Police misconduct happens every day. A law enforcement officer might lie about circumstances surrounding an arrest, or use excessive force on the defendant.

In California, an officer might have a history of such behavior and prior complaints against them, but getting that information is an arduous process, where defendants have to go through a procedure known as “Pitchess.”

In contrast, a small minority of states such as Florida treats police department records as public documents.

It avoids California's whole Pitchess requirement, which is plain wrong for many reasons. In Florida, the police are acting transparent which also saves money on a needless legal procedure, whereas in California people's rights are lost in a one-sided procedural mess that protects bad cops and subverts an accused's rights.

California's Pitchess Motion – Getting Info from Officer's Personnel File

In California, an attorney needs to file a Pitchess motion in order to receive information from an officer's personnel file to use as evidence in a criminal or civil proceeding.

It's named after Pitchess v. Superior Court, a 1974 decision regarding a defendant charged with battery against four deputy sheriffs. The defendant – who was hospitalized in intensive care after his so-called battery against the deputy sheriffs, none of whom were injured – claimed he was acting in self-defense.

His attorney sought discovery of any prior complaints regarding violence and/or use of excessive force by the deputy sheriffs from the Sheriff's Office. Sheriff Pitchess would not provide this information and the defense attorney had a court issue a subpoena for the document. Sheriff Pitchess then tried to have the subpoena quashed via a hearing before the Court of Appeals.

Through a long, drawn-out legal process, it was eventually established that a defendant has the right to receive information about alleged “peace officer” misconduct, through the filing of a Pitchess motion. It's now one of the most common motions filed in Superior Court in a criminal case.

A Pitchess motion requires filing not less than 15 court days prior to the hearing date, and a copy of the police report must be attached as an exhibit. Notice is given to the prosecution as well as the attorney for the law enforcement agency.

The Pitchess procedure is the only way to obtain information on police misconduct in California; any law enforcement agency that divulges police officer records without a Pitchess motion is committing a crime.

The Shocking Reality: What Defendants Actually Get in a Pitchess Motion

In reality, information defendants actually receive from a Pitchess motion is often limited.

First, any incidents taking place more than five years prior are unavailable. Further, you don't get the actual complaints, the defense attorney usually just receive names, phone numbers and addresses of witnesses who made specific complainants.

What is shocking about this whole process is that practically every American knows about Brady v. Maryland, the landmark United States Supreme Court case establishing that the prosecution must turn over all evidence to the defense that could exonerate the accused. Thus, under any reading of Brady, if a law enforcement agency has dirt on an officer, it should be turned over.

After all, the United States Supreme Court says so.

Also, America's legal institutions should be based on fundamental fairness and if there is evidence that a cop is dirty, why shouldn't such evidence be disclosed to someone facing years in prison? Instead, defense attorneys have to fight through motions where attorneys for the cops stall and nitpick on everything they can possibly find in the motions and judges find any excuse they can to agree with the attorneys for law enforcement and deny the motions.

The bottom line is, under current law in California, someone could be facing life and there could be proof that the officer has lied, fabricated charges or exhibited racial hostility and the defendant wouldn't know about it.

A National Overview of Police Misconduct Records

Police misconduct records are confidential in nearly half – 23 to be exact – of all 50 states, as well as the District of Columbia.

Any disciplinary history is nearly impossible to access via public request. California is one of just three states – New York and Delaware are the others – with legislation specifically enforcing the confidentiality of law enforcement officer personnel records.

In 15 states, the public has some access to police disciplinary records. The good news is that some of these states permit public access to major bad conduct committed by law enforcement, such as terminations or suspensions. However, “minor” misconduct is still confidential, and a lot depends on a police department's response and any vagueness in the state law.

In 12 states, substantiated police disciplinary records are usually publicly available. The transparent dozen consist of:

• Alabama
• Arizona
• Connecticut
• Florida
• Georgia
• Maine
• Minnesota
• North Dakota
• Ohio
• Utah
• Washington
• Wisconsin

Let's face it – some of the states on this list aren't generally considered as progressive or forward thinking as California, but they are far ahead of the game on this crucial issue.

There's no legitimate reason a defendant has to jump through hoops to get information on prior misconduct of officers involved in his or her arrest. There's certainly no reason a police agency that knows it has some “bad hombres” on its force should be held criminally responsible for passing on that information without a Pitchess.

It used to be that law enforcement would tip a prosecutor off to misconduct of an officer (“Brady” material) involved in a particular case but even that informal heads up is now illegal under a new ruling by the California Supreme Court in Superior Court of San Francisco County v. Johnson decided July 6, 2017. All we want is openness and fairness. If Florida can do it, why can't we?

We need to demand fairness transparency in our criminal justice system in California. Pitchess law in California should not be used by bad cops to circumvent the Brady ruling by the United States Supreme Court.