Aguilera v. Baca

Opinion by Judge TALLMAN; Dissent by Chief Judge KOZINSKI.

Plaintiffs, various Los Angeles County sheriffs deputies, appeal an adverse summary judgment in favor of Sheriff Leroy Baca, the Sheriffs Department, other supervisory officers, and internal affairs investigators. The deputies allege that they were improperly detained at the East Los Angeles Sheriffs Station and later punished through involuntary shift transfers for failing to give non-privileged statements in connection with an internal criminal civil rights investigation of their possible misconduct while on uniformed patrol duty. The deputies alleged § 19831 violations of their own Fourth Amendment right to be free from unreasonable seizures, their Fifth Amendment due process right against compelled self-incrimination, and their Fourteenth Amendment due process rights to be free from coercive police questioning and governmental conduct that shocks the conscience. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I

Shortly after 1:30 a.m. on September 5, 2002, Lieutenant Abel Moreno, the Watch Commander on duty at the East Los An-*1165geles Sheriffs Station, learned that a citizen had been hospitalized with injuries to his head and back due to an alleged assault with a baton or flashlight without provocation by a uniformed deputy. The victim, Martin Flores, had been a bystander at the scene of a narcotics investigation when he was allegedly assaulted. The deputies were present while a search warrant was being executed by narcotics officers.

Sheriffs Department supervisors immediately initiated an internal affairs investigation into victim Flores’s complaint of deputy misconduct. Sergeant Burke went to the hospital and obtained a videotaped statement from complainant Flores. Burke observed obvious physical injuries suffered by Flores. Burke then returned to the station, conferred with his superiors, and informed the deputies who had been at the scene of the search that, at the end of their patrol shift at approximately 6:00 a.m., they should return to the station. They were instructed not to leave work before speaking to internal affairs investigators.

Shortly before 6 a.m., Burke and Moreno informed plaintiff Elizabeth Aguilera that she and the other deputies were now the focus of an internal criminal investigation. The Los Angeles County Sheriffs Department has two separate internal investigation units: the Internal Affairs Bureau (“LAB”), which investigates allegations of an administrative nature and can recommend employee discipline up to and including termination; and the Internal Criminal Investigation Bureau (“ICIB”), which only investigates allegations of a criminal nature for presentation to prosecuting attorneys who can pursue criminal charges against employees.

The deputies, each of whom had served in sworn law enforcement positions for five to twenty years with the Department, were familiar with Sheriffs Department policies and procedures regarding internal criminal investigations. Under the Sheriffs Department’s Manual of Policies and Procedures, officers have an affirmative duty to cooperate during such an investigation. A failure to cooperate can subject a deputy to administrative discipline. The Department’s policies allowed it to require its employees to remain at work beyond their normal shift. When this occurs, the Department compensates its personnel at overtime rates. The deputies had received training on how to manage and process persons suspected of criminal activity.

While the deputies waited at the station to be interviewed, they were told to remain in the report writing room, the basement roll call briefing room, and then the COPS team office, all of which were unlocked. While they were waiting, several supervisors later named as defendants entered the office intermittently to ask if the deputies needed anything to eat or drink. A drinking fountain was available. No one asked the deputies to relinquish their weapons or badges. The deputies were allowed to talk with each other, sleep, make and receive telephone calls, and travel to the bathroom unescorted.

The deputies were never placed under arrest, searched, physically restrained, or otherwise touched or subjected to the use of force. No deputy asked permission to leave the station. While waiting to be interviewed, the deputies completed overtime slips. They later received overtime pay or were otherwise compensated for all time spent at the station after their regular shift had ended.

At approximately 6:30 a.m., the deputies were called to Captain Thomas Angel’s office, the Commanding Officer of the East Los Angeles Station. According to the deputies, Captain Angel announced, in a harsh, accusatory manner, that he knew that one of them had used excessive force *1166on Flores, that the others were covering it up, and that one or more of them could be criminally prosecuted or fired for doing so. Captain Angel informed the deputies that the only way to avoid criminal charges was to “come forward now,” which they understood to mean to give an immediate and voluntary statement to the ICIB investigators without any protection against later use of such statements against them.

At around 11:30 a.m. or noon, Sergeant Russell Kagy of the ICIB, the lead criminal investigator assigned to the case, began interviewing each deputy sheriff individually. Kagy asked each deputy if he or she would provide a statement, and each declined based on the advice of counsel. No deputy was asked to waive his or her right against having any statement used against him or her in a later criminal proceeding, and no deputy gave either a compelled or voluntary statement at this time. The deputies were advised by Sergeant Kagy that they were not yet formally considered suspects, but at this time they could not be eliminated as suspects either. After each deputy declined to give a statement, Kagy terminated the interview, and the deputies were told they were free to leave the station.

