Legal Alerts Jul 21, 2016

California Appellate Court Holds Police Video of Arrest Not Protected Under “Pitchess”

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The California Court of Appeal has ruled in City of Eureka v. Superior Court (Greenson) that a police “dash cam” video of an arrest does not become a protected “police personnel record” under Pitchess just because it might later be used by the police department in connection with a citizen complaint against an officer related to that arrest. The court made clear that only a record generated as part of an internal investigation is protected by Pitchess, not a record or recording considered in that process.

The growing use of video cameras in police work, including automobile dashboard-mounted cameras in patrol cars and police body-worn cameras, has generated widespread interest in public access to this often compelling evidence. Balanced against the interest in public access are concerns for the privacy rights of those involved in the incidents captured on video, including suspects, witnesses, bystanders and the police themselves.

In December 2012, Eureka police officer Laird and other officers arrested a minor, identified as H.M. The minor’s arrest involved a chase and concluded with the minor either falling or being taken to the ground. Some of the activity was captured on the police car’s dashboard video camera. The minor was charged in the Juvenile Court, but that charge was dropped. Then, a citizen lodged a complaint regarding the officers’ handling of the arrest of the minor, leading to a statutorily required police internal investigation. As that was in process, the district attorney charged Laird with misdemeanor assault on the minor and making a false report. After prosecution and defense experts reviewed the video of the arrest and concluded that Laird acted reasonably, the prosecution dropped the case against the officer.

Seven months later, Greenson, a local reporter who had written stories concerning the incident and its aftermath, filed a request with the City under the Public Records Act (Government Code § 6250) to obtain the video. The City declined the request citing the personnel file and investigative record exemptions under the Act. Greenson then turned to the Juvenile Court seeking the video in its file under a provision of the Welfare & Institutions Code authorizing limited disclosure of juvenile records. The County Probation department objected and the City joined in this judicial process and asserted the confidentiality of the video under the protection provided by Pitchess process for “police personnel records.” The minor waived his right to confidentiality of the video, removing that particular consideration. The court eventually ordered the video released, ruling that it was not a confidential “police personnel record” under Pitchess. The City appealed.

The appellate court upheld the lower court’s ruling that the video was not a confidential “police personnel record” protected from disclosure under Pitchess. The court pointed out that just because the video became part of the internal investigation or was used as part of that investigation did not convert it into a confidential “police personnel record.” Rather, the video was part of the initial incident report that led to the charge against the minor and later the charges against the officer.

Notably, the appellate court did not address the City’s Public Records Act exemption,  because that was not raised and considered by the court below. 

If you have any questions about this opinion or how it may impact your agency, please contact the attorney author of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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