SAN DIEGO POA, et al. V. CITY OF SAN DIEGO, et al. 2002 DJ DAR 13953

The City and County civil service commissions require that administrative appeals be conducted at public hearings. During these public hearings, each civil service commission allows the disclosure of law enforcement personnel records, despite the objections of the involved peace officer.

The San Diego POA and San Diego DSA filed an action alleging the Public Entities' practice of routinely disclosing personnel records at disciplinary appeal hearings violated Penal Code § 832.7 and the officers' constitutional rights to privacy. The City and County filed a demurrer contending that section 832.7 does not prevent disclosure of personnel records in an administrative proceeding, relying on Bradshaw v. City of Los Angeles (1990) 221 Cal.App.3d 908, 921.

The trial court sustained the demurrer, finding that section 832.7 does not preclude the introduction of evidence at an administrative disciplinary appeal hearing.

The California Court of Appeal, Fourth Appellate District, Division One, reversed, concluding that the Associations alleged a viable cause of action for declaratory relief under Penal Code § 832.7.

The Appellate Court pointed out that the Legislature provided an opportunity for an administrative appeal when punitive action was taken against a peace officer. Beyond mandating the opportunity be provided, the Legislature did not specify how the appeal process was to be implemented, leaving the details of the administrative appeal "to be formulated by the local agency." The Court opined that Government Code § 3304 was not intended to "interfere with a charter city's right to regulate peace officers' qualification for employment, or the causes for which they may be removed. Nor was the Act intended to abrogate the powers granted charter cities by article XI, section 5 of the California Constitution. The Court noted that the hearings however must be conducted consistent with due process. Thus, the hearings must be conducted by a neutral fact-finder, and the hearings must be open to the public if the affected peace officer requests a public hearing.

The Court pointed out that two California appellate courts have disagreed with Bradshaw's expansive pronouncement that section 832.7's disclosure prohibition applies only to disclosures in criminal or civil action, and instead interpreted section 832.7 as recognizing broad confidentiality protection for peace officer personnel records regardless of the context in which the documents are sought

The Court agreed with the appellate courts in City of Richmond v. Superior Court (1995) 32 Cal.App.4th 1430 and City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, concluding that it would be unreasonable to assume the Legislature intended to put strict limits on the discovery of police personnel records in the context of civil and criminal discovery, and then to broadly permit any member of the public to easily obtain those records made public at a disciplinary appeal hearing without any showing of good cause. Section 832.7s protection would be wholly illusory unless that statue is read to establish confidentiality status for personnel records in the context of public disciplinary hearings.

The Court concluded that if a law enforcement agency could, without the consent of the affected officer, present evidence at a public hearing regarding all past complaints and investigations of the complaints to assist in proving a particular personnel action, even if those complaints were later determined to be unfounded, criminal and civil litigants could then have full access to later wade through those records in an attempt to prove their current allegations against the officer. This is precisely what the Legislature sought to avoid by codifying the Pitchess procedures and recognizing these restrictions in section 832.7

The Court held that section 832.7 provides that peace officer personnel records, as defined in section 832.8, are confidential. Thug employing agencies may not freely disclose these records at public disciplinary appeal hearings if the affected officer asserts an objection. The Court noted that this decision was limited to the relief sought, a declaration that section 832.8 personnel records were confidential in the context of disciplinary appeal hearings, and that the issue of whether disciplinary appeal hearings must be closed was beyond the scope of this appellate decision.

How this affects your agency: Where personnel rules provide for only public hearings an agency will no longer freely be able to open the subject officer's personnel files without the express permission of the officer. Where however the personnel rules provide for either an open or closed hearing and the officer chooses to have an open hearing then the officer waives 832.7 confidentiality.

THE PEOPLE v. STANISTREET 2002 DJDAR 13703

In a written complaint filed with the Oxnard Police Department, Shaun Stanistreet and Barbara Atkinson accused an Oxnard police officer of committing lewd conduct at a Police Activities League gathering. The officer was director of the Police Activities League and the charges proved to be false.

A jury found Stanistreet and Atkinson guilty of violating Penal Code § 148.5 (filing a knowingly false report of a criminal offense) and § 148.6. The appellate division of the superior court affirmed the judgments and the Court of Appeal reversed, finding that section 148.5 did not apply to complaints asserting misconduct by police officers and that section 148.6 was unconstitutional.

The California Supreme Court, in a 7 - 0 decision, reversed and remanded, concluding that section 148.6 was constitutional on its face, and finding that section 148.6 proscribes only constitutionally unprotected speech, knowingly false statements of fact.

