Police Union at Odds With D.A.’s Office

In an unorthodox move with political and legal implications for Los Angeles County Dist. Atty. Gil Garcetti, the city’s police union filed a $2-million claim Monday against the county, alleging that Garcetti’s office mishandled an investigation of two police officers and violated their rights.

The claim--a precursor to a lawsuit--alleges that prosecutors committed an “immoral, unethical and illegal act” when they released excerpts of confidential compelled statements of two police officers after declining to prosecute those officers for a March 27, 1995, traffic collision that left three children dead.

On that day, Officers George Ichikawa and Keith Aulick were driving a marked patrol car that struck a 1979 Chevrolet pickup truck. Three brothers, ranging in age from 5 to 19, were thrown from the truck and killed. Prosecutors reviewed the case and decided not to prosecute the officers.

The action filed with the county on Monday reflects the Los Angeles Police Protective League’s increasingly vocal unhappiness with the county’s top prosecutor, who is up for reelection this year and who sought the league’s endorsement in the March primary. The league withheld that endorsement, instead staying neutral.

The claim also represents a highly aggressive move by the two officers, who effectively are suing the same agency that prosecutes the cases they and their colleagues develop. The debate has brought the city attorney’s office, which represents the two police officers, into conflict with the district attorney’s office, which considered prosecuting them.

“This is very unusual,” said Enrique A. Hernandez, general counsel to the Police Protective League, which represents rank-and-file police officers. “But it’s high time that this happened because at the league we are sick and tired of our people being pushed around by politicians.”

The legal issue at stake is one that has been a long-standing source of concern in police circles. During internal LAPD investigations, officers are ordered to speak to internal investigators; refusing to agree to an interview can result in an officer being fired.

But that runs counter to the rules governing criminal investigations for other citizens. The U.S. Constitution protects the right of all citizens to refuse to give testimony against themselves in a criminal case, a right protected by the 5th Amendment. Thus, statements given in response to coercion are generally not admissible in criminal trials.

As a result, so-called “compelled statements” by police officers are given with the understanding that they are not to be used in any criminal proceeding.

In the traffic accident case, the district attorney’s office decided not to prosecute the two police officers, but then included excerpts of their compelled statements in the memorandum explaining why no charges were being filed. That memorandum was released publicly and thus was available to the lawyer who is suing the city and the officers for the accident.

As a result, the officers now are claiming that releasing that material has violated their right of privacy and assisted the civil action against them.

“Did this hurt these coppers?” Protective League President Bill Harkness asked. “Darn right it did.”

Because of the district attorney’s actions, Harkness said, the lawyer for the family of the young people now will have access to the officers’ compelled statements, material that would not normally be provided without a special hearing. Because that lawyer will have the material without having to seek it through the courts, the officers are at a disadvantage, Harkness and other observers said.

But legal experts are not so sure that any of that adds up to a legitimate claim for damages. After all, said UCLA law professor Peter Arenella, the 5th Amendment only protects defendants from being compelled to testify against themselves in criminal proceedings, not civil cases. And if the civil case against the two officers were to go forward without their statements to LAPD officials, Arenella noted that they still could be ordered to undergo depositions in that case.

In fact, Ichikawa already has been deposed, and Aulick’s deposition has been ordered.

As a result, Arenella said he did not see a strong case to be made that the district attorney’s office violated the officers’ 5th Amendment rights or their privacy rights. ‘

Similarly, Allen D. Field, the head of the district attorney’s special investigations division, defended the office’s use of the material in a Feb. 16 letter to the city attorney’s office. At the same time, Field pledged to review the policy on releasing information to be sure that it “is in compliance with the law and is the best interest of the public.”

Garcetti’s office said it did not wish to comment further because of the possibility of lititgation.

Others have faulted prosecutors for releasing the material.

In a Feb. 21 letter to Field, Deputy City Atty. Cory M. Brente, who is defending the officers in the civil suit, accused prosecutors of moral and ethical wrongdoing.

“The officers’ compelled statements were given to your office in trust, and with (I believe) the implied understanding that you would obey the law, provide them with all the safeguards afforded to them, and not intentionally violate the rights of those involved,” Brente wrote. “Apparently, that trust was misplaced, and if you do not see anything morally or ethically wrong with what you did, then I am afraid I cannot help you.”

James Blancarte, the lawyer representing the family of the youngsters, called the officers’ claim “a novel and unusual one” but said it would not affect the progress of the civil case.

“We’re on a fast track to trial,” he said. “We have a family that is waiting for some kind of solace.”