None of the deputies under suspicion could initially be cleared of wrongdoing, and they were each then reassigned from their respective street patrol duties to station duties pending completion of the ongoing investigation into possible criminal violations of the civil rights of Flores. Each deputy attests that the reassignment led to personal hardship.2 Captain Angel asked each deputy to provide a written memorandum setting forth the specific circumstances of his or her hardship and how it related to the reassignments, but he did not receive any memoranda in response to his request. The deputies concede that the Department could change their shifts and assignments at will, and that being transferred to different shifts is a fairly common practice within the Sheriffs Department.

In the following two months, Sergeant Kagy conducted a thorough investigation into the events of September 5, 2002. Coordinating with prosecutors from the Los Angeles County District Attorney’s Office and the United States Attorney’s Office for the Central District of California, Kagy communicated and met with approximately two dozen individuals; reviewed Department files and audiotapes; and gathered medical records, 911 communication records, and photographs. In August 2003, Sergeant Kagy submitted the case investigation report to the District Attorney’s Office for its consideration of filing criminal charges.

In September 2003, the District Attorney’s Office requested compelled statements from deputies Aguilera, Ramirez, Carrillo and Arellano. During the process of extracting these compelled statements, none of the deputies were asked to waive his or her constitutional right against having the statement used against him or her in a criminal proceeding. Within days of providing their compelled statements to the investigators, the four deputies were *1167cleared by their supervisors and restored to their pre-investigation duty assignments. Most of the deputies were reassigned in early October 2003. Deputy Bardon was not reassigned until December 2003 when the District Attorney declined to file criminal charges against him. No federal criminal charges were ever brought.

II

We review a grant of summary judgment de novo. Jones v. Union Pacific R.R. Co., 968 F.2d 937, 940 (9th Cir.1992). An order granting summary judgment will only be affirmed if the evidence, read in the light most favorable to the non-moving party, demonstrates the absence of a genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Taylor v. List, 880 F.2d 1040, 1044 (9th Cir.1989).

Also subject to de novo review is the district court’s grant of qualified immunity. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994). Under Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), we take a two-step approach in determining whether the defendant supervisors are entitled to qualified immunity. First, we determine whether the supervisors violated the deputies’ constitutional rights. See id. If we answer in the affirmative, we proceed to determine whether that right was “clearly established” such that “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” See id. at 201-02, 121 S.Ct. 2151. If we determine at the first step that no constitutional violation occurred, the qualified immunity inquiry is at an end. See id. at 201, 121 S.Ct. 2151.

III

The deputies argue that their detention at their duty station pending questioning amounted to an impermissible seizure under the Fourth Amendment. We have not, before today, had occasion to address whether and under what circumstances a law enforcement officer is seized under the Fourth Amendment when he is ordered by his supervisor to remain at a designated location for questioning about the officer’s possible official misconduct triggering a criminal investigation. “A seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Kaupp v. Texas, 538 U.S. 626, 629, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) (internal quotation marks omitted). A seizure occurs when an individual submits to a show of lawful authority or an application of physical force by a law enforcement agent. See California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). An encounter between an officer and an individual “will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

The application of the Fourth Amendment to the employment context presents special issues. While “policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights,” Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), the Constitution does not afford public employees greater workplace rights than those enjoyed by their private sector counterparts. When determining whether a superior law enforcement officer “seized” a subordinate, we must glean from the circumstances whether the subordinate’s decision to heed his superior’s order to *1168remain at a designated location stemmed from a fear, if he tried to leave, of physical detention, or merely adverse employment consequences.

We are mindful that, “[o]rdinarily, when people are at work their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers’ voluntary obligations to their employers.” INS v. Delgado, 466 U.S. 210, 218, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). This is particularly so in the paramilitary environment of a police agency that is both a law enforcer and a public employer. Police and sheriffs departments must frequently abide by collective bargaining agreements that govern in great detail the terms and conditions of the workplace. But society has an equally important interest in ensuring the highest integrity by those entrusted with discharging the duties of a peace officer.

