City of Eureka v. Superior Court of Humboldt County ( 2016 )


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  • Filed 7/19/16 (reposting to provide correct publication information)
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FIVE
    CITY OF EUREKA,
    Plaintiff and Appellant,                                      A145701
    v.                                                            (Humboldt County
    Super. Ct. No.
    THE SUPERIOR COURT OF                                                  JV140252)
    HUMBOLDT COUNTY,
    Defendant and Respondent;
    THADEUS GREENSON,
    Real Party in Interest and Respondent.
    __________________________________________/
    The issue in this case is whether a video of an arrest captured by a patrol car’s
    dashboard camera is a confidential “personnel record” under Penal Code sections 832.7
    or 832.8.1 On the record before us, the answer is no. We conclude the juvenile court
    properly determined the arrest video is not a personnel record protected by the Pitchess
    statutes. (See Pitchess v. Superior Court (1974) 
    11 Cal.3d 531
     (Pitchess).) We therefore
    affirm the court’s order requiring the City of Eureka (City) to release a portion of the
    video to local reporter and real party in interest, Thadeus Greenson.
    1
    Unless noted, all further statutory references are to the Penal Code.
    1
    FACTUAL AND PROCEDURAL BACKGROUND
    Arrest, Charges, and Internal Affairs Investigation
    In December 2012, Eureka Police Sergeant Adam Laird and other Eureka police
    officers arrested H.M. (the minor). Sergeant Laird chased the minor, who “was pushed to
    the ground, fell to the ground, or just gave up and laid on the ground.” Another police
    officer arrived “in his patrol vehicle with its in-car video equipment activated[.]” The
    patrol car’s mobile audio video (MAV) recording system produced several videos of the
    arrest.2 The prosecution filed a Welfare and Institutions Code section 602 petition
    against the minor, but later withdrew it.
    A citizen lodged a complaint regarding the officers’ “handling of the minor” and
    the Eureka Police Department conducted an internal affairs investigation. The
    prosecution charged Sergeant Laird with misdemeanor assault by a police officer without
    lawful necessity (§ 149) and with making a false report (§ 118.1). Both the prosecution
    and defense hired experts to review the evidence against Sergeant Laird. After reviewing
    the evidence — including the arrest video — the experts determined Sergeant Laird did
    not use excessive force during the arrest. The prosecution dismissed the charges against
    Sergeant Laird in January 2014.
    Greenson’s Request for Disclosure of the Arrest Video
    In July 2013 and January 2014, Greenson wrote articles in two local newspapers
    about the arrest and subsequent litigation. In August 2014, Greenson filed a California
    Public Records Act (Gov. Code, § 6250, et seq.) request with the City seeking disclosure
    of the arrest video. The City denied the request, “citing discretionary exemptions for
    personnel records and investigative files.”
    In November 2014, Greenson filed a request for disclosure (form JV-570) of the
    arrest video pursuant to Welfare and Institutions Code section 827, which authorizes
    public disclosure of confidential juvenile records under limited circumstances. Greenson
    2
    On our own motion, we augmented the record with the unedited video described
    as“EPD-3C12-10697, MAV 2025, Camera 1 from 12/6/12 23:53:35-23:55:40” (video or
    arrest video).
    2
    averred the video “formed the basis” for the charges against Sergeant Laird, but the
    prosecution “later dismissed the charges with little, if any, explanation. [Sergeant]
    Laird’s defense . . . was an allegation that he’d been singled out for arrest by the . . .
    Police Department for exercising his First Amendment free speech rights and that the
    [police department] deliberately withheld exculpatory evidence from prosecutors.”
    According to Greenson, “the public has a right to know exactly what happened” during
    the minor’s arrest “to evaluate the performance of both its police officers and prosecutors.
    The public’s only avenue to that knowledge, and the only thing that will allow the public
    to make that evaluation, is the video [of the] arrest.”
