Legal Defense Fund

A.C.L.U. v. WHITMAN, et al.: VINDICATION AT LAST FOR COLORADO POLICE OFFICERS’ PRIVACY RIGHTS

On October 5, 2006, after almost three years of hard-fought litigation through every level of the Colorado state courts, the Colorado Court of Appeals issued its decision in the case of A.C.L.U. v. Whitman, et al. & Estrada, et al. In no uncertain terms, the Court states what Denver police officers and the lawyers of Bruno, Colin, Jewell & Lowe have known and argued to the courts for years: that police officers have a constitutional right to privacy in information contained in their personnel and internal affairs files, even when that information relates “simply to the officers’ work as police officers.” With this sweeping statement, the positive impact of the Court of Appeal’s decision, not only on Denver police officers but on police officers statewide, cannot be over-emphasized. Without the support of the Peace Officer’s Research Association of California, who agreed to finance the litigation that lead to the Whitman decision, Colorado police officer privacy rights might never have received rightful vindication. In order to better understand the Court’s decision in Whitman, some history of the fight for police officer privacy in Colorado is in order.

Quite literally for decades, Colorado police officers from across the state have fought through the courts to keep information in their personnel and internal affairs files from the prying eyes of the media and criminal defendants, whose sole purpose is so often to impugn the good character and reputation of individual police officers. Historically, this battle has been waged with the help of lawyers from the firm of Bruno, Colin, Jewell & Lowe, and the members of the PORAC-supported Denver Police Protective Association have provided the lion’s share of both the funding and moral support necessary to defend the idea laid down by the U.S. Supreme Court thirty years ago: “Policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.” Garrity v. State of New Jersey, 385 U.S. 493 (1967).

In the criminal context, it has long been the practice of defense lawyers to subpoena the internal affairs files of witness police officers almost as a matter of course, in an effort to find some complaint or other information with which to attack the officer’s integrity and credibility on the witness stand. Fortunately, it has also long been the practice of lawyers from the Bruno law firm to appear in court and fight to keep the information contained in those files private. These efforts have historically prevented the disclosure of internal affairs files to criminal defendants, and even in those rare cases where a judge determines that some information in a police officer’s file is relevant and therefore disclosable to the defense, the courts have invariably issued extremely severe protective orders at the demand of the officer’s counsel.

As one might expect, these continuously successful efforts to prevent public disclosure of police officer’s private information caused increasing frustration among individuals and groups trying to get that information, such as media outlets and in particular, the American Civil Liberties Union. In response, these individuals and groups tried many different methods of getting around the right to privacy, but by far the most common was to make a request for police files under the provisions of the Colorado Open Records Act. Even these efforts could not escape the right to privacy, however, because the state Open Records Act requires a court to review any such documents on a case-by-case basis, and subject them to a three-step legal test to determine whether they should be disclosed or not. In fact, in 1980, the Colorado Supreme Court established that test in the case of Martinelli v. District Court, 612 P.2d 1083 (1980), where the Court also echoed the statement of the U.S. Supreme Court in Garrity, recognizing that police officers have a constitutionally protected right to privacy that the state Court characterized as a “right to confidentiality.” Importantly, the first step of what is now known as the “Martinelli Test” requires a court to determine whether the person seeking to prevent disclosure of the information has a “legitimate expectation that the materials or information not be disclosed.” Martinelli at 1091.

Under this authority, gaining access to police officer files became increasingly costly to the media and the ACLU, because each time that a police officer asserted his right to privacy, the files and information sought had to be reviewed by a court. It soon became clear that any benefit to actually getting the information from police files was not worth the time and effort it took to prepare for and appear in court on each occasion. Media outlets and the ACLU therefore began attacking the first step of the Martinelli Test by arguing that although the courts had recognized a police officer’s individual right to privacy in certain information of a “highly personal and sensitive” nature, that privacy right did not cover information which related “simply to the officer’s work as a police officer.” In other words, any information or documentation concerning a police officer’s work in the course and scope of his duties was not subject to any privacy right, and the officer could not assert that right in order to prevent disclosure. In this regard, the ACLU began specifically crafting the language of its open records requests so that only “work-related” information was sought. Nonetheless, we continued to assert the legitimate privacy rights of the officers, because we knew that it was the courts, and not the ACLU or anyone else, who had the authority to determine what information was and was not protected by the officer’s right to privacy.

