A California appeals court ruled this week that dash camera footage is not part of an officer’s confidential personnel record, even though it was used in an internal affairs investigation against the officer. The Court of Appeal ruled in City of Eureka v. Superior Court (Thadeus Greenson) (1st Dist., July 19, 2016) that Pitchess statutes do not protect this kind of video footage from being released to the public.
Eureka Police Sergeant Adam Laird and other officers arrested a juvenile suspected of gang activity. After the incident, the Eureka Police Department opened an internal affairs investigation into Sergeant Laird’s conduct, eventually deciding to fire him. And the Humboldt County District Attorney’s Office charged Laird with misdemeanor assault by a police officer without lawful authority and making a false police report. Both investigations alleged that Laird used excessive force against the suspect, including pushing him to the ground and then kicking or stomping on him repeatedly.
A key piece of evidence in both of these investigations was the video recorded by the dash camera in another officer’s vehicle. This video apparently recorded the whole interaction between Sergeant Laird and the juvenile suspect. Experts hired by both the prosecution and Laird’s defense attorney determined Laird’s use of force was justified under the circumstances. The prosecution dropped the charges and the Department halted its termination of Laird.
However, a local newspaper reporter then filed requests for the video footage. The reporter claimed the video was a public record. A trial judge in Humboldt County agreed and ordered the City of Eureka to release the video. The City appealed the judge’s order, arguing the video was part of Laird’s confidential personnel file and could only be released through the procedures required by the Pitchess statutes.
The Court of Appeal rejected the City’s argument and affirmed the order to release the video. The Court ruled that because the video was recorded before any investigation had begun, it was an independent record and was not part of Laird’s personnel file. Because the video was merely considered during the investigation and was not generated by it, the video was not a record related to “employee advancement, appraisal, or discipline.”
The Court relied on the major decision by the California Supreme Court two years ago in Long Beach Police Officers Association v. City of Long Beach (2014). In that case, the Supreme Court ruled that Long Beach could not withhold the identity of a police officer who had been involved in a shooting, but must disclose it to requesting newspapers. Here, the Court of Appeal ruled that dash camera footage is similar to an officer’s identity and must be released to the public.
The Court of Appeal’s decision is a serious setback to the privacy interests of peace officers across the state. Under the ruling, potentially all dash camera and body camera footage could be subject to public release.
Showing posts with label Pitchess. Show all posts
Showing posts with label Pitchess. Show all posts
Wednesday, July 20, 2016
Thursday, October 15, 2015
AG: CHP Can Disclose Brady List to Prosecutors
The California Highway Patrol and other law enforcement
agencies are allowed to disclose some Brady
information about their officers to prosecutors without a Pitchess motion.
On October 13th the Attorney General issued a legal opinion
about the steps prosecutors must take to get Brady material about peace officers. The Attorney General said CHP could give prosecutors a list of its officers
who have been found guilty of dishonesty, moral turpitude, or bias, without a Pitchess motion being filed without violating Pitchess statutes or the Public Safety Officers Procedural Bill of
Rights Act (POBRA).
Under the its proposed “External Brady Policy,” CHP would
create a list of its officers who have been found guilty of dishonesty, moral
turpitude, or bias within the last five years. This list would include the
names of officers and the earliest date of any misconduct. But it would not
describe the misconduct. Prosecutors could search this Brady list for CHP officers who might be called to testify as
witnesses in criminal trials. If a likely witness was on the list, a prosecutor
could then file a Pitchess motion to
view the officer’s personnel records. Also, an officer whose name was put on
the list would be notified and could file an administrative appeal challenging
their inclusion on the list.
The Attorney General noted that several police
departments have adopted similar Brady
policies and the Supreme Court approved one of these policies in Johnson. So CHP would not violate Pitchess statutes by creating and
sharing a Brady list. She also said CHP was part of the prosecution team for Brady purposes, and CHP was qualified to create a Brady list.
Although the Attorney General’s legal opinion is only
advisory and is not binding on local law enforcement agencies, it is has a lot of influence. Officer associations should be aware of their agency’s Brady policy and ensure that the
confidentiality of peace officer personnel records is protected. While Brady lists may be created and shared,
POBRA and Pitchess procedures must
still be followed.
