Filing a 42 United States Code section 1983 Case alleging police misconduct: California Superior Court or United States District Court (Federal)

By Michael Reiter, Attorney at Law


Can you file a 42 United States Code section1983 case alleging police misconduct in a California Superior Court?  Yes, but it is in general a poor idea for one reason:  peace officer employment records are protected by the Pitchess Motion process under California law.  As a Deputy City Attorney for the City of San Bernardino and as Assistant City Attorney for the City of Redlands, I handled both defense of Pitchess Motions and Federal Civil Rights cases, so I have some insight into the process.

However, the Federal Courts do recognize some limits to discovery of peace officer personnel records.  For example, in this slip opinion from the Southern District of California:

“Federal Rule of Civil Procedure 26(c) provides that a court may limit discovery to protect from annoyance, embarrassment, oppression, or undue burden or expense. Federal common law recognizes a qualified privilege for official information. Kerr v. United States Dist. Ct. for N.D. Cal., 511 F.2d 192, 198 (9th Cir.1975), aff’d, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). Government personnel files are considered official information. See, e.g., Zaustinsky v. University of Cal., 96 F.R.D. 622, 625 (N.D.Cal.1983), aff’d, 782 F.2d 1055 (9th Cir.1985). In determining what level of protection to afford the official information privilege, courts balance the interests of the party seeking discovery against the interests of the governmental entity asserting the privilege. See Kelly v. City of San Jose, 114 F.R.D., 653, 660 (N.D.Cal.1987). The party requesting the information must describe how the information sought is “reasonably calculated to lead to discovery of admissible evidence, identifying interests … that would be harmed if the material were not disclosed, and specifying how that harm would occur and how extensive it would be.” Id. at 671. The courts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is greater, the privilege bars discovery. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1034 (9th Cir.1990); Jepsen v. Florida Bd. of Regents, 610 F.2d 1379, 1384-85 (5th Cir.1980); Zaustinsky, 96 F.R.D. at 625.”  Snowten v. City of San Diego (2010)  2010 WL 2998846, *2.

In lieu of an in-camera hearing, the parties may agree to a stipulated protective order.  Defendants may be willing to do so to avoid running up plaintiff’s attorneys’ fees, and save their clients fees, as well.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation

Milligan, Beswick, Levine & Knox, LLP
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      Redlands, CA 92374
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