Government Code § 3304(g) Entitles Subject Officer

to Discovery of Reports, Notes, etc., after an IA Investigation

Hinrichs v. County of Orange , et al. 125 Cal. App. 4 th 921 (2004)

Beverly Hinrichs, a full-time officer with the Orange County Sheriff's Department, was given written notice she was the subject of an internal affairs investigation for "use-of-alcohol." At the conclusion of the internal affairs interrogation, Hinrichs' counsel served the Department with a written demand for "transcribed copies of any notes made by a stenographer and copies of any reports or complaints made by investigators or other persons, except those which are deemed by Orange County Sheriff-Coroner Department to be confidential, that relate to this matter."

The Sheriff's Department responded that it would release reports to Hinrichs only if she "is given discipline higher than a written reprimand.." Hinrichs subsequently received, through Captain Gage, a letter or reprimand, for violation of two sections of the Department's manual of rules and regulations. Hinrichs appealed the reprimand by requesting a meeting with Captain Gage, and asserted that she had been denied materials in violation of substantive rights was not ripe because her administrative appeal had not yet been fully resolved.

The California Court of Appeal, Fourth Appellate District, Division Three, reversed with direction to the trial court to let a writ of mandate issue, compelling the Sheriff's Department to reverse their issuance of the written reprimand to Hinrichs, and that she should recover her costs on appeal.

The Court of Appeal agreed with Hinrichs argument that the Department impermissibly denied her copies of reports required by California Government Code § 3303, and felt the Department had misread the California Supreme Court's decision in Pasadena Police Officers Association v. City of Pasadena (1990) 51 Cal. 3d 564, when it suggested that Hinrichs was not entitled to "pre-interrogation" documents, which the Department defined as any documents created prior to her formal internal affairs interrogation.

The Court of Appeal pointed out that in the Pasadena case, the issue before the Supreme Court was the timing of mandatory discovery under section § 3303(f) [now (g)] not the scope of that discovery. The Court of Appeal, quoting from the Supreme Court's holding in Pasadena , at p. 579, ".based on our review of the statutory language and purpose underlying the Act, we conclude that the Legislature intended subdivision (f) [now subdivision (g)] to require law enforcement agencies to disclose reports and complaints to an officer under an internal affairs investigation only after the officer's interrogation.." The Court of Appeal when on to state that "Nothing in Pasadena suggests that court was drawing a distinction between documents created before an interrogation and those created after."

The Court of Appeal agreed with the Department's contention that it was not obligated to give Hinrichs more than a general description of the allegations against her, nothing that section § 3303 provides only that she was entitled to be "informed of the nature of the investigation prior to any interrogation." However, the court stated that in it's view, had the Department chose to specify a particular regulation that the officer was alleged to have violated, and provided no other description of the alleged wrongful conduct, the Department could not thereafter impose discipline based upon a different regulation.

How this affects your agency: This case clears up two issues that have been previously addressed: (1) When and what is discoverable by an officer who is the subject of an internal affairs investigation, and (2) How specific should an agency be in its notification to an officer that he/she is the subject of an internal affairs investigation? Agencies are now on notice that even in minor, "reprimand" situations, officers are entitled to all non-confidential documents, etc., (section § 3303(g)). Departments should also take note that their advisements to officers under investigation for misconduct should be written in general terms without reference to a specific rule or regulation section.