BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 573 (Hernandez)
As Amended April 4, 2011
Hearing date: May 3, 2011
Penal Code
SM:mc
POLICE PERSONNEL FILES
HISTORY
Source: California Association of Highway Patrolmen
Prior Legislation: AB 1106 (Horton) - Ch. 102, Stats. of 2003
AB 2484 (Romero) - Ch. 622, Stats. of 2000
Support: None known
Opposition:American Civil Liberties Union; Legal Services for
Prisoners with Children
KEY ISSUE
SHOULD A DISTRICT ATTORNEY'S OFFICE, THE ATTORNEY GENERAL'S OFFICE
OR A GRAND JURY THAT IS SEEKING ACCESS TO POLICE PERSONNEL FILES BE
REQUIRED TO OBTAIN A COURT ORDER FOR THESE RECORDS THROUGH A
SPECIFIED STATUTORY DISCOVERY PROCESS EXCEPT IN CRIMINAL
INVESTIGATIONS OR PROCEEDINGS CONCERNING THE CONDUCT OF PEACE
OFFICERS OR CUSTODIAL OFFICERS, OR AN AGENCY OR DEPARTMENT THAT
EMPLOYS THEM?
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PURPOSE
The purpose of this bill is to provide that a District
Attorney's office, the Attorney General's office or a Grand Jury
that is seeking access to police personnel files would be
required to obtain a court order for these records through the
specified statutory discovery process except in criminal
investigations or proceedings concerning the conduct of peace
officers or custodial officers, or an agency or department that
employs them.
Current law provides the following with regard to citizen
complaints against peace officers or custodial officers:
Each department or agency in this state that employs
peace officers shall establish a procedure to investigate
complaints by members of the public against the personnel
of these departments or agencies, and shall make a written
description of the procedure available to the public.
Each department or agency that employs custodial
officers, as defined in Section 831.5, may establish a
procedure to investigate complaints by members of the
public against those custodial officers employed by these
departments or agencies, provided however, that any
procedure so established shall comply with the provisions
of this section and with the provisions of Section 832.7.
Complaints and any reports or findings relating to these
complaints shall be retained for a period of at least five
years. All complaints retained pursuant to this
subdivision may be maintained either in the peace or
custodial officer's general personnel file or in a separate
file designated by the department or agency as provided by
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department or agency policy, in accordance with all
applicable requirements of law. However, prior to any
official determination regarding promotion, transfer, or
disciplinary action by an officer's employing department or
agency, complaints determined by the agency to be frivolous
shall be removed from the officer's general personnel file
and placed in separate file designated by the department or
agency, in accordance with all applicable requirements of
law.
Complaints by members of the public that are determined
by the peace or custodial officer's employing agency to be
frivolous, as defined in Section 128.5 of the Code of Civil
Procedure, or unfounded or exonerated, or any portion of a
complaint that is determined to be frivolous, unfounded, or
exonerated, shall not be maintained in that officer's
general personnel file. However, these complaints shall be
retained in other, separate files that shall be deemed
personnel records for purposes of the California Public
Records Act (Chapter 3.5 commencing with Section 6250 of
Division 7 of Title 1 of the Government Code, and Section
1043 of the Evidence Code.) (Penal Code � 832.5.)
Current law provides that peace officer or custodial officer
personnel records and records maintained by any state or local
agency regarding citizen complaints against peace officers or
custodial officers, or information obtained from these records,
are confidential and shall not be disclosed in any criminal or
civil proceeding, except by discovery pursuant to Sections 1043
and 1046 of the Evidence Code. This section shall not apply to
investigations or proceedings concerning the conduct of peace
officers or custodial officers, or an agency or department that
employs those officers, conducted by a grand jury, a district
attorney's office, or the Attorney General's office. (Penal
Code � 832.7.)
Current law requires that in any case in which discovery or
disclosure is sought of peace or custodial officer personnel
records or records of citizen complaints against peace officers
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or custodial officers or information from those records, the
party seeking the discovery or disclosure shall file a written
motion with the appropriate court or administrative body upon
written notice to the governmental agency which has custody and
control of the records, as specified. Upon receipt of the
notice, the governmental agency served shall immediately notify
the individual whose records are sought.
