Fact Witness Cannot Also Conduct Internal Affairs Investigation

While on patrol, two Oakland, California police officers witnessed what appeared to be a drug transaction. A subsequent stop of one of the suspects gave the officers cause to detain the suspect and led to the recovery of cash and illegal drugs in the vicinity of the suspect.

During his detention, the suspect claimed he did not feel well and the officers summoned medical support on his behalf. The suspect also made a general statement, heard by the officers, that he was “going to shit myself.” One officer replied, “You can shit all over yourself, you can do what you want, but you’re going to jail.”

When a sergeant later arrived at the scene, the suspect complained that the officers treated him with disrespect in that the officers “looked at him like he was a sideshow freak, a liar and stupid.” The sergeant provided the suspect with an OPD complaint packet, and documented the complaint through a memorandum. An internal affairs investigation resulted.

While the investigation was pending, the officer responded to a report of a shooting. The officer detained two suspects while other officers searched for additional suspects. While lying on the ground, one of the suspects made what the officer saw as a furtive move, causing the officer to warn the suspect, “Don’t move or my partner will shoot you in the head.” A separate internal affairs investigation resulted from this comment.

Eventually, the Department sustained both charges and imposed a three-day suspension. The Oakland Police Officers Association challenged the suspension in arbitration.

The Arbitrator considered the two charges separately. With respect to the “you’re going to jail” comment, the Arbitrator was troubled by the actions of the sergeant who took the original complaint. Shortly after the incident, the sergeant was transferred to Internal Affairs, and was assigned as the lead investigator on the complaint. The sergeant signed a “recusal form” certifying: “I am not directly involved in the incident and do not have any relationship with any of the involved parties which could be perceived to compromise the investigative process.”

The Arbitrator found that the sergeant’s actions warranted the reversal of the sustained finding. The Arbitrator observed that “an objective investigation is one where the employer makes an affirmative, good faith effort to establish the alleged misconduct and provide the employee an opportunity to explain the reasons behind his/her actions in light of the evidence. The concept of just cause depends, in part, on an objective investigative process in which a witness cannot also be an investigator.

“Contrary to the Recusal Form he submitted and signed, the sergeant did have a direct involvement in the incident and did have a relationship with the involved parties. The sergeant’s supervision of the investigation as the IA department lead investigator, disqualifies the investigation as one which is fair and impartial. Therefore, the grievance is sustained and any evidence discovered from this investigation cannot be used by the City as a basis for determining just cause for discipline.”

The Arbitrator did not find the same infirmity with the “shoot you in the head” comment. The Arbitrator instead observed that “during the investigation of this complaint, conducted by Sgt. Ashford of the IA Department, the facts of the complaint were thoroughly examined, all witnesses were interviewed and the complaint was sustained by the IA Department. The Oakland Police Department clearly states the expectations for Police Officer conduct when serving the public in the department’s Manual of Rules, and has a policy that ‘Members and employees shall perform their duties attentively and courteously, avoiding rude, threatening, harsh, insulting, insolent, or demeaning language, and they shall maintain a professional bearing regardless of provocation to be otherwise.’ Therefore, the Department had just cause to discipline the officer.”

There remained the matter of what to do with the case, as only one of the two charges was sustained by the Arbitrator. The Arbitrator ended up directing the City “to discount the results of the investigation of the first as just cause for disciplinary action. The City may impose appropriate disciplinary action for the second complaint in accordance with the Discipline Matrix.”

City of Oakland, 137 LA 82 (Riggs, 2016).