Dash Camera Video Not Part of Officer’s Personnel Record, Court Rules

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.

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.

Governor Signs Bill Setting Standards for Use of Police Body Cameras

On October 3rd, Governor Jerry Brown signed into law Assembly Bill 69 by Assemblyman Freddie Rodriguez (D-Pomona).  Law enforcement agencies requiring their officers to wear body cameras must now comply with a uniform set of standards.

Currently there is no state requirement that law enforcement agencies adopt body cameras for their officers in the field. However, many local agencies have either adopted such a policy or are likely to do so in the near future. AB 69 is meant to prevent the development of a patchwork quilt of rules across the state. It sets statewide standards for the use of police body cameras.

In November 2014 a study by the U.S. Department of Justice titled, “Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned,” recommended standards be adopted for the use of body cameras. AB 69 seeks to implement those recommendations by requiring:

• Agency procedures on data collection and storage must follow “best practices”;
• Agency rules must explicitly prohibit agency personnel from accessing recorded data for any unauthorized or personal use, and from uploading recorded data onto the Internet;
•  Agency rules must provide sanctions for unauthorized access or use of recorded data;
• Supervisors must immediately take custody of officers’ cameras after a use of force incident or officer involved shooting, and must be responsible for downloading the data;
• Data must be categorized according to the type of event recorded;
• “Non-evidentiary” data (data that does not necessarily have value to aid in an investigation or prosecution) must be retained for a minimum of 60 days;
• “Evidentiary” data must be retained for a minimum of 2 years (and longer if relevant to a criminal prosecution) in any of the following situations:
• Use of force incident or officer involved shooting;
• Detention or arrest of an individual;
• Formal or informal complaint against the officer or agency.

• Logs of access and data deletion must be retained permanently;
• Third party vendors used for data storage must be reputable and have procedures in place to prevent tampering, provide for automatic data backup, and meet legal requirements for chain-of-custody concerns.

Law enforcement agencies will need to update their policies on body cameras to conform to these new requirements. Peace officer associations should make sure their members are made aware of all rules about body cameras and recorded data to prevent any causes for discipline. Also, associations should negotiate with agencies about an officer’s right to view data recorded from body cameras, which is not addressed by AB 69 but raises POBR concerns.

AB 69 faced almost no opposition as it moved through the Legislature, receiving only one “no” vote and receiving no public opposition. It goes into effect January 1, 2016.

Assembly Committee on Public Safety Holds Hearings on Police Body Worn Cameras

On March 3, 2015, the Assembly Committee on Public Safety held a hearing titled “Law Enforcement Use of Body Cameras: Policies and Pitfalls”, on a variety of issues relating to Police Use of Body Worn Cameras and proposed legislation.

Two prominent advocates for the rights of public safety officers testified before the Committee, David Mastagni, Managing Partner of Mastagni Holstedt, APC, and Edward Fishman, the Legal Administrator of the PORAC Legal Defense Fund.

Mastagni’s testimony provided insight into the collateral impacts of the Body Camera footage in a variety of litigation contexts.  Fishman testified regarding the balancing transparency and privacy, and the need for local control over the specifics of each Department’s camera policy.

Both Fishman and Mastagni expressed support on behalf of law enforcement for responsible use of body worn cameras, which must include policies protecting the rights of victims, witnesses, officers and the public.  Both witnesses pointed out the need to protect against mass disclosure of sensitive recordings and protecting the privacy rights of victims and witnesses.

PORAC is supporting important legislation providing a balanced framework for implementation of body worn camera policies and protecting against unwarranted disclosures.