The motion shall include all of the following:
Identification of the proceeding in which discovery or
disclosure is sought, the party seeking discovery or
disclosure, the peace or custodial officer whose records
are sought, the governmental agency which has custody and
control of the records, and the time and place at which the
motion for discovery or disclosure shall be heard.
A description of the type of records or information
sought.
Affidavits showing good cause for the discovery or
disclosure sought, setting forth the materiality thereof to
the subject matter involved in the pending litigation and
stating upon reasonable belief that the governmental agency
identified has the records or information from the records.
No hearing upon a motion for discovery or disclosure shall be
held without full compliance with the notice provisions of this
section except upon a showing by the moving party of good cause
for noncompliance, or upon a waiver of the hearing by the
governmental agency identified as having the records. (Evidence
Code � 1043.)
Current law requires that in any case, otherwise authorized by
law, in which the party seeking disclosure is alleging excessive
force by a peace officer or custodial officer, as defined in
Section 831.5 of the Penal Code, in connection with the arrest
of that party, or for conduct alleged to have occurred within a
jail facility, the motion shall include a copy of the police
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report setting forth the circumstances under which the party was
stopped and arrested, or a copy of the crime report setting
forth the circumstances under which the conduct is alleged to
have occurred within a jail facility. (Evidence Code � 1046.)
Current law provides that no governmental authority, or agent of
a governmental authority, or person acting on behalf of a
governmental authority, shall engage in a pattern or practice of
conduct by law enforcement officers that deprives any person of
rights, privileges, or immunities secured or protected by the
Constitution or laws of the United States or by the Constitution
or laws of California. The Attorney General may bring a civil
action in the name of the people to obtain appropriate equitable
and declaratory relief to eliminate such a pattern or practice
of conduct, whenever the Attorney General has reasonable cause
to believe that a violation has occurred. (Civil Code � 52.3.)
This bill would provide that a District Attorney's office, the
Attorney General's office or a Grand Jury that is seeking access
to police personnel files would be required to obtain a court
order for these records through the specified statutory
discovery process, except in criminal investigations or
proceedings concerning the conduct of peace officers or
custodial officers, or an agency or department that employs
them.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
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state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
SB 573 seeks to amend Penal Code Section 832.7 to
require a grand jury, District Attorney or Attorney
General's office to file a Pitchess Motion when
conducting an investigation of a peace officer's
personnel files, excluding criminal investigations.
This would require the DA and or the AG to state what
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they are looking for in the officer's personnel file
and then permit a judge or the court of jurisdiction
to review the file and disclose only the pertinent
information requested. This process protects
officers' information from unwarranted intrusion.
2. Vagueness
Current law provides that peace officer personnel records shall
not be disclosed in any civil or criminal proceeding except by
discovery pursuant to the formal discovery process that requires
filing a formal noticed motion (known as a "Pitchess" motion), a
hearing, and, if the motion is granted, an "in camera" (i.e.,
private) review of the personnel files by a judge, and the judge
releasing pertinent requested documents. However, current law
provides that the requirement to go through the "Pitchess"
discovery process "shall not apply to investigations or
proceedings concerning the conduct of peace officers or
custodial officers, or an agency or department that employs
those officers, conducted by a grand jury, a district attorney's
office or the Attorney General's office." (Penal Code �
827.7(a).)
This bill would amend that language with the insertion of one
word to read that the requirement for the Pitchess discovery
process, "shall not apply to criminal investigations or
proceedings concerning the conduct of peace officers or
custodial officers, or an agency or department that employs
those officers, conducted by a grand jury, a district attorney's
office or the Attorney General's office." It is not clear
whether that means the exemption from the Pitchess requirement
would apply only to a criminal investigation of the officer
whose personnel file is being sought or would apply to any
criminal investigation. Because the bill is subject to these
two very different interpretations, it may violate basic due
process requirements.