    The Humboldt County Probation Department (the County) objected, claiming
    Greenson failed to demonstrate good cause for disclosure under Welfare and Institutions
    Code section 827. As the County explained, “[p]ublic dissemination of the video is not
    necessary to facilitate public scrutiny” of Sergeant Laird’s conduct because Greenson had
    “already obtained court records and other public documents describing the events
    depicted by the video and ha[d] previously published details of the incident . . . . Under
    these circumstances, release of the video would serve only to prejudice the minor by
    exposing his image, his actions, and his juvenile record to widespread public scrutiny.”
    The County also noted Greenson had not served the police department with the disclosure
    request. The City also urged the court to deny Greenson’s request. It argued the video
    was a police officer “personnel record” and “[d]isclosure . . . would require a successful
    Pitchess [m]otion,” which Greenson had not filed. The City also claimed disclosing the
    video could be detrimental to the minor under Welfare and Institutions Code section 827.
    At a late January 2015 hearing, the court directed Greenson to serve the police
    department and the City with the disclosure request and continued the matter to late
    February 2015. Before the February 2015 hearing, Greenson filed a reply offering
    additional information about the criminal case against Sergeant Laird and claiming the
    case “called into question” the conduct of the “entire [police] department.” According to
    Greenson, the public had “a right to evaluate the conduct of its officers and prosecutors”
    and needed to know why criminal charges were filed against Sergeant Laird when
    3
    “experts determined [his] use of force was justified[.]” Greenson also argued releasing
    the arrest video would not harm the minor, because he did not oppose disclosure and
    because the arrest had been “widely reported on[.]” Finally, Greenson claimed the video
    was not a personnel record protected by the Pitchess statutes.
    At a February 2015 hearing, the minor “waive[d] his right to confidentiality” of
    the arrest video and consented to disclosure. The County and the City, however,
    continued to oppose the video’s release. As relevant here, the City argued the police
    department had conducted an internal affairs investigation and the video was “part of that
    [investigation]” and could not be released “without a successful Pitchess motion.”
    According to the City, a Pitchess motion could not be filed because “[t]here are no cases
    pending, no charges have been filed. Nothing is pending at this point.” The court
    indicated its inclination to review the video in camera and to determine whether there was
    a “compelling need . . . for . . . the public to have that . . . information.”
    Pursuant to the court’s order, the County provided the court with “an unedited
    version” of the arrest captured by the MAV “units from the various patrol units
    involved.” The court reviewed the videos in camera. In a May 2015 written order, the
    court ordered disclosure of the arrest video. It concluded the video was not a confidential
    police personnel record protected by the Pitchess statutes, explaining the arrest was “both
    the subject of a delinquency investigation and potentially actions which could result in
    confidential internal personnel proceedings. [Greenson] is not requesting what might
    otherwise be the subject of a Pitchess type motion such as confidential citizen complaints
    and the resulting investigation or outcomes of those investigations. He is requesting only
    that information which would form the basis of the original criminal complaint against
    [Sergeant Laird] or delinquency proceedings against the minor.”
    As required by Welfare and Institutions Code section 827, the court considered the
    public interest in disclosure, including “the interest of transparency of juvenile court
    proceedings[,]” and the “minor’s consent to disclosure[.]” The court ordered the City to
    release the video pursuant to a protective order removing the minor’s name and redacting
    or blurring his identifying features to conceal his identity. Finally, the court concluded
    4
    the remainder of the MAV videos were redundant or irrelevant and declined to disclose
    them; it set a June 2015 hearing to review the redacted video.
    The day before the June 2015 hearing, the City filed writ petition seeking to vacate
    the court’s May 2015 ruling. (City of Eureka v. Superior Court, A145288). This court
    denied the City’s writ petition. The City appealed from the court’s May 2015 order.
    DISCUSSION
    I.
    Welfare and Institutions Code Section 827
    and the Pitchess Statutes
    The City contends the court erred by ordering disclosure of the arrest video, which
    is part of the minor’s case file. (Welf. & Inst. Code, § 827, subd. (e); see also Hoffstadt,
    California Criminal Discovery (5th ed. 2015) § 12.13(a)(vii), pp. 332-333 [describing
    contents of “juvenile ‘case file’”].) In general, juvenile court records are confidential.