As a preliminary matter, we hold that a law enforcement agency has the authority as an employer to direct its officers to remain on duty and to answer questions from supervisory officers as part of a criminal investigation into the subordinates’ alleged misconduct. See Driebel v. City of Milwaukee, 298 F.3d 622, 638 (7th Cir.2002); United States v. Muegge, 225 F.3d 1267, 1270 (11th Cir.2000) (per curiam) (finding no seizure when an on-duty civilian Air Force employee was ordered to report for an interview with an intelligence officer); United States v. Baird, 851 F.2d 376, 380-82 (D.C.Cir.1988) (finding no seizure when an on-duty Coast Guard officer was ordered to report for an interview with an intelligence officer).3 A law enforcement officer is not seized for purposes of the Fourth Amendment simply because a supervisor orders him to remain at work after the termination of his shift or to come into the station to submit to questioning about the discharge of his duties as a peace officer. See Driebel, 298 F.3d at 638. In the case at bar, if the deputies had refused to wait at the station to be questioned regarding the events of September 5, 2002, or otherwise failed to cooperate in the criminal investigation, they could have been subject to administrative discipline including termination. However, while a law enforcement agency can order its employees to cooperate in a criminal investigation as a condition of their continued employment subject to the Constitution, it may not seize its employees and detain them against their will without probable cause.4 See id. at 639; *1169Cerrone v. Brown, 246 F.3d 194, 201 (2d Cir.2001). Nor may compelled statements be obtained in violation of their constitutional rights against self-incrimination without the protection afforded by Supreme Court decisions we discuss below.

The first issue, then, is whether the deputies were seized without the existence of probable cause. Since the Fourth Amendment does not protect against the threat of demotions or job loss, the relevant constitutional inquiry is whether a reasonable deputy in the position of the plaintiffs would have feared detention if he had refused to obey the commands of his superior officers. See United States v. Anderson, 663 F.2d 934, 939 (9th Cir.1981). Within this context, we must distinguish between a department’s actions in its capacity as an employer and its actions as the law enforcement arm of the state. See Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Garrity, 385 U.S. at 493, 87 S.Ct. 616.

In identifying which circumstances are most salient to our analysis of whether a seizure took place, we find instructive the Seventh Circuit’s analysis in Driebel, 298 F.3d at 622. There, our sister appellate court considered the Fourth Amendment claims of four police officers who had been ordered to remain on duty or to accompany detectives to headquarters and answer questions during the course of an internal criminal investigation of possible misconduct involving the acquisition by police officers of unregistered firearms from nefarious sources. The court determined that two officers had been seized when detectives surveilled a pickup point and uniformed officers arrived to retrieve the weapons hidden in a dumpster. The court determined that two others had not been seized but merely submitted to conditions of their employment when ordered to return to the station for further questioning. See id. at 641.

The Seventh Circuit emphasized the following factors as critical to its calculus of whether a seizure had taken place: the experience level of the subordinate officer, see id. at 647; whether the treatment was consistent with that allowed by department guidelines or general policy, see id. at 649 n. 16; the occurrence of physical contact or threats of physical restraint, see id. at 646, 647, 649 & n. 16; explicit refusal of permission to depart, see id. at 649 n. 16; isolation of the subordinate officer, see id. at 643, 649 n. 16; permission to use the restroom without accompaniment, see id. at 648, 649 n. 16; the subordinate officer’s being informed that he was the subject of a criminal investigation, see id. at 643; whether the subordinate officer was spoken to “in a menacing or threatening manner,” see id. at 648, 649 n. 16; whether the subordinate officer was under constant surveillance, see id. at 646; whether superior officers denied a request to contact ah attorney or union representative, see id. at 648; the subordinate officer’s ability to retain law enforcement equipment, including weapons and badges, see id. at 643, 648, 649 n. 16; the duration of detention, see id. at 646; and the subordinate officer’s receipt of overtime pay, see id. at 643.

We adopt the reasoning articulated in Driebel. Applying these factors to the detention of the deputies in the case at bar, we hold that they were not seized within the meaning of the Fourth Amendment. Each deputy had at least five years of experience and testified to his or her familiarity with the Department’s policies and state criminal law. The deputies were *1170well versed through their police academy and on-the-job training in Department procedures regarding the manner in which individuals are placed under arrest and the Department’s statutory and contractual authority to order officers to remain at work on overtime. In addition, each deputy accepted as a condition of his or her employment the official policy that he or she must cooperate with other members of the Department conducting an internal criminal investigation.

While the deputies waited to be interviewed, the Department did not employ standard procedures for detaining criminal suspects at the station, such as searching them, booking them, and inventorying their possessions. The deputies must have been aware that, without probable cause, no superior officer was permitted to use force or any show of authority to prevent them from departing the station if they so chose. While the deputies obviously understood that any violation of the order not to leave work might breach administrative rules and could result in their discipline as employees, we do not think that prospect is sufficient to classify this situation as a criminal seizure.

