CLIENT ALERT MEMORANDUM
November 15, 2000
To: All Police Chiefs and Sheriffs
From: Paul R. Coble
DISCLOSURE OF COMPLAINTS MORE THAN FIVE YEARS OLD MAY BE REQUIRED
In the case of City of Los Angeles v. Superior Court (Brandon), 2000 D.A.R. 11767 (2nd District, November 2, 2000), the Court of Appeal held that disclosure, pursuant to a Pitchess motion, of information concerning a sustained complaint from prior to the five-year limitation period of Evidence Code §1045(b)(1) was necessary to protect the defendant’s right to a fair trial.
Jeremy Brandon was charged with having committed a lewd act on a child and for failure to register as a sex offender. Brandon brought a Pitchess motion seeking disclosure of prior complaints against the arresting officers reflecting on honesty or truthfulness. During the in camera review of the officers’ personnel files, it was observed by the judge that a sustained complaint in 1996 for failure to report a use of force (which was within the five-year window of Evidence Code §1045) made reference to a sustained 1990 complaint for an unnecessary and unreported use of force. The trial court ordered disclosure of the names, addresses and telephone numbers of complainants and witnesses, together with a brief factual summary of the nature of the complaints, for both the 1996 and the 1990 complaints, notwithstanding that the 1990 complaint was outside of the five-year window of §1045.
The City of Los Angeles did not dispute that the information from the 1990 complaint was material and relevant to the defense as it would potentially go to the impeachment of that officer when testifying against this defendant.
The Court of Appeal noted that the reason for the five-year limitation in §1045 was to protect the confidentiality of peace officer personnel files from disclosure of information so remote and attenuated as to be irrelevant or immaterial. However, that legislative purpose has to be balanced against the constitutional right of a defendant to a fair trial. Where information in a peace officer personnel file would be relevant and material to the defense, the interest of the defendant in a fair trial outweighs the interest of the officer in maintaining the confidentiality of prior complaints, even complaints from beyond the five-year window.
Of note in this case is the fact that both the 1996 and the 1990 complaints had been sustained. Thus, these were not instances where a citizen had merely made an allegation which was not thereafter substantiated. Here, the Los Angeles Police Department had determined that the officer had used unnecessary force and had improperly failed to report that force in the 1990 incident, and that in the 1996 incident the officer had improperly failed to report the beating of an in-custody prisoner by another officer in his presence. That both complaints, and particularly the complaint from outside the five-year window, had been sustained seems to have figured significantly in the Court’s determination that the relevance and materiality of this information outweighed the interests of the officer.
/ WHAT DOES THIS CASE MEAN FOR YOUR DEPARTMENT?
Where a peace officer personnel file contains information about a complaint, and particularly a sustained complaint, which is older than five years, and the facts of that complaint may go to the impeachment of the officer, courts bound by this holding will likely order disclosure. Certainly this would be true as to prior complaints concerning truthfulness and/or honesty, but could extend to other types of complaints depending upon the charges at issue, i.e., excessive force in a prosecution for resisting arrest or battery on a peace officer, etc.
Many departments purge citizen complaints after five years, as this is the minimum period of retention required by Penal Code §832.5. But many departments retain records of sustained complaints throughout the officer’s tenure. Certainly there are sound policy reasons for retaining records of sustained complaints, and this case should not be taken to mean that departments should abandon that policy.
Rather, this case serves to further highlight the right of a defendant to disclosure of information material to his/her defense, (the court references Brady v. Maryland(1963) 373 U.S. 83), as well as to again illustrate the detriment to departments and their communities where officers continue to be employed despite a finding that they have engaged in acts of dishonesty or untruthfulness.
As this holding, where it constitutes binding precedential authority, has the operative effect of virtually abrogating the time limits in Evidence Code §1045, at least insofar as concerns prior sustained complaints, custodians of records appearing in response toPitchess motions should be aware of and prepared to disclose information from sustained complaints outside of the five-year period of §1045.
As this is a decision by the Second District Court of Appeal, it really only binds jurisdictions in the Counties of San Luis Obispo, Santa Barbara, Ventura and Los Angeles. Agencies in other counties should consult with legal counsel with regard to the appropriate course of action in light of this holding.
Finally, counsel appearing for the agency can still argue that particular complaints older than five years are immaterial to the instant case though, in light of the holding here, we would suppose that a prior complaint would have to be unquestionably remote factually or in time for a court to deny disclosure.
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