As remarked in todays editorial by the North County Times in San Diego County, peace officer unions and professional organizations have wielded their influence over elected officials to ensure that, by law, essentially no information about officers abuse of their powers and privileges reaches the public eye other than in the rare court proceeding, through disclosures made in criminal prosecutions of lawsuits for alleged offenses such as excessive force.
Now a recently introduced bill would shut even those infrequent litigation windows further. As explained by San Francisco Public Defender Jeff Adachi in a guest commentary in The Recorder newspaper,
AB 2377, introduced by Assemblywoman Mary Hayashi, D-Hayward . . . would make it more difficult for criminal defendants – and plaintiffs in civil cases involving police misconduct – to obtain access to complaints made by the public against police officers. Police and sheriff’s departments are required to keep and maintain records of officers and deputies who are accused of police misconduct. Since 1974, a party seeking records pertaining to a particular officer need only make a "plausible showing" that the officer engaged in misconduct towards them. AB 2377 overturns this 35-year-old precedent and instead requires a party seeking such records to show an "internally consistent plausible scenario" of misconduct that is "substantially credible."
As one might imagine, in cases where police abuse is alleged, it is common that the police version differs substantially from that of the accused. Thus, a person charged with resisting arrest, who claims that the officer used excessive force, might seek complaints of prior incidents where the officer used excessive force. Presently, these records are produced so long as the litigant swears, under penalty of perjury, that the officer used excessive force against him or her. AB 2377 would prohibit the disclosure of such records unless the citizen proves that his or her version of the events is more credible than the version offered by the police. By setting forth a standard that requires the judge to find the civilian’s version of events more credible than the officer’s version, AB 2377 unduly limits the disclosure of police misconduct records.
Supporters of AB 2377 claim that changes in the law are needed to protect officers’ privacy rights. However, current law requires a judge to review police misconduct records outside the presence of the parties to ensure that only those records that are relevant to the proceeding are ordered produced. Litigants must agree not to disclose the records to anyone, and to only use the records in connection with the case. This well-worn procedure amply addresses any police privacy concerns. Furthermore, the proponents of AB 2377 do not point to a single instance where an officer’s right to privacy was violated by the current procedure. Instead, they merely argue that police misconduct records should not be produced where a judge views the officer’s version of events as more believable than that of the citizen’s.
The bill is in the Assembly Public Safety Committee, where it shows little momentum. It has been withdrawn by the author from being heard twice so far in the past two weeks.