In a recently published decision, an Appellate Court held that the criminal tolling period within POBRA does not end for any involved officer unless, and until, all officers are officially cleared of criminal jeopardy. In other words, the entire criminal investigation must be concluded before POBRA’s tolling provisions expire.
In Bacilio v. City of Los Angeles. et al., several officers were called to a domestic disturbance which led to the arrest of a husband. Following the arrest, Officers Edgar Bacilio and Nestor Escobar returned to the apartment in order to conduct a “welfare check.” They spent nearly two hours on-scene.
Over 4 months later, on August 4, 2011, the arrestee’s wife lodged a complaint with the LAPD alleging that Officer Escobar remained in her apartment for 90 minutes, and during that time kissed her and groped her breasts and genitals. She selected Escobar out of a photographic montage, stating that she was “60-70 percent” sure Escobar was her assailant.
The LAPD’s Internal Affairs Division commenced an internal investigation of Bacilio, Escobar, and a third Officer. At the same time, a parallel criminal investigation was launched. Due to the criminal nature of the allegations, the officers were not interviewed until 2013.
On August 6, 2013 the deputy district attorney interviewed the alleged victim. The lead internal affairs investigator attended the interview as well. Shortly after the interview, the deputy district attorney discussed the likelihood of criminal charges with the lead internal affairs investigator. Although what was actually said during their discussion was disputed, it was clear that the deputy district attorney told the LAPD’s investigator that it was “okay to do the admin[istrative] interviews” of Bacilio and the third officer, as she would not be filing charges against either for aiding-and-abetting, but was still “working on the case.” Impliedly, the District Attorney’s Office was still considering charges against Escobar.
On September 27, 2013 Bacilio was interviewed by LAPD internal investigators. He was also interviewed again on February 17, 2014. On October 3, 2013 the District Attorney’s Office sent written notice to the LAPD (a “Charge Evaluation Worksheet”) that it was declining to file charges against any of the three officers, including Escobar.
On September 10, 2014 the LAPD served Bacilio with notice that it sought to officially reprimand him. Bacilio challenged the findings arguing that the deputy district attorney’s oral representation to the internal investigator that no criminal charges would be filed (on or about 8/6/13) triggered the end of the tolling period. Hence, the September notice was untimely under POBRA’s one year statute of limitations.
In rejecting Bacilio’s arguments, the Appellate Court reiterated that tolling in multi-officer cases will remained tolled as to all so long as any officer remains under investigation or pending final disposition (guilty / not-guilty / dismissed with prejudice) of a criminal charge.