PRIVACY ISSUES ARE VERY COMPLEX
By: Martin J. Mayer, General Counsel- California Police Chiefs’ Association
Over the past few months, the United States Supreme Court, the California Supreme Court, and the California Court of Appeals have each issued significant decisions affecting privacy rights of peace officers, as well as members of the public.
One case deals with privacy rights of officers involved in shootings which result in serious injury and/or death; the second case deals with the public’s right to privacy in the information contained in new, very complex, “smart” phones; and, finally, the most recent case addresses who can access personnel files of peace officers which have been deemed, by the State of California, to be private.
Officer Involved Shootings
On May 29, 2014, the California Supreme Court on a 6-1 vote, in the case of Long Beach Police Officers’ Association v. City of Long Beach, held that the public interest in disclosure of the names of officers in an officer involved shooting (OIS) will, as a general rule, outweigh the privacy interest officers may have in having their names withheld. The Court began by observing that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”
Generally, it is the responsibility of the public entity to demonstrate that any record it seeks to withhold from the public falls within a specific exemption, otherwise it shall be made public. At the same time, however, the Court noted that California Penal Code §832.8(f) applies confidentiality to any information in a peace officer personnel file where disclosure “would constitute an unwarranted invasion of [a peace officer’s] personal privacy.”
In a case such as this one, which concerns officer-involved shootings, the Court found the public’s interest in the conduct of its peace officers is particularly great because such shootings often lead to severe injury or death. The Court also noted that the balancing of interests (the public’s right to know versus the officer’s right of privacy) will generally weigh in favor of disclosure, and that “[v]ague safety concerns that apply to all officers involved in shootings are insufficient to tip the balance against disclosure.” A mere possibility of endangerment does not clearly outweigh the public interest in access to such records.
As such, the Court held that the names of officers involved in a shooting will generally be subject to disclosure upon request, unless a particularized, and case specific, showing can be made that non-disclosure is necessary to protect the officer’s safety and outweighs the public interest in disclosure.
Right of Privacy to Information on Smart Phones
On June 25, 2014, the United States Supreme Court, in the case of Riley v. California andUnited States v. Wurie, ruled unanimously (9-0) that “police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”
In 1969, the Court, in Chimel v. California, 395 U.S. 752, established the groundwork for most of the existing law involving searches incident to an arrest. “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. . . .”
The Court discussed exceptions to the warrant requirement and stated, “these cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones.”
The Court discusses, in detail, the capabilities of modern cell phones regarding storage of private information and the invasion of privacy which access to the phone creates. “Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form….”
The Court concludes that “our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.” The Court also recognizes that exigent circumstances might exist which will allow a warrantless search of the phone such as the “need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury.”
Prosecutors’ Right to Access Confidential Personnel Files
On August 11, 2014, the California First District Court of Appeal held in The People v. The Superior Court of San Francisco (Johnson), that “(i)n fulfilling its federal constitutional duty to disclose exculpatory evidence to a criminal defendant under Brady v. Maryland (1963) 373 U.S. 83, . . . the prosecution [is] entitled to direct access to peace officer personnel files.”
The Court of Appeal stated that “(t)his case is the latest in a body of case law considering the ‘interplay’ between the United States Supreme Court’s 1963 decision in Brady v. Maryland . . and [California’s] statutory discovery procedures … ‘In Brady, the high court announced a rule, founded on the due process guarantee of the federal Constitution, that requires the prosecution to disclose evidence that is favorable and ‘material’ to the defense.’
Penal Code section 832.7(a) provides: “Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney’s office, or the Attorney General’s office.” (Emphasis added.)
“At various places in our opinion we refer to the initial review and identification of Bradymaterials by the prosecution as the ‘first stage’ of the Brady disclosure process. We further conclude that, prior to disclosing the identified Brady material to the defendant, the prosecution must file a motion for such disclosure under [Evid Code] Section 1043. We refer to this request for disclosure as the ‘second stage’ of the Brady disclosure process. This resolution is consistent with the statutory language, the Legislature’s intent for a judicial role in disclosure to protect officer privacy, and the prosecution’s federal constitutional obligations under Brady.”
“(W)e disagree that Section 832.7(a) eliminates prosecutorial access; although the statute specifies procedures for the second stage disclosure of Brady materials in criminal proceedings, it does not prohibit the prosecutor, as the head of the prosecution team, from performing the constitutionally mandated role of identifying Brady materials in the personnel files.”
Conclusion
These are three very distinct cases, issued within a three month period of time, each involving different rights of privacy – each decided differently and based on different criteria.
The right of privacy of citizens of California is written into the California Constitution; Article I, Section 1 states: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Emphasis added.)
The right of privacy involving peace officers, in the cases discussed in this article, however, was created through laws passed by the California State Legislature.
As is detailed in the cases, there are, at times, conflicts between various rights of privacy and society’s needs. In the Long Beach case, the California Supreme Court concluded that the public’s right to know about actions taken by our law enforcement officers, and who those officers are, outweighed any issue of “privacy” the officers might have had based on statutory law. It required detail analysis of those laws to come to that conclusion.
In the Riley/Wurie cases, the United States Supreme Court found that the public’s constitutional right of privacy “trumped” the belief by law enforcement that it was necessary to immediately access information on smart phones of persons under arrest. In that case, however, the Court found that the needs of law enforcement could be fulfilled by first securing a court issued warrant to search those phones. In addition, if exigent circumstances were present, those circumstances “trumped” the arrestee’s right of privacy. It appears to be an interesting balancing of rights and needs.
Finally, in the Johnson case, the California Court of Appeal was presented with a conflict between different statutory laws involving a peace officer’s right of privacy in his or her personnel information and a prosecutor’s constitutional duty to seek out and disclose information which could assist a criminal defendant. Based on current California law, the Court, again, appeared to find a balancing of rights – the prosecutor could access the files to identify material, if any, which needed to be disclosed but the prosecutor cannot disclose such information without following the statutory process set forth in the California Evidence Code (sec. 1043). Martin J. Mayer is a name partner with the public sector law firm, Jones & Mayer and has served as General Counsel for the California Police Chiefs’ Association for more than 30 years.