Initially, the media and ACLU made its novel argument to the courts as part and parcel of the same arguments they had always asserted when trying to defeat a records denial. And just as before, the courts continued to recognize that police officers have a legitimate expectation of privacy in internal affairs files, and continued to appropriately review those files pursuant to the Martinelli Test.

And then in 2002, a Denver citizen named Terrill Johnson complained to the Denver Police Department that he had been subject to excessive force, racial profiling, false arrest, and other alleged misconduct at the hands of Denver officers.

After the internal investigation was concluded, the ACLU and Terrill Johnson made an open records demand for all internal affairs documents related to Johnson’s contact with the Denver Police. After the City refused to turn over the documents, in part on the grounds that their disclosure would violate the subject officers’ privacy rights, the ACLU changed its usual strategy of simply seeking court review of the requested internal affairs documents. Instead, the ACLU and Johnson filed a lawsuit, demanding that the court issue a binding declaration that: (1) police officers never have a reasonable expectation in the non-disclosure of information provided to internal affairs under a Garrity Advisement; and (2) that police officers never have a reasonable expectation of privacy in internal affairs files concerning their official conduct.

The potential danger of such a case was immediately obvious. Were the Court to agree with the ACLU and hold that police officers never have a reasonable expectation of privacy or confidentiality in their internal affairs files, the ability of criminal defendants and civil plaintiffs to gain access to these sensitive materials would be almost without limit. Such a ruling would be devastating, and the potential for abuse would be extraordinary. Indeed, following such a ruling, not only would the public be given unfettered access to much of police officer’s preciously-guarded information, they would be free to provide that information to the media or disseminate it in any way they saw fit.

Although the lawsuit was brought only against Chief Whitman, Manager of Safety Alvin LaCabe, and the City of Denver, due to the magnitude of the rights and issues involved the lawyers at Bruno, Colin, Jewell & Lowe sought permission from the court to intervene on behalf of the involved individual police officers. It was only with the assistance of the Denver Police Protection Association, and ultimately the financial support of PORAC, that we were able to accomplish this. Thankfully, the court granted our motion to intervene. Following a hearing in open court, Denver District Judge Meyer granted our motion to dismiss the plaintiffs’ declaratory judgment claims without prejudice.

The ACLU was not easily dissuaded, however. Dropping Johnson from the suit, the ACLU filed a Motion for Leave to File a Second Amended Complaint, hoping to cure the problems we exposed in its first Complaint. A second, and even more extensive and complex briefing period ensued. Little did the ACLU know that in pushing Judge Meyer’s patience on the issue, they would ultimately force the court to issue the very holding the ACLU has for so long feared, and we have for so long strived. As the court stated unequivocally in its Order:

. . . the promise of confidentiality given to the officers during an IAB investigation creates in the officers a reasonable expectation of limited confidentiality, based on the [Denver City] Charter provision[§9.4.18] and the Garrity Advisement. . . . Although the officers’ expectation of privacy regarding their official conduct may be limited, the promise of confidentiality creates a reasonable expectation of privacy that must be afforded some protections. . . . Such protection is provided through the three-part balancing test prescribed in Martinelli v. District Court . . . The balancing test is a fact-specific inquiry, which by definition precludes a declaration of broad principles as is sought by the ACLU here.

This is precisely the stance we have taken on behalf of police officers for many years now. Judge Meyer recognized that police officers do indeed have a reasonable expectation of privacy and confidentiality in their internal affairs records, and such rights are simply too important to dismiss merely because the ACLU, and other groups and individuals aligned against police officers, do not like to fight the issue each time they wish to snoop into an officer’s private information.

Despite Judge Meyer’s well-reasoned decision, the ACLU appealed to the Colorado Court of Appeals. Again, the unified financial and moral support of the Denver Police Protective Association and PORAC allowed us to continue the fight to the Court of Appeals. Importantly, it was at the appellate level that the benefits provided by the DPPA and PORAC flowed to police officers statewide, because the Court of Appeals took the issues in the case and applied them not just to the Denver officers named in the case, but to all police officers in Colorado.

