HomeMy WebLinkAbout05-15-2012 c2 grand jury response internal investigationscounci lacen6a nepoit .
C I T Y O F S A N L U I S O B I S P O
FROM :
Steve Gesell, Police Chie f
Prepared By :Lieutenant Bill Proll
SUBJECT :GRAND JURY RECOMMENDATIONS REGARDING CITIZEN COMPLAIN T
FORMS
RECOMMENDATION
Adopt the Recommendations of the 2011-2012 San Luis Obispo County Grand Jury as follows ;
1.Add the citizen complaint forms to the Police Department website .
2.Remove "CA Penal Code 148 .6 admonition" from the Police Department citize n
complaint forms .
DISCUSSIO N
The Grand Jury found that the Police Department is in compliance with the citizen complain t
guidelines proposed by the California Commission on Peace Officer Standards and Trainin g
(POST). They also found that the Department is in compliance with the Lexipol guidelines : Lexipol
is a provider of risk management resources for public safety agencies . For more information
regarding Lexipol, refer to page 3 of the Grand Jury report (Attachment 1).
In the Department's efforts to make the citizen complaint process as user friendly as possible ,
discussions have been ongoing about putting the forms on its website . The process was not
completed prior to the Grand Jury's investigation . However, it had been the Department's intentio n
to do so,and this has now been accomplished.
CA Penal Code section 148.6 states that it is a misdemeanor crime to file a false citizen complain t
against a police officer . The San Luis Obispo Police Department citizen complaint forms contain a n
admonition citing this section . In May of 2006, the U .S . Ninth Circuit Court of Appeals declare d
CA Penal Code 148.6 to be unconstitutional . The case was appealed to the US Supreme Court
which refused to hear the matter . According to federal law, the California law is unconstitutional .
Therefore, although the law still exists in California, it is essentially unenforceable . Moreover ,
enforcement could expose an agency to civil rights lawsuits . Refer to the attached Marty Mayer
Client Alert (Attachment 2). Staff has removed the admonition from the Department citize n
complaint forms .
CONCURRENCE S
The City Attorney's Office concurs with the recommendations .
Meeting Date
05/15/1 2
Item Number
C2
GRAND JURY RECOMMENDATIONS REGARDING CITIZEN COMPLAINT FORMS Page 2
FISCAL IMPAC T
None .
ALTERNATIVE S
The alternative is to not adopt the recommendations of the Grand Jury . This alternative is no t
recommended because failure to adopt could leave the City vulnerable to civil rights lawsuits .
ATTACHMENT S
l .201 i 2()1.2 Gr a
2 .Marty Mayer
T :\Council Agenda Reports\2012\2012-05-15\Grand Jury Response - Internal Invest (Gesell-Proll)\GrandJuryReport :docx
GRAND JURY
March 20, 201 2
Confidentia l
Mayor Jan Howell Mar x
City of San Luis Obisp o
990 Palm S t
San Luis Obispo CA 9340 1
Dear Mayor Howell Marx and City Council :
The San Luis Obispo County Grand Jury has completed the attached report titled "Citize n
Complaints and Internal Affairs Investigations ."This copy of the report is being provided t o
you twodaysin advance of its public release,as required by California Penal Code §933 .05 (f)
which states :
A grand jury shall provide to the affected agency a copy of the portion of the grand jury
report relating to that person or entity two working days prior to its public release an d
after the approval of the presiding judge . No officer, agency, department, or governin g
body of a public agency shall disclose any contents of the report prior to the publi c
release of the final report .
Please check the last page of text of the report for the timing of your response, if any, as require d
by the Penal Code . Sections 933 through 933,05 of the Penal Code are attached for you r
reference .
Please keep in mind that this report must be kept confidential until its public release by th e
Grand Jury .
Norman A . Baxter, Foreperson
2011-2012 San Luis Obispo County Grand Jur y
Enclosure s
NB :sm
PuoNF :(805) 781-5188 • FAx : (805) 781-115 6
PO .Box 4910 • SAN LUIS 01315PO . CALIFORNIA 9340 3
www.slocourts .net C2-3
CITIZEN .COMPLAINTS AND INTERNAL AFFAIR S
INVESTIGATION S
SUMMARY
This Grand Jury report informs the public about their rights to file a complaint with a polic e
agency and it describes the police agency process used to investigate that complaint ,
This 2011-2012 Grand Jury investigation found that the San Luis Obispo County Sheriff's
Department, under the leadership of the newly elected Sheriff Ian Parkinson, has made grea t
strides in improving the handling of citizen complaints and internal affairs investigations b y
reestablishing its Internal Affairs Unit, now known as the Professional Standards Unit .