    (In re Keisha T. (1995) 
    38 Cal.App.4th 220
    , 230 (Keisha T.).) But “this policy of
    confidentiality is not absolute.” (Id. at p. 231.) Welfare and Institutions Code section
    827 “governs the release of such records” (Pack v. Kings County Human Services Agency
    (2001) 
    89 Cal.App.4th 821
    , 827 (Pack)) and “enumerates a list of persons who may
    inspect a juvenile case file without a court order; in addition, a juvenile case file may be
    inspected by ‘[a]ny other person who may be designated by court order of the judge of
    the juvenile court upon filing a petition.’” (People v. Thurston (2016) 
    244 Cal.App.4th 644
    , 670-671, fn. omitted, quoting Welf. & Inst. Code, § 827, subd. (a)(1)(P).) Under
    appropriate circumstances, a juvenile court may order the release of juvenile court
    records to the press. (Keisha T., supra, 38 Cal.App.4th at p. 236 [newspaper publisher];
    Pack, supra, 89 Cal.App.4th at p. 828 [newspapers and press representatives].)
    “When such a petition is presented, the juvenile court’s duty is to ‘balance the
    interests of the child and other parties to the juvenile court proceedings, the interests of
    the petitioner, and the interests of the public.’ [Citation.] To do so, the court ‘must take
    into account any restrictions on disclosure found in other statutes, the general policies in
    favor of confidentiality and the nature of any privileges asserted, and compare these
    5
    factors to the justification offered by the applicant’ in order to determine what
    information, if any, should be released to the petitioner. [Citation.]” (People v. Superior
    Court (2003) 
    107 Cal.App.4th 488
    , 492; see also Cal. Rules of Court, rule 5.552(e).)
    “The juvenile court has both ‘the sensitivity and expertise’ to make decisions about
    access to juvenile court records and is in the best position to consider any other statutes
    or policies which may militate against access.” (Pack, supra, 89 Cal.App.4th at p. 827,
    italics added, quoting In re Maria V. (1985) 
    167 Cal.App.3d 1099
    , 1103.)
    The City contends the Pitchess statutes militate against Greenson’s access to the
    arrest video. According to the City, the video “is a confidential personnel record”
    protected from disclosure “pursuant to Pitchess law” and Welfare and Institutions Code
    section 827 cannot be used to “circumvent Pitchess procedure.” Under Pitchess, “a
    criminal defendant may, in some circumstances, compel the discovery of evidence in the
    arresting law enforcement officer’s personnel file that is relevant to the defendant’s
    ability to defend against a criminal charge. “In 1978, the California Legislature codified
    the privileges and procedures surrounding what had come to be known as ‘Pitchess
    motions’ . . . through the enactment of . . . sections 832.7 and 832.8 and Evidence Code
    sections 1043 through 1045.”’ [Citation.] ‘Traditionally, Pitchess motions seek
    information about past complaints by third parties of excessive force, violence,
    dishonesty, or the filing of false police reports contained in the officer’s personnel file.’
    [Citation.]” (People v. Superior Court (Johnson) (2015) 
    61 Cal.4th 696
    , 710.)
    Section 832.7, subdivision (a) provides that “[p]eace officer . . . personnel records
    . . . 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.” (See Johnson, supra, 61 Cal.4th at p. 710.) “As employed
    in the Pitchess statutes, the term ‘personnel records’ refers to any file maintained under
    an individual’s name by his or her employing agency and containing records related to
    ‘[e]mployee advancement, appraisal, or discipline,’ ‘[c]omplaints, or investigations of
    complaints, concerning an event or transaction in which he or she participated, or which
    he or she perceived, and pertaining to the manner in which he or she performed his or her
    6
    duties,’ and ‘[a]ny other information the disclosure of which would constitute an
    unwarranted invasion of personal privacy.’” (Pasadena Police Officers Assn. v. Superior
    Court (2015) 
    240 Cal.App.4th 268
    , 285 (Pasadena POA), quoting § 832.8, subds. (d)-
    (f).)
    II.
