California Supreme Court Allows Law Enforcement Agency To Disclose “Brady Alerts” To Prosecutors

Category: Fire Watch
Date: Sep 4, 2019 04:08 PM

LCW Partner Geoffrey Sheldon, Senior Counsel David Urban, and Associate Attorney Alex Wong led the Los Angeles County’s Sheriff’s Department (“LASD”) to victory in a closely watched case before the California Supreme Court.  The State’s Supreme Court overturned a lower appellate court’s decision and held that the LASD could give prosecutors the name(s) of potential deputy witness(es) in a particular case, who is on its “Brady list”, without a Pitchess motion and court order.

The case arose from a conflict in the law between criminal defense rights and California peace officers’ privacy rights.  In Brady v. Maryland, 373 U.S. 83 (1963), the U.S. Supreme Court (“USSC”) concluded that under the due process clause of U.S. Constitution’s 14th Amendment, the prosecution in a criminal case must disclose to the defense all evidence the prosecutor has that would tend to show the criminal defendant was not guilty, including evidence that that would impeach prosecution witnesses such as peace officers.

Sometimes, this “exculpatory” evidence is found in the personnel file of a peace officer witnesses. For example, if the personnel file shows that the officer had been dishonest or committed other significant misconduct (e.g., racial profiling), the defense could use that information to impeach the officer’s credibility or motivations at the criminal trial. Conversely, California Penal Code sections 832.7 and 832.8 and Evidence Code section 1043, et seq., sometimes called “the Pitchess statutes, generally make peace officer personnel records confidential. The Pitchess statutes say that in order to access peace officer personnel information, the party seeking the information must first file a motion with the court. If the motion is granted, which can only occur if the moving party establishes “good cause,” the court privately reviews the officer’s personnel records and provides the asking party any information the court deems relevant. This is commonly known as the “Pitchess” procedure, and the motion the party files is commonly called a “Pitchess motion.”

To address this conflict between a criminal defendant’s constitutional rights and a peace officer’s privacy rights, the LASD compiled a so-called “Brady list,” consisting of names and employee identification numbers of deputies whose personnel files contained sustained allegations of misconduct that could be used to impeach the deputies at trial. This Brady list typically includes officers who had been found to be dishonest or guilty of other acts of moral turpitude.

The LASD planned to disclose its Brady list to the district attorney’s office and other prosecutorial agencies. The prosecution would then know to file a Pitchess motion to obtain the relevant information from the deputy’s personnel file or to alert the defense so it could file its own Pitchess motion. Under the proposed policy, no information from the deputies’ personnel files would be disclosed without a formal Pitchess motion and accompanying court order.

The LASD notified the deputies of the proposed policy. The Association for Los Angeles County Deputy Sheriffs (“ALADS”), a union representing non-supervisory deputies, opposed the policy. ALADS filed a lawsuit seeking an injunction to, among other things, prohibit the LASD from creating its Brady list or disclosing it (or individual names off of it) to anyone outside of the LASD, absent full compliance with the Pitchess procedure. The case made its way up to the California Supreme Court.

In a unanimous decision in favor of the LASD, the Court first evaluated the extent to which California’s SB 1421, effective January 1, 2019, affected its analysis.  That new law, which went into effect while this case was pending, opened for public inspection many types of peace officers personnel records that could cause an officer to be on a Brady list, such as: particular categories of sustained findings of officer dishonesty, perjury, false statements, filing false reports, or evidence destruction, falsification, or concealment.  The Court found that although some of this SB 1421 information could place an officer on a Brady list, other types of misconduct and information might also do so. 

To resolve the case, the Court held that the “confidentiality” requirement of the Pitchess statutes should be interpreted to allow law enforcement agencies to comply with their constitutional obligations under Brady by providing limited Brady alerts to prosecutors.  A Brady alert is limited to informing prosecutors that a potential peace officer witness in a particular case is on the Brady list.  The Court reasoned:

In common usage, confidentiality is not limited to complete anonymity or secrecy...[D]eeming information “confidential” creates insiders (with whom the information may be shared) and outsiders (with whom sharing information might be an impermissible disclosure).  The text of the Pitchess statutes does not clearly indicate that prosecutors are outsiders, forbidden from receiving confidential Brady alerts.

The Court concluded that “the Department may provide prosecutors with the Brady alerts at issue here without violating confidentiality.” 

It is important to note that the Court did not hold that LASD could forward an entire Brady list to prosecutors.  Rather, the Court held that Brady alerts were permissible on a case-by-case basis, that is only when there was a pending criminal case.  

Association for Los Angeles Deputy Sheriffs v. Superior Court (Los Angeles County Sheriff’s Department), No. S243855 (August 26, 2019)


This decision will allow law enforcement and criminal prosecutorial agencies to more efficiently work together without compromising an officer’s privacy rights.  LCW celebrates its attorneys and staff for serving the Sheriff’s Department so well throughout this case.

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