The 2011-2012 Grand Jury also found that police departments in San Luis Obispo County
implemented recommendations made in the 2004-2005 Grand Jury report and adhere to
established state standards in handling citizen complaints and conducting internal affair s
investigations . Police departments in San Luis Obispo County also make use of modern vide o
technology to record police interaction with the citizens of the county ,
INTRODUCTIO N
Citizens are often concerned as to what recourse is available to them if they have a complain t
about police personnel, and how they can file an official complaint against those officers .
Citizens are also concerned about the process utilized by police departments in investigating
their own officers, and how their specific complaint will be handled .
California Penal Code Section§ 832 .5(a) states: "Each department or agency in this state tha t
employs peace officers shall establish a procedure to investigate complaints by members of th e
public against the personnel of those departments or agents, and shall make a written descriptio n
of the procedure available to the public ."
Page 1
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The 2011-2012 Grand Jury (hereafter referred to as the current Grand Jury) reviewed the current
policies of San Luis Obispo County police agencies governing complaints received from citizen s
about police actions, and how those agencies investigate citizen complaints .
ORIGIN
The current Grand Jury decided to update the 2004-2005 Grand Jury (hereafter referred to as th e
previous Grand Jury) report on the same topic .
The current Grand Jury noted that almost all Chiefs of Police and the Sheriff are new to thei r
office since the previous Grand Jury report . The current Grand Jury determined that a review o f
policies, practices and procedures relating to citizen complaints would be valuable to the citizen s
of the county.
METHO D
The Grand Jury requested and received written policies and procedures for handling citize n
complaints and internal affairs investigations from all seven municipal police departments in the
county and the Sheriff's Department .
The Grand Jury reviewed the previous Grand Jury report on citizen complaints, its findings an d
recommendations, and the responses provided by the Chiefs of Police and the Sheriff .
After reviewing the current policies of all police agencies, the Grand Jury arranged to intervie w
all Chiefs of Police and the Sheriff. Those interviewed were as follows :
•Steve Annibali, Chief of Police, Arroyo Grande Polic e
• Jerel Haley, Chief of Police, Atascadero Polic e
•Steve Gesell, Commander, Atascadero Polic e
Jim Copsey, Chief of Police, Grover Beach Polic e
•Tim Olivas, Chief of Police, Morro Bay Polic e
Page 2
C2-5
• Lisa Solomon, Chief of Police, Paso Robles Polic e
•Jeff Norton, Chief of Police, Pismo Beach Polic e
•Deborah Linden, Chief of Police, San Luis Obispo Police
•Ian Parkinson, Sheriff, San Luis Obispo County
• Jim Voge,Commander,San Luis Obispo County Sheriffs Departmen t
NARRATIV E
The previous Grand Jury report noted that not all police agencies were consistent in how the y
handled citizen complaints or the investigative process . During the interview process with th e
Chiefs of Police and the Sheriff, the current Grand Jury was advised that all agencies now have a
similar policy, provided by Lexipol .
Lexipol also provides policy suggestions in almost every area of law enforcement, and it ha s
become the most common tool utilized by law enforcement agencies, along with policy directio n
provided through the offices of the Peace Officers Standards and Training Commission (POST).
The Commission on POST was established by the California Legislature in 1959 to set minimu m
selection and training standards for California law enforcement . The POST organization, wit h
more than 130 staff members, functions under the direction of an Executive Director appointed
by the Commission .
POST funding comes from the Peace Officers Training Fund (POTF). The POTF receives money
from the State Penalty Assessment Fund, which in turn receives money from penalty assessments
Lexipol is the leading provider of risk management resources for public safety organizations, deliverin g
its services through a unique, web-based development system with an integrated training component . The
Lexipol system has helped law enforcement agencies reduce risk and stay ahead of litigation whil e
communicating clear and concise policy guidance to their employees .
Page 3
C2-6
on criminal and traffic fines . Therefore, the people who violate the laws that peace officers ar e
trained to enforce fund the POST Program .
The POST Program is voluntary and incentive-based . Participating agencies agree to abide b y
the standards established by POST . More than 600 police agencies participate in the POS T
Program and are eligible to receive the Commission's services and benefits, which include :
•Job-related assessment tool s
• Research into improved officer selection standards
• Management counseling services
•The development of new training course s
•Reimbursement for training, and
•Leadership training program s
All police agencies in San Luis Obispo County, with the exception of Pismo Beach, adhere to th e
policies and procedures of POST . Pismo Beach is the only San Luis Obispo County agency tha t
is accredited by the Commission on Accreditation for Law Enforcement (CALEA), which is a
national accreditation program . However, Pismo Beach does follow POST guidelines throug h
CALEA, as POST and CALEA are similar in nature .
