Ruling Opens Officers’ Records to Defendants : Divided Supreme Court Overturns Decision Limiting Access on Brutality Issue

A closely divided state Supreme Court on Thursday refused to limit the ability of a criminal defendant to find out whether an arresting officer has been previously accused of brutality.

With a key vote from newly appointed Justice Joyce L. Kennard, the court held 4 to 3 that defendants may obtain such information from confidential police personnel files without presenting proof they or others were victims of excessive force by the officer.

The justices reversed a Court of Appeal ruling that had held a defendant seeking file access must offer eyewitness accounts of his arrest or have “personal knowledge” of the previous complaints against the officer. In an opinion by Justice Marcus M. Kaufman, the Supreme Court said access could be obtained if the defendant asserts a “reasonable belief” prior complaints may have been made. Such a belief could be based on the circumstances of his own arrest, the court said.

Any file data that is released must be privately screened first by a judge and is usually limited to the name, address and telephone number of previous complainants, the court noted.

Such a process, Kaufman wrote, “strikes a fair and workable balance between the need of criminal defendants for all relevant and reasonably accessible information and the legitimate concerns of peace officers to shield from disclosure confidential information not essential to an effective defense.”

The decision reflected an unusual split among the five conservative justices appointed by Gov. George Deukmejian. Kennard and Kaufman joined two liberals, Justices Stanley Mosk and Allen E. Broussard, to form the majority. The other three Deukmejian appointees formed the minority.

In dissent, Justice Edward A. Panelli, joined by Justice David N. Eagleson, observed that demands for police personnel file information now have become routine for defendants accused of resisting arrest or battery on a peace officer.

Thursday’s ruling, he said, will further invite defendants to attempt “fishing expeditions” into confidential files without an adequate basis to do so.

“Good cause (for obtaining access) is certainly not satisfied by an unsupported statement that the police officers involved used excessive force in the past or by a defense counsel’s reiteration of the defendant’s self-serving story that the officers used excessive force in his arrest,” Panelli wrote.

In a separate dissent, Chief Justice Malcolm M. Lucas expressed concern the ruling would lead to “burdensome demands” for file information and joined Panelli and Eagleson in urging the Legislature to review the issue.

Samara C. Marion, a Santa Cruz attorney representing the defendant in the case, welcomed Thursday’s ruling as a reaffirmation of the rights of criminal defendants. “There is no reason to prevent the public from knowing about an officer with a history of police brutality,” she said.

Marion said also she is “very happy” that Kennard, who joined the court only last spring, had voted in the majority. “I’m excited about her,” said Marion. “She has great potential.”

Gerald D. Bowden, an attorney who represented the city of Santa Cruz in urging tighter restrictions on file-access, said the ruling would allow police files to be opened based on “nothing more than unfounded rumor” of excessive force.

“This is going to be very demoralizing to police officers who will know now that anything in their personnel file will be turned over to the very people who beat them up,” Bowden said.

William B. Sage of Huntington Beach, an attorney for the California Police Officers Assn., voiced dismay over the ruling and said the organization may ask the Legislature to draft a new law better protecting police personnel files.

The case arose in December, 1987, when police in Santa Cruz responded to a report of a man brandishing a knife. According to the police report, a struggle ensued after the suspect, Howard Kennedy, became agitated when the two officers sought to search him. Kennedy swung his fist and missed and an officer responded with a punch of his own to the suspect’s face, the police said.

Kennedy was charged with resisting arrest and exhibiting a knife. In pretrial proceedings, his attorney sought access to the officers’ personnel files, submitting an affidavit saying he was “informed and believes” the police used excessive force against Kennedy and that other complaints against them “may have been filed by members of the public.”

The process, authorized under a 1978 state law, is also used in civil rights suits alleging police brutality.

A trial court judge upheld the request but a state Court of Appeal in San Jose reversed that ruling, saying the lawyer must have “personal knowledge” previous complaints existed. Attorneys for Kennedy, noting that the decision conflicted with other appeal court rulings, took the case to the state Supreme Court.

The high court, overturning the appeal court decision, concluded that the law did not intend to require first-hand knowledge of previous complaints.

Among other things, noted Kaufman, an Assembly committee at the time had dropped the personal-knowledge requirement from the legislation, pointing out that if a defendant “already had the particulars of the records, he would not need” to seek access to police files.

In Kennedy’s case, the court said, even though the facts of the arrest were not firmly established, it was “altogether fair and rational” for the suspect’s lawyer to seek access to the officers’ records in view of Kennedy’s assertions he had been forced to defend himself against excessive force.