Opinion
No. 2:14-cv-02389-TLN-KJN
02-16-2016
ALAN BARCELONA, Plaintiff, v. STATE OF CALIFORNIA DEPARTMENT OF JUSTICE; LARRY WALLACE, Director, Department of Justice Division of Law Enforcement, in his representative capacity; NATHAN DAVALLE, DOJ Special Agent in Charge, in his representative capacity; BRENT E ORICK, DOJ Special Agent in Charge, in his representative capacity; and CAHTERINE GAUTHIER, DOJ Special Agent Supervisor, in her representative capacity, Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT.
This matter is before the Court on cross-motions for summary judgment filed by Plaintiff Alan Barcelona and Defendants State of California Department of Justice; Larry Wallace, sued in his representative capacity; Nathan DaValle, sued in his representative capacity; Brent E. Orick, sued in his representative capacity; and Catherine Gauthier, sued in her representative capacity (hereinafter referred to collectively as "Defendants") on the claims alleged in Plaintiff's First Amended Complaint ("FAC"). In Plaintiff's FAC, Plaintiff alleges Defendants violated his freedom of speech and association rights under both the United States Constitution, U.S. Const. amend. 1, and the California Constitution, Cal. Const. art. I, §§ 2, 2(a), 3 and violated the protections afforded to him under the Public Safety Officers Procedural Bill of Rights Act (POBR), Cal. Gov't Code § 3300 et seq. (West 2015). (Pl.'s FAC, ECF No. 4.) Plaintiff's claims arise out of the California Department of Justice's ("DOJ"'s) handling of an internal affairs investigation initiated on the basis of a citizen's complaint. (Id.)
I. LEGAL STANDARD
A party seeking summary judgment under Rule 56 bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is 'material' when, under the governing substantive law, it could affect the outcome of the case." Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material fact is "genuine" when "'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id. (quoting Anderson, 477 U.S. at 248).
If the movant satisfies its "initial burden," "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting former Fed. R. Civ. P. 56(e)). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of material in the record . . . or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). Summary judgment "evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be drawn in favor of that party." Sec. & Exch. Comm'n v. Todd, 642 F.3d 1207, 1215 (9th Cir. 2011) (citing Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001)).
Further, Local Rule 260(b) prescribes:
Any party opposing a motion for summary judgment or summary adjudication [must] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.
If the nonmovant does not "specifically . . . [controvert duly supported] facts identified in the [movant's] statement of undisputed facts," the nonmovant "is deemed to have admitted the validity of the facts contained in the [movant's] statement." Beard v. Banks, 548 U.S. 521, 527 (2006).
Because a district court has no independent duty "to scour the record in search of a genuine issue of triable fact," and may "rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment," . . . the district court . . . [is] under no obligation to undertake a cumbersome review of the record on the [nonmoving party's] behalf.Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010) (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996)); see also Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials, but it may consider other materials in the record.").
The following facts concerning the motions are either admitted or "deemed" uncontroverted since they have not been controverted with specific facts as required by Local Rule 260(b).
"[Plaintiff] has been a DOJ employee since 1999 . . . ." (Defs.' Resp. to Pl.'s Separate Statement of Undisputed Material Facts ("Defs.' Resp. UMF") ¶ 1, ECF No. 15-1.) "On June 10, 2013, the DOJ received a citizen's complaint involving alleged conduct by [Plaintiff]." (Id. ¶ 8.) "Because of th[e] citizen['s] complaint alleged threatening behavior against a [DOJ employee] . . . [the DOJ] open[ed] an internal affairs investigation . . . ." (Defs.' Ex. in Supp. of Mot. for Summ. J. Ex. 1: ¶ 3, ECF No. 8-3.) "[T]he DOJ noticed [Plaintiff] that he was the subject of [the aforementioned investigation] arising out of the citizen's complaint." (Defs.' Resp. UMF ¶ 9.) "In the Notice, Defendant Nathan DaValle ordered [Plaintiff] not to discuss the existence of the investigation with any member of the DOJ other than his chosen representative." (Id. ¶ 10.) "DaValle further ordered [Plaintiff] not to discuss anything related to the investigation with any of the complainants or witnesses in the matter." (Id. ¶ 11.) "[Plaintiff] chose [Kasey] Clark as his representative in the administrative investigation." (Id. ¶ 13.)