After extensive legal argument, both in written briefs to the Court and in oral argument before the judges, the Court not only affirmed Judge Meyer’s decision that Denver police officers have a legitimate expectation of privacy in their internal affairs files, but added that the Garrity Advisement given to Denver police officers pursuant to the City Charter is only one example of how that expectation of privacy might be established. Thus, other officers in other jurisdictions who may not have the benefit of a similar city ordinance or provision can nonetheless assert their privacy rights as well, because “Martinelli does not hold that such materials could never give rise to an objectively expectation of disclosure, and this case presents an example of when they might.” Whitman at 4. No doubt, future cases from other jurisdictions will provide further examples of when police officer’s privacy rights must be asserted and fought for.

In short, the strength of police officer privacy rights has now been clearly set by the courts, and the Peace Officer Research Association of California should be proud that its willing support of these Denver officers has produced a holding that impacts not only its own membership, but fellow officers across the state of Colorado as well.

On August 31, 2006, the California Supreme Court decided an important case that will significantly protect the privacy rights of law enforcement officers throughout the State (Copley Press v. Superior Court). The Court ruled 6 to 1 in a decision authored by Justice Ming Chin that neither the media nor members of the public may have access to police discipline records filed or created during administrative appeals, including the identity of an officer who has been terminated unless the officer waives his or her privacy right.

In 1978, the California Legislature enacted Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1046 in response to the Court’s 1974 decision in Pitchess v. Superior Court. The Legislature designed these so-called “Pitchess statutes” to limit “fishing expeditions” into peace officers’ personnel files by criminal defendants and their defense attorneys by providing that peace officer personnel records “maintained” under the officer’s name “by his or her employing agency” are confidential and may be disclosed only after a judge finds good cause for the disclosure and that the requested records are material to the case before the court.

Notwithstanding these codifications of a peace officer’s right to privacy in his or her employment related affairs, the media and criminal defense attorneys have been mining civil service commission hearings, civilian review boards, and other panels that hear police discipline cases for information about disciplined police officers. For example, for nearly a decade, the San Diego and Los Angeles County Public Defenders’ offices have been assembling databases of information on individual peace officers to later use to cross-examine officers in criminal trials. This practice has allowed defense attorneys to obtain records that would have never been released by a judge on a Pitchess motion.

In January 2003, the San Diego Union Tribune learned that a San Diego County deputy sheriff had contested his termination by scheduling an administrative appeal hearing before the San Diego County Civil Service Commission (hereinafter, the “Commission”). The Tribune learned that the Commission had ordered the deputy’s hearing closed to the public and media as a result of a recent Court of Appeal ruling in SDPOA v. City of San Diego Civil Service Commission, which held that the City’s civil service commission had violated Penal Code section 832.7 by releasing its records from hearings involving peace officers. The San Diego Citizens’ Law Enforcement Review Board had likewise closed its hearings and was not releasing findings as a result of a similar Court of Appeal decision in Davis v. City of San Diego.

Following the Commission’s refusal to allow the Tribune to attend the deputy’s administrative appeal and acknowledging that it was not a party to a case in which it could make a Pitchess motion, the Tribune’s parent company, Copley Press, filed requests with the Commission under the California Public Records Act. These requests sought access to the hearing and disclosure of any records filed with or created by the Commission, including tapes of the hearing. Although the Commission disclosed that the deputy had received a termination order for failing to arrest a suspect in a domestic violence incident and then lied about it, the Commission refused to disclose the deputy’s identity or any records from the deputy’s appeal. Dissatisfied with the Commission’s limited disclosure, Copley filed suit in San Diego County Superior Court. The San Diego Police Officer’s Association (hereinafter “POA”) and San Diego Deputy Sheriff’s Association (hereinafter “DSA”) intervened in the case to defend the Commission’s action.

The Superior Court agreed with the DSA and POA, ruling that that the hearings were lawfully closed to the public and that the Commission properly refused to release any of the records requested by Copley under the Public Records Act. Copley immediately appealed the ruling to the Court of Appeal, which overturned the Superior Court in a unanimous decision and ordered the release of the deputy’s name and other records related to the case. The DSA and POA filed a petition for review with the California Supreme Court, which, recognizing the importance of the issue, voted unanimously to hear.

Once granted, the DSA and POA requested assistance from PORAC Legal Defense Fund on the case. PORAC LDF, represented by appellate lawyer Jean-Claude Andre, with the Washington, D.C., firm of Ivey, Smith & Ramirez and LDF panel attorney Gary M. Messing, a partner in the Sacramento office of Carroll, Burdick & McDonough, LLP, filed an amicus (friend of the court) brief supporting the DSA and POA.

