Criminal Investigation Tolls Statute Of Limitations Even On Non-Criminal Charges

Jerry Lucio was a police officer with the Los Angeles Police Department. In the course of his duties, Lucio met a woman who had attempted to commit suicide. Two months later, Lucio, who had just broken up with his girlfriend, went to the woman’s residence and began a personal relationship and subsequent intimate relationship with her.

After several months, the woman called Internal Affairs, complaining that Lucio had threatened her and that she was afraid Lucio would kill her and leave the country. The Department began a criminal investigation into Lucio’s conduct.

Over the course of the ensuing months, the Department determined that there was no basis for criminal charges against Lucio. However, the Department terminated Lucio for converting his official on-duty contact into a social relationship, for making improper remarks to the woman, and on numerous occasions for conducting personal business while on duty.

Lucio challenged his termination on the ground that it violated a provision of the Los Angeles City Charter forbidding the Department from terminating an officer for any conduct that occurred more than one year prior to the filing of the complaint. In fact, Lucio was terminated one year and 13 days after the woman contacted Internal Affairs.

The Department contended that an exception in the Los Angeles City Charter allowed the “tolling” of the statute of limitations in the event the officer “was also the subject of a criminal investigation or criminal prosecution.” The California Court of Appeals agreed with the Department, and dismissed Lucio’s lawsuit.

The key question in the lawsuit was whether the “tolling” provisions of “criminal investigation exception” applied even with respect to disciplinary charges that were not criminal in nature. The Court found that so long as the same underlying course of conduct was involved in both the criminal and the disciplinary investigations, the “tolling” provisions applied. The Court noted that “the internal affairs investigator testified that he learned in his interview with the woman that he conducted as part of the criminal investigation about the circumstances surrounding Lucio’s conversion of an on-duty contact into a social relationship, how the relationship developed and then deteriorated to the point where, according to the woman, Lucio threatened her life. Further, the investigator testified that when he interviewed the woman, she indicated Lucio went to her residence while on duty on at least four occasions. Thus, the acts and allegations of misconduct which were alleged in the disciplinary charges were also the subject of the criminal investigation.”

Lucio v. City of Los Angeles, 2008 WL 5341854 (Cal.App. 2008).

This article appears in the February 2009 issue