You are driving late at night and your eye catches flashing red lights in your rearview mirror. Your mind races—you were driving at the speed limit, didn’t run any stop signs or the like—why was the officer stopping you? You pull over and the officer swaggers over to your stopped vehicle. You sense something is wrong. The officer asks you for your driver’s license, registration, and insurance card; you produce all three. You are extra compliant because your sixth sense alerts you to be on guard; something is not right with this guy. He asks you to step out of the car. At this point you have no idea what you have done wrong so you politely ask the officer why he stopped you. Rather than respond to your question, his voice becomes agitated and demanding: “I said ‘Get out of the car!'” You promptly comply, feeling both angry and afraid at the same time.

The officer commands you to put your hands on your car and assume the search pose. Your mind is now racing—there is nothing, absolutely nothing, that would explain why the officer would search you. He searches your pockets and pulls out your wallet. He commands that you sit on the curb and begins riffling through your wallet. He pulls out some cash and tells you he is writing you up for several serious vehicle code violations. You know that is a lie. At this point, your brain kicks into self-defense mode. You ask the officer to return your wallet and money; the officer just laughs. So you stand up and try to grab your wallet. He gives you a big push, slamming you into your car. A struggle then ensues, which the officer initiated. Next thing you know, you are in handcuffs and being booked for resisting arrest and assault on an officer!

Does that story seem far-fetched? Maybe, but news of police officer misconduct is not uncommon. Even though most officers are honest and law-abiding and just trying to do a tough job, some are bad apples. It might not be a common occurrence but officer misbehavior, indeed unlawful police conduct, can and does occur. So, how do you defend yourself against a rogue officer? You know that if it is your word against his, the district attorney and court are going to side with the officer, even if your record is spotless and you are an eminently believable guy.

In the early 1970’s, Ceasar Echeveria, together with others, was charged with committing battery against four Los Angeles County deputy sheriffs. Mr. Echeveria claimed the battery was in self-defense in response to excessive force by the deputy sheriffs. The crucial evidence to his defense was evidence that the officers had been previously investigated for police misconduct. He argued that the officers involved had a propensity for violence and the officer personnel records, which included the investigations for police misconduct, would prove that. He moved the trial court to compel the sheriff’s department to provide those records. The trial court granted his motion but the sheriff’s department appealed. The case, Pitchess v. Superior Court (the sheriff of Los Angeles was Peter J. Pitchess), was a seminal case. As a result of the appellate court’s decision, a defendant’s can file what is called a “Pitchess motion” to compel a law enforcement agency to provide the personnel records of law enforcement officers. It has even been codified in California statute in Evidence Code sections 1043 and 1045.

But not all Pitchess motions will result in the release of these records. The motion must show “good cause” for the release of the records. To show good cause, a defendant must be able to explain why the specific facts of the police behavior was officer misconduct and that the misconduct would be material to the defense against the charge. Thus in our hypothetical scenario, you would have to convince the court that the officer initiated the unprovoked scuffle and that you were forced to defend yourself against the officer’s aggression. If the judge is convinced, he or she would order the law enforcement agency to produce the officer’s personnel file which would then be reviewed by the judge in a private hearing. It is only after this procedure that the records may be allowed as evidence if the judge determines that the records are relevant.

In most cases, officer misconduct or abuse is not as clear-cut as the hypothetical scenario here. Less obvious officer misconduct may include racial profiling or evidence planting, to name a few examples. Any alleged officer misconduct may be the subject of a Pitchess motion, but not all Pitchess motions will result in the court-ordered release of officer personnel records.

If you have been arrested and you believe the arresting officer acted in an unlawful manner, you should consult with an experienced criminal defense attorney. He or she will review the specific facts of your arrest and determine whether you have grounds to file a Pitchess motion.