Over 600 California agencies follow POST guidelines, and only a few California agencie s
participate in CALEA .
During the interview process with the Chiefs and the Sheriff, the Grand Jury asked a number o f
questions with regard to citizen complaint procedures .
Does your agency provide citizen complaint forms to individuals who request them ?
All agencies provide citizen complaint forms and make brochures that explain the complain t
process available to the public .
Page 4
C2-7
Are the forms available in Spanish ?
All agencies have their forms available in Spanish, and they all subscribe to a service throug h
AT&T that provides telephone interpreters as needed .
Do you have any Spanish language personnel who can assist a complainant ?
All agencies have access to some Spanish-speaking personnel and, as previously noted, they ca n
use the service provided by AT&T for other interpreting needs .
Do you have your citizen complaint forms on your Internet site ?
Pismo Beach, Grover Beach and the Sheriff's Department have citizen complaint information o n
the web . Paso Robles and San Luis Obispo stated that they will be placing the information o n
their websites soon . Arroyo Grande, Atascadero and Morro Bay do not have the information o n
their websites at this time .
If a citizen makes a complaint, how is the initial complaint handled and by whom ?
In all instances, the complainant has the opportunity to discuss the complaint with a superviso r
when the initial complaint is made . The complainant may stop an interview with a supervisor a t
any time. The complaint is then forwarded to a supervisor or commanding officer, if it cannot b e
resolved at the first level . Ultimately, the final decision regarding the handling of the complaint
rests with the Chief of Police or Sheriff. The Sheriff Department's new system will be discussed
separately as it merits special attention .
Can a complainant take the forms and return them at a later date? If so, what is th e
process when the form is returned ?
Every department responded that complainants are free to take forms with them and return the m
at a later date .
Page 5
C2-8
Does the form used by your department advise individuals that they are committing a
crime by filing a false report ?
Atascadero, Grover Beach, Mono Bay, Paso Robles, and San Luis Obispo Police Department s
have an admonition on their complaint forms . The admonition states that if a citizen files a fals e
report against an officer they can be charged with a misdemeanor .
Arroyo Grande, Pismo Beach and the Sheriff's Department do not have the admonition on thei r
complaint forms . However, the Pismo Beach Police Department also had the admonition on it s
website . Subsequent to the current Grand Jury interview with Chief of Police Jeff Norton, th e
admonition was removed from the website . The admonition could have been interpreted to b e
threatening, thereby dissuading citizens from filing a complaint .
California Penal Code requires that a citizen sign a form stating that they are aware that a fals e
report filed against a police officer can be found a misdemeanor .'
A California Appellate Court has ruled that Section 148 .6 of the penal code is constitutional, and
citizens may be prosecuted for filing a false report? However, Federal Courts have ruled th e
section is unconstitutional under Federal law because it deprives a citizen of their right to
complain about a public official .4
Leading California police personnel attorneys have advised their clients that section 148 .6 ,
although held to be constitutional by the California Supreme Court, is basically unenforceabl e
because federal constitutional law generally trumps state constitutional law in the area of
citizens' rights . Consequently, they have advised their clients to remove the admonition from al l
complaint forms .
2 California Penal Code 148 .6
3 People vs .Stanistreet (2002) 29 Cal. 4 th 497- California Supreme Court ,
Chaker vs.Crogan (2005) 428 F .3rd 1215- Court of Appeals, 9 th Circui t
Page 6
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How are complaints handled after the initial filing ?
After a decision is made to investigate the complaint, it is assigned to an investigator . All polic e
departments appear to conduct a complete and thorough investigation into each complaint .In all
cases, the investigation ultimately is reviewed by the Chief or Sheriff and, in consultation wit h
staff, a decision is made as to what, if any, disciplinary action is required .
Who determines who will investigate a complaint ?
If the investigation requires an internal affairs investigation, the Chief of Police or the Sheriff, i n
concert with staff, will make a determination as to who will handle the investigation . In al l
cases, an officer senior to the officer being investigated will conduct the investigation, In rar e
instances involving a senior officer or the Chief of Police, cities have used outside investigator s
to conduct an impartial investigation .
There are four possible findings to all investigations pursuant to Penal Code Section 832 .5 .
