Court of Appeal Holds that Law Enforcement Agency May Not Disclose “Brady List” to Prosecutors Absent Compliance With Pitchess Statutes

Category: Special Bulletins
Date: Jul 13, 2017 07:48 PM
Court of Appeal Holds that Law Enforcement Agency May Not Disclose “Brady List” to Prosecutors Absent Compliance With Pitchess Statutes

In a decision published this week, a California Court of Appeal held, among other things, that the Los Angeles County Sheriff’s Department (LASD) was prohibited from sharing with prosecutors the names of deputies on its “Brady list” absent a court order after a Pitchess motion.  To our knowledge, this decision is the first that expressly holds that a law enforcement department will violate the Pitchess statutes if it discloses the name of an officer on the department’s Brady list to a prosecutor without first securing a court order permitting the disclosure.

Under the U.S. Supreme Court’s holding in Brady v. Maryland, the prosecution in a criminal case must disclose to the defense all exculpatory evidence in the prosecution’s possession.  This includes impeachment evidence of a police witness, which is sometimes found in the officer’s personnel file.  Indeed, prosecutors have a duty under Brady and its progeny to inquire whether the relevant law enforcement department is in possession of exculpatory evidence.

Meanwhile, California Penal Code sections 832.7 and 832.8 afford confidential status to officer personnel records and impose an obligation on law enforcement agencies to maintain the confidentiality of such records – and information contained therein.  These statutes however, along with others in the Evidence Code, also provide procedures for a criminal defendant to access information relevant to his or her defense from an officer’s personnel file.  To do so, the criminal defendant must file a written motion, supported by declarations or affidavits, demonstrating good cause for the disclosure.  If the motion is granted, the trial court privately reviews the officer’s personnel records and provides the defendant any relevant information.  The same requirements apply to a prosecutor seeking evidence from an officer’s personnel file.  The relevant statutory sections are commonly referred to as the “Pitchess statutes,” after Pitchess v. Superior Court, the California Supreme Court case on which they are based.  Likewise, motions filed pursuant to these statutes are known as “Pitchess motions.”            

Against this backdrop, the LASD compiled a so-called “Brady list,” consisting of names and serial numbers of deputies whose personnel files contained sustained allegations of misconduct that could subject the deputies to impeachment in a prosecution.  Many police agencies across the state maintain such lists, which typically include officers who have engaged in dishonesty or other acts of moral turpitude.    

In an effort to comply with Brady, the LASD proposed an internal policy under which it would disclose its Brady list to the district attorney and other prosecutorial agencies.  In turn, if an LASD deputy was a witness in a criminal case, the prosecution would know to file a Pitchess motion to obtain relevant information from the deputy’s personnel file, or alternatively to alert the defense so it could file its own Pitchess motion.  Under the policy, details of investigations or portions of the deputies’ personnel files would only be disclosed in response to a formal Pitchess motion and accompanying court order.

The LASD transmitted a letter to deputies, notifying them of the proposed policy.  The LASD also considered non-punitive assignment changes or duty restrictions for deputies on the Brady list to mitigate potential harm resulting from the impaired credibility of these deputies.          

The Association for Los Angeles County Deputy Sheriffs (ALADS), a union representing non-supervisory deputies, opposed the proposed policy.  It filed a lawsuit seeking to prohibit the LASD from disclosing the names of deputies on the list to anyone outside the LASD, absent full compliance with the Pitchess statutes.  ALADS also sought, among other things, to prevent the LASD from transferring or imposing duty restrictions on deputies appearing on the Brady list, and to limit the circumstances in which the LASD could place deputies on the list.

The trial court ultimately issued a preliminary injunction barring general disclosure of the Brady list to the district attorney or other prosecutors, except pursuant to the Pitchess statutes.  However, the injunction provided an exception for deputies who were potential witnesses in a pending criminal prosecution.  Under the injunction, the names of these deputies could be disclosed on an individual basis outside the Pitchess process. 

The trial court also denied the remainder of ALADS’ requests.  Accordingly, the injunction further provided that the LASD was not precluded from maintaining an internal Brady list or from transferring, restricting the duties of, or otherwise taking action against any deputy for being on the Brady list.  ALADS appealed these issues, as well as the exception in the injunction regarding deputies who were potential witnesses in a pending criminal prosecution.

The Court of Appeal agreed with ALADS that absent compliance with the Pitchess statutes, the LASD could not disclose to prosecutors the names of any deputies on the Brady list, even those deputies who were potential witnesses in a pending criminal prosecution.  In so holding, the Court rejected a recent California Attorney General Opinion that reached the opposite conclusion.  The Court reasoned that the confidentiality of police officer personnel records extends to an officer’s identity, to the extent it connects the officer to disciplinary proceedings or complaints of misconduct contained within his or her personnel records.  The Court concluded that even if the disclosure contains purely generic information about the officer, the Pitchess process must still be followed.;

The Court rejected, however, ALADS’ contention that the LASD was prohibited from creating and maintaining a Brady list for its internal purposes.  In this regard, the Court explained that “neither Pitchess nor the statutes discuss, let alone prohibit, the internal collection of data, based upon past events found to have occurred after an investigation and administrative hearing by the employing law enforcement agency.”           

The Court also declined to prohibit LASD from transferring or imposing duty restrictions on deputies whose names appeared on the Brady list.  It rejected ALADS’ argument that such transfers or restrictions constituted “punitive action” in violation of the Public Safety Officers Procedural Bill of Rights Act (“POBR”).  Government Code section 3305.5 of the POBR prohibits any “punitive action” against a public safety officer solely because that officer has been placed on a “Brady list,” or because that officer’s name might otherwise be subject to disclosure under Brady.  However, under POBR, “punitive action” is defined as “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.”  Here, LASD presented evidence that the contemplated transfers and duty restrictions were not punitive; rather, they were intended to address deputies’ reduced credibility.                    

Note:  Attorneys from Liebert Cassidy Whitmore represented the LASD in this case.  If a petition is filed requesting review by the California Supreme Court, we will provide an update to this bulletin.  In the meantime, we encourage agencies that share names of officers on Brady lists with prosecutors to address this issue with their counsel.   

Association for Los Angeles Deputy Sheriffs v. Superior Court (Los Angeles County Sheriffs Department) (2017) ___ Cal.Rptr.3d ___ [2017 WL 2962901]   

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