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.