Unfounded :The investigation discloses that the alleged act(s) did not occur or did not
involve department personnel . Complaints that are determined to be frivolous will fall withi n
the classification of unfounded (Penal Code 832.5 (c).
Exonerated :The investigation discloses that the alleged act occurred,but the act wa s
justified, lawful and/or proper .
Not Sustained :The investigation discloses that there is insufficient evidence to sustain th e
complaint or fully exonerate the employee .
Sustained :The investigation discloses sufficient evidence to establish that the act occurre d
and that it constituted misconduct .
Page 7
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What is the process after the investigation is completed ?
Upon completion of the investigation, a recommendation will be made to the Chief of Police o r
the Sheriff as to what, if any, disciplinary action is required . Based upon the above criteria,a
determination will be made if the complaint is sustained or not sustained .
What is the complainant advised after the investigation is complete ?
All departments notify the complainant that the investigation has been completed, and th e
findings pursuant to the four categories: unfounded, exonerated, not sustained or sustained . It i s
often difficult to explain to a complainant why they cannot be privy to additional information ;
however, Government Code 3300, The Peace Officer's Bill of Rights, protects the personnel file s
of all police officers . Based upon existing state law, complainants are not entitled to be notifie d
of any disciplinary action taken against an officer .
Do you have a specific person or persons assigned to internal affairs investigations ?
Because police departments in San Luis Obispo County are relatively small, they do not have a
special internal affairs unit or personnel assigned specifically to internal affairs . The San Lui s
Obispo County Sheriff's Department is an exception and will be discussed separately .
Do you ever use outside investigators if you believe there may be a conflict of interest i n
using department personnel?
As previously noted, outside investigators are not usually used ; however, if the complaint
involves the Chief of Police or the Sheriff, or even a high-ranking member of the department, it
is possible to utilize the services of an outside investigator .
Page 8
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What kind of a log do you keep with regard to citizen complaints filed ?
All departments maintain a master log of citizen complaints . The log includes administrativ e
complaints that have been handled informally, as well as complaints that resulted in interna l
affairs investigations . These complaint logs are usually separate . Minor complaints are purge d
from an officer's personnel files after a prescribed period of time, usually based upon th e
department's own policies . Informal counseling does not require retention of file documents .
All Chiefs of Police and the Sheriff indicated that they utilize a master log to track officers '
activities and the number of complaints against any individual officer . The Sheriff's Departmen t
has a unique system of tracking .5
All departments maintain the log for a period of time required by law, usually five years if a n
internal affairs investigation was a part of the complaint process .6
How are your personnel trained to conduct internal affairs investigations ?
All departments train their personnel in Internal Affairs Investigation through POST-certifie d
training schools . Departments are reluctant to utilize personnel who have not received POS T
training in internal affairs investigations . In such cases, a POST-certified supervisor will monito r
the investigation .
Is in-house training conducted on the handling of internal affairs investigations ?
Departments continuously train their personnel either through external courses or Lexipo l
training in-house .
5 Discussed under a separate heading for the Sheriff's Departmen t
6 The State of California requires at least five year retention for citizen complaints . The statute of
limitations is four .years for misconduct . Internal Affairs and statewide guidelines recommend twenty -
five year retention for officer-involved shootings .
Page 9 C2-12
Do you have any community outreach programs to encourage citizens to come forth wit h
complaints if they feel justified in doing so? In that same regard, do you have an y
programs encouraging citizens to come forth with positive comments and commendation s
about police personnel ?
All Chiefs and the Sheriff indicated that they participate in community activities, such as servic e
clubs, homeowner groups, and local organizations, where they encourage citizens to com e
forward with any comments about the department . There is no concerted effort to solici t
complaints ; however, all indicated that they are always open and responsive to citizen input .
Do you have any specific technology that is utilized to assist your agency when conducting
internal affairs investigations, such as mini-video cameras, personal recording devices, in -
vehicle video or other similar technology ?
All departments have cameras, recording devices and other technology to assist them i n
documenting events, and they use such technology when conducting an internal affairs
investigation . It is often easier to show a complainant a video of their actions in a given situation
than to try to convince them that there was no wrongdoing on the part of an officer . Conversely,
if an officer has committed an act of misconduct, it is easier for the department to take correctiv e
action with the aid of such technology .
Many departments have the ability to download videos when an officer arrives at the station, an d
each department maintains digital recordings of all activities . The Sheriff's Department i s
currently unable to download video from patrol vehicles and must maintain DVDs in thei r
evidence storage area, which is cumbersome, requires excessive storage space and is not tim e
efficient.
