There are good cops out there.
I know a few.
But once you meet a "bad" cop you never forget it.
And it makes you wonder how some of these guys ever passed the psych test.
I did back in 1993 when I had just come back from my first tour of NYC and was pulled over by a Martinez police officer in downtown Martinez while driving my 1990 Porsche Carrera II. The guy had literally been "stalking" me over the course of several months because I was dating a young Italian gal that he was interested in.
At one point, he showed up at Acalanes High School one night around 8PM while I was jogging some laps around the track under the stadium lights. No one was there but me. He shows up and tells me to stay away from Alisa. Even goes on to tell me that her family is part of the Mob. I'm like, "Who the F is this guy?"
I wait for him to walk back to his car in the parking lot. He was driving one of those little 2-door Honda Preludes. I get his license plate number. The next day I send it to a guy who was a former LEO and he ran the plate for me for $25. This was back in the day before computers and leaving any digital footprints. The guy tells me his name and says that there was an interesting notation on his CDL. He tells me that he lives in Martinez and he's a cop.
A couple of months later, I'm on my way into downtown Martinez to go to the County Courthouse to look up some real estate records. He sees my car and pulls me over into the parking lot of Martinez PD. The dude jacks me out of my car and then proceeds to call all of his buddies out of the building to witness himself digging through my car. At one point, he sees an ivory tusk on the floor behind the driver's seat. He's getting all excited because he thinks that he's seen a gun handle. He then pulls the tusk out of the car and said, "What's this?"
I said, "That's an ivory tusk from my great grandfather who used to be a California State Senator."
"It's pretty heavy. Probably good for hitting someone with."
Dude has been ransacking my car for nearly 10 minutes and I'm standing there with my arms folded next to the Watch Seargeant. There's literally 6 officers standing there watching this "treasure" hunt. At this point, I turned to the Watch Seargeant and asked him if I was being arrested. You literally have to do this to call their bluff about being detained and undergoing a "treasure" hunt as your car gets tossed. I guess he had seen enough. He said, "No. You're free to go."
The next day I make a phone call to the Martinez Police Chief. I can't remember the guy's name but this was the guy right before Dave Cutaia (the Pac-10 referee) was Chief. I ask him about one of his cops by the name of Roger Ray. He tells me that from what he understands, there is a "personal beef" between us. I'm now thinking, how the F would he even know that? Do all of these guys hang out with each other at the local watering hole? A Chief with line staff?
I then proceed to tell him that I don't think that Internal Affairs would look kindly on Officer Ray's professionalism, or lack thereof . . . and his conduct unbecoming of a peace officer. I literally said those exact words. He then says, "What is it that you want?"
I tell him, "Look, I really don't need to be in Martinez. I will make you a deal. Tell Officer Ray to stop following me and I won't ever step foot in Martinez again."
He said, "Done".
8 years later Officer Ray shoots a suspect in the back while running away from him. Ray claimed he saw the Plaintiff reaching for a gun. The Plaintiff David Hutton filed a lawsuit against Ray and the Magistrate Judge James Larson found in favor of the Plaintiff in a 7-figure settlement because it was found that the reason that Officer Ray shot the man in the back, was because he was in such poor physical condition that he was incapable of pursuing the Plaintiff on foot.
In fact, just after the incident Ray had surgery and went on temporary disability from April 2001 to May 2002. he took disability retirement in May of 2002. The Plaintiff filed a suit in Contra Costa County Superior Court for violation of his civil rights under 42 U.S.C / 1983.
Interestingly enough, Lisa Poirier testified as the claims person handling Ray's worker compensation claim. We used to get together at Rocco's Pizza in Walnut Creek with a group of regulars from De La Salle and Northgate High Schools in the early 2000's.
The defendant tried keeping his medical records from becoming evidence due to a claim of privacy.
At the end of the day, this is what the Court said:
Legal AnalysisPlaintiff contends that Ray's records are relevant to the issue of whether Ray's back injury caused him to shoot Plaintiff, rather than run after him. Plaintiff contends that whether Ray was physically capable of performing his duties adequately and safely is relevant to whether Ray was trained to use less aggressive methods of force to subdue Plaintiff.
See, e.g. Parker v. District of Columbia, 850 F.2d 708 (D.C. Cir. 1988). ("Given Officer Hayes' physical condition, it is not hard to fathom that his most effective method for subduing the objects of his pursuits would be the use of a firearm as opposed to the application of physical force. This condition posed a foreseeable risk of harm to others")
Id. at 713. If Ray was unable to pursue Plaintiff on foot, due to his back injury, he may have decided to shoot him instead.
Plaintiff also contends the deposition testimony and documents are also relevant to whether the City of Martinez properly trained, supervised and retained Ray. ("We are persuaded that a fair-minded jury could have concluded that Officer Hayes' conduct was the result of deliberate indifference on the part of the District with respect to the physical training of its police officers.")
Id. at 714.
Defendants distinguish the
Parker case as dealing solely with inadequate training for an officer on how to physically restrain a subject. They contend that any disclosure should be limited to the day in question and Ray's condition at that time. They also assert Defendant's privacy rights in the documents and his personal medical information.
CCCMRMIA relies on the Health Insurance Portability and Accountability Act ("HIPAA") to justify withholding Ray's worker's compensation and medical files. CCCMRIMIA asserts its duty to protect Ray's privacy, since he objects to producing the records to Plaintiff, and it has no power to waive his privacy rights.
Conclusion and OrderThe privacy interest in one's confidential medical records is conditional and a limited impairment of the right may be allowed if properly justified.
Soto v. City of Concord, 162 F.R.D. 603, 618 (N.D.Cal. 1995) (calling for in camera review of records).
Assertions of privileges in federal question cases are governed by federal common law (Rule 501, Federal Rules of Evidence). The physician-patient privilege is not recognized by federal common law, federal statute, or the U.S. Constitution.
Soto, Id. Where application of state law would be...
U.S. District Court Hutton v. City of Martinez, No. C 02-1606 CRB (JL) E-FILING, Granting Docket # 65 (N.D. Cal. 10/27/2003) (Hutton v. City of Martinez, No. C 02-1606 CRB (JL) E-FILING, Granting Docket # 65 (N.D. Cal. 10/27/2003) (N.D. Cal. 2003)) - vLex United States "Cults don't end well. They really don't."