"Clark is the Chief Counsel and General Manager of [the California Statewide Law Enforcement Association ('CSLEA')]" of which Plaintiff "is a member and also serves as the President." (Id. ¶¶ 2, 3.)
"The first person . . . interviewed in [the] investigation was the complainant[,] . . . [the investigators] then interviewed a witness identified by the complainant who, in turn, identified Clark as a witness to the events that formed the basis of the complaint." (Id. ¶¶ 18, 19.) The DOJ then interviewed Clark. (Id. ¶¶ 20, 21.) "At the end of [Clark's] interview . . . [the interviewers] advised Clark that, due to the fact that he had been identified as a witness in the investigation, Defendants would not allow Clark to represent [Plaintiff] during his administrative interrogation." (Id. ¶ 23.) "Plaintiff was free to use any other representative [other than named witnesses] - and did so." (Pl.'s Resp. to Defs.' Statement of Undisputed Material Facts ("Pl.'s Resp. UMF") ¶ 7, ECF No. 13-1.)
"The DOJ noticed [Plaintiff] . . . for his administrative interrogation . . . ." (Defs. Resp. UMF ¶ 25.) "In the Notice, [the DOJ] reiterated that [Plaintiff's] representative may not be 'involved' in the investigation and that [Plaintiff] may not discuss anything related to the investigation with any member of the DOJ other than his 'chosen representative' or with any of the complainants or witnesses." (Id. ¶ 26.) "[Plaintiff] participated in the administrative interrogation . . . represented by Gary Messing." (Id. ¶ 29.) "At the beginning of [Plaintiff's] administrative interrogation, Messing reiterated [Plaintiff's] desire to be represented by Clark . . . ." (Id. ¶ 33.) Further, at the beginning of the interview the DOJ "ordered [Plaintiff] not to discuss the investigation with anyone other than . . . Messing." (Id. ¶ 35.)
Plaintiff makes a number of evidentiary objections. (Pl.'s Objection to Defs.' Evidence, ECF No. 13-3.) However, Plaintiff largely admits the substance of the objected to statements within his Complaint. All other objections concern evidence not relevant to this Court's decision below. --------
III. CONSIDERATION OF DOCUMENTS OUTSIDE OF THE PLEADINGS
Plaintiff requests that the Court take judicial notice of Exhibits 1-3. (Pl.'s Req. for Judicial Notice ("RJN"), ECF No. 13-4.) Exhibits 1 and 2 are decisions issued by the Public Employment Relations Board ("PERB") and Exhibit 3 is a decision issued by the National Labor Relations Board ("NLRB"). (RJN 2:5-8; 2:24-26; 3:16-19.) Plaintiff has failed to explain how either the PERB or NLRB decision has any precedential value to the resolution of the parties' cross-motions, accordingly, all three exhibits are irrelevant to this Court's decision. Therefore, the Court declines to take judicial notice of the contents at Plaintiff's request. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) ("We decline to take judicial notice of the [requested materials], as they are not relevant to the resolution of this appeal."); see also Cuellar v. Joyce, 596 F.3d 505, 512 (9th Cir. 2010) (Denying party's request for judicial notice "as the materials contained therein are not relevant to the disposition of this appeal.")
IV. DISCUSSION
A. Plaintiff's Cause of Action under 42 U.S.C. § 1983.
Plaintiff alleges that Defendants unlawfully interfered with Plaintiff's exercise of his First Amendment freedoms of speech and association; accordingly Plaintiff seeks injunctive relief under 42 U.S.C. § 1983. (FAC 13:17-23.)
1. Freedom of Speech
Defendants argue: "Plaintiff has not alleged facts that would indicate that he was denied any freedom of speech, and has no evidence that he was denied the freedom of speech." (Defs.' Mot. for Summ. J. ("Mot.") 5:2-3, ECF No. 8.) Further, the instruction given to Plaintiff "not to talk about the investigation to anyone other than his assigned representative . . . is a reasonable time, place[,] and manner restriction designed to uphold the integrity of an investigation into threatening conduct by a peace officer." (Id. 5:5-8 (citing Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 940 (2011)).)