Many officers have individual recording devices that they activate when at the scene of a n
incident, and the video cameras in the vehicles can often observe activity at a great distanc e
when an officer leaves the vehicle .
Page 10
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All Chiefs and the Sheriff agreed that new technology has aided them enormously in being able
to supervise personnel and provide additional safety for officers ; it has also assisted in effectivel y
resolving many citizen complaints .
SAN LUIS OBISPO COUNTY SHERIFF'S INTERNAL AFFAIRS UNIT
Under the previous administration, the Sheriff's Department did not have an Internal Affair s
Unit. At that time, the Sheriff would receive a complaint and decide if it should be handled as an
Administrative Inquiry (AI) or an Internal Affairs (IA) investigation . AIs did not receive a
tracking number.
Under the new administration, the Sheriff's Department does not conduct AIs, only I A
investigations . As a result, all citizen complaints are tracked and recorded . Statistically, thi s
may give the impression that citizen complaints have increased under the new Sheriff However ,
the percentage of sustained complaints has been reduced and the overall tracking of citize n
complaints has been improved .
During his 2010 election campaign, Sheriff Ian Parkinson made a commitment to restore an
Internal Affairs Unit to the Sheriffs Department . On February 14 '"2011, this unit was
reestablished and renamed .?
The Sheriff employed Jim Voge, retired Commander from the Los Angeles Police Department ,
to head the new unit . Commander Voge has over 33 years of experience and ran the Los
Angeles Police Department's Internal Affairs Unit comprised of 278 employees . Commander
Voge is currently creating a new Internal Affairs School for Central Coast police agencies,and
he is seeking POST approval for such training .
Information was based upon documents submitted to the current Grand Jury by the Sheriff's
Department.
Page 11
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The Sheriff's Department advised that it had implemented a system called IA PRO, in respons e
to the question "Do you maintain a tog of citizen complaints?"IA PRO is a software progra m
that aids in the investigation and retention of citizen complaints . The Professional Standard s
Unit provides a number through IA PRO to every citizen complaint and maintains both a n
electronic and hard copy of every investigation .
This IA PRO system allows the department to monitor the behavior of its officers because al l
complaints are tracked . Under the previous administration, when complaints were taken an d
resolved at the station level by supervisors, a record of the complaint was not always maintained .
As a result, an officer may have had several complaints in the past, but without proper recordin g
of the complaints there was no way to identify officers who may have needed correction .
Commander Voge has now trained all supervisors in the Sheriff's Department regarding prope r
investigative procedures for citizen complaints .
CONCLUSIO N
Based upon interviews and documents that were submitted to the current Grand Jury, it appear s
that all police agencies in San Luis Obispo County are now conducting investigations into citize n
complaints in a positive and effective manner . The recommendations made by the previou s
Grand Jury have been implemented .
As a result of the previous Grand Jury recommendations, all police departments in the count y
have implemented the changes suggested and improved their citizen complaint process . Al l
departments now adhere to the guidelines suggested by POST and Lexipol, particularly wit h
regard to maintaining proper complaint logs and following up on citizen complaints in a timel y
manner.
Page 12
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FINDING S
1 . The Police Departments of Pismo Beach and Grover Beach and the Sheriff's Departmen t
have citizen complaint forms on their websites .
The Police Departments of Arroyo Grande, Atascadero, Paso Robles, San Luis Obispo ,
and Morro Bay do not have citizen complaint forms available on their websites .
3.The Police Departments of Atascadero, Grover Beach, Morro Bay, Paso Robles, and Sa n
Luis Obispo have an admonition on their citizen complaint forms .
4.The Police Department of Grover Beach and the Sheriff's Department do not have a n
admonition on their websites.
5.The Police Departments of Paso Robles and San Luis Obispo indicated that they woul d
soon place citizen complaint forms on their websites.
6.All Police Departments use the policy guidelines proposed by Lexipol .
7.All Police Departments and the Sheriff's Department adhere to the policy guidelines fo r
citizen complaints proposed by POST . However, the Pismo Beach Police Department
also adheres to the guidelines of CALEA, a national organization .
8.The Sheriff's Department has an outdated system of video recording in their vehicles an d
lacks the ability to store video data efficiently . The storage of DVDs is inefficient ,
requires too much space and slows retrieval time when it is necessary to utilize the
information .
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RECOMMENDATION S
1.The Police Departments of Arroyo Grande, Atascadero, Paso Robles, San Luis Obispo ,
and Morro Bay should add citizen complaint forms to their websites .
2.The Police Departments of Atascadero, Grover Beach, Morro Bay, Paso Robles, and Sa n
Luis Obispo should remove the admonition from their complaint forms .