The Department did not create a coercive environment in which to detain the deputies. The deputies were not transported to the station against their will. They were not held in a cell, but rather in unlocked rooms with intermittent supervision. The Department did not refuse any deputy’s request to depart (though no one asked to leave). Supervisors repeatedly asked the deputies if they wanted food or drink and allowed them to travel to the restroom and water fountain unaccompanied. The deputies were not prevented from phoning their attorney or union representative for legal or contractual advice and remained in possession of their Department-issued equipment, including weapons and badges. The deputies were never touched or threatened with physical restraint. They were not isolated from one another or prohibited from speaking with one another. After the deputies were questioned and declined to provide an unprotected statement, they were immediately allowed to leave the station. All were paid overtime. In short, the deputies were not treated like criminal suspects, and they should have known — given their training, years on the force, and familiarity with Department procedures and protocol— that, if they chose to leave the station in defiance of their supervisors’ orders, they might have been subject to administrative discipline but could not have been forcibly detained absent full physical arrest.

Admittedly, some factors militate toward finding that a seizure took place. In particular, the deputies were informed that they were under criminal investigation. In addition, Captain Angel, the highest ranking officer at the station, conveyed in a “harsh, accusatory tone” his belief that one of the deputies had assaulted Flores, he insinuated that the others were covering it up, and he further warned that one or more of them would go to prison and lose their jobs if they were involved in such behavior. While the message may have been delivered in a harsh tone of voice to convince his subordinates that the Captain meant what he said in the hopes of piercing the “blue shield” of silence he thought he was facing, we are not prepared to believe that trained deputy sheriffs would nonetheless have been confused as to their legal and contractual rights under the circumstances. We believe that a reasonable deputy in the plaintiffs’ position would have understood that he was ordered to report and remain at the station until interviewed by ICIB investigators, and that he would likely suffer criminal civil rights prosecution and administrative discipline if the evidence revealed his involvement in the assault of Flores. However, these *1171facts are not sufficient, in and of themselves, to transform the deputies’ voluntary accession to their supervisors’ order to remain at work into a seizure cognizable as an arrest under the Fourth Amendment.

We decline to hold that the deputies were seized by their supervisors’ orders, which were issued in accordance with Department policies, to cooperate with a necessary internal criminal investigation. To hold otherwise would equate to a pronouncement that a law enforcement agency cannot, even under negotiated provisions of a labor agreement or the agency’s general policies to preserve public confidence and the integrity of its personnel in the discharge of their public safety responsibilities, order its employees to cooperate in an investigation of possible officer misconduct by standing by at their duty station after the end of their watch. We do not intend to, and will not, act as a super-personnel board to micromanage the employment actions of law enforcement professionals. “Law enforcement agencies are entitled to deference, within reason, in the execution of policies and administrative practices that are designed to preserve and maintain security, confidentiality, internal order, and esprit de corps among their employees.” Driebel, 298 F.3d at 648. We affirm the district court’s grant of summary judgment on the deputies’ Fourth Amendment claim.

IV

The deputies contend they were deprived of their Fifth Amendment right (made applicable to the states by the Fourteenth Amendment) against self-incrimination. The deputies argue that supervisors violated this right by forcing them to choose between giving a voluntary, non-immunized statement that could be used against them in subsequent criminal or administrative proceedings and retaining their current job assignments and work shifts. The deputies’ argument is unavailing.

In a series of cases involving the Fifth Amendment rights of public employees, the Supreme Court has made dear that public employees cannot be compelled to choose between providing unprotected incriminating testimony or losing their jobs. See Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968) (holding that the discharge of city employees for refusing to sign waivers of immunity or for invoking their privilege against self-incrimination violated the Fifth Amendment); Gardner, 392 U.S. at 273, 88 S.Ct. 1913 (same); Garrity, 385 U.S. at 493, 87 S.Ct. 616 (holding that the state cannot use the incriminatory statement of an employee secured under threat of job loss in a subsequent criminal proceeding); see also Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977) (holding that the “government cannot penalize assertion of the constitutional privilege against compelled self-incrimination by imposing sanctions to compel testimony which has not been immunized”).

The Court was careful, however, to preserve the right of a public employer to appropriately question an employee about matters relating to the employee’s possible misconduct while on duty. In Gardner, the Court noted that the constitutional violation arose not when a public employee was compelled to answer job-related questions, but when that employee was required to waive his privilege against self-incrimination while answering his employer’s legitimate job-related questions. See 392 U.S. at 278, 88 S.Ct. 1913. If the officer “had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immu*1172nity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, the privilege against self-incrimination would not have been a bar to his dismissal.” Id. (footnote and citation omitted); see also Uniformed Sanitation Men, 392 U.S. at 284, 88 S.Ct. 1917; Lef-kowitz, 431 U.S. at 806, 97 S.Ct. 2132 (“Public employees may constitutionally be discharged for refusing to answer potentially incriminating questions concerning their official duties if they have not been required to surrender their constitutional immunity.”); Chavez v. Martinez, 538 U.S. 760, 768-69 & n. 2, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (outlining the scope of public employees’ rights under the Fifth Amendment self-incrimination clause). “This language strongly indicates that forcing a public employee to answer potentially incriminating job-related questions does not implicate the Fifth Amendment unless the employee is also compelled to waive his privilege.” Wiley v. Mayor & City Council of Baltimore, 48 F.3d 773, 777 (4th Cir.1995).

