As an experienced criminal defense attorney practising in Los Angeles, I have won numerous cases by showing that the police acted unlawfully. A key obstacle I tackle when defending such cases is to obtain information about police officers’ prior acts of professional misconduct. Obtaining officer personnel records, which document prior misconduct, is hard-fought but could be made easier by proposed changes to California law.
A Pitchess motion is a request made by the defense in a California criminal case, such as a DUI or resisting arrest case, to access a police officer’s personnel information. Types of police misconduct that could support a Pitchess motion include excessive force, lying about events surrounding the arrest, racial profiling, and coerced confessions.
The defense files a Pitchess motion by alleging an officer’s misconduct in an affidavit to show “good cause” for disclosure of the officer’s records. A showing of ‘good cause’ exists if the affidavit sets forth both a specific factual scenario that supports allegations of officer misconduct in the defendant’s case, and reasons why the misconduct would be material to the defense case. This can be a difficult threshold for the defense to meet. Laying the factual foundation for a Pitchess motion typically demands investigatory resources, and sometimes no evidence exists to corroborate a defendant’s truthful allegations of police misconduct.
If a court grants the Pitchess motion, the information provided to the defense will include the officer’s prior incidents of use of force, allegations of excessive force, citizen complaints, and information gathered during the officer’s pre-employment background investigation.
Thankfully, legislative change could be on the horizon in California and make it easier for the defense to access officer personnel files. State Sen. Nancy Skinner (D-Berkeley) plans to introduce a bill next week that would require the disclosure of investigations of serious uses of force, including police shootings. Currently, the public is completely shut out of the disciplinary process. Besides opening access to use of force investigations, Skinner’s proposed bill would also require the disclosure of confirmed cases of sexual assault and lying while on duty. Public disclosure of police conduct would likely make it easier for defense counsel to obtain some information sought in a Pitchess motion, as well as information that would help lay the factual foundation for a successful Pitchess motion.
California currently has some of the most stringent laws in the United States against disclosing police personnel records. Most information about discipline is presumed confidential, even when complaints are determined to be valid.
The proposed legislative changes would benefit members of the public beyond defendants in criminal cases. Under current law, the Sacramento Police Department investigation of its officers for the fatal shooting of Stephon Clark earlier this month will not become public except through any potential criminal prosecution of the officers or civil litigation against the city. Mr. Clark, a 22-year-old unarmed black man, was fatally shot earlier this month by Sacramento police in his grandmother’s backyard. Discrepancies between the shooting officers’ version of events and a family-funded autopsy of Mr. Clark highlight the importance of the public serving as a watchdog on police misconduct. The autopsy found on Friday that Mr. Clark was shot eight times in his back, contradicting the shooting officers’ assertions that Mr. Clark was advancing toward them as a threat. Seven of those shots were of fatal capacity, the autopsy showed.
Making investigations of police misconduct transparent to the public will help the defense and public check unlawful police acts, which unfortunately are still common today in criminal cases and the broader community.