. . . it is firmly established "'a statute which
either forbids or requires the doing of an act in
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terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application violates the first essential of due
process of law.' This principle applies not only to
statutes of a penal nature but also to those
prescribing a standard of conduct which is the subject
of administrative regulation." (Rutherford v. Cal.
(1987) 188 Cal. App. 3d 1267, 1276, citations
omitted.)
3. What Is the Discovery ("Pitchess") Process for Obtaining
Police Personnel Records?
The California Supreme Court has described the discovery
process, also known as a Pitchess motion, for a party obtaining
information from a police officer's personnel records.
In 1978, the California Legislature codified the
privileges and procedures surrounding what had come to
be known as "Pitchess motions" (after our decision in
Pitchess v. Superior Court (1974) 11 Cal. 3d 531 �113
Cal. Rptr. 897, 522 P.2d 305]) through the enactment
of Penal Code sections 832.7 and 832.8 and Evidence
Code sections 1043 through 1045. The Penal Code
provisions define "personnel records" (Pen. Code, �
832.8) and provide that such records are
"confidential" and subject to discovery only pursuant
to the procedures set forth in the Evidence Code.
(Pen. Code � 832.7.) Evidence Code sections 1043 and
1045 set out the procedures for discovery in detail.
As here pertinent, section 1043, subdivision (a)
requires a written motion and notice to the
governmental agency which has custody of the records
sought, and subdivision (b) provides that such motion
shall include, inter alia, "(2) A description of the
type of records or information sought; and �para.] (3)
Affidavits showing good cause for the discovery or
disclosure sought, setting forth the materiality
thereof to the subject matter involved in the pending
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litigation and stating upon reasonable belief that
such governmental agency identified has such records
or information from such records."
A finding of "good cause" under section 1043,
subdivision (b) is only the first hurdle in the
discovery process. Once good cause for discovery has
been established, section 1045 provides that the court
shall then examine the information "in chambers" in
conformity with section 915 (i.e., out of the presence
of all persons except the person authorized to claim
the privilege and such other persons as he or she is
willing to have present), and shall exclude from
disclosure several enumerated categories of
information, including: (1) complaints more than five
years old, (2) the "conclusions of any officer
investigating a complaint . . ." and (3) facts which
are "so remote as to make disclosure of little or no
practical benefit." (� 1045, subd. (b).)
In addition to the exclusion of specific categories of
information from disclosure, section 1045 establishes
general criteria to guide the court's determination
and insure that the privacy interests of the officers
subject to the motion are protected. Where the issue
in litigation concerns the policies or pattern of
conduct of the employing agency, the statute requires
the court to "consider whether the information sought
may be obtained from other records . . . which would
not necessitate the disclosure of individual personnel
records." (� 1045, subd. (c).) The law further
provides that the court may, in its discretion, "make
any order which justice requires to protect the
officer or agency from unnecessary annoyance,
embarrassment or oppression." (� 1045, subd. (d),
italics added.) And, finally, the statute mandates
that in any case where disclosure is permitted, the
court "shall . . . order that the records disclosed or
discovered shall not be used for any purpose other
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than a court proceeding pursuant to applicable law."
(� 1045, subd. (e), italics added.) (City of Santa
Cruz v. Mun. Court, 49 Cal. 3d 74, 81-83 (1989,
footnotes and citations omitted.).)
A so-called "Pitchess motion" is most commonly filed when a
criminal defendant alleges the officer who arrested him or her
used excessive force and the defendant wants to know whether
that officer has had complaints filed against him or her
previously for the same thing. The Supreme Court described the
purpose of this discovery process: "The statutory scheme thus
carefully balances two directly conflicting interests: the peace
officer's just claim to confidentiality, and the criminal
defendant's equally compelling interest in all information
pertinent to his defense." (City of Santa Cruz v. Mun. Court,
supra, at, 84.)
4. Investigations of Police Civil Rights Abuses
At a minimum, this bill would require that in civil
investigations concerning a peace officer or agency, the
district attorney, grand jury or Attorney General would be
required to go through the formal Pitchess discovery process in
order to review police files. One area this would directly
impact is Attorney General investigations into whether a police
department engaged in a pattern and practice of civil rights
violations (see Civil Code � 52.3).