    The Arrest Video Is Not a “Personnel Record” under
    Sections 832.7 and 832.8
    The court determined the video was not a confidential police personnel record
    protected by the Pitchess statutes. As it explained, Greenson was “not requesting what
    might otherwise be the subject of a Pitchess type motion such as confidential citizen
    complaints and the resulting investigation or outcomes of those investigations. He is
    requesting only that information which would form the basis of the original criminal
    complaint against [Sergeant Laird] or delinquency proceedings against the minor.” We
    review the court’s construction of sections 832.7 and 832.8 de novo. (Pasadena POA,
    supra, 240 Cal.App.4th at p. 285.)
    We need not decide whether Welfare and Institutions Code section 827 would
    authorize disclosure of Pitchess material in a juvenile case file because we conclude the
    City has not demonstrated the arrest video is a “personnel record” under sections 832.7
    and 832.8. The arrest video does not come within section 832.8, subdivision (d), which
    defines “personnel records” as those relating a police officer’s “advancement, appraisal,
    or discipline.” Long Beach Police Officers Assn. v. City of Long Beach (2014) 
    59 Cal.4th 59
     (LBPOA) supports our conclusion. There, our high court considered a public records
    act request for the identities of police officers involved in various shootings. (Id. at p.
    71.) The California Supreme Court concluded the information was not covered by the
    Pitchess statutes, explaining: “Although the Pitchess statutes limit public access to
    personnel records [citation], including officer names if they are linked to information in
    personnel records [citation], many records routinely maintained by law enforcement
    agencies are not personnel records. For example, the information contained in the initial
    incident reports of an on-duty shooting are typically not ‘personnel records’ as that term
    7
    is defined in . . . section 832.8. It may be true that such shootings are routinely
    investigated by the employing agency, resulting eventually in some sort of officer
    appraisal or discipline. But only the records generated in connection with that appraisal
    or discipline would come within the statutory definition of personnel records [citation.]
    We do not read the phrase ‘records relating to . . . [¶] . . . [¶] . . . [e]mployee . . .
    appraisal[ ] or discipline’ [citation] so broadly as to include every record that might be
    considered for purposes of an officer’s appraisal or discipline, for such a broad reading of
    the statute would sweep virtually all law enforcement records into the protected category
    of ‘personnel records’ [citation].” (Ibid.)
    Here as in LBPOA, the City has not demonstrated the arrest video was “generated
    in connection” with Sergeant Laird’s appraisal or discipline. The video is simply a visual
    record of the minor’s arrest. (LBPOA, supra, 59 Cal.4th at p. 72.) Adopting the City’s
    broad reading of section 832.8, subdivision (d) would improperly “sweep virtually all
    [MAV recordings] into the protected category of ‘personnel records’ [citation].”
    (LBPOA, supra, 59 Cal.4th at p. 71.) We conclude the arrest video is akin to
    “information contained in the initial incident reports” of an arrest, which “are typically
    not ‘personnel records’ as that term is defined in . . . section 832.8.” (Ibid.)
    At oral argument, the City claimed dashboard camera videos come within section
    832.8, subdivision (d) because the police department might eventually use the videos to
    evaluate whether to initiate disciplinary proceedings against a peace officer. We are not
    persuaded. That officers involved in an incident might face an internal affairs
    investigation or discipline at some unspecified point in the future does not transmute
    arrest videos into disciplinary documentation or confidential personnel information.3
    3
    At oral argument, Greenson’s counsel argued the focus of the Pitchess statutes is
    protecting a peace officer’s reasonable expectation of privacy in his personnel records.
    (See People v. Mooc (2001) 
    26 Cal.4th 1216
    , 1220 [in camera review balances “the
    accused’s need for disclosure of relevant information with the law enforcement officer’s
    legitimate expectation of privacy in his . . . personnel records”]; § 832.8, subd. (f)
    [defining “personnel records” as including “[a]ny other information the disclosure of
    which would constitute an unwarranted invasion of personal privacy”].) According to
    8
    The City suggests the video is a “personnel record” under section 832.8,
    subdivision (e), which encompasses “‘complaints, or investigations of complaints,
    concerning an event or transaction in which he . . . participated, or which he . . .
    perceived, and pertaining to the manner in which he . . . performed his . . . duties.’”