Plaintiff counters: "[b]ecause [the DOJ's order not to discuss the investigation] prevented [Plaintiff] from discussing the investigation with Clark as well as other sources that would be considered legally confidential . . . without any established necessity, the order constitutes an impermissible restriction on [Plaintiff's] First Amendment right to free speech." (Pl.'s Opp'n to Defs.' Mot. for Summ. J. and Pl's. Cross-Mot. for Summ. J. ("Opp'n") 17:3-7; ECF No. 13.) Plaintiff replies that "Defendants fail to offer any evidence as to why the order . . . was necessary to preserve the integrity of the investigation, specifically whether and how the transfer of information would prejudice Defendants in their investigation." (Id. 17:25-28.) Further, Plaintiff asserts "the 'integrity of the investigation' argument does not explain or excuse the prohibition against [Plaintiff] talking about the investigation to another confidential source . . . ." (Id. 18:6-8.) "[O]ther [available] witnesses would protect 'the integrity of the investigation' from any potential collusion by [Plaintiff] and Clark without the need to restrict [Plaintiff's] speech . . . ." (Id. 18:10-12.) "Furthermore, the order . . . was not narrowly tailored because [it] also prohibited [Plaintiff] from speaking to confidential sources . . . ." (Id. 21:13-17.)
Defendants reply that "Plaintiff was never advised that he could not discuss the investigation with his spouse, religious advisor, therapist or other protected source." (Defs.' Reply to Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("Reply") 3:23-25, ECF No. 17.) Further, Plaintiff "does not and indeed cannot attack [the] reasons to maintain confidentiality" which include "violating the right to privacy, avoiding retaliation charges, avoiding alerting the subject of wrongdoing of the investigation, and to encourage reports of wrongdoing . . . ." (Id. 5:2-5.)
"For content-neutral regulations, the State may limit 'the time, place, and manner of expression' if the regulations are 'narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.'" Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 940 (9th Cir. 2011)(quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)). Content-neutral restrictions must be "justified without reference to the content of the regulated speech". Mothershed v. Justices of Supreme Court, 410 F.3d 602, 611 (9th Cir. 2005), opinion amended on denial of reh'g, No. 03-16878, 2005 WL 1692466 (9th Cir. July 21, 2005). "A time, place, and manner regulation is narrowly tailored as long as the substantial governmental interest it serves 'would be achieved less effectively absent the regulation and the regulation achieves its ends without . . . significantly restricting a substantial quantity of speech that does not create the same evils.'" Id. at 612 (quoting Galvin v. Hay, 374 F.3d 739, 753 (9th Cir. 2004) (internal quotation marks omitted)).
Defendants' asserted governmental interest in limiting Plaintiff's right to speak of the investigation is to "strengthen the integrity of the investigation into alleged police misconduct by [P]laintiff." (Reply 4:16-18.) This interest is significant given the clear importance of "public confidence that allegations of police misconduct [are] thoroughly investigated." (Id. 5:10-11); see Pasadena Police Officers Ass'n v. City of Pasadena, 51 Cal. 3d 564, 568 (1990) ("Nothing can more swiftly destroy the community's confidence it is police force than its perception that concerns raised about an officer's honesty or integrity will go unheeded or will lead only to a superficial investigation.")
Moreover, Defendants demonstrate that the restrictions placed on Plaintiff's right to freely speak of the investigation best further this purpose. As Defendants explain, a request for confidentiality in employee investigations helps avoid "claims of invasion of privacy, retaliation, wrongful discharge, or negligence, to avoid alerting the employee suspected of wrongdoing; to comply with federal or state guidelines; to preserve a privilege; or to encourage reports of wrongdoing." (Mot. 6:11-13 (quoting William E. Hartsfield, Investigating Employee Conduct § 4:31).) Therefore, Defendants demonstrate there is no less restrictive means to achieving the compelling state interest in preserving the integrity of an officer investigation.
Further, Defendants demonstrate that their confidentiality instruction was narrowly tailored, leaving open ample alternative channels. Plaintiff's assertion that he was prohibited from discussing the investigation with privileged sources is unconvincing. As Defendant explains, "Plaintiff was never advised that he could not discuss the investigation with his spouse, religious advisor, therapist, or other protected source." (Mot. 3:23-25; Barcelona Decl. Ex. A.) Further, Plaintiff admits that he "understood" that he "could not discuss the existence of the investigation with any member of the DOJ other than [his] chosen representative or anything related to the investigation with any of the complainants or witnesses in the matter. . . ." (Barcelona Decl. ¶ 17, ECF No. 13-2 (emphasis added).) Therefore, Plaintiff's own understanding of the confidentiality order indicates Plaintiff did not believe it covered privileged sources and was instead narrowly tailored to cover those who could potentially compromise the integrity of the investigation. Therefore, Defendants' motion for summary adjudication of Plaintiff's free speech claims is GRANTED.