We hold that the supervisors did not violate the deputies’ Fifth Amendment rights when they were questioned about possible misconduct, given that the deputies were not compelled to answer the investigator’s questions or to waive their immunity from self-incrimination. Indeed, it appears that the deputies were never even asked to waive their immunity.5 In these circumstances, it is clear that the deputies’ Fifth Amendment right against self-incrimination was not implicated by the supervisors’ conduct. See Hill v. Johnson, 160 F.3d 469, 471 (8th Cir.1998) (holding that “[t]he Fifth Amendment is violated only by the combined risks of both compelling the employee to answer incriminating questions and compelling the employee to waive immunity from the use of those answers”); Wiley, 48 F.3d 773 (holding that officers’ Fifth Amendment rights were not violated given that the officers had not been asked to waive their privilege against self-incrimination and the questions posed to them were narrowly job-related).6 It is of no moment that refusing *1173to answer the investigator’s questions could have resulted (and, in fact, did result) in reassignment: We do not consider re-assignment from field to desk duty as equivalent to losing one’s job under Gardner, 392 U.S. at 273, 88 S.Ct. 1913.7

The deputies’ Fifth Amendment claim also fails because the deputies were never charged with a crime, and no incriminating use of their statements has ever been made. In Chavez, 538 U.S. at 769, 123 S.Ct. 1994 (plurality opinion),8 the Supreme Court held that “mere coercion does not violate the text of the Self-Incrimination Clause absent use of the compelled statements in a criminal case against the witness.” Only after a compelled incriminating statement is used in a criminal proceeding has an accused suffered the requisite constitutional injury for purposes of a § 1983 action. See id.; United States v. Antelope, 395 F.3d 1128, 1140-41 (9th Cir.2005) (discussing Chavez and limiting the reach of its holding to the context of § 1983 actions); see also Lingler v. Fechko, 312 F.3d 237, 240 (6th *1174Cir.2002) (holding that a police officer’s Fifth Amendment right was not violated because he had not been compelled to waive his privilege against self-incrimination and his statements were never used against him in subsequent criminal proceedings).9 We affirm the district court’s grant of summary judgment on this claim.

V

The deputies argue that the district court erred in concluding that the supervisors’ conduct did not violate the deputies’ Fourteenth Amendment substantive due process rights. In our view, the Sheriffs Department had a legitimate need to determine whether an officer or officers had engaged in criminal behavior under color of office and, until that criminal investigation was resolved, it had a duty to protect the public from the potential for further assaults by the unknown deputy potentially responsible by reassigning all of those involved in the incident to station duty. Even assuming that the deputies were assigned to less favorable shifts and given “degrading” employment positions, we agree with the district court that the reassignment did not transform the questioning into a coercive police investigation under Cooper v. Dupnik, 963 F.2d 1220 (9th Cir.1992). We also agree that a reassignment, even as punishment for failure to make a voluntary statement, does not “shock[ ] the conscience” or run counter to the “decencies of civilized conduct” under Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). We affirm the grant of summary judgment on these claims.

VI

The district court disregarded police reports of Sergeant Kagjfs internal investigation, which documented the allegations against the deputies, on the basis that they constituted inadmissible hearsay and were not sufficiently reliable to qualify for the business records exception. See Fed.R.Evid. 803(6). The deputies contend on appeal that they offered the reports for the non-hearsay purpose of proving the supervisors’ knowledge of exculpatory facts clearing the deputies of the alleged misconduct on a date much earlier than that on which their former field duties were restored. However, even if the district court erred in failing to consider the reports, we find any error harmless since, even considering the information in the reports, the deputies’ Fifth Amendment and Fourteenth Amendment claims fail as a matter of law.

VII

Because we find that the supervisors did not violate the deputies’ Fourth, Fifth, or Fourteenth Amendment rights, we affirm the district court’s grant of summary judgment in favor of all defendants. Since no violation of any constitutional right occurred, we need not reach the claim against the County under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). It too was properly dismissed.

AFFIRMED.