California Court of Appeals, Second District, Third Division
ORIGINAL PROCEEDINGS in mandate. Ramona G. See, Judge. Petition granted. Los Angeles County Super. Ct. No. BC471749
Hurrell Cantrall, Thomas C. Hurrell, Melinda Cantrall and Rittu Kumar for Petitioners.
No appearance for Respondent.
Law Offices of Gary S. Casselman and Gary S. Casselman for Real Party in Interest.
CROSKEY, Acting P. J.
William Tillman filed a complaint against several peace officers alleging that guards at the Men’s Central Jail in Los Angeles physically mistreated him while he was an inmate there. He sought the production of the guards’ official service photographs for use in witness interviews. He filed a motion for disclosure of the photographs as peace officer personnel records. The trial court ordered the photographs to be produced to plaintiff’s counsel and imposed conditions on their use.
The officers filed a petition for writ of mandate in this court challenging the order. We share the officers’ concern that the order does not adequately protect them from the dangers inherent in the disclosure of their photographs in these circumstances.
We conclude that a peace officer’s official service photograph is not a personnel record under Penal Code section 832.8 and therefore is not subject to the requirements of Penal Code section 832.7 and Evidence Code section 1043 when discovery or disclosure is sought. We also conclude that the photographs are not protected by either the right to privacy under the California Constitution (art. I, § 1) or the official information privilege (Evid. Code, § 1040). We conclude further, however, that the trial court abused its discretion by compelling the disclosure of the photographs in these circumstances without more stringent restrictions on their use. We therefore will grant the petition in order to require measures to ensure that the disclosure does not create a threat to the officers’ safety and security.
FACTUAL AND PROCEDURAL BACKGROUND
Tillman filed a complaint against Sheriff Lee Baca and others in December 2011 alleging that employees of the Sheriff’s Department at the Men’s Central Jail had beaten him severely on March 25, 2011, after accusing him of bad-mouthing them behind their backs. He alleges in his first amended complaint filed in June 2012 that a sheriff’s deputy ordered him to face a cement wall and then slammed his face against the wall, rendering him unconscious. He alleges that when he regained consciousness he was handcuffed behind his back and the deputy was mounted on his back holding him down while punching the side of his face and striking the back of Tillman’s head with his fist. Tillman alleges that a second deputy kicked him in the ribs and pepper sprayed him in the face while the first deputy held him down. He alleges that a custody assistant then shot him three times in the back with a stun gun.
Tillman alleges that he was hospitalized for two days as a result and suffered a large laceration to his forehead, bruises, sore ribs and continued headaches. He alleges that the two deputy sheriffs and other officers prepared false reports of the incident claiming that he had attacked them. He alleges counts for (1) battery, against four deputy sheriffs and a custody assistant; (2) interference with his enjoyment of civil rights (Civ. Code, § 52.1), against the same defendants; (3) negligence, against the same defendants; and (4) negligence, against Sheriff Baca, Assistant Sheriff Paul Tanaka and Alexander R. Yim as Chief of the Correctional Services Division of the Sheriff’s Department.
Tillman filed a Motion for Disclosure of Peace Officer Personnel Records in July 2012 seeking the disclosure of 15 categories of documents relating to the incident and other accusations of misconduct. One of the categories was “An official current service photograph identifying each officer.” He sought the photographs for use in witness interviews and argued that there was good cause for the disclosure as required by Evidence Code section 1043, subdivision (b)(3). Petitioners opposed the motion arguing that the requested documents were peace officer personnel records under Penal Code section 832.8 and were protected by their constitutional right to privacy and the official information privilege, and that Tillman had failed to show good cause for the disclosure.
The trial court found that Tillman had established a plausible factual foundation for the alleged officer misconduct and conducted an in camera inspection of documents. On October 24, 2012, the court granted the motion in part and denied it in part, and ordered the sheriff to produce a photograph of each of the officers to plaintiff’s counsel within five court days. The court ordered plaintiff’s counsel to maintain possession of the photographs and not to provide them to anyone not involved in this litigation.
Petitioners filed a petition for a writ of mandate in this court on October 30, 2012, challenging the order to produce their service photographs to plaintiff’s counsel. We ...