Monday, July 6, 2015
California Supreme Court Clarifies Pitchess Process Protects Officer Privacy
On July 6, 2015, the California Supreme Court reversed the Court of Appeal to protect the confidentiality of peace officers' personnel files. In People v. The Superior Court of San Francisco County, the Supreme Court held District Attorneys offices must file Pitchess motions to review personnel files, ending attempts by some DAs offices to have unfettered access to officers' private information.
Evidence Code section 1043 and 1045 regulate access to peace officers' personnel files in California. The sections make peace officers' personnel files preemptively confidential, but permit parties that have a reason to believe the personnel records contain information material to a case to file what's typically called a Pitchess motion, to gain access to relevant parts of a file. If party makes a preliminary showing, a judge reviews potentially relevant portions of the file and decides if they are material to the case and must be turned over.
This process applies in criminal cases, but also civil and administrative cases. In criminal cases, another feature of this process is a prosecutor's duties under Brady v. Maryland. Under that case, a prosecutor must disclose information that may help a criminal defendant in court.
In San Francisco, the Police Department had a Brady policy that took into account officer privacy and prosecutors' Brady obligations. Under the policy, the Department had a Brady committee consider potential Brady issues, permitted comment by the affected employee, and made a recommendation to Chief, who decided whether to inform the DA. The DA then had to file a Pitchess motion to access relevant portions of the officer's file.
But recently, some DAs claimed their Brady duty is so broad that they are entitled to unfettered access to peace officers' personnel files so they can decide what to give criminal defendants. In this case, the trial court and the Court of Appeal agreed with this conclusion.
The Court of Appeal held prosecutors could access peace officer personnel records without filing a Pitchess motion for two reasons. First, it concluded disclosing peace officers’ personnel records to the DA did not count as a “disclosure” within the meaning of the statute. Second, the Court interpreted an exception to the Pitchess process about “investigations” to apply any time a criminal defendant filed a Pitchess motion. The Supreme Court disagreed with this reasoning.
The Supreme Court noted the Pitchess process balances officers’ privacy with the needs of prosecutors to perform their duties under Brady. It found the limited exception allowing direct access showed the Legislature did not intend DAs to have direct access under normal circumstances. Second, Supreme Court disagreed the argument a Pitchess motion triggers a DA’s right to investigate an officer. The Court defended peace officers noting, “A police officer does not become the target of an investigation merely by being a witness in a criminal case.” The Supreme Court explained the exception applied, instead, to cases where the DA needs to do a criminal investigation of the officer’s own conduct.
Thus, the Supreme Court held, "the prosecution does not have unfettered access to confidential personnel records of police officers who are potential witnesses in criminal cases. Rather, it must follow the same procedures that apply to criminal defendants, i.e., make a Pitchess motion, in order to seek information in those records."
Evidence Code section 1043 and 1045 regulate access to peace officers' personnel files in California. The sections make peace officers' personnel files preemptively confidential, but permit parties that have a reason to believe the personnel records contain information material to a case to file what's typically called a Pitchess motion, to gain access to relevant parts of a file. If party makes a preliminary showing, a judge reviews potentially relevant portions of the file and decides if they are material to the case and must be turned over.
This process applies in criminal cases, but also civil and administrative cases. In criminal cases, another feature of this process is a prosecutor's duties under Brady v. Maryland. Under that case, a prosecutor must disclose information that may help a criminal defendant in court.
In San Francisco, the Police Department had a Brady policy that took into account officer privacy and prosecutors' Brady obligations. Under the policy, the Department had a Brady committee consider potential Brady issues, permitted comment by the affected employee, and made a recommendation to Chief, who decided whether to inform the DA. The DA then had to file a Pitchess motion to access relevant portions of the officer's file.
But recently, some DAs claimed their Brady duty is so broad that they are entitled to unfettered access to peace officers' personnel files so they can decide what to give criminal defendants. In this case, the trial court and the Court of Appeal agreed with this conclusion.
