CASE UPDATES

By: Martin J. Mayer
and
Mervin D. Feinstein

ATTORNEY GENERAL OPINIONS

Destruction of Internal Affairs Files

No. 99-1111

A California law enforcement agency may destroy peace officer internal investigation files after a five-year retention period, and peace officer personnel records five years after the officer has terminated employment, when the destruction is solely a matter of administrative routine and no other factors are present that would establish "bad faith."

The Attorney General points out that the law allows for a longer retention period than five years and then comments on the need of law enforcement to establish trust with the public. The implication is that it may be appropriate, in order to accomplish that task, for an agency, if it intends to routinely purge files, to do so after a period greater than the five year required minimum. As we have pointed out in the past, there are certain management perspectives which should also be considered in making this decision. Retaining complaints which have been sustained and resulted in discipline may become significant in the future if there is further misconduct by that particular employee and the Department needs to show a history or pattern of behavior. Additionally, in order to justify increasing discipline, it is necessary to show in certain circumstances that progressive discipline is being applied. Absent the ability to refer to prior disciplinary actions, management would be hard pressed to meet this burden.

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Private Entity May Deny Entry to Armed Off-Duty Officer

No. 99-1208

A private entity operating an amusement theme park may deny entry to an off-duty or retired peace officer who is carrying a firearm, where the park operator has a policy prohibiting entry to anyone carrying a firearm who is not then acting in an official capacity as a peace officer. The Attorney General also points out that ". . . the owner of private property, whether open to the public or not, may deny entry based upon perceived reasonable conditions, not otherwise unlawful, in the interests of public health and safety. An off-duty or retired police officer would have no greater rights than members of the general public in such circumstances."

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RELEASE OF INFORMATION:
PUBLIC RECORDS

Law Enforcement Must Release Documents And Tape Recordings Made In Traffic Stop

HAYNIE v. SUPERIOR COURT OF LOS ANGELES (Co. Of Los Angeles) 2000 Daily Journal D.A.R. 4653

Eleven days after a traffic stop by a Los Angeles County Deputy Sheriff of a vehicle driven by Elgin Haynie a letter was sent to the sheriff's department by Mr. Haynie's attorney requesting the release of pertinent document, including tape recordings. Approximately sixty days later a follow-up letter was faxed by the attorney to a Deputy County Counsel who responded only with a summary of the incident and a statement that Government Code §6254(f) did not require the release of any documents with respect to a law enforcement investigation and furthermore that personnel investigations were considered confidential.

Haynie then filed a verified petition and motion for an order compelling disclosure of public records pursuant to the Public Records Act, alleging that he was subjected to force when stopped. The county opposed the motion, citing the exceptions to release of public documents in Government Code §6254 (b) and (f). Following a hearing the trial court denied Haynie's motion, reasoning that the Public Records Act was not "a prelitigation discovery statute," and that the records Haynie sought fell within the exception in §6254(f) and also denied Haynie's request for attorney fees.

The California Court of Appeal held that the trial court erred and issued a writ of mandate directing the trial court to vacate its order, reconsider Haynie's petition and motion in conformity with its expressed views, and enter an order awarding Haynie costs and reasonable attorney fees.

The court noted that a public record includes "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics" and encompasses "magnetic or paper tapes." Haynie's petition sought disclosure of four kinds of items: (1) recordings of any radio broadcast that the deputy or deputies heard prior to the stop that were relevant to their decision to stop him, (2) any tape recording of Haynie's conversations with the deputy or deputies during the stop, (3) any statements obtained from the passengers in Haynie's vehicle during the stop, and (4) a tape-recorded statement Haynie later made in connection with a complaint about the deputy or deputies. The court held them to be public records.

The court pointed out that a requester, not having access to agency files, may be unable to precisely identify the documents sought, thus the documents may be described by their content. An agency is obligated to search for records based on criteria set forth in the search request. The agency must then determine whether it has such writings under its control and the applicability of any exemption.

The court noted that is was well established that information in public files becomes exempt as "investigatory" material only when the prospect of enforcement proceedings becomes concrete and definite, and held that the records created before or during Haynie's stop could not be withheld under subdivision (f) because the prospect of enforcement proceedings was not concrete and definite when the records were prepared. The court also dismissed the county's contention that the records requested were exempt under subdivision (b) holding that records may not be withheld under this exception unless they were "specifically prepared for use in litigation" or this was "the dominant purpose" behind its preparation.

/ How does this impact your department?

Department should review their release of public information policy with their legal advisor to insert definitive guidelines consistent with judicial holdings.