3.The Sheriff's Department should upgrade its vehicles with digital recording devices i n
order to enhance safety for all personnel, reduce download time and storage spac e
required, and improve the ability to retrieve information, thereby providing better servic e
overall .
COMMENDATION S
The San Luis Obispo Sheriff's Department is to be commended for implementing a new Interna l
Affairs Unit . Sheriff Ian Parkinson is to be commended for following through on a campaig n
promise in such a timely manner .
Additionally, the employment of Commander Jim Voge and the implementation of the IA PR O
system represent a vast improvement in the Sheriff's ability to monitor the conduct of hi s
personnel .
Page 14
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REQUIRED RESPONSE S
The City of Arroyo Grande is required to respond to Findings 2, 6 and 7, and Recommendatio n
1.The responses shall be submitted to the Presiding Judge of the San Luis Obispo Count y
Superior Court by June 18, 2012 .Please provide a paper copy and an electronic version of al l
responses to the Grand Jury .
The City of Atascadero is required to respond to Findings 2, 3, 6, and 7, and Recommendations 1
and 2 . The responses shall be submitted to the Presiding Judge of the San Luis Obispo County
Superior Court by June 18, 2012 .Please provide a paper copy and an electronic version of al l
responses to the Grand Jury .
The City of Grover Beach is required to respond to Findings 1, 3, 6, and 7, and Recommendatio n
2.The responses shall be submitted to the Presiding Judge of the San Luis Obispo County
Superior Court by June 18, 2012 .Please provide a paper copy and an electronic version of all
responses to the Grand Jury .
The City of Morro Bay is required to respond to Findings 2, 6, and 7, and Recommendations 1
and 2 . The responses shall be submitted to the Presiding Judge of the San Luis Obispo Count y
Superior Court by June 18, 2012 .Please provide a paper copy and an electronic version of al l
responses to the Grand Jury .
The City of Paso Robles is required to respond to Findings 1, 5, 6, and 7, and Recommendation s
1 and 2 . The responses shall be submitted to the Presiding Judge of the San Luis Obispo Count y
Superior Court by June 18, 2012 .Please provide a paper copy and an electronic version of al l
responses to the Grand Jury .
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The City of San Luis Obispo is required to respond to Findings 2, 3, 5, 6, and 7, an d
Recommendations 1 and 2 . The responses shall be submitted to the Presiding Judge of the San
Luis Obispo County Superior Court by June 18, 2012 .Please provide a paper copy and a n
electronic version of all responses to the Grand Jury .
The Sheriff's Department is required to respond to Findings 1, 4, 6, 7, and 8, an d
Recommendation 3 . The responses shall be submitted to the Presiding Judge of the San Lui s
Obispo County Superior Court by May 19, 2012 .Please provide a paper copy and an electroni c
version of all responses to the Grand Jury .
The mailing addresses for delivery are :
Presiding Judge Grand Jur y
Presiding Judge Barry T . LaBarbera
Superior Court of Californi a
1050 Monterey Street
San Luis Obispo, CA 93408
San Luis Obispo County Grand Jur y
P .O. Box 491 0
San Luis Obispo, CA 93402
The e-mail address for the Grand Jury is :GrandJury@co .slo .ca .us
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California Penal Cod e
933 . (a) Each grand jury shall submit to the presiding judge of the
superior court a final report of its findings and recommendation s
that pertain to county government matters during the fiscal o r
calendar year . Final reports on any appropriate subject may b e
submitted to the presiding judge of the superior court at any tim e
during the term of service of a grand jury . A final report may b e
submitted for comment to responsible officers, agencies, o r
departments, including the county board of supervisors, whe n
applicable, upon finding of the presiding judge that the report is i n
compliance with this title . For 45 days after the end of the term ,
the foreperson and his or her designees shall, upon reasonabl e
notice, be available to clarify the recommendations of the report .
(b)One copy of each final report, together with the responses
thereto, found to be in compliance with this title shall be placed o n
file with the clerk of the court and remain on file in the office o f
the clerk . The clerk shall immediately forward a true copy of th e
report and the responses to the State Archivist who shall retain tha t
report and all responses in perpetuity .
(c)No later than 90 days after the grand jury submits a fina l
report on the operations of any public agency subject to it s
reviewing authority, the governing body of the public agency shall
comment to the presiding judge of the superior court on the finding s
and recommendations pertaining to matters under the control of th e
governing body, and every elected county officer or agency head fo r
which the grand jury has responsibility pursuant to Section 914 .1
shall comment within 60 days to the presiding judge of the superio r
court, with an information copy sent to the board of supervisors, o n
the findings and recommendations pertaining to matters under th e
control of that county officer or agency head and any agency o r
agencies which that officer or agency head supervises or controls .