The California Supreme Court also found that section 148.6 did not apply to all accusations of misconduct against peace officers, only to complaints filed in a way that legally obligates the agency to investigate the complaint. The circumstances that it covers only those persons, peace officers, who will be the subject of the mandatory investigation does not render it unconstitutional.

The Court pointed out that speech criticizing the government and governmental officials receives the highest protection, but does not extend to all speech. The Court noted that there was no constitutional value in false statements of fact, and that neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust and wide-open" debate on public issues.

The Court also pointed out that when a person makes a complaint against a peace officer of the type that section 148.6 governs, the agency receiving the complaint is legally obligated to investigate it and to retain the complaint and resulting reports or findings for at least five years. Thus, the potential harm of a knowingly false statement is greater here than in other situations. Public resources are required to investigate these complaints, resources that could otherwise be used for other matters; the complaints may adversely affect the accused peace officer's career, at least until the investigation is complete; and the complaints may be discoverable in criminal proceedings. Complaints directed at other persons do not receive this special treatment.

The Court concluded that if a person wants to file a complaint in a way that forces an investigation, that person may not knowingly tell a factual falsehood. No one has a constitutional right to make a complaint of misconduct knowing both that the complaint must be investigated and that it is false.

Addressing the argument that the complainant read and sign an admonition explaining the right to make a complaint, the investigation and record retention requirements, and the criminal sanction for knowingly false complaint, showed official suppression of ideas, the Court stated that the admonition merely advised complainants of the law and impresses on them the significance of the formal complaint. Warning people of the consequences of a knowingly false complaint is no more impermissible than advising people they are signing a document or testifying under penalty of perjury. The explanation and admonition did not invalidate the statute. The requirement of scienter protects witnesses who honestly misperceive facts.

How this affects your agency: Now that the constitutionality of Penal Code § 148.6 has been settled departments should insure that their "Citizen Complaint" forms contain the admonition exactly as the Legislature provided. Departments should also review their policy so as not to include complaints that do not require formal and prolonged investigation.

THE PEOPLE v. CERVANTES 2002 DJDAR 13714

Victor Cervantes was stopped by officers for failing to signal a right turn. A records check showed he was subject to a probation condition allowing a search of his person and vehicle at any time. Pursuant to that waiver the officers searched the car and found a gun, methamphetamine and scales. A related search of his residence revealed additional methamphetamine.

The trial court declined to hear Cervantes evidence at the 1538.5 hearing, holding that the search condition made irrelevant any illegality in the stop and detention.

The California Court of Appeal, Fourth Appellate District, Division One, reversed and directed the trial court to conduct a second 1538.5 hearing.

Citing People v. Reyes (1998) 19 Cal.4th 743, 754, the Court pointed out that a probationer subject to a search condition retained the right to be free from a search that was arbitrary, capricious or harassing. A search is arbitrary "when the motivation for the search is unrelated to rehabilitative, reformative or legitimate law enforcement purposes, or when the search is motivated by personal animosity toward the parolee." A search is a form of harassment when its motivation is a mere whim or caprice.

The Court pointed out that a mere legal or factual error by an officer that would otherwise render a search illegal, e.g., a mistake in concluding that probable cause exists for an arrest, does not render the search arbitrary, capricious or harassing. According to the Court, it is only when the motivation for the search is wholly arbitrary, when it is based merely on a whim or caprice or when there is no reasonable claim of a legitimate law enforcement purpose, e.g., an officer decides on a whim to stop the next red car he or she sees, that a search based on a probation search condition is unlawful.

The Court concluded that Cervantes offer of proof, which the trial court refused to hear, that he made the turn signal the officers accused him of omitting was arguably such a case. The trial court should have heard the evidence and decided first if the officers stopped Cervantes for a traffic violation. If it concluded they did nit, it should have reached the issue as to whether their action was arbitrary, capricious or harassing.

How this affects your agency: Officers should be reminded that in field probation searches without articulable reasonable suspicion may result in a finding their actions were arbitrary, capricious or harassing. Training in this area should be sought out from the District Attorney or City Prosecutor.

