Friday, January 13, 2017

Court Extends Pitchess Motions to Officers Who Did Not Witness or Engage in Misconduct

In Riske v. Superior Court (City of Los Angeles), the Second District Court of Appeal held that Evidence Code sections 1043 and 1045 (“the Pitchess motion statutes”), governing the discovery of peace officer personnel records, are not limited to cases involving officers who either witnessed or committed misconduct.  The Court extended the use of Pitchess motions to obtain discovery of disparate treatment evidence.

Robert Riske, a retired police officer, filed a discovery motion to obtain certain personnel records of officers selected for positions to which Riske had applied in action against city. Riske’s complaint alleged that the city police department had retaliated against him for protecting whistleblower activity by failing to assign or promote him to several positions and selecting less qualified candidates instead. The superior court denied the motion. Riske filed petition for writ of mandate, challenging denial of discovery motion.

The Appellate court held that the initial threshold determination for a Pitchess motion is materiality, which, in this context, means the evidence sought is admissible or may lead to discovery of admissible evidence. The court held that if a plaintiff can show the confidential personnel records of officers who were not involved in the suit are nonetheless material to the litigation, he or she has demonstrated the good cause necessary to obtain in camera review of the peace officers personnel records and determine whether and to what extent relevant information may be disclosed without intruding too significantly on a peace officer’s privacy.

The court held that information in the TEAMS report and performance evaluations of the successful candidates could very well be material to Riske’s claim that the City’s stated business reason was a pretext for unlawful retaliation.

This decision will likely be cited to support discovery requests to challenge the level of penalty in disciplinary appeals by obtaining evidence that other officers who committed similar acts of misconduct did not receive as sever a punishment.  This case will likely also provide access to disparate treatment evidence in promotional challenges.