'n, 130 Cal.App.3d 357, 364 (1982), citing Christal v. Police Commission, 33 Cal.App.2d 564, 567-68 (1933).) Accordingly, the Fourth District affirmed the lower court's overturning of the arbitrator's award, ordering the arbitrator to reconsider the case consistent with the court's ruling that the marital communications privilege does not apply in law enforcement administrative investigations or hearings.
Thus, invoking the marital communications privilege will not shield an officer from administrative liability, despite the disturbing implications of such a ruling. That is, the state, acting as employer, has the ability to penetrate what is perhaps the most private of relationships, a marriage.
You may recall a column I wrote for these pages last autumn, "The Moral Authority of Police Unions," in which I attempted to answer the claims by some that it is the height of audacity for police labor organizations even to speak of equity in wages and benefits as we enter the worst economic crisis since the Great Depression. Cases like those described in this article and their reliance on the greater duty which the law expects from officers vis-à-vis that of other citizens is the unequivocal response.
The absence of magic in legal terms like "POBRA" and "marital communications privilege" may be understandable. But there is surely no wizardry in recognizing that those whom the law compels to "choose their duties over constitutional and statutory privileges enjoyed by other citizens" should be justly compensated.
"Roll the Union On . . ."