The Court of Appeal held prosecutors could access peace officer personnel records without filing a Pitchess motion for two reasons. First, it concluded disclosing peace officers’ personnel records to the DA did not count as a “disclosure” within the meaning of the statute. Second, the Court interpreted an exception to the Pitchess process about “investigations” to apply any time a criminal defendant filed a Pitchess motion. The Supreme Court disagreed with this reasoning.
The Supreme Court noted the Pitchess process balances officers’ privacy with the needs of prosecutors to perform their duties under Brady. It found the limited exception allowing direct access showed the Legislature did not intend DAs to have direct access under normal circumstances. Second, Supreme Court disagreed the argument a Pitchess motion triggers a DA’s right to investigate an officer. The Court defended peace officers noting, “A police officer does not become the target of an investigation merely by being a witness in a criminal case.” The Supreme Court explained the exception applied, instead, to cases where the DA needs to do a criminal investigation of the officer’s own conduct.
Thus, the Supreme Court held, "the prosecution does not have unfettered access to confidential personnel records of police officers who are potential witnesses in criminal cases. Rather, it must follow the same procedures that apply to criminal defendants, i.e., make a Pitchess motion, in order to seek information in those records."
Tuesday, December 2, 2014
California Supreme Court: Arbitrators May Rule On Pitchess Motions
On December 1, 2014, the California Supreme Court held arbitrators may rule on Pitchess motions during peace officer administrative appeals. The court's decision in Riverside County Sheriff's Department v. Stiglitz ensures peace officers can get information to defend discipline cases.
In Stiglitz, the Riverside County Sheriff's Department terminated a deputy for allegations of falsifying payroll forms. The deputy appealed the discipline to arbitration. The deputy intended to assert a disparate treatment defense, arguing others had committed similar misconduct but were not fired. To prove this defense, the deputy sought redacted records "from personnel investigations of any Department employees who have been disciplined for similar acts of misconduct." She limited her request to events during the previous five years, and only sought incident summaries, the rank of the officer, and the discipline imposed. The department objected, arguing in part that the requested information was confidential and the arbitrator lacked authority to rule on Pitchess motions.
The court held arbitrators have the authority to grant Pitchess motions. Evidence Code section 1043 states the motion should be filed in the appropriate court "or administrative body." The court held this language specifically grants arbitrators the authority to rule on the Pitchess motions because otherwise, the Legislature would have authorized filing a motion in a body not authorized to rule on it. The court also noted the Legislature did not provide a mechanism to transfer a motion from an administrative proceeding to superior court. The absence of such a mechanism showed the Legislature's intent for arbitrators to make such rulings.
The court also held its conclusion is consistent with the purposes behind the Pitchess statutes and the Public Safety Officer Procedural Bill of Rights Act ("POBRA"). The Pitchess statutes reflect the Legislature's attempt to balance a litigant's discovery interest with an officer's confidentiality interest. These interests must be balanced whether the motion is filed before a court or an administrative hearing officer. Also, POBRA grants officers the right to administratively appeal an adverse employment decision and give the officer an opportunity to convince the agency to reverse its decision. Allowing discovery of relevant information to an officer's defense during the administrative hearing furthers these goals.
In Stiglitz, the Riverside County Sheriff's Department terminated a deputy for allegations of falsifying payroll forms. The deputy appealed the discipline to arbitration. The deputy intended to assert a disparate treatment defense, arguing others had committed similar misconduct but were not fired. To prove this defense, the deputy sought redacted records "from personnel investigations of any Department employees who have been disciplined for similar acts of misconduct." She limited her request to events during the previous five years, and only sought incident summaries, the rank of the officer, and the discipline imposed. The department objected, arguing in part that the requested information was confidential and the arbitrator lacked authority to rule on Pitchess motions.
The court held arbitrators have the authority to grant Pitchess motions. Evidence Code section 1043 states the motion should be filed in the appropriate court "or administrative body." The court held this language specifically grants arbitrators the authority to rule on the Pitchess motions because otherwise, the Legislature would have authorized filing a motion in a body not authorized to rule on it. The court also noted the Legislature did not provide a mechanism to transfer a motion from an administrative proceeding to superior court. The absence of such a mechanism showed the Legislature's intent for arbitrators to make such rulings.
