Accessing Police Misconduct/Personnel Files for Criminal Defendants

September 11, 2023 by Seppi Esfandi in California  Criminal Defense  
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How to Access Police Misconduct/Personnel Files

In a California trial, it is crucial to determine whether the testifying police officer has any questionable history that could compromise their credibility as a witness. If, for instance, the police officer has a prior record of perjury or falsifying police reports, a history of employing excessive force, or even a track record of disciplinary actions due to work-related problems, these factors could be utilized by your criminal defense attorney to demonstrate that this officer lacks credibility and should not be trusted.

California Legislature enacted SB 1421, The Right To Know Act, in 2019, granting the public access to specific documents pertaining to police misconduct and significant instances of force. You can now ask for these records under the Public Records Act (PRA), which grants the public access to the non-confidential documents of our state and local government agencies.

The ACLU and other groups are seeking and releasing public records of all reported incidents from over 400 law enforcement agencies in California. You can file your request under the Public Records Act if you need more information about a particular incident or officer.

If you want to make a request, you can send it to the agency by mail, fax, or email. Certain agencies have designated departments or individuals responsible for addressing PRA requests. You can visit their websites or directly contact them to gather more information. Make sure always to have a backup of your request so you can demonstrate what you sent and when it was submitted.

When To Expect Response

Agencies are legally required to respond to Public Record Act requests within ten days, but they can ask for a 14-day extension. The response should acknowledge the request, provide a timeline for a complete response, and inform the requestor of any claimed exemptions. However, agencies often take longer to respond, so it is important to follow up and document every contact with the agency.

Additionally, suppose the request is for information about a severe recent use of force. In that case, the agency can temporarily withhold relevant documents if there is a continuing criminal or administrative investigation that their release could compromise. The time the agency can withhold the documents depends on the type of investigation, but in most cases, it cannot be longer than 18 months after the incident occurred. The documents can be withheld if criminal charges are filed until the case is concluded.

Regarding fees, the Public Records Act permits agencies to only charge for the “direct costs of duplication, or a statutory fee if applicable.” This implies that agencies can request payment for materials like paper and ink and disks or drives for data distribution. However, agencies are not allowed to charge for the time spent by their staff in searching for records, making copies, or even redacting documents.

Which Records Am I Currently Able To Access?

SB 1421 grants the public the privilege to acquire three types of records concerning the probing and punishment of law enforcement officers:

  1. Records about any occurrence in which a police officer discharged a firearm at an individual (irrespective of hitting anyone) or employed force leading to severe harm or fatality. You can access these records regardless of whether the department determined the officer’s actions as appropriate.
  2. Documents pertaining to cases in which the organization determined that a law enforcement officer engaged in sexual assault against a civilian, including instances of pressuring or soliciting sexual acts while on official duty.
  3. Documents pertaining to cases where the agency has discovered that an officer was involved in deceptive behavior during the investigation, documentation, or handling of criminal activities or misconduct by the police.

This dishonesty may include making a false report, giving misleading testimony, or planting evidence.

You have the right to access any documents held by an agency, regardless of their age.

What Should I Do If The Law Enforcement Agency Doesn’t Respond?

All agencies must comply with the law and provide relevant, non-confidential documents that they cannot keep secret. Not disclosing required records would be a violation of the law. Write to the agency to follow up and keep asking for the documents. If they continue to ignore your request, you can take legal action and pursue your right to access this information by filing a lawsuit in Superior Court. If you are successful in your challenge, the agency may have to cover your lawyer’s fees. This means you might be able to hire a lawyer who will only get paid if you receive the fees from your lawsuit.

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Lara S.
December 3, 2019
Seppi had my case reduced to just an infraction, and thanks to him I was able to keep my job. Jorge was extremely helpful too, the reason I went with this law firm. Overall pleased.

How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

  1. Don’t ever talk to the police
  2. Do not discuss your case with anyone
  3. Everything you tell your lawyer is confidential
  4. Tell police you need to contact your attorney
  5. Never consent to any search by the police
  6. If the police knock on your door, don't answer!
  7. Realize the consequences of a criminal conviction
  8. Your lawyer (not you) will contact any witnesses
  9. Information on your cell phone is evidence
  10. Early Intervention is the key

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