In any city and county, the mayor shall also comment on the finding s
and recommendations . All of these comments and reports shal l
forthwith be submitted to the presiding judge of the superior cour t
who impaneled the grand jury.A copy of all responses to grand jur y
reports shall be placed on file with the clerk of the public agency
and the office of the county clerk, or the mayor when applicable, an d
shall remain on file in those offices . One copy shall be placed o n
file with the applicable grand jury final report by, and in the
control of the currently impaneled grand jury, where it shall b e
maintained for a minimum of five years .
(d)As used in this section "agency "includes a department .
933 .05 . (a) For purposes of subdivision (b) of Section 933,as t o
each grand jury finding, the responding person or entity shal l
indicate one of the following :
(1) The respondent agrees with the finding .
C2-20
(2) The respondent disagrees wholly or partially with the finding ,
in which case the response shall specify the portion of the findin g
that is disputed and shall include an explanation of the reason s
therefor .
(b) For purposes of subdivision (b) of Section 933, as to eac h
grand jury recommendation, the responding person or entity shal l
report one of the following actions :
(1)The recommendation has been implemented, with a summary
regarding the implemented action .
(2)The recommendation has not yet been implemented, but will b e
implemented in the future, with a timeframe for implementation .
(3)The recommendation requires further analysis, with a n
explanation and the scope and parameters of an analysis or study, an d
a timeframe for the matter to be prepared for discussion by th e
officer or head of the agency or department being investigated o r
reviewed, including the governing body of the public agency whe n
applicable . This timeframe shall not exceed six months from the dat e
of publication of the grand jury report .
(4)The recommendation will not be implemented because it is not
warranted or is not reasonable, with an explanation therefor .
(c) However, if a finding or recommendation of the grand jur y
addresses budgetary or personnel matters of a county agency or
department headed by an elected officer, both the agency o r
department head and the board of supervisors shall respond i f
requested by the grand jury, but the response of the board o f
supervisors shall address only those budgetary or personnel matter s
over which it has some decisionmaking authority . The response of th e
elected agency or department head shall address all aspects of th e
findings or recommendations affecting his or her agency o r
department .
(d) A grand jury may request a subject person or entity to com e
before the grand jury for the purpose of reading and discussing th e
findings of the grand jury report that relates to that person o r
entity in order to verify the accuracy of the findings prior to thei r
release .
(e) During an investigation, the grand jury shall meet with th e
subject of that investigation regarding the investigation, unless th e
court, either on its own determination or upon request of th e
foreperson of the grand jury, determines that such a meeting would b e
detrimental .
(f) A grand jury shall provide to the affected agency a copy of
the portion of the grand jury report relating to that person o r
entity two working days prior to its public release and after th e
approval of the presiding judge . No officer, agency, department, o r
governing body of a public agency shall disclose any contents of th e
report prior to the public release of the final report .
Response to Grand Jury Report Form
Report Title :
Report Date :
Authorized Responder :
FINDING S
•I (we) agree with the findings numbered :
•I (we) disagree wholly or partially with the findings numbered :
(Attach a statement specifying any portions of the findings that are disputed ;
include an explanation of the reasons .)
RECOMMENDATION S
• Recommendations numbered have been implemented .
(Attach a summary describing the implemented actions .)
•Recommendations numbered have not yet been implemented ,
but will be implemented in the future .
(Attach a timeframe for the implementation .)
Recommendations numbered require further analysis .
(Attach an explanation and the scope and parameters of an analysis or study ,
and a timeframe for the matter to be prepared for discussion by the officer or
director of the agency or department being investigated or reviewed, includin g
the governing body of the public agency when applicable . This timeframe shal l
not exceed six months from the date of publication of the grand jury report .)
•Recommendations numbered will not be implemente d
because they are not warranted or are not reasonable .
(Attach an explanation .)
Date :Signed :
Number of pages attached
Revised February 2012
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Client Alert s
November 09, 200 5
Chaker v. Crogan : the federal court of appeals (ninth circuit) holds penal code sectio n
148 .6 unconstitutional
Chaker v.Crogan
The Federal Court of Appeals (Ninth Circuit) Holds Penal Code Section 148 .6
Unconstitutional
November 9, 2005
The Ninth Circuit Court of Appeal has just issued an opinion in Chaker v. Crogan ,Cas e
No . 03-56885, that California Penal Code Section 148 .6, knowingly filing a false
complaint of peace officer misconduct, is unconstitutional .
