State Supreme Court: Police Allowed to Alert Prosecutors to Officer Misconduct

The state's high court ruled unanimously Monday that 40-year-old laws ingraining deep secrecy around most police misconduct information in California do not prevent law enforcement agencies from alerting prosecutors about potential credibility issues stemming from the disciplinary files of cops slated to testify in criminal cases.

While the ruling is a major milestone attempting to square the state's entrenched privacy protections for peace officers with the due process rights of criminal defendants, it could also impact the general public's right to access parts of a list of problem officers kept by some law enforcement agencies.

The ruling in a case originally brought by the Association for Los Angeles Deputy Sheriffs two years ago ends a prohibition on California police departments and sheriffs alerting district attorneys that an officer witness is on a "Brady list," named for the seminal 1963 U.S. Supreme Court case Brady v. Maryland that established a duty for prosecutors to turn over evidence tending to show innocence to defendants in criminal cases.

Prosecutors' duty outlined in that case was later interpreted to include information that could be used to impeach a witness officer on the stand.

The Los Angeles deputy sheriffs union had successfully argued in lower courts that any transfer from the sheriff's Brady list to prosecutors must go through a secretive and time-consuming process — called the Pitchess process after a series of state laws enacted in the late 1970s — under seal of a criminal court. Otherwise, even prosecutors were not allowed to know about misconduct of officers they called to testify.

"Construing the Pitchess statutes to cut off the flow of information from law enforcement personnel to prosecutors would be anathema to Brady compliance," California Chief Justice Tani Cantil-Sakauye wrote in her ruling signed by every justice on the high court. "Law enforcement personnel are required to share Brady material with the prosecution."

The court's ruling acknowledges the contradiction between prosecutors' constitutional duty to disclose information they're generally barred by law from knowing. And it references efforts in both San Francisco and Los Angeles to send automatic alerts to district attorneys when an officer on a Brady list is slated to testify.

"Without Brady alerts, prosecutors may be unaware" that they should file a motion seeking a judge's closed-