    According to the City, the arrest video comes within section 832.8, subdivision (e)
    because the police department “pulled a recording of the incident” during the internal
    affairs investigation and the “video served as the backbone of the Internal Affairs
    investigation and was intimately relied upon by the investigating officers.”
    We reject this argument because it is unsupported by evidence in the appellate
    record. We have carefully reviewed the record and have found no evidence the “video
    served as the backbone of the Internal Affairs investigation and was intimately relied
    upon by the investigating officers.” (See Pasadena POA, supra, 240 Cal.App.4th at p.
    291 [rejecting a similar “factually unsupported contention”].) Even if we assume for the
    sake of argument the arrest video was considered or relied upon during the internal affairs
    investigation, it would not transmute the video into confidential personnel information.
    The arrest video “was generated independently and in advance of the administrative
    investigation.” (Id. at pp. 291, 288 [“‘records about an incident’” triggering an internal
    investigation not protected personnel records under Pitchess].)
    The City’s reliance on Berkeley Police Assn. v. City of Berkeley (2008) 
    167 Cal.App.4th 385
     (Berkeley PA) does not alter our conclusion. That case considered
    whether proceedings conducted by a police review commission fell within section 832.5,
    Greenson’s counsel, Sergeant Laird had no expectation of privacy in the arrest video
    because it took place on a public street. We agree. “A peace officer ordinarily has no
    substantial interest in maintaining the confidentiality of his or her identity or the fact of
    his or her employment as a peace officer.” (See Ibarra v. Superior Court (2013) 
    217 Cal.App.4th 695
    , 705 [peace officer’s official photograph not a personnel record under
    section 832.8]; Commission on Peace Officer Standards & Training v. Superior Court
    (2007) 
    42 Cal.4th 278
    , 297 [the public has a “legitimate interest in the identity and
    activities of peace officers”].) On the record before us, there is no indication Sergeant
    Laird “worked undercover or anticipate[d] working undercover in the future, [citation]
    and no reason to believe that the disclosure [of the arrest video] would adversely impact
    any privacy interest.” (Ibarra v. Superior Court, supra, 217 Cal.App.4th at p. 705.)
    9
    which requires law enforcement departments to investigate complaints against their
    personnel. A division of this court determined the police review commission proceedings
    “fit the description of [a] section 832.5” proceeding, and the commission’s practice of
    holding public hearings on citizen complaints against police officers violated section
    832.7, subdivision (a) by disclosing confidential police officer personnel information.
    (Berkeley PA, at pp. 402, 404-405.) Berkeley PA is inapposite. Greenson does not seek
    disclosure of the investigative materials, reports, or findings made in connection with the
    police department’s internal affairs investigation. (See, e.g., Pasadena POA, supra, 240
    Cal.App.4th at p. 290.) He seeks disclosure of the arrest video, which preceded the
    citizen complaint and internal affairs investigation. Berkeley PA is inapposite.
    We express no opinion on whether the arrest video is a public record under the
    California Public Records Act, nor on the propriety of the court’s ruling under Welfare
    and Institutions Code section 827 because the City did not raise these arguments on
    appeal. “Issues do not have a life of their own: if they are not raised . . . , we consider
    [them] waived.” (Jones v. Superior Court (1994) 
    26 Cal.App.4th 92
    , 99.)
    DISPOSITION
    The court’s May 20, 2015 order is affirmed. Thadeus Greenson is entitled to
    recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
    10
    _________________________
    Jones, P.J.
    We concur:
    _________________________
    Simons, J.
    _________________________
    Needham, J.
    A145701
    11
    Superior Court of the County of Humboldt, No. JV140252, Christopher G. Wilson,
    Judge.
    Cyndy Day-Wilson, City Attorney, for Plaintiff and Appellant.
    Mary Blair Angus, County Counsel, for Defendant and Respondent.
    Paul Nicholas Boylan, for Real Party in Interest and Respondent.
    A145701
    12
    

Document Info

Docket Number: A145701A

Judges: Jones, Simons, Needham

Filed Date: 7/19/2016

Precedential Status: Precedential

Modified Date: 11/3/2024