The court also held its conclusion is consistent with the purposes behind the Pitchess statutes and the Public Safety Officer Procedural Bill of Rights Act ("POBRA"). The Pitchess statutes reflect the Legislature's attempt to balance a litigant's discovery interest with an officer's confidentiality interest. These interests must be balanced whether the motion is filed before a court or an administrative hearing officer. Also, POBRA grants officers the right to administratively appeal an adverse employment decision and give the officer an opportunity to convince the agency to reverse its decision. Allowing discovery of relevant information to an officer's defense during the administrative hearing furthers these goals.
Wednesday, November 12, 2014
Supreme Court Grants Review, Stay in Controversial Peace Officer Personnel Records Case
The California Supreme Court granted review and a stay today in the controversial Court of Appeal decision in People v. Superior Court (Johnson). The Court of Appeal ruled prosecutors must review police officers' confidential personnel files to identify information relevant to the defense in a criminal case. This decision delivered a blow to officers' confidentiality interests in their personnel records. The California Supreme Court will decide whether a prosecutor must file a Pitchess motion before accessing peace officer personnel files to search for Brady material that may be subject to disclosure to a criminal defendant.
The Court of Appeal previously considered whether the prosecution is entitled to direct access to peace officer personnel files to search for Brady material. To answer this question, the Court of Appeal considered the interplay between Brady v. Maryland, which requires the prosecution to disclose evidence material to the defense and Pitchess discovery procedures, which hold officer personnel records are confidential absent discovery under Evidence Code section 1043.
The Court of Appeal divided the Brady disclosure process into two "stages." The "first stage" requires prosecutors to have access to confidential personnel records to identify Brady material subject to disclosure. The "second stage" requires the court to conduct a private, in camera review and disclose relevant information to the defense.
The Court of Appeal found Section 832.7 does not preclude prosecutors' access to officer personnel files for Brady purposes. The court noted that because police are considered part of the "prosecution team," the two agencies can share confidential information. In coming to this conclusion, the Court of Appeal disagreed with People v. Gutierrez, and its progeny, which held the prosecution could not access officer personnel files absent a motion under section 1043. Gutierrez, following a prior California Supreme Court case City of Los Angeles v. Superior Court (Brandon), found the statutory Pitchess procedures implement Brady rather than undercut it, because a defendant who cannot meet the less stringent Pitchess standard cannot establish Brady materiality. Rather than following this precedent, the Court of Appeal ruled prosecutors may conduct a preliminary inspection of officers' personnel files. But if the prosecutor identifies Brady material, the prosecutor must file a Pitchess motion before disclosing it to the defense.
This case will be very important for law enforcement throughout the state. The Court of Appeal's decision has already been used by public agencies and courts to circumvent the Pitchess process. The California Supreme Court should overturn this misguided decision and restore Pitchess. A favorable Supreme Court decision will protect officers' privacy rights and prevent unnecessary disclosures of confidential personnel information.
The Court of Appeal previously considered whether the prosecution is entitled to direct access to peace officer personnel files to search for Brady material. To answer this question, the Court of Appeal considered the interplay between Brady v. Maryland, which requires the prosecution to disclose evidence material to the defense and Pitchess discovery procedures, which hold officer personnel records are confidential absent discovery under Evidence Code section 1043.
The Court of Appeal divided the Brady disclosure process into two "stages." The "first stage" requires prosecutors to have access to confidential personnel records to identify Brady material subject to disclosure. The "second stage" requires the court to conduct a private, in camera review and disclose relevant information to the defense.
The Court of Appeal found Section 832.7 does not preclude prosecutors' access to officer personnel files for Brady purposes. The court noted that because police are considered part of the "prosecution team," the two agencies can share confidential information. In coming to this conclusion, the Court of Appeal disagreed with People v. Gutierrez, and its progeny, which held the prosecution could not access officer personnel files absent a motion under section 1043. Gutierrez, following a prior California Supreme Court case City of Los Angeles v. Superior Court (Brandon), found the statutory Pitchess procedures implement Brady rather than undercut it, because a defendant who cannot meet the less stringent Pitchess standard cannot establish Brady materiality. Rather than following this precedent, the Court of Appeal ruled prosecutors may conduct a preliminary inspection of officers' personnel files. But if the prosecutor identifies Brady material, the prosecutor must file a Pitchess motion before disclosing it to the defense.
