No Disclosure of "Brady List" to Prosecutors Absent Compliance with Pitchess Statutes, but Agency May Transfer Officers or Change Officer Duties for Non-Punitive Purposes

Category: Briefing Room
Date: Aug 31, 2017 04:04 PM

In a case handled by Geoffrey Sheldon and Alex Wong of our Los Angeles office, 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.  A Brady list contains the names of officers whose personnel file likely contains evidence of dishonesty or bias that could be used to impeach the officer.  The Court also found, however, that a law enforcement agency may transfer or change the duties of an officer on a Brady list to compensate for the officer’s reduced credibility if allegations of the officer’s misconduct are disclosed. 

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.

The LASD compiled a “Brady list” consisting of names and employee numbers of deputies whose personnel files contained sustained allegations of misconduct that could subject the deputies to impeachment in a prosecution.  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 and/or it could fulfill its Brady obligations by notifying the criminal defense attorney that a witness’s name was on LASD’s Brady list.

With the intent of protecting the integrity of ongoing or future criminal investigations, 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.  Any deputy affected would be provided notice, as well as a hearing and an opportunity to obtain representation.  The officer’s due process rights and any applicable MOU section would be followed by LASD.    

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 enjoin the LASD from disclosing the names of deputies on the list to anyone outside the LASD, absent full compliance with the Pitchess statutes (which means the filing, and then granting, of a Pitchess motion).  ALADS also sought, among other things, to prevent the LASD from transferring or imposing duty restrictions on deputies appearing on the Brady list.

The trial court rejected all of ALADS claims, but it did grant ALADS partial relief.  That is, the trial court held that LASD could create a Brady list and could transfer deputies or impose duty restrictions as a result of being on the Brady list, but it could not transmit the entire list to prosecutors at one time.  Instead, the trial court ruled that the LASD could transmit names of deputies on the Brady list to prosecutors only on a case-by-case basis, i.e., only when there was an actual, pending criminal case.  The trial court predicated its decision on the rationale that LASD’s Brady obligations only existed when there was an actual, pending criminal case, and thus transmittal of the entire list proactively was in conflict with the Pitchess statutes.

ALADS then filed a Petition for Writ of Mandate to the Second District Court of Appeal.  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.  However, the Court rejected ALADS’ contention that the LASD was prohibited from creating and maintaining a Brady list for its internal purposes.

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 the 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 in that they did not result in any change in an officer’s rank, salary or bonus pay.  Rather, they were intended to address deputies’ reduced credibility.  

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

Note: 

Many law enforcement agencies share names of officers on Brady lists with prosecutors.  LCW can assist your agency to address this issue.  A more in-depth discussion of this case is available here.  Update:  On August 18, 2017, our office filed a Petition for Review to the California Supreme Court on behalf of the Los Angeles County Sheriff’s Department.  We will provide updates regarding the status of the case in subsequent publications. 

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