Aguilera v. Baca

510 F.3d 1161

Elizabeth AGUILERA; Phillip Arellano; Benjamin Bardon; Gustavo Carrillo; Hector Ramirez, Plaintiffs-Appellants, v. Leroy BACA, individually and as Sheriff of the County of Los Angeles; William Stonich, individually and as Under Sheriff of the Los Angeles County Sheriff's Department; Larry Waldie, individually and as Assistant Sheriff of the Los Angeles County Sheriff's Department; William McSweeney, individually and as Commander of the Los Angeles County Sheriff's Department; Neil Tyler, individually and as Commander of the Los Angeles County Sheriff's Department; Thomas Angel, individually and as Commander of the Los Angeles County Sheriff's Department; Arthur Ng, individually and as Captain of the Los Angeles County Sheriff's Department; Alan Smith, individually and as Lieutenant of the Los Angeles County Sheriff's Department; Margaret Wagner, individually and as Lieutenant of the Los Angeles County Sheriff's Department; Russell Kagy, individually and as Sergeant of the Los Angeles County Sheriff's Department; Brian Proctor, individually and as Sergeant of the Los Angeles County Sheriff's Department; Los Angeles County Sheriff's Department; County of Los Angeles, a municipal corporation, Defendants-Appellees.

No. 05-56617.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 2007.

Filed December 27, 2007.

Elizabeth J. Gibbons, Encino, CA, for the plaintiffs-appellants.

Paul B. Beach and Jin S. Choi, Glendale, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-03-06328-SVW.

Before: ALEX KOZINSKI, Chief Judge, ANDREW J. KLEINFELD, and RICHARD C. TALLMAN, Circuit Judges.

Opinion by Judge TALLMAN; Dissent by Chief Judge KOZINSKI.

TALLMAN, Circuit Judge:

Plaintiffs, various Los Angeles County sheriff's deputies, appeal an adverse summary judgment in favor of Sheriff Leroy Baca, the Sheriff's Department, other supervisory officers, and internal affairs investigators. The deputies allege that they were improperly detained at the East Los Angeles Sheriff's 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 Angeles Sheriff's 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.

Sheriff's 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 Sheriff's Department has two separate internal investigation units: the Internal Affairs Bureau ("IAB"), 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 Sheriff's Department policies and procedures regarding internal criminal investigations. Under the Sheriff's 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 on 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 Sheriff's 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 cleared 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

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