Throwing Pitches in a Civil Case

Make that Pitchess with an extra s—as in Pitchess motions. In California, they’re how you ask a court to order the production of a police officer’s personnel file in litigation.

We’ve written about them in the context of criminal cases, but the procedure’s the same in civil cases, as a court of appeal recently explained in an employment case.

A retired police officer had sued his police department for unlawful retaliation. He said the trouble started after he had served 18 years on the force, when he blew the whistle on two officers for filing false reports. He was branded a snitch and ostracized. Even his calls for help in the field would go ignored. He transferred divisions and applied for 14 different promotions but was denied each time in favor of someone less qualified. So he sued.

To prove his case, he moved to obtain the personnel files of the officers who were promoted ahead of him. He argued their records were material to his case because the department claimed to have promoted the more-qualified candidates.

The trial court, however, denied his motion because the records belonged to third parties who had nothing to do with the alleged retaliation. That was the department’s argument, anyway, and the court accepted it.

But that’s not the law.

Because the records were material to the plaintiff’s case, the agency had to produce them for the court to decide what was relevant and discoverable. It didn’t matter that it was a civil case, not a criminal one. It didn’t matter that the records pertained to people who were innocent of wrongdoing. What mattered is that the records were material to the plaintiff’s case, and there was no denying that.

Although the trial court could take a number of steps to balance the rights of third parties, it couldn’t refuse to review the records and test their relevance.

So the court of appeal reversed and sent the case back.

California Supreme Court Revisits the Law of Access to Police Personnel Files

Police officers are human beings who are capable of making mistakes or behaving badly, just like anyone else, and if they testify in a criminal case, their credibility is always at issue, just like any other witness.

So what do you do if you believe that an officer previously lied, behaved violently, used excessive force, or otherwise acted in ways that undermine his or her credibility in your case, and the information may be documented in a personnel file?

Since the mid-1970s, the law in California has been that you can make a motion in court for disclosure of that evidence. See Pitchess v. Superior Court (1974) 11 Cal. 3d 531 (holding that a defendant can compel the discovery of evidence in an officer’s personnel file that’s relevant to his or her defense).

Since 1978, however, these Pitchess motions, as they’re still called, must follow procedures that the Legislature enacted to balance the privacy rights of police officers. See Pen. Code §§ 832.7 & 832.8; Evid. Code §§ 1043-47. Under these statutes, you must make your motion in writing and serve it on the officer’s agency or department. Your motion must describe the information you seek and demonstrate good cause for its disclosure by explaining its relevance to your case. If your motion does that, the agency must bring all “potentially relevant” records to court so that the judge can review them in chambers out of everyone’s presence except the records custodian and the officer in question. The judge then decides whether there’s any relevant evidence that should be disclosed to you.

Last week, the Supreme Court faced two questions that weighed these statutory procedures against the government’s constitutional duty to turn over evidence that’s favorable to the accused. See Brady v. Maryland (1963) 373 U.S. 83.

The first question was whether prosecutors could inspect police personnel files on demand because of their Brady obligations or whether they had to follow the same statutory procedures as defendants. The question arose because the San Francisco Police Department had created a policy by which it would apprise the district attorney’s office of potential Brady evidence on a rolling basis according to its own procedures; then, if that officer’s name later came up in a case, the district attorney could use the statutory procedure to get the evidence from the court.

In the underlying criminal case, the police department advised the district attorney of two officers whose files might contain exculpatory evidence, but after prosecutors filed a Pitchess motion, the trial court ruled that they could and should inspect the files on their own before deciding whether to file the motion. So did the court of appeal.

The Supreme Court, however, held that prosecutors couldn’t bypass the statutory procedure because they didn’t represent the police department or its personnel in general (or in theory, one might add) and thus had no greater access to its files than the defense (at least not under the statutes, one might add).

But what about Brady? That was the second question. What were prosecutors required to do with the information they had learned from the police department?

The Court held that prosecutors met their constitutional duty simply by telling the defense what the police department told them. They didn’t need to make a Pitchess motion to satisfy Brady because the defense could make one itself.

One suspects the whole kerfuffle was caused by frustration in the court system over who would do the work, given how we allocate resources. If so, the case is another argument to better fund our cash-strapped courts.

In a free society, it turns out, the rule of law costs money.

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