2. Freedom of Association
Defendants argue: "the individual defendants' restriction on not allowing [P]laintiff to utilize another witness in the investigation to serve as his representative was an appropriate time, place[,] and manner restriction" on [P]laintiff's freedom of association rights. (Mot. 5:28-6:2.) "The integrity of an investigation is strengthened when witnesses are interviewed separately and when the witnesses do not confer with each other prior to their interviews." (Id. 6:2-4.) "Plaintiff was free to use any other representative . . . [t]herefore, his freedom of association was not infringed upon, and if it was, it was subject to a reasonable time, place[,] and manner restriction." (Id. 6:16-20.)
Plaintiff asserts that "the First Amendment's right to free speech and association also protects the right to be represented 'by counsel of choice free from unreasonable government interference with the attorney-client relationship." (Opp'n 15:23-27 (citing Brotherhood of R.R. Trainmen v. Va. ex rel. Va. State Bar, 377 U.S. 1, 5-6 (1964)).) "By denying [Plaintiff] his counsel of choice for his administrative interrogation and by ordering [Plaintiff] not to discuss the investigation, [Defendants] violated [Plaintiff's] First Amendment right to free speech and association." (Id. 16:8-10.)
Plaintiff argues as follows:
Even if Defendants could show that the DOJ has a substantial governmental interest in the integrity of its internal affairs investigations and that this interest could be furthered by a time, place, and manner restriction on its subjects' First Amendment rights, the exclusion of Clark is not a reasonable time, place, and manner restriction, nor is it narrowly tailored, "leav[ing] open ample alternative channels for communication of the information."(Id. 20: 6-11 (quoting Mothershed, 410 F.3d at 611-612).)
Plaintiff further contends: "[T]he . . . defendants could have, when they learned Clark was a potential witness in the investigation, sought confirmation of whether Clark was [Plaintiff's] choice of counsel in the investigation . . . canceled [Plaintiff's] interview, interviewed [Plaintiff] first or given him the choice . . . of having a different representative . . . ." (Id. 21: 6-12.) "[T]he State . . . may institute reasonable time, place, and manner restrictions on [a citizen's] First Amendment right to consult with an attorney." Mothershed, 410 F.3d at 611.
Defendants' asserted governmental interest in limiting Plaintiff's right to representation by his counsel of choice is to "strengthen the integrity of the investigation into alleged police misconduct by [P]laintiff." (Reply 4:16-18.) This interest is significant. (See supra Section IV.A.1.) Further the Defendants have convincingly argued that by restricting Plaintiff's right to use Clark as his representative, Defendants have strengthened the integrity of the investigation by decreasing the opportunity for Plaintiff's testimony to be tainted. Since Plaintiff was merely precluded from using a singular representative the restriction was narrowly tailored. Therefore, Defendants' motion for summary adjudication of Plaintiff's freedom of association claims is GRANTED.
B. Plaintiff's Cause of Action Alleging Violation of Public Safety Officers Procedural Bill of Rights [POBR]
Plaintiff argues that Defendants violated the protections afforded to him by the POBR (Cal. Gov't Code §§ 3300 et seq.). (FAC 13:24-14:15.) Accordingly Plaintiff seeks injunctive relief and actual damages. Government Code section 3303(i) states, in relevant part:
whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation. The representative shall not be a person subject to the same investigation.Cal. Gov't Code § 3303(i)(emphasis added).
The parties dispute the proper interpretation of the words "subject to" within the context of the POBR. Plaintiff argues that witnesses are not "subject to" an investigation whereas Defendants argue witnesses necessarily fall within that classification.
Defendants contend that "Plaintiff cannot establish a violation [of the POBR] because the language of the POBR limits a peace officer's choice of a representative to someone who is not subject to the same investigation." (Mot. 8:8-10.) "When an administrative interrogation is likely to result in punitive action against a peace officer, the officer has a right to a representative at the interrogation, but that representative cannot be another witness in the investigation . . . ." (Id. 8:21-23.)
