By David M. Greenwald
An Orange County judge last week issued a tentative ruling that a police agency may not have to turn over police personnel records under Pitchess if there is no actual complaint or sustained finding.
Assistant Public Defender Scott Sanders alleged that the Orange County Sheriff’s Department only did a superficial investigation before finding complaints that several deputies roughed up his client not sustained, and complained that the judge’s ruling could allow the agency to hide behind poor investigative work.
On August 19, 2018, the defendant, Mohamed Sayem was approached in his vehicle after police were called because he was sitting, slouched and asleep with keys in the ignition.
At this point, a confrontation ensued and Sayem was “beaten to the ground and then terrorized,” Sanders alleges in his motion.
Deputy Michael Devitt in this incident was “caught on tape yanking the highly intoxicated Sayem from his car and punching him repeatedly in the face.”
Sanders alleges that Devitt fabricated a confrontation and pulled Sayem out of the car.
“Devitt subsequently changed his account in teletype entries made on scene and in his final report, in order to present Sayem as a violent aggressor who posed a lethal threat, claiming in his final version that Sayem stepped out of the car on his own and tried to grab the deputy’s safety vest,” Sanders writes.
While prone on the ground, Sayem looked up and asked the deputies, “Are you going to shoot me?”
Devitt answered, “No.”
But, Deputy Ota said, “Like to.”
Sayem said, “C’mon bro. Really?…Really?”
In his motion, Scott Sanders sought additional peace officer records arguing that the OCSD “withheld Supervisor’s Use of Force Reports related to prior uses of force by Devitt and Ota—consistent with its long-stand practice of improperly concealing responsive records involving the use of force.”
Sanders’ complaint that, according to their policy, “reports and other investigative material related to the use of force and excessive force would only be delivered for in camera review if the department’s review culminated in an Internal Affairs determination that personnel violated departmental policy.”
The problem is that this process, according to Sanders, “would have likely led the OCSD to automatically exclude as many as 98 percent of the eligible Supervisor Use of Force Reports from the court’s in camera consideration.”
Their review shows that roughly 3667 of 3742 Supervisor’s Use of Force reports are denied by the OCSD.
In his motion, Sanders argued, “Devitt was cleared without even an internal investigation, despite a video that contradicted his description of events, and the fact that Devitt changed his description of what occurred over time to present a false picture of an enhanced threat.”
The question is how much of this would the Sheriff’s Department have to disclose under Pitchess. Sanders believes that any use of force by the officers should be disclosed regardless of whether there is a complaint or discipline.
He argued that, previously, the court ruled that they were entitled to the summary use of force report.
At this point, Judge Kevin Haskens said that this was a ruling under Haggerty, but said, “And I think I said this in open court, I think my ruling was incorrect.” He said that in Haggerty, “There had been a complaint… so it fell clearly within the gambit of personnel record. I think it was erroneous for me to conclude that the use of force report that was turned over was a personnel record, I don’t think it was.”
The judge also noted that the DA’s office turned over the use-of-force report on their own, making the issue moot. “That doesn’t mean it’s now game and that any time one of these two officers used force that the sheriff’s department is required to disclose that for review in a Pitchess proceeding.”
“That’s not what the legislature has said in 832.8,” the judge continued, saying they’ve made a distinction between cases where there are complaints and cases where they are not.
Sanders responded, “My position is yes, a supervisor’s use of force report should be turned over when there’s an investigation.”
The judge questioned him about whether appropriate use of force should be turned over to the court for review.
To Sanders that was the wrong question and cut right to the point—the Sheriff’s Department has invalidated nearly all use-of-force complaints
“The Sheriff’s department always finds there’s no use of force,” he said, citing the same 98 percent figure from his motion, where nearly all complaints have been cleared by the Sheriff’s Department.
The judge interrupted, “That’s a jaundiced view.”
Sanders replied, “It’s not a jaundiced view. Michael Devitt came in on a case three months later from this incident because they wipe away all cases right off the bat. No one would have learned that he reportedly pulled Mohammed Sayem from a car and beat him up.”
He continued, “So when you have a system in which the sheriff’s department does everything to ensure that nothing moves up to the next level where there can actually be a confirmed ruling—it’s a tremendous problem.”
Sanders disparaged the report by Sgt. Hibbs saying, “He looked at nothing here,” and argued under those conditions, they could learn nothing about this incident.
The judge, while acknowledging “some valid points.” said, “I kind of think your quarrel is with the legislature because they set it up this way. They basically left the evaluation of these use-of-force incidents in the hands of the agencies.”
Kevin Dunn, from the Orange County County Counsel’s office, the custodian of the records, agreed with the assessment by the judge.
“The way the legislation is currently written is not what Mr. Sanders is seeking in this case,” Dunn said. “Because of that the remedy will not be by way of Pitchess motion it doesn’t appear.” He suggested new legislation or appellate courts as a possible remedy to that. What Sanders is seeking, Dunn added, is that the court act as “an independent super employer to determine whether the deputy’s conduct was within policies.”
“That’s certainly not the purpose of Pitchess,” he aded.
Sanders responded this situation was caused by the Sheriff’s Department’s own actions. “The numbers say it doesn’t work here in Orange County,” he said. “This case is really a perfect example. This is not a case that should have been slammed through in a day.” He argued they didn’t look at videos or anything. “They’ve essentially rigged the system to not make findings that will lead them to disclosure under their stated standard of when an in-camera should take place.
“No one would ever learn about this case except that it became public and some of these issues came out,” he added.
Devitt changed his story on this case, Sanders argued. “He grabbed my client out of the car and he changed to story to make it look like he was the victim of his physical force… He definitely lied and changed his story.”
Sanders argued there are probably other cases where there should be a sustained finding, and he said, “I think there should be a sustained finding here and it didn’t even get out the first level.”
The judge issued a tentative ruling that use of force without a complaint or a sustained finding “does not fall within the ambit of a personnel record under 832.8 and the evidence section that governs Pitchess.”
He said, “The sheriff is not going to issue an order to the sheriff’s department to produce every instance that either Deputy Devitt or Deputy Ota ever used force in the course of their duties.”
—David M. Greenwald reporting
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