Thursday, July 21, 2016
Police Video of Arrest Held Subject to Public Disclosure
By KENNETH OFGANG, Staff Writer
The City of Eureka must disclose police video of an arrest that led to a claim that excessive force was used against a juvenile, the First District Court of Appeal has ruled.
Div. Five held late Tuesday that the video captured by a patrol car’s dashboard camera was not a confidential “personnel record,” and that Humboldt Superior Court Judge Christopher G. Wilson, who ordered the disclosure, did not have to follow statutory requirements governing discovery of police personnel files.
The dispute grew out of the Dec. 6, 2012 arrest of a 14-year-old suspect in Eureka. The district attorney declined to file charges against the suspect, and a citizen claimed the police used excessive force.
Following an internal affairs investigation, police Sgt. Adam Laird was charged with two misdemeanors, abuse of authority and filing a false report. The charges were dropped after prosecution and defense experts examined the video and concluded that excessive force was not used.
The North Coast Journal reported that Laird brought a claim against the city, but agreed to a settlement that included his retirement, and that he now works as a private investigator.
Thad Greenhouse, a local journalist and now the editor of the North Coast Journal, requested release of the video under the California Public Records Act and Welfare and Institutions Code §827, which authorizes limited disclosure of juvenile court records. Greenson argued that the video was of public interest given the dismissal of the charges against Laird, and the sergeant’s claims that he was prosecuted in retaliation for public statements, including those supporting a controversial ex-police chief, and that his employer withheld information that might have convinced prosecutors not to charge him in the first place.
The county objected on the ground that the juvenile’s privacy would be invaded, while the city argued that Greenson was trying to circumvent 1974’s Pitchess v. Superior Court, 11 Cal.3d 531 and related statutes.
Under those provisions, the party seeking discovery of police personnel records must establish good cause for the disclosure through affidavits. If the showing is sufficient, the trial judge must order that the requested documents be produced for in camera examination, and if the judge then finds the documents discoverable, they are turned over to the moving party’s counsel, subject to an appropriate protective order so as to balance the officer’s privacy and due process interests against the interests to be served by disclosure.
Trial Court Hearing
Wilson held a hearing last year, at which the minor waived his right to confidentiality. The county and city continued to oppose disclosure, with the city arguing that the video was confidential because it was reviewed as part of the internal investigation into the incident, and that it was therefore not discoverable under Pitchess in the absence of pending litigation.
The trial judge, however, said that the video was not a personnel record, that Pitchess thus did not apply, and that the public interest warranted disclosure, subject to a protective order requiring measures to protect the juvenile’s identity.
Presiding Justice Barbara J.R. Jones said the trial judge was correct. If the city’s argument were sustained, she said, virtually all body camera and dashboard camera recordings of police activity would be considered personnel records.
She cited Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, which held that identities of police officers involved in shootings are not categorically exempt from disclosure under the CPRA.
Jones compared the two cases:
“Here as in LBPOA, the City has not demonstrated the arrest video was ‘generated in connection’ with Sergeant Laird’s appraisal or discipline. The video is simply a visual record of the minor’s arrest….We conclude the arrest video is akin to ‘information contained in the initial incident reports’ of an arrest, which ‘are typically not ‘personnel records’’ as that term is defined in . . . [Penal Code] section 832.8.”
The mere possibility that an officer might face discipline as a result of what the video camera captures, Jones elaborated, “does not transmute arrest videos into disciplinary documentation or confidential personnel information.”
She also rejected the city’s claim that because the department used the video as “the backbone” of its internal investigation, it fell under Penal Code §832.8(e), which subjects “complaints, or investigations of complaints” to the Pitchess requirements.
The argument is unsupported by the evidence the city submitted, Jones said. And even if the city did rely on the video in its probe, the video does not come under the statute because it was generated independently and in advance of any investigation or administrative proceeding, the presiding justice declared.
The case is City of Eureka v. Superior Court (Greenson). 16 S.O.S. 3651.
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