While [D]efendants are not aware of any case that defines what the phrase "subject to the investigation" means, [D]efendants submit that it should be given its plain and ordinary meaning, i.e., open or exposed to, or being dependent or conditioned upon something. Because Kasey Clark was a witness interviewed in the investigation, he was "subject to the same investigation" and therefore not available to represent [P]laintiff. Moreover, case law has provided several caveats . . . which indicate that a right to a representative is not without limits.(Id. 9:1-8 (citations omitted).)
Further, Defendants argue: "Permitting a witness in an investigation to represent the subject of the same investigation could compromise the integrity of the investigation, and the integrity of an investigation into peace officer misconduct is paramount." (Id. 10:1-3 (citing Pasadena Police Officers Ass'n, 51 Cal. 3d at 569).) Defendants contend that permitting such representation might allow "[P]laintiff to craft his responses to portray a consistent story" and that "knowing Mr. Clark's responses to the questions posed could taint [P]laintiff's responses with information he did not have first hand, but only learned from Clark." (Id. 10:13-17.)
Plaintiff counters that "there is no basis . . . to sanction such a broad restriction on a peace officer's rights by the exclusion of a private attorney who was not the only witness or in any other way a unique (or necessary) witness in the investigation." (Opp'n 23:19-21.) Plaintiff responds:
[T]he DOJ's interpretation - that a subject cannot be represented by someone who is "involved in" or designated as a witness in the same investigation could result in a Department always being able to block a subject's choice of representative simply by designating him or her as a witness in the investigation.(Id. 24:21-25.) Plaintiff further argues: "With such integral rights on the line, the DOJ should be held to a higher quantum of proof than the need to protect some vague and conclusory 'integrity of the investigation' . . . ." (Id. 25:16-18.) "There is nothing that compels the conclusion that the Legislature intended Section 3303(i) to prevent a private attorney from being excluded from representing a subject peace officer merely because the attorney was one of several witnesses to events underlying the investigation." (Id. 27:1-4.)
Plaintiff contends that "[t]he Ninth Circuit analyzed the plain meaning of [the phrase 'subject to' in the context of another statute] and noted that the meaning of 'subject to' includes, among other things, 'governed or affected by.'" (Id. 23:28-24:3 (quoting Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 833 (9th Cir. 1996) (citing Black's Law Dictionary, 1594 (4th ed. 1968))).) Plaintiff also argues that "Clark, nor any private attorney, could not be governed by or affected by a public agency's internal investigation of a peace officer[; a] public agency has no authority over a private attorney." (Id. 24:6-8.)
California courts have yet to analyze the meaning of the phrase "subject to" in the context of Cal. Gov't Code § 3303(i). "The fundamental rule [of statutory interpretation] is that a court should ascertain the intent of the Legislature so as to effectuate the law's purpose, and in determining intent the court first turns to the words used." People v. Overstreet, 42 Cal. 3d 891, 895 (1986) (en banc) (citing People v. Black, 32 Cal. 3d 1, 5 (1982)). "When statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it." Id. "[W]e do not construe statutes in isolation, but rather read every statute 'with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.'" People v. Pieters, 52 Cal. 3d 894, 899 (1991) (en banc) (quoting Clean Air Constituency v. Cal. State Air Res. Bd., 11 Cal. 3d 801, 814 (1974)).
In sum, Plaintiff and Defendants propose different interpretations of the phrase "subject to." Defendants argue that the court should interpret the phrase "subject to" to mean "open, or exposed to, or being dependent or conditioned upon something." (Mot. 9:1-8.) Plaintiff counters that the court should interpret the phrase "subject to" to mean "governed or affected by." (Opp'n 23:28-24:3.) Neither interpretation is more convincingly the "plain meaning" of the phrase. Therefore, this court is guided by California court precedent as to the legislative policy underlying this provision of the POBR. The parties point to a number of relevant California court decisions discussing the policy and legislative intent underlying the POBR.
In Pasadena Police Officers Association v. City of Pasadena, 51 Cal. 3d 564 (1990), the California Supreme Court engaged in a lengthy discussion of the legislative policy behind the POBR.