HUMPHREY v. SUPERIOR CT. OF L.A. COUNTY 2002 DJDAR 13833

Eric Humphrey was charged with molesting or annoying a child, sexual battery and misdemeanor child abuse. Ms. A., the mother of the two minor, 8-year old twins, submitted an affidavit on their behalf averring as "true and accurate to the best of her knowledge and belief" that Humphrey had engaged in sexual misconduct with her daughters. The affidavit relied upon report of police officers and medical personnel relating the statements of the minors. The trial court issued the requested search warrant, and the appellate division of the superior court denied the petition for writ of prohibition. The Court of Appeal reversed, holding that section 1524.1 affidavits could not rely on facts asserted on information and belief. The Court of Appeal decided that absent express statutory authorization, affidavits could not assert facts on information and belief unless they were "incapable of positive averment." The Court of Appeal stated that medical personnel, police officers, or the victims themselves could have asserted facts within their personal knowledge to establish the requisite probable cause.

The California Supreme Court reversed the Court of Appeal and remanded, holding that affiants may rely on hearsay in submitting an affidavit to obtain a section 1524.1 search warrant, just as they may to obtain a section 1525 warrant. Because the affiant need show only probable cause, the information and belief may suffice for the requisite showing.

The California Supreme Court noted that the blood tests authorized by section 1524.1 advance the special need of public health, and if they are subject to a different standard than other search warrant affidavits, it should be a less stringent review. The Court also pointed out that because section 1524.1 expressly incorporates the traditional probable cause standard, affiants need establish only a fair probability of a transfer of fluids, not its truth beyond a reasonable doubt. The Court stated, "...we reject a stringent 'personal knowledge' requirement for section 1524.1 affidavits, as none exists for the section 1525 warrants authorizing searches for law enforcement purposes."

The Court concluded that in accordance with the Fourth Amendment, affiants may rely on hearsay to support a search warrant.

How this affects your agency: Personnel should continue to seek advice from the District Attorney or City Prosecutor in obtaining search warrants.

Otto v. Los Angeles Unified School District, 106 Cal. App. 4^th 328

Petitioner Kevin Otto (Otto), a public safety officer, appealed from an order denying his motion for attorney's fees pursuant to California Code of Civil Procedure section 1021.5 The Court reversed "a judgment entered against Otto on his Code of Civil Procedure section 1085 petition for a writ, which sought to have the trial court direct the District to afford him an administrative appeal on what he argued was punitive action taken by the District against him." The "punitive action" was a written memorandum labeled a "summary conference" and placed into his personnel file.

The Court of Appeal reversed the trial court's decision that "Otto failed to present evidence that his suit placed a burden on him that was out of proportion to his own stake in the outcome of the case." The Court of Appeal stated: "Section 1021.5 does not specifically require a plaintiff to bear his own fees. It simply speaks of the financial burden of enforcement." The Court further stated that the rights and protections that the Public Safety Officers Procedural Bill of Rights Act (POBR) affords to public safety officers, have expressly been made a matter of statewide concern by the Legislature, which found that stable relations between officers and their employers is a necessary element of effective law enforcement." The Court concluded that "Otto vindicated rights found in POBR, thereby furthering the public's interest in effective law enforcement. The fact that litigation enforces existing rights does not mean that a substantial benefit to the public cannot result."

HOW THIS EFFECTS YOUR AGENCY

This case reinforces the proposition that the rights and protections afforded under POBR are a matter of statewide concern, the case also establishes the right to attorney's fees upon successful litigation regarding a violation of POBR.

Harrison v. Lockyer, 316 F.3d 1063 (9^th Cir.)

Jewel Harrison was shot^- and arrested for attempted armed robbery when he approached and attempted to car -jack Officer Foppiano, of the Oakland Police Department, as he sat in an unmarked car monitoring a female police officer dressed as a prostitute during a "John" enforcement program.

Prior to trial, Harrison moved for discovery of police records for impeachment information regarding the arresting officer, including records of complaints involving events occurring more than five years before the incident at issue. Harrison sought access to all documents in Officer Foppiano's personnel file. The district court denied the motion for discovery of records beyond the five-year cut-off.

Although, The California Supreme Court has held that, despite the statutory cut-off, citizen complaints against officers are subject to disclosure if they are "exculpatory" and that a California trial court should order such disclosure after the court has reviewed the file in chambers, the United States Court of Appeals, Ninth Circuit affirmed the district court's decision. The Court observed that Harrison made no showing that Officer Foppiano's file contained complaints material to his defense, as required by the California Supreme Court in City ofLos Angeles v. Superior Court, 52 P. 3d 129, 137. This decision is contingent on the defendant making a preliminary showing that the file contains information material to his defense.

HOW THIS EFFECTS YOUR AGENCY

This case validates California's "Pitchess" materiality requirement. Legal counsel who handle Pitchess motions for your department may use this decision to require defense counsel to make a showing of materiality, prior to the disclosure of information more than five years old.