San Diego Police Officers Ass'n v. San Diego Police Department

Opinion

McINTYRE, J.

San Diego Police Officers Association and Garry Collins (SDPOA) appeal from a judgment discharging a writ of mandamus and granting attorney fees. The primary issue on appeal is whether Penal Code section 148.6 (hereafter section 148.6). applies in situations other than when a citizen makes an allegation of misconduct by a police officer during the performance of his or her duties. We hold it does not. Additionally, we hold that the award of attorney fees was well within the trial court’s discretion. Accordingly, we affirm the judgment.

Factual and Procedural Background

Section 148.6, subdivision (a) provides:

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“(1) Every person who files any allegation of misconduct against any peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, knowing the allegation to be false, is guilty of a misdemeanor.

“(2) Any law enforcement agency accepting an allegation of misconduct against a peace officer shall require the complainant to read and sign the following advisory, all in boldface type:

“You Have the Right to Make a Complaint Against a Police Officer for Any Improper Police Conduct. California Law Requires This Agency to Have a Procedure to Investigate Citizens’ Complaints. You Have a Right to a Written Description of This Procedure. This Agency May Find After Investigation That There Is Not Enough Evidence to Warrant Action on Your Complaint; Even If That Is the Case, You Have the Right to Make the Complaint and Have It Investigated If You Believe an Officer Behaved Improperly. Citizen Complaints and Any Reports or Findings Relating to Complaints Must Be Retained by This Agency for at Least Five Years.

“It Is Against the Law to Make a Complaint That You Know to Be False. If You Make a Complaint Against an Officer Knowing That It Is False, You Can Be Prosecuted on a Misdemeanor Charge.

“I have read and understood the above statement.

Complainant”

SDPOA filed a petition for a writ of mandamus to compel the San Diego Police Department (the Police Department) to issue the advisory warning set forth in section 148.6 and require the complainant’s signature in every instance in which a person makes a complaint regarding a police officer, including equal employment opportunity (EEO) complaints made by other police officers and civilian employees of the Police Department, and complaints of on- or off-duty criminal activity by an officer. The Police Department responded that section 148.6 required it to issue the advisory only to members of the public making complaints of misconduct by a police officer during the performance of his or her duties. There is a dispute in the record regarding whether the Police Department’s policy was to issue the advisory in instances when citizens complained of on-duty police misconduct that also rose to the level of a criminal offense.