To keep the peace and enforce the law, a police department needs the confidence and cooperation of the community it serves. Even if not criminal in nature, acts of a police officer that tend to impair the public's trust in its police department can be harmful to the department's efficiency and morale. Thus, when allegations of officer misconduct are raised, it is essential that the department conduct a prompt, thorough, and fair investigation. Nothing can more swiftly destroy the community's confidence in its police force than its perception that concerns raised about an officer's honesty or integrity will go unheeded or will lead only to a superficial investigation.Id. at 568.
"Although notions of fundamental fairness for police officers underlie the Act, a number of its provisions also reflect the Legislature's recognition of the necessity for internal affairs investigations to maintain the efficiency and integrity of the police force serving the community." Id. at 572. The Court noted that "[s]ome of the rights that the [POBR] affords peace officers resemble those available in criminal investigation." Id. at 577. However, the POBR makes accommodations which reduce those rights to less than the constitutional protections afforded to criminal defendants. See id.
[Such] accommodation[s] suggest[] . . . recognition by the Legislature that a law enforcement agency should retain greater latitude when it investigates suspected officer misconduct than would be constitutionally permissible in a criminal investigation. Limitations on the rights of those employed in law enforcement have long been considered "a necessary adjunct to the [employing] department's substantial interest in maintaining discipline, morale, and uniformity" . . . . That interest is increased when preservation of public confidence in the trustworthiness and integrity of its police force is at stake.Id. at 577 (quoting Kannisto v. City and Cnty. of S.F., 541 F.2d 841, 843 (9th Cir. 1976)).
The Court in Pasadena was faced with the issue of "whether subdivision (f) of Government Code section 3303 manifests a legislative intent to grant preinterrogation discovery rights to a peace officer who is subject of an internal affairs investigation." Id. at 568-569. In answering that question the court looked to subdivision (h), now subdivision (i), the subdivision at issue in this motion. The court reasoned:
Disclosure before interrogation might color the recollection of the person to be questioned or lead that person to conform his or her version of an event to that given by witnesses already questioned. Presumably, a related concern led the Legislature to limit an officer's choice of a representative during interrogation to someone who is not a subject of the same investigation. That limitation seeks to ensure that participants in the same incident are not privy to evidence provided by other witnesses . . . Furnishing [the officer under investigation] before his interrogation with the notes of [] [another witness's] interview would require the Department to disclose the same type of information that subdivision [(i)] seeks to shield from exposure.Id. at 579 (emphasis added).
. . . During an interrogation, investigators might want to use some of the information they have amassed to aid in eliciting truthful statements from the person they are questioning.
Following Pasadena, the California Fourth District Court of Appeal held that an "officer's right to be represented by a person of his or her choice during an interrogation . . . is not unlimited." Upland Police Officers Ass'n v. City of Upland, 111 Cal. App. 4th 1294, 1306 (2003). Further, in Ass'n for L.A. Deputy Sheriffs v. Cnty. of L.A., 166 Cal. App. 4th 1625, 1636 (2008), the Fourth District Court of Appeal stated that "[t]he Upland court essentially ruled that a police officer's right to representation under section 3303, subdivision (i), did not include . . . an absolute . . . right to [be] represented by any counsel of the officer's choosing." Id. Further "a police officer's choice of counsel must reasonably accommodate his or her department's interests in conducting a prompt and efficient investigation of an officer-involved shooting incident." Id.; see also Quezada v. City of L.A., 222 Cal. App. 4th 993, 1006 (2014) ("[A]n officer's right to be represented by the person of his or her choice is not unlimited.")
Pasadena and its progeny evince that the integrity of an officer investigation is best served if the officer under investigation is not permitted to be represented by a fellow witness. Therefore, this Court interprets the phrase "subject to" in POBR's subdivision (i) as including a designated witness. Thus, the Department was within the scope of the POBR in precluding Plaintiff from using Clark as his designated representative. Therefore, Defendants' motion for summary judgment is GRANTED as to the POBR claim.
C. Plaintiff's Cause of Action under the California Constitution
Plaintiff further alleges in his FAC that Defendants violated his freedom of speech and association rights protected by Article I, Section 2(a) of the California Constitution and consequently seeks injunctive relief and actual damages. (FAC 14:16-28.)
Defendants contend, "Plaintiff sues the [DOJ] and the individual defendants in their representative capacities for money damages for violation of the right to free speech and/or association created by Article 2a of the California Constitution. But there is no such private right of action." (Mot. 11: 4-7.)
