Under the Watchful Eye of the Public: Will California Learn from New York's Heightened Access to Police Personnel Files?

• Publication year: 2022
• Author: By Amanda Kay Mannshahia

UNDER THE WATCHFUL EYE OF THE PUBLIC: WILL CALIFORNIA LEARN FROM NEW YORK'S HEIGHTENED ACCESS TO POLICE PERSONNEL FILES?

By Amanda Kay Mannshahia¹

INTRODUCTION

No one in their right mind wants to be stopped by the police, but maybe Lamar Dotson dreaded the idea more so than others. On the cusp of thirty, he had worked most of his adult life as a bouncer and unarmed security officer. Soon things were about to change. A new opportunity to certify as an armed security officer would open up a world of employment opportunities and guarantee higher pay to allow him to support his family.

But when he was pulled over by the police after returning from work that night everything really changed. Guns drawn, officers ordered him out of the car and allegedly claimed they smelled marijuana in order to justify a search of his car. Although Lamar had never been in handcuffs before, he was about to be arrested for two baggies of marijuana and carrying a loaded firearm, one that he said he confiscated from someone at a club at which he worked. For Lamar, all of his hopes and dreams were about to go out the window.

Juan Alvarez, also known as "Demon," on the other hand, was no stranger to the police. With a criminal record in three states and an arrest record that included assault, drug possession, driving under the influence and domestic violence, a career as an armed security guard was not a possibility. And after an accusation of assault with a gun and a subsequent arrest, it was more than likely that Alvarez would be in jail for over a decade.

Now, imagine you are a public defender. Both men tell you that the arresting deputy lied about the facts of the arrest. Who do you believe?

Both stories are true.² and in the case of Lamar Dotson, his defense attorney filed a Pitchess motion³ asking for records relating to the deputy's misconduct, including fabricating evidence, but the judge denied the motion.

Alvarez's attorney filed a Pitchess motion asking for evidence of allegations of misconduct and, after looking at the deputies' files, the judge determined there was nothing to disclose. But this time you object. Word around the courthouse is that a Pitchess motion was previously granted for the deputy involved in this case, Deputy Jose Ovalle. Your colleague told you that when Deputy Ovalle had misplaced a bloodied shirt during an investigation he took a clean shirt, doused it with taco sauce and falsified the evidence.

Your Pitchess motion is then granted, Alvarez makes a plea and is out on parole in eight months. Lamar, on the other hand,

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pleaded no contest to carrying a loaded firearm and was unable to obtain a firearm permit for a decade, hindering any efforts for him to pursue his chosen career as a security officer and bodyguard. Does this sound like justice?

Before January 1, 2019, a public defender or prosecutor in the state of California could only access relevant exculpatory or impeachment evidence in an officer's personnel file through a Pitchess motion. The many problems with the Pitchess process have been well documented, but the utter subjectivity of the judge,⁴ due to their inability to assess defense strategies significantly before trial took place, was always a major issue. Furthermore, prosecutors' inability to personally access their witnesses' personnel files compromised their duty of disclosure under Brady⁵

NEW DISCLOSURE LAWS: CALIFORNIA

Senate Bill 1421 (SB 1421)⁶, effective July 1, 2019, was designed to deal with the difficulty in accessing police personnel files and to ensure transparency when police commit misconduct by making certain police personnel files a matter of public record. By amending California Penal Code Section 832.7, the Senate Bill requires disclosure of three types of incidents in response to a request under the California Public Records Act. These three incidents include "the use of serious or deadly force (or the discharge of a firearm), sexual assault tied to the abuse of power to coerce a victim into sexual acts, [and] perjury or fabrication of evidence tied to police officers' unique powers in investigating and prosecuting crimes."⁷ However, when it came to the criminal courtroom, the Supreme Court of California did away with the so-called Brady "blind spot"⁸ once and for all shortly after SB 1421 went into effect in Association for Los Angeles Deputy Sheriffs v. Superior Court (ALADS)⁹

The ALADS case arose out of then-Sheriff Jim McDonnell's efforts to compile a Brady list of officers whose histories of misconduct included acts of moral turpitude and share that list with the Los Angeles District Attorney's office. Soon after, the Los Angeles Sheriff Deputies union blocked Sheriff's McDonnell's efforts bringing before the California Supreme Court the issue of whether a law enforcement agency may share with the prosecution that an officer, who is a potential witness in a criminal case, has potentially exculpatory or impeachment evidence in their personnel file.

In ALADS, the court reasoned that although the identities of the officers obtained from the Brady lists were confidential, when the legislature enacted SB 1421, certain records were no longer deemed confidential. Because those records were no longer confidential, the Pitchess statutes could not prevent the Sheriff's department from disclosing any information obtained from those records, "including the identities of officers whose records contain that nonconfidential information."¹⁰

The criminal justice system should welcome new initiatives for transparency and California can look to jurisdictions like New York for support in establishing new standards for police accountability laws. This paper will discuss the general need for transparency when it comes to police accountability and the ability for the public to access records of police misconduct. It will also focus on the recent legislative and policy changes in the state of New York. Finally, it will compare California and New York's efforts to handle the public's call for transparency of police misconduct records in light of the growing social movement to protect black lives. In the end, as this paper suggests, there needs to be a national standard for public access of police misconduct records and the creation of a national registry of police misconduct.

THE GENERAL NEED FOR TRANSPARENCY

Now, more than ever, law enforcement offices all over the country must balance their commitment to public safety with an eye toward strengthening public trust in the justice system. With the Black Lives Matter¹¹ movement drawing public attention over the past summer to the issue of police misconduct the calls for transparency have grown. Police discipline is a growing theme in today's political debates. Although California's Senate Bill 1421 predated the Geroge Floyd¹² protests by over a year, the ALADS case highlighted how police unions, along with others, like former Attorney General Xavier Bacerra, have resisted complying with the law.

Resistance to SB 1421 is understandable given the reports of the nature of police misconduct recently revealed in police records. In one report, the Investigative Reporting Program at UC Berkeley paints a vivid picture: "They drove drunk, cheated on time cards, brutalized family members, even killed others with their recklessness on the road. But thanks to some of the weakest laws in the country for punishing police misconduct, the Golden State does not stop these officers from enforcing the law."¹³ Even more shocking might be the San Jose Mercury News...