Motion Denied by Orange County Judge to Disclose Additional Police Records

By David M. Greenwald

Orange County, CA – An Orange County judge denied a motion by defense to order the OC Sheriff’s Department to turn over additional deputy personnel records in a case against Mohammed Sayem.

In a hearing last month, 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 were 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.

“This is exactly connected to discipline,” Sanders argued in court last week.  He said it comes down  to what discipline means and discipline that does not get initiated with a complaint.  “I just think related to discipline means related to an investigation that is the beginning point for the investigation being imposed.”

But neither Kevin Dunn from the Orange County Counsel’s Office nor Judge Kevin Haskens saw it that way.

The judge asked, “Let’s say that the officer uses a minimal use of force.  Administrative reveiw find it looks proper.  Not referring this for discipline.  Never sees the light of day.”  Should that be disclosed to the defense?

Sanders responded,  “Yes, everything should go into the personnel file, it shouldn’t be determinative of that first finding.  I think it relates to a discipline.”

“They are taking that step,” he said.  “It’s related to whether discipline could be imposed.”

He argued it would go into the personnel file, but doesn’t necessarily get disclosed once reviewed in camera.

“No I won’t get it every time,” he said.  “The court will look at it and make a call based upon the law of whether it should be turned over.”

Judge Haskens said that he believed  the language of the statute limits what can be disclosed pursuant to the act.  He said, “It limited the use of force records to either police involved shootings, or instances where somebody had suffered a great bodily injury.  The legislature I’m imagining are cognizant that there could be uses of force that don’t result in great bodily injury—made that distinction and put it into the statute.  So they drew a line to what could be disclosed.”

He said, “I feel like your interpretation of the statute just causes it to be so broad so everything must end up in the personnel file.”

Dunn argued that these “are not instances of excessive or improper force on their face because they were found to be within policy therefore those would not be responsive to a Pitchess motion.”

He said if this rule were to stand, “We’ve now gone down to be dragging the Pitchess barrel at this point to where we’re talking about having this court determine what a law enforcement agency is required to put into a personnel file such that they’d then be subject ostensibly although not accurately to be broadening the Pitchess motion.  This is simply not the role of the court.”

Dunn said he thinks the court is exactly right and asks him to adopt his tentative ruling.

But Sanders believes that if the documents in question are excluded in the Pitchess process, then, a huge quantity of documents that demonstrate prior use of force by a given deputy get omitted from the Pitchess process.

He argued that the only reason people would ever learn of what happened to Sayem is that, in his case, the video went public and spread nationally.

In his Pitchess Motion, he wrote, “The defense’s analysis of several sources, including Internal Affairs quarterly reports, indicate that this process 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—per the defendant’s five year review, analysis and estimate, approximately 3,667 of 3,742 Supervisor’s Use of Force Reports would have been (unlawfully) deemed by the OCSD ineligible for in-camera review even when a defendant sought evidence related to prior instances of use of force.”

But Judge Haskens saw otherwise.  In the end, he ruled, “On that issue the court finds …  that request is respectfully denied.”

—David M. Greenwald reporting

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