This case will be very important for law enforcement throughout the state. The Court of Appeal's decision has already been used by public agencies and courts to circumvent the Pitchess process. The California Supreme Court should overturn this misguided decision and restore Pitchess. A favorable Supreme Court decision will protect officers' privacy rights and prevent unnecessary disclosures of confidential personnel information.
Friday, August 22, 2014
Court of Appeal Ruling Requires Prosecutors to Review Confidential Police Personnel Files
On August 11, 2014, the California Court of Appeal held in People v. Superior Court prosecutors must review police officers' confidential personnel files to identify information relevant to the defense in a criminal case. This decision places the burden of identifying Brady information on the prosecutor. In addition, it narrows confidentiality protections for officers' personnel files.
This case delivered a blow to officers' confidentiality interests in their personnel records. In Brady, the U.S. Supreme Court announced a rule requiring the prosecution to disclose evidence that is favorable and 'material' to the defense. Such evidence includes past alleged officer misconduct contained in confidential personnel files. California state law provides protections against disclosure of such information in civil or criminal proceedings by court order. Before disclosure, the court must conduct a private 'in camera' review of the officer's personnel file to determine if the information must be provided to the defense.
Public agencies employing peace officers are generally responsible for reviewing personnel files for possible Brady information relevant to the defense. This case places the burden of review on the prosecution.
The Court divided the Brady disclosure process into two "stages." The "first stage" requires prosecutors to have access to confidential personnel records to identify information subject to disclosure. The "second stage" requires the court to conduct a private, in camera review and disclose relevant information to the defense. The Court held Penal Code section 832.7(a) does not preclude prosecutorial access to officer personnel files for Brady purposes. The Court noted that because police are considered part of the "prosecution team," the two agencies can share personnel files without violating personnel file confidentiality laws.
This case has far ranging implications for law enforcement. Unless overturned, prosecutors will be allowed to routinely inspect peace officer's personnel records for Brady purposes and be required to file a Pitchess motion to have Brady material disclosed to the defense. This game changing decision will result in unnecessary disclosures to the prosecution and deprive officers of the ability to challenge. The court decidedly shifted the balancing of interests against officers' privacy rights. Look for this decision to trigger revisions to your local Brady policy. Request to participate in any policy revisions.
This case delivered a blow to officers' confidentiality interests in their personnel records. In Brady, the U.S. Supreme Court announced a rule requiring the prosecution to disclose evidence that is favorable and 'material' to the defense. Such evidence includes past alleged officer misconduct contained in confidential personnel files. California state law provides protections against disclosure of such information in civil or criminal proceedings by court order. Before disclosure, the court must conduct a private 'in camera' review of the officer's personnel file to determine if the information must be provided to the defense.
Public agencies employing peace officers are generally responsible for reviewing personnel files for possible Brady information relevant to the defense. This case places the burden of review on the prosecution.
The Court divided the Brady disclosure process into two "stages." The "first stage" requires prosecutors to have access to confidential personnel records to identify information subject to disclosure. The "second stage" requires the court to conduct a private, in camera review and disclose relevant information to the defense. The Court held Penal Code section 832.7(a) does not preclude prosecutorial access to officer personnel files for Brady purposes. The Court noted that because police are considered part of the "prosecution team," the two agencies can share personnel files without violating personnel file confidentiality laws.
This case has far ranging implications for law enforcement. Unless overturned, prosecutors will be allowed to routinely inspect peace officer's personnel records for Brady purposes and be required to file a Pitchess motion to have Brady material disclosed to the defense. This game changing decision will result in unnecessary disclosures to the prosecution and deprive officers of the ability to challenge. The court decidedly shifted the balancing of interests against officers' privacy rights. Look for this decision to trigger revisions to your local Brady policy. Request to participate in any policy revisions.