One question this raises is whether this discovery process is
appropriate and necessary when the information is being sought
by an investigating agency, as opposed to a criminal defendant.
A Pitchess motion must be supported by "�a]ffidavits showing
good cause for the discovery or disclosure sought, setting forth
the materiality thereof to the subject matter involved in the
pending litigation and stating upon reasonable belief that the
governmental agency identified has the records or information
from the records." The nature of these types of investigations
is such that requiring the investigators to be able to identify
with specificity the evidence they are looking for before they
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find it could frustrate the purpose of the investigation.
Additionally, in the case of an investigation by these law
enforcement officials, there is no 'pending litigation' so it is
difficult to see how the investigators could comply with the
Pitchess requirements. Members may wish to consider whether
requiring law enforcement investigators to comply with these
formal discovery requirements when investigating civil rights
violations by a police department, or other matters, before any
charge or lawsuit is filed is consistent with the Legislature's
intent in establishing these procedures.
Additionally, investigations into whether a law enforcement
agency has engaged in a pattern and practice of civil rights
violations are often conducted in secret. One effect of
requiring investigators to file a Pitchess motion, and prevail
at a subsequent hearing, in order to obtain access to the
evidence would be to defeat any attempt to maintain the secrecy
of an investigation.
IS REQUIRING LAW ENFORCEMENT OFFICIALS TO FOLLOW THE "PITCHESS"
FORMAL DISCOVERY PROCESS IN A CIVIL RIGHTS INVESTIGATION
CONSISTENT WITH THE PURPOSE OF THOSE REQUIREMENTS?
WOULD IMPOSING SUCH REQUIREMENTS ON INVESTIGATORS HAMPER OR
CURTAIL THEIR ABILITY TO CONDUCT INVESTIGATIONS IN CIVIL RIGHTS
ABUSES BY POLICE OR CORRECTIONAL AGENCIES?
WOULD REQUIRING A FORMAL MOTION AND HEARING IN THESE MATTERS
DEFEAT ANY ATTEMPT TO CONDUCT AN INVESTIGATION IN SECRET? COULD
THIS COMPROMISE INVESTIGATIONS? (Rutherford v. Cal., 188 Cal.
App. 3d 1267, 1276 (1987, citations omitted).)
5. Effect on District Attorneys Seeking Brady Material
The sponsors have informed Committee staff that it is their
intention that the language of the bill be read to mean that the
"Pitchess" requirements must be followed by a grand jury, a
district attorney's office or the Attorney General's office any
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time they wish to review police personnel files, unless they are
engaged in a criminal investigation against the officer whose
file is being reviewed. This means that DA's seeking so-called
"Brady material" would be required to go through the Pitchess
discovery process any time they want to view a police officer's
personnel file.
What is Brady Material?
In the landmark case of Brady v. Maryland, 373 U.S. 83 (1963),
the U.S. Supreme Court held that where a prosecutor in a
criminal case withholds material evidence from the accused
person that is favorable to the accused, this violates the Due
Process Clause of the 14th Amendment. (Ibid at 87, see also
Giglio v. United States, 405 U.S. 150 (1972).) Brady and Giglio
impose on prosecutors a duty to disclose to the defendant
material evidence that would be favorable to the accused.
If the prosecutor is aware of misconduct, past or present, on
the part of a police officer who may be called as a witness in a
case, and that misconduct could discredit or "impeach" the
officer's testimony, the prosecutor has an obligation to turn
that evidence over to the defendant. "Impeachment evidence is
exculpatory evidence within the meaning of Brady. Brady/Giglio
information includes 'material . . . that bears on the
credibility of a significant witness in the case.'" (United
States v. Blanco, 392 F.3d 382, 387-388 (9th Cir. 2004,
citations omitted).)
Failure to divulge this information may result in a variety of
sanctions being imposed on the prosecution including, e.g.,
striking a witness's testimony or complete reversal of a
conviction. "Reversal is required when there is a 'reasonable
possibility' that the error materially affected the verdict."