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USE OF FORCE

Use Of Pepper Spray As An "Offensive Weapon" On Non-Violent Protesters Can Constitute Unreasonable Use of Force

HEADWATERS FOREST DEFENSE, et al. v. COUNTY OF HUMBOLDT, et al. 2000 Daily Journal D.A.R. 4773

Three nonviolent protests were staged regarding the logging of ancient redwood trees. Two to seven protesters linked themselves together using self-releasing lock-down devices. When in place the devices completely immobilized protesters arms and prevented their separation. Although the protesters could disengage themselves from the devices, the devices made it difficult, but not impossible, for law enforcement officers to take the protesters into custody upon arrest. To forcibly remove the devices officers had to use a handheld electric grinder that could cut through steel.

The Humboldt County Sheriffs Department organized a special response team to deal with environmental protests, comprised of officers with special training and experience in the use of the electronic grinder. Because of the sparks generated by the grinder the Sheriffs Department explored alternatives for effecting the arrest of environmental protesters in lock-down devices including the use of OC spray. The Sheriff's research, which included consulting a certified trainer in the use of pepper spray, the county's risk manager and the district attorney, concluded that the use of a lock-down device by any protester, even a nonviolent protester who posed no danger to the public, himself, or the arresting officers, constituted "active resistance" to arrest, warranting police use of pepper spray as a "pain compliance technique."

The first protest took place at the Pacific Lumber Company where protesters were in a circle in the lumber company lobby, locked together. Upon arrival of the Sheriff's Department special response team the officer in charge decided that using pepper spray was the most appropriate and safest way to arrest the trespassing protesters. He and other officers testified that the decision was made solely because of the difficulty in using a grinder. Furthermore, it was "immaterial" to them that the protesters were peacefully engaged in an act of civil disobedience, as opposed to being violent. Once the decision to use the pepper spray was made the officer warned the protesters repeatedly that if they refused to release themselves the officers would apply pepper spray to their faces. The officers then forced four protesters' heads back and applied pepper spray with a Q-tip to the corners of their closed eyes. The protesters screamed in pain and three protesters, including one who announced that she had asthma, then released the devises.

The second protest involved two pairs of protesters who locked themselves to two bulldozers at a remote logging site. The special response team was called and the same officer who was in charge at the first protest told the protesters that the officers were going to use pepper spray on them if they didn't release. The officer applied pepper spray with a Q-tip to the protester's closed eyes, then a minute later sprayed the OC directly into the faces of the protesters in short full bursts from inches away.

The third protest took place in the Eureka office of Congressman Frank Riggs. Officers from the Eureka Police Department and the Humboldt County special response team arrived in response to calls made by the Congressman's staff. Upon authorization of the Eureka Police Captain in charge, pepper spray was used on the protesters. Officers pulled each of the protester's heads back and applied pepper spray to their eyes with a Q-tip and one officer, within a foot of one of the protesters, sprayed directly into her face.

In the action brought under 42 U.S.C. § 1983, alleging that the use of pepper spray on the activists during the three protests constituted excessive and unreasonable force, the district court granted summary judgment on qualified immunity grounds in favor of all individual defendants, except for Sheriff Lewis and Chief Deputy Sheriff Philip. After a jury trial, which lasted nine days, the district court declared a mistrial and granted defendants' motion for judgment as a matter of law.

The United States Court of Appeals reversed and remanded for a new trial. The court held that because facts were in dispute concerning "the amount of force used" and "the circumstances that might justify the amount of force used," the district court erred in granting qualified immunity to Sheriff Lewis and Chief Deputy Sheriff Philp as a matter of law. The disputed facts concerning the amount of force used here include: (1) whether the pepper spray was uniformly applied to closed or open eyes; (2) whether the applications of OC with a Q-tip were necessary; (3) whether full blasts of OC sprayed onto the protesters' faces were necessary and executed at a safe distance; (4) whether the application of water by spray bottle to the protesters' eyelids and faces exacerbated the pain caused by the pepper spray or actually provided relief from the OC; and (5) the nature and extent of pain and emotional trauma caused by the Q-tip applications and the spray applications.

Facts which must be considered concerning the circumstances justifying the use of force in this case include: (1) the severity of the crime committed; (2) the danger, if any, posed by the protesters to the public and to the police; (3) whether use of a lock-down device constituted "active resistance" to arrest; (4) whether protesters other than those in lock-down devices posed any threat to the police or the public; (5) whether negotiation, "waiting them out," physically carrying the protesters out, and using the grinder constituted viable and reasonable alternatives; and (6) whether any other exigencies were present to justify applying pepper spray with a Q-tip to the protesters' eyelids and again by full spray blasts into their faces.

The court held that under the circumstances present here, there was no justification for force to be used, therefore, the use of any force was excessive and unreasonable.

/ How does this impact your department?

Departments would be well served by reviewing their use of force policy and include guidelines for the use of chemical agents in nonviolent situations. Departments must become aware of the types of "pain compliance" utilized by personnel to ensure the practice of administering such is in compliance with the agency's policy. Where "pain compliance" guidelines are lacking, i.e., when applied, how applied and who should apply, they should be developed and included in the policy.

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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. If you have any questions regarding any of the above please do not hesitate to call us at (562) 590-8280.