A recent decision limited a peace officer’s ability to
challenge a department’s internal affairs process. In Barcelona
v. California Department of Justice, the court held an employee could
not sue his department without showing they were harmed. Additionally, the court held it was permissible
for a department to prevent a witness from being the subject officer’s
representative during the interview.
Alan Barcelona was employed by DOJ. A citizen complaint led to an internal
affairs investigation (IA) being opened.
The first person interviewed was the citizen. During the interview the citizen told
investigators that another person, Kasey Clark, witnessed the alleged
misconduct. Mr. Clark was subsequently
interviewed as a witness. Following
Mr. Clark’s interview, Mr. Barcelona continued to desire Mr. Clark as his representative.
DOJ did not let Mr. Clark serve as Mr. Barcelona’s
representative. DOJ cited its notice,
which said Mr. Barcelona could have any representative not involved in the investigation.
Mr. Barcelona went forward with the interview using a different
representative. Eventually the IA was
completed without Mr. Barcelona being disciplined.
Mr. Barcelona brought a lawsuit challenging DOJ’s policy. The lawsuit alleged two separate
violations. First, the policy violated
Mr. Barcelona’s First Amendment Rights by denying free association. Second, the policy violated the Public Safety
Officers Procedural Bill of Rights (POBR). Mr. Barcelona claimed POBR gave him the
right to use Mr. Clark as his representative in the IA.
The court struck down Mr. Barcelona’s First Amendment
claim. According to the court, Mr. Barcelona failed to show an actual or imminent injury to a legally protected
interest. This was because Mr. Barcelona was not disciplined. Had
discipline occurred, he would have standing to challenge DOJ’s
policy. However, without standing the
court would not look at the issue.
The court also denied Mr. Barcelona’s POBR claim. POBR grants officers the right to have a
legal representative during an IA, so long as the representative is not subject
to the same investigation. Mr. Barcelona argued that witnesses in an IA were not “subject to the same
investigation.” However, the court
disagreed. Persons “subject to the same
investigation" include witnesses. DOJ’s
policy, preventing witnesses from serving as representatives, was allowed to continue.