PROCEDURAL BACKGROUN D
Darren David Chaker field a habeas corpus petition in federal court challenging hi s
conviction by the San Diego District Attorney's Office for a violation of California Pena l
Code Section 148.6 . He challenged the Penal Code provision as an unconstitutiona l
violation of his First Amendment rights . The District Court denied Chaker's petition an d
he appealed to the Ninth Circuit Court of Appeals . Jones & Mayer, through Michael R .
Capizzi and Krista MacNevin Jee, submitted a written amicus brief and orally argued th e
issue on behalf of the California State Sheriffs Association, the California Police Chief s
Association and the California Peace Officers'Association .
FACTUAL BACKGROUN D
El Cajon police officers arrested Chaker on April 9, 1996 for obtaining his car from a
mechanic without making payment for services rendered . Chaker later filed a claim for
damages with the City of El Cajon and sent a letter to the Police Department's Interna l
Affairs Division under penalty of perjury, claiming that one of the arresting officer s
caused injury to Chaker during the arrest . The San Diego District Attorney's Offic e
charged Chaker with a misdemeanor violation of P .C . Section 148 .6 . The officers
testified that no excessive force was used against Chaker during his arrest o r
transportation . A witness at the time of Chaker's arrest confirmed that the arrest appeare d
routine . Chaker was convicted of violating P .C . Section 148 .6 on February 22, 1999 . He
filed several appeals and petitions for habeas corpus in various State courts (all of whic h
were denied), as well as the federal habeas petition which formed the basis for the Nint h
Circuit opinion discussed here. Chaker received credit for time served and was sentence d
to public service and three years probation . By the time of the Ninth Circuit appea l
briefing, Chaker had already completed his probation .
THE COURT'S ANALYSIS
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The Court first made several preliminary findings that Chaker's case was properly befor e
the Court : finding that it did not lack jurisdiction simply because Chaker was no longe r
on probation, since he was on probation at the time of the filing of his habeas petition ;
determining that the case was not moot because there was an on-going significan t
collateral consequence to Chaker from the criminal conviction ; summarily dismissing th e
claim that Chaker did not have standing to challenge the constitutionality of hi s
conviction; and finding that the statute of limitations did not bar Chaker's petitio n
because the defense had been waived by not being raised in the District Court .
On the main issue of the constitutionality of P .C . Section 148 .6, the Court found that the
Section is an unconstitutional violation of the First Amendment . The Court considere d
and made note of the California Supreme Court decision construing, and upholding as
constitutional ,Section 148 .6 in People v . Stanistreet ,29 Cal . 4th 497, 502 (2002).' The
Chaker Court acknowledged the California Supreme Court's finding that the protectio n
afforded to peace officers, and not other individuals or public employees, was part of a
unique statutory system of required investigation and record-keeping as to complaints o f
peace officer misconduct . The Court still found Section 148 .6 unconstitutional, relying o n
the principle that the government is not permitted to regulate speech based on viewpoint .
Section 148 .6, it held, impermissibly distinguishes between a knowingly false statemen t
against a peace officer and a knowingly false statement in favor of a peace officer, th e
latter being equally at fault as the former for wasting public resources by interfering wit h
an official investigation .
HOW THIS AFFECTS YOUR AGENC Y
The decision in Chaker is not yet final. It may be several months, or much longer, befor e
the decision does become final . The District Attorney is currently seeking a rehearing e n
bane, which, if granted, would allow the entire Ninth Circuit panel of judges to rehear th e
matter and, hopefully, to overturn the three judge panel's recently issued decision that i s
clearly erroneous . We will update you as soon as there is any ruling on the request fo r
rehearing . If rehearing is not granted,or is unsuccessful, we will certainly be urging th e
District Attorney to appeal to the United States Supreme Court and will update you on
those activities, as well as any opportunity we may have to continue our amicus suppor t
on this important issue . Until the opinion in Chaker is final, Section 148 .6 is still
constitutional under the California Supreme Court decision in People v.Stanistreet ,
referenced above .
As always, we urge that, prior to taking any legal action, you confer with you r
departments' attorney for legal advice and guidance . If you wish to discuss this matter in
greater detail, please don't hesitate to contact my office by phone (714 - 446-1400) or e -
mail (mjm(c1jones-mayer .com).
1 Martin J . Mayer and Michael R. Capizzi , of Jones & Mayer participated as amicu s
curiae on this case as well, on behalf of CSSA, CPCA and CPOA .
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