Further, Defendants argue that Plaintiff is not entitled to injunctive relief; "[e]ven though the California Supreme Court has determined that the right to free speech and association found in the California Constitution offer greater protections than the First Amendment to the United States Constitution, [P]laintiff still cannot establish that he suffered any loss of speech or association." (Id. 12:10-13 (internal citation omitted).)
Plaintiff counters that "California case law has not precluded the granting of damages for violations of Section 2 of the California Constitution." (Opp'n 31:23-24.)
Defendants reply that "even if [Plaintiff] establishes the propriety of a constitutional tort, both the DOJ and its officials, the individual defendants, have immunity from such liability. California Government Code section 815 provides for immunity for the DOJ, and section 820.2 provides immunity for discretionary decisions by the individual defendants." (Reply 9:16-20.)
This court need not decide whether the establishment of a constitutional tort under the California constitution allows the Court to grant damages. Plaintiff is unable to establish that Defendant violated his right to freedom of speech or association. While Defendant prevented Plaintiff from using Clark as his representative, and issued a confidentiality instruction, these limitations are reasonable time, place, and manner restrictions under the California Constitution. Courts apply an identical test in determining whether a restriction is a permissible time, place, and manner restriction under the California Constitution as they do under the United States Constitution. See Slevin v. Home Depot, 120 F.Supp.2d 822, 836 (N.D. Cal. 2000) ("In order to survive California constitutional scrutiny, such restrictions must be (1) narrowly tailored, (2) serve a significant interest, and (3) leave ample alternative avenues of communication."). "Although California applies broader protection of speech in certain respects, it appears that California assesses the validity of time, place[,] and manner restrictions under the familiar federal constitutional standards." L.A. Alliance for Survival v. City of L.A., 987 F. Supp. 819, 829 (C.D. Cal. 1997)
As argued above, the California Supreme Court in Pasadena emphasized the significance of the government's interest in "maintaining the efficiency and integrity of its police force, which, in enforcing the law, is entrusted with the protection of the community it serves." Pasadena Police Officers Ass'n, 51 Cal. 3d at 569; see also Upland Police Officers Ass'n., 111 Cal. App. 4th at 1308 ("[A] law enforcement agency should retain greater latitude when it investigates suspected officer misconduct than would be constitutionally permissible in a criminal investigation. Limitations on the rights of those employed in law enforcement have long been considered 'a necessary adjunct to the [employing] department's substantial interest in maintaining discipline, morale and uniformity.'") Further, for the reasons argued above the restrictions are narrowly tailored and leave open alternative avenues of communication; Defendants permitted Plaintiff to utilize any non-witness representative and Defendants only prohibited Plaintiff from discussing the investigation with those who could potentially taint the investigation. See discussion supra Section IV.A. Therefore, Defendants' motion for summary adjudication of Plaintiff's California Constitutional claims is GRANTED.
D. Plaintiff's Request for Declaratory Relief and Attorney's Fees
Plaintiff seeks
a judicial determination that, under Government Code section 3303(i), Clark was not "subject to the same investigation" as [Plaintiff] and that [Plaintiff] was lawfully entitled to have Clark represent him at his administrative interrogation and that the DOJ cannot, in the future, exclude as a representative any attorney (even attorneys over which the DOJ has no authority), by designating that attorney as a witness to the investigation[.](FAC 15:2-7.) Because the Court disagrees with Plaintiff's interpretation of Government Code section 3303(i) (see discussion supra Section IV.B.), Plaintiff is not entitled to the requested declaratory relief.
Plaintiff also requests "attorney's fees pursuant to 42 U.S.C. § 1988." (FAC 15:13-16.) 42 U.S.C. § 1988(b) prescribes in relevant part: "In any action or proceeding to enforce a provision of section[] . . . 1983 . . . of this title, the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs . . . ." Here Plaintiff is not a prevailing party as to his 42 U.S.C. § 1983 claims and is thus not entitled to attorney's fees.
V. CONCLUSION
Defendants' motion for summary judgment of Plaintiff's claims is GRANTED. Plaintiff's cross-motion is DENIED. The Clerk of Court shall enter judgment in favor of the Defendants. Dated: February 16, 2016
/s/_________
Troy L. Nunley
United States District Judge