Tuesday, June 24, 2014
Court of Appeal Blocks Criminal's Attempt to Bypass Pitchess
In People v. Davis (Cal. Ct. App., June 12, 2014) 14 Cal. Daily Op. Serv. 6496, an appeals court held a convicted criminal could not bypass the Pitchess process on appeal. The defendant attempted to get access to a peace officer's personnel file to try to claim the court made a mistake when it did not grant a Pitchess motion before trial. The court decided he did not have a right to independent appellate review concerning a post-judgment
Brady order.
Instead, the court decided even in cases where a defendant can get discovery after a trial, he must comply with the Pitchess v. Superior Court, procedure and requirements. The requirements include showing that the discovery sought is material to pending litigation.
Friday, June 7, 2013
Court: Pitchess Not Required for Peace Officer Personnel Records in Federal Court Case
In Pierce v. County of Sierra (E.D. Cal., June 3, 2013, 2:11-CV-2280 GEB AC) 2013 WL 2421710, a Northern California federal court ruled plaintiffs do not have to use the Pitchess process to get a peace officer's personnel records related in a federal lawsuit. The case started when a deputy sheriff allegedly hit a motorcyclist with his patrol car. The plaintiff sued the deputy and the county for negligence.
Then, the plaintiff sent a discovery request for parts of the deputy's personnel file to find paperwork related to the deputy's initial hire, find out about drug and alcohol testing, and the IA investigation related to the crash. The County objected that the records were confidential peace officer personnel records under California Penal Code section 832.7. The Pitchess process that limits disclosure of peace officer personnel records is the product of statute in California. In many states, officers do not have these protections and their personnel records are more easily obtainable.
The Court decided the California Pitchess process did not apply in the federal action because the Federal Rules of Civil Procedure supersede the Pitchess process. Instead, the Court examined whether there was good cause to turn over the documents. The Court decided there was good cause because the records could shed light on whether the deputy was at fault and whether the County was negligent. Accordingly, the Court ordered the County to release the records, but ordered the parties to work out a protective order to limit the exposure of the deputy's records.
Then, the plaintiff sent a discovery request for parts of the deputy's personnel file to find paperwork related to the deputy's initial hire, find out about drug and alcohol testing, and the IA investigation related to the crash. The County objected that the records were confidential peace officer personnel records under California Penal Code section 832.7. The Pitchess process that limits disclosure of peace officer personnel records is the product of statute in California. In many states, officers do not have these protections and their personnel records are more easily obtainable.
The Court decided the California Pitchess process did not apply in the federal action because the Federal Rules of Civil Procedure supersede the Pitchess process. Instead, the Court examined whether there was good cause to turn over the documents. The Court decided there was good cause because the records could shed light on whether the deputy was at fault and whether the County was negligent. Accordingly, the Court ordered the County to release the records, but ordered the parties to work out a protective order to limit the exposure of the deputy's records.
Monday, December 10, 2012
Court of Appeal Gives Defendants Limited Access to Witness Statements in IA Files
In Rezek v. Superior Court (2012) 206 Cal. App. 4th 633, the California Court of Appeal, Fourth District, ruled witnesses statements in peace officers personnel files can be turned over to defendants in criminal cases under some circumstances. In this case, officers arrested a defendant for obstruction of justice. The defendant also filed a citizen complaint against the officers. IA investigated the complaint and took statements from witnesses. The DA charged the defendant who then filed a Pitchess motion for the witness statements.
The Fourth District decided defendants can get those statements if they submit a supporting declaration proposing a defense and articulate how the requested discovery may be admissible in support of the proposed defense, or how the requested discovery may lead to such evidence. The court disagreed with the city’s argument that Penal Code section 1045.1, which requires the prosecutor to disclose to the defense relevant witness statements, is the exclusive means by which a defendant may obtain such statements.
The Fourth District decided defendants can get those statements if they submit a supporting declaration proposing a defense and articulate how the requested discovery may be admissible in support of the proposed defense, or how the requested discovery may lead to such evidence. The court disagreed with the city’s argument that Penal Code section 1045.1, which requires the prosecutor to disclose to the defense relevant witness statements, is the exclusive means by which a defendant may obtain such statements.
Subscribe to:
Posts (Atom)