The Court of Appeal’s conclusion that the Commission was required to disclose the terminated deputy’s identity and other records from his administrative appeal hinged largely on its finding that a civil service commission is not a peace officer’s “employing agency” within the meaning of the Pitchess statutes. The DSA, POA, and PORAC LDF argued that the Court of Appeal’s definition of “employing agency” was too narrow. In particular, PORAC LDF argued that excluding civil service commissions, civilian review boards, and other panels that hear police discipline cases from the definition of “employing agency” would “frustrate” the Legislature’s decision to allow municipalities to decide for themselves whether to conduct disciplinary appeals within the law enforcement department or to delegate that responsibility to a municipality-wide review body. The Court agreed, finding that “it is doubtful the Legislature intended to make the extent of confidentiality available to a peace officer turn on whether he or she works in a jurisdiction where responsibility for administrative appeals has been assigned to someone outside the law enforcement department.”

Similarly, the Court embraced PORAC LDF’s argument that the Court of Appeal’s interpretation of the term “employing agency” would “chill” officers’ exercise of their rights to an evidentiary appeal in jurisdictions, like San Diego County, where administrative appeals are handled outside the Sheriff’s Department. In the words of the court, the Court of Appeal’s “interpretation presents peace officers with a Hobson’s choice between their right to confidentiality . . . and their right to administrative appeal” but “[t]here is no evidence the Legislature intended to . . . force peace officers to make such a choice.”

Bolstering its holding, the Court also credited PORAC LDF’s argument that disclosure of records presented at or generated by administrative appeal hearings will subject officers to “increased risk of retribution on the streets, lost credibility and diminished effectiveness ‘on the beat,’ diminished credibility on the witness stand, increased civil liability, and general embarrassment.” According to the Court, maintaining the confidentiality of these records best serves the important policy goal of “maintaining confidence in law enforcement by avoiding premature disclosure of groundless claims of police misconduct.”

The Court also rejected Copley’s argument that the Public Records Act and Penal Code section 832.7 violated the First Amendment to the United States Constitution and article I of the California Constitution.

As a practical matter, the Copley Press decision means that if peace officers are disciplined by their employing agencies and appeal the discipline to the administration level, that decision to appeal does not make their name, conduct, or employment record public information. The press will have to return to their previous practices of interviewing witnesses or complainants and will be allowed to pursue other methods of investigation.

PORAC President Ron Cottingham was pleased that the Court ruled in favor of all California peace officers. “In the area of officer privacy rights and the protection of their personnel files and records, PORAC has written, lobbied, or protected in court nearly every code section in this area of California law,” Cottingham said. “We will always hold this protection as a constitutionally given right.”

Although the Court’s Copley Press decision does not expressly require that civil service commissions, civilian review boards, and other panels that hear police discipline cases be closed, the decision is widely expected to have that effect because such proceedings are almost always based on material from peace officer personnel files. Nor does the decision automatically shield peace officer personnel and discipline records from cases that are appealed by an officer to Superior Court. Whether a peace officer’s decision to appeal an adverse administrative decision to Superior Court waives the privacy right enforced by the Court’s Copley Press decision will likely be the next related issue litigated by the media, PORAC, and its member organizations.

It is also likely that a few legislators will try to overturn the Court’s Copley Press decision by modifying Penal Code section 832.7. PORAC is already aware of this fact and will vigorously fight any attempts to dilute peace officers’ privacy rights.

Additionally, the California Supreme Court presently has pending before it two other cases involving peace officer personnel records (California Commission on Peace Officer Standards and Training v. Superior Court and International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court), in both of which PORAC LDF has filed amicus briefs urging that the records sought by the media should be kept confidential.

In California Commission on Peace Officer Standards and Training, the Los Angeles Times seeks to force the California Commission on Peace Officer Standards and Training to disclose the names, birth dates, department names, appointment dates, appointment status, termination dates, and reasons for termination of all members of the 626 law enforcement departments that receive that commission’s services. In International Federation of Professional and Technical Engineers, Local 21, AFL-CIO, the Contra County Newspapers seek to require the City of Oakland to disclose records indicating the name, job titles, and gross salaries of all city employees – including certain City of Oakland peace officers – who earned at least $100,000 in 2003-04. The Court had been deferring oral argument and decision in both cases, which are now fully briefed, pending its resolution of Copley Press.