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DISCUSSION
The officers argued that IAD-Crim’s supervisory lieu-
tenant was a “person authorized to initiate an investiga-
tion” because he was a superior officer who learned of the
texts in December 2012 as part of the criminal investigation.
The Court disagreed, determining that the statutory lan-
guage of Government Code section 3304(d) linked accrual
of the statute of limitations to the time when someone au-
thorized to initiate an administrative investigation discov-
ered the relevant information. Critically, the Court found
that the power to designate persons authorized to initiate
disciplinary investigations belonged to the law enforce-
ment agency. Here, SFPD designated IAD-Admin officers
as authorized to initiate investigations of misconduct by
SFPD officers, not IAD-Crim. Accordingly, the statute of
limitations did not begin to run until the USAO released
the text messages to IAD-Admin in December 2014.
As to the tolling issue, the Court concluded that the
statute of limitations was tolled during the pendency of the
criminal investigation and prosecution. POBRA’s Section
3304, subdivision (d)(2)(A), provides, “If the act, omission,
or other allegation of misconduct is also the subject of a
criminal investigation or criminal prosecution, the time
during which the criminal investigation or criminal prose-
cution is pending shall toll the one-year time period.” The
Court reasoned that the text messages were a critical in-
vestigative tool into the criminal conspiracy case and were
evidence of the main suspect’s relationships, associates
and accomplices. Essentially, the Court determined that
though the text message misconduct was not the specific
criminal action, it was nevertheless “also the subject” of a
criminal investigation or prosecution. Having concluded
the text messaging misconduct was also a “subject” of a
criminal investigation per Section 3304(d)(2)(A), the Court
thus found that the limitations period was tolled from the
period between December 2012, when IAD-Crim officers
discovered the offensive text messages, and December
2014, when the verdict was issued. As such, the discipline
was timely under this alternative theory.
2
Bacilio v. City of Los Angeles, 2018 Cal. App. LEXIS 968 (Oct. 25, 2018)
In a case recently decided by the Court of Appeal,
an officer argued that an oral representation by a depu-
ty district attorney that she might not pursue a criminal
investigation further was sufficient to end tolling under
Section 3304(d)(2)(A). The Court, however, found that
that tolling ended only when the prosecuting entity or the
public agency itself had formally ended its criminal investi-
gation. Applying this standard, tolling ended not when the
informal representation was made, as the officer argued,
but rather when the District Attorney’s Office sent LAPD’s
Internal Affairs Division a Charge Evaluation Worksheet of-
ficially declining to file charges against several officers due
to insufficient evidence.
CONCLUSION
The Daugherty and Bacilio decisions significantly clarify
when the statute of limitations for potential misconduct
accrues and the scope of tolling pursuant to Section 3304.
As with application of any tolling provision, however, it
is imperative that law enforcement agencies work closely
with their legal advisors to apply these provisions with
caution to ensure that disciplinary investigations are
completed in a timely manner. ■
Information contained in this article is for general use and does
not constitute legal advice. This article is not intended to create,
and receipt and review of it does not constitute, an attorney-
client-relationship with the author.
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