Bill adds limits to access of cops' history in brutality cases

Bob Egelko, Chronicle Staff Writer

Saturday, April 12, 2008

Police groups are asking state lawmakers to make it harder for criminal defendants and plaintiffs in brutality suits to obtain records of citizen complaints and disciplinary actions against officers.

They have enlisted the support of Assemblywoman Mary Hayashi, D-Castro Valley, who has introduced legislation that she said would require "a reasonable good cause" to get such records. She said the bill, AB2377, would promote fairness to police officers and help ease court backlogs.

But San Francisco Public Defender Jeff Adachi, the measure's most vocal opponent, said the proposal is part of "a concerted effort by the police lobby to completely shield police misconduct records from the public for use in a criminal or civil case."

The legislative dispute comes in the wake of an important judicial victory for police, an August 2006 state Supreme Court ruling that denied public access to hearings and records of police disciplinary agencies.

Hayashi's bill had been scheduled for its first hearing this week in the Assembly Public Safety Committee, but Hayashi postponed the session until April 29 and said she would meet with opponents and try to address their concerns.

Sponsored by the California State Sheriffs' Association and allied groups, the bill would change the law that allows individuals to obtain police records that may help them in their legal cases.

Access to records of citizen complaints and internal disciplinary actions against police is often a critical issue in court cases that turn on which side the jury believes, the officer or the private citizen.

Someone charged with resisting arrest, for example, has a better chance of proving that the officer used excessive force if the same officer has been accused of brutality by others or has been disciplined for it. Likewise, a civil suit by a plaintiff accusing police of planting evidence may be bolstered if an officer's record contains allegations of similar misconduct.

The state Supreme Court set rules in 1974 for disclosure of police records to court litigants. Under those rules, litigants may be required to keep the personnel files confidential but can use them to contact witnesses and develop evidence.

Police groups have argued that the rules are too permissive and allow fishing expeditions that intrude on officers' privacy.

Under the court's standards, someone who seeks police personnel records needs to present an "internally consistent factual scenario" of misconduct. In practice, Adachi said, a defendant who submits a declaration saying the officer used excessive force or made racially derogatory comments can obtain all records related to similar allegations in the past.

AB2377 would add a requirement that the judge find the private citizen's version of events to be "substantially credible" before ordering release of the records. The bill specifies that a mere allegation of misconduct would not be enough to require disclosure.

Hayashi said the current system allows criminal defendants to obtain personnel records based on unsubstantiated allegations that an officer was brutal or dishonest.

"My bill makes it more fair, while still allowing the defendants to have access to the information," she said.

But Adachi said the bill would raise barriers against legitimate access and would allow judges to deny disclosure if they found police more believable than the defendant.

In many cases, he said, "this is our only means ... to challenge a police officer's credibility."

E-mail Bob Egelko at

This article appeared on page B - 3 of the San Francisco Chronicle