PALMER'S PITCHESS UPDATE

By: Greg P. Palmer

PRIOR EMPLOYMENT HISTORY AS A POLICE OFFICER WITHIN FIVE YEARS MUST NOW BE PROVIDED AS PART OF PITCHES MOTION DISCOVERY

In a case decided by the Court of Appeals of Alameda County (Fletcher v. Superior Court (Oakland Police Department), Court of Appeal State of California, First Appellate District, Division Two, 2002 Cal. App. Lexis 4417 (July 18, 2002), it was held that in addition to the normal discovery requests made by defendants in a Pitchess motion, if discovery is granted for some information and the officer has been employed with the responding agency for less than five years it is within the court's discretion to order the responding agency to disclose the fact that the officer was previously employed by another agency.

Christopher Fletcher was charged with resisting arrest and his counsel filed a Pitchess motion pursuant to Evidence Code Section 1043 asking for the discovery of certain information from the arresting officer's personnel files held by the Oakland Police Department. The police department opposed the motion but the trial court pointed out that Fletcher had made a sufficient showing of good cause and materiality to grant discovery of records of excessive force and dishonesty. An in camera inspection of the officer's personnel files was conducted, following which certain information was ordered disclosed by the court. The information provided arose from incidents in 1999 and 2000. Fletcher's counsel argued to the trial court that he should be entitled to discover whether the officer had prior employment by other police agencies within the five year limitation provided by Evidence Code Section 1045(b)(1). Oakland P.D. objected to the discovery of this information and the trial court denied it.

Fletcher then filed a petition for writ of mandate in the Court of Appeals challenging that decision. The Court of Appeals initially had trouble with the trial court's decision in this regard. It said "All the law requires to show good cause to permit such discovery is the materiality of the information to the subject matter of the pending litigation and a reasonable belief that the governmental agency has the type of information requested. This court found materiality but refused to allow disclosure of any facts that might have allowed further inquiry into prior police work. The trial court cut off the discovery even though the mere fact of the existence of prior police employment is neutral on the face of the record, and even though the Oakland Police Department has never denied that it has the type of information sought.

The Appellate Court noted that police officer personnel files are defined in Penal Code Section 832.8 as: "Any file . . . containing records related to any of the following: (a) personal data, including marital status, family members, educational and employment history, home address or similar information. The court further noted that the limitation on discovery provided through Evidence Code Section 1045 did not specifically state anything with regard to limiting discovery of an officer's employment history, including such employment history with other police agencies. In citing several cases, the court held that Section 1045 provides only guidelines for general criteria and there has been a steady expansion of the type of information subject to disclosure under the constitutional principles stated by the Pitchess decision.

The court later in the opinion addressed the Catch-22 position in which Fletcher found himself, "As we have already discussed, this begs the question; initially, because there was presumably no way for the petitioner to know what those other local policies might be; and ultimately because the court was not being asked by the present Pitchess motion to examine the underlying facts of any conduct in the course of the prior employment. The inquiry by defense counsel was only whether the record showed there had been other police employment. The court knew that petitioner was not seeking immediate disclosure of records from agencies other than the Oakland Police Department; and that further motions would be required to obtain information from other venues of employment."

All the defense was asking for was to know if there were any other police employment agencies within the five year limitation so that the defense could then prepare another Pitchess motion, serve it upon that agency and conduct a hearing with regard to that agency's records.

The Court of Appeal upheld this request and overturned the trial court saying "With the constitutional constraints in mind, it is hard to see how the mere fact of prior police employment is deserving of more protection than other types of employment history, such as citizen complaints alleging misconduct. Oakland Police Department could have produced records responsive to the request in a form limited to redacted documents showing the dates of employment by the Oakland Police Department and identifying only the location of prior police employers within the five year limitation. Nothing more was requested; and in our view the ambit of the court's finding and materiality must be thus inclusive in order to carry out the mandate of the statutes that implemented the Pitchess procedure."

The court also analyzed several hypothetical situations to illustrate the points made in its opinion. It noted that the trial court had already determined that three incidents involving the two officers should be disclosed and, therefore, the length of time within which these incidents occurred could be relevant. It noted that a smaller number of complaints within a short period of employment can assume greater weight as evidence. The fact that an officer had been employed by multiple police departments within a short period of time could suggest evidence of prior misconduct relevant to a defense. The court noted that this may be one of the reasons for serial police jobs. It held that assuming further inquiry into prior employment is undertaken a trial court might also determine that the reason given for leaving a prior job could be relevant to the defense based on misconduct alleged in a pending case. Ultimately, relevant materials such as prior citizen complaints could be found in a prior employer's file.

The Appellate Court felt compelled to reverse the trial court's holding because "to hold otherwise would be to judicially amend the statutes to limit discovery to 'the lesser of five years or the term of current employment.' "

SO WHAT DO WE DO NOW?

Be sure that the next time you are the custodian of the records responding to a Pitchess motion for discovery in a court of law and you have the files of an officer who is relatively new to your department and who also had prior employment with another police department before your agency, the trial court is within its discretion to order you to disclose the identity of the prior police employer along with other Pitchess material. All that has to be disclosed according to Fletcher is the neutral fact that the police officer had previous employment at another agency and the identity of that other agency. No other information is required to be disclosed. With that information the defendant decides whether or not to pursue Pitchess discovery from the former police employer by filing a separate Pitchess motion on those agencies

On many occasions in the past, even before this case was decided, I have instructed custodians for whom I made appearances on Pitchess motions to disclose the name of the prior police employer if that prior employment was within the five year time period pursuant to Evidence Code Section 1045(b)(2). The reason for doing this was primarily because of People v. Mooc. I did not want my custodian to be accused of withholding what might be relevant material. I, too, used the hypothetical to justify this response. If an individual charged with resisting arrest is trying to defend himself by using an excessive force theory he may be entitled to certain Pitchess material. However, in the case where the officer who arrested him has been employed with the arresting police agency for approximately a year and had prior police employment before coming to the arresting police agency, it seemed only logical that the individual should be allowed to know the identity of the prior police employer so that the entire five year period of time wherein relevant material might be kept is accessed. Without the flow of information coming from the current police employer back to the former police employer that discovery is artificially cut off.

This entire case obviously does not apply if one or all of the officers who are the targets of the Pitchess motion for discovery have been employed by your agency for more than five years preceding the event which generated the Pitchess motion

As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel, or your police legal advisor. As always, if you have any questions, please do not hesitate to call Greg P. Palmer at (714) 446-1400.