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Public Safety Departments Cannot Voluntarily Share Brady Lists With DA’s or Any Other Non-Department Persons

   Published on:  13 Jul, 2017

Law enforcement agencies cannot disclose the names or other identifying information of officers who are on Brady lists to any outside body, including prosecutorial agencies, absent compliance with the Pitchess process. This notable victory for peace officer privacy rights came this week in Ass’n for Los Angeles Deputy Sheriffs v. Superior Court of County of Los Angeles.

Factual Background

Last year, the Los Angeles Sheriff’s Department (“LASD”) Command Staff compiled a Brady list of nearly 300 deputies whose personnel files contained sustained allegations of misconduct allegedly involving moral turpitude or other bad acts relevant to impeachment. The Department intended to disclose the list to prosecutors who handle LASD investigations. Prosecutors could have then either filed their own Pitchess motions to discover the underlying misconduct or advised the defense of the disclosure.

LASD sued to prevent the Department’s voluntary disclosure of this Brady list to anyone outside of the LASD, absent complete compliance with the Pitchess statutes (Cal. Evidence Code, sections 1043 and 1045 and California Penal Code sections 832.7 and 832.8). Following a lengthy hearing, the trial court granted a preliminary injunction prohibiting disclosure of the list. But the trial court permitted LASD to voluntarily disclose information on officer misconduct if it believed that disclosure was necessary to comply with Brady v. Maryland (1963) 373 U.S. 83 (1963). Brady requires that the prosecution must turn over all exculpatory evidence to the defense. The court reasoned that the constitutional mandates of Brady supersede statutory obligations under Pitchess.

Court of Appeal Holding

A 2-1 majority of the Second District Court of Appeal agreed that injunctive relief was warranted to prevent the general disclosure of Brady list information on officers absent compliance with Pitchess. However, the court of appeal went further and rejected the trial court’s view that law enforcement agencies may violate Pitchess if they believe that voluntarily disclosure of officer misconduct is necessary to comply with Brady. Thus, it ordered the trial court to strike from its injunction any language allowing disclosure of Brady list information to any individual outside of the LASD, even if the deputy is a witness in a pending criminal trial, “absent a properly filed, heard, and granted Pitchess motion, accompanied by a corresponding court order.”

What This Ruling Means For California Peace Officers

This ruling reaffirms peace officer privacy rights under Penal Code sections 832.7 and 832.8 and bars public safety employers from proactively disclosing Brady information to prosecutors and defense counsel absent compliance with Pitchess. The employer may still maintain an internal Brady list — it just cannot disclose it absent a court order. The court also found that transfer or other change in duties based upon placement on a Brady List does not implicate POBR absent evidence the action was for “punitive purposes.”

If you have any questions about this alert, please contact Tylor Dominguez at 415.266.1809 or tylor@majlabor.com.