(United States v. Goldberg, 582 F.2d 483, 488 (9th Cir. 1978),
cert. denied, 440 U.S. 973, 59 L. Ed. 2d 790, 99 S. Ct. 1538
(1979).) A federal court recently described why this obligation
is imposed: "Prosecutors are entrusted with the authority and
responsibility to protect public safety and uphold the integrity
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of the judicial system. They perform the latter, in part, by
ensuring that criminal defendants are offered all potentially
exculpatory or impeaching information." (Lackey v. Lewis
County, 2009 U.S. Dist. LEXIS 94674 (D. Wash. 2009).)
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As a result of this obligation, prosecutors' offices have a duty
to seek that information out from other law enforcement
agencies:
Because the prosecution is in a unique position to
obtain information known to other agents of the
government, it may not be excused from disclosing what
it does not know but could have learned. A
prosecutor's duty under Brady necessarily requires the
cooperation of other government agents who might
possess Brady material. In United States v.
Zuno-Arce, 44 F.3d 1420 (9th Cir. 1995) (as amended),
we explained why "it is the government's, not just the
prosecutor's, conduct which may give rise to a Brady
violation." Exculpatory evidence cannot be kept out of
the hands of the defense just because the prosecutor
does not have it, where an investigating agency does.
That would undermine Brady by allowing the
investigating agency to prevent production by keeping
a report out of the prosecutor's hands until the
agency decided the prosecutor ought to have it, and by
allowing the prosecutor to tell the investigators not
to give him certain materials unless he asked for
them. (United States v. Blanco, 392 F.3d 382, 387-388
(9th Cir. 2004).)
Because prosecutors are required in every case to determine
whether there is any Brady material in police files, requiring
prosecutors to go through the formal "Pitchess" motion and
hearing process in every case, as this bill is intended to do,
would be a significant departure from past practice, would place
a substantial burden on prosecutors and may not even be
possible, given that a "Pitchess" motion requires that there be
a pending criminal matter.
AB 1106 (Horton) of 2003, clarified that the rule allowing
investigating law enforcement agencies to examine police
personnel files without going through the "Pitchess" discovery
process applied to not just police officers' and police
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agencies' files but all peace officers', correctional officers'
files, and those of the agencies that employ them. This
Committee's analysis of AB 1106 (Horton) (Ch. 102, Stats of
2003) observed:
The Los Angeles County District Attorney has noted
that a Pitchess motion can only be filed if a criminal
case is pending. However, prosecutors arguably need
access to complaints and other matter in personnel
files to determine if charges should be brought. This
creates a "Catch-22" - a prosecutor cannot determine
if charges should be filed without examination of
records held in a personnel file, but the prosecutor
cannot get the records unless charges are filed. This
could result in either unwarranted charges being
filed, or in investigations being dropped without
prosecution where serious misconduct has occurred.
WOULD REQUIRING PROSECUTORS TO GO THROUGH THE "PITCHESS" MOTION
AND HEARING PROCEDURE IN ORDER TO DETERMINE IF AN OFFICER'S FILE
CONTAINS BRADY MATERIAL PLACE AN UNDUE BURDEN ON PROSECUTORS?
WOULD THIS PUT PROSECUTORS IN A "CATCH-22" WITH RESPECT TO THEIR
CONSTITUTIONALLY MANDATED RESPONSIBILITY TO DISCLOSE BRADY
MATERIAL?
6. Argument in Opposition
The American Civil Liberties Union states:
This legislation would significantly hamper the
ability of the Attorney General and others to
investigate wrongdoings by police department and
officers. The Attorney General has the constitutional
and statutory authority (Civil Code Section 52.3) to
pursue "pattern and practice" investigations of police
departments and officers engaged in conduct that
violates civil and constitutional rights. This
investigatory process is confidential as is the
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information obtained by the Attorney General.
Pitchess motions may hinder these civil rights
investigations by requiring notice and disclosure of
otherwise confidential information. Additionally,
pattern or practice investigations and grand jury
inquiries are often focused on groups or samples of
officers and incidents, not targeting a specific
officer or incident as is the case in routine criminal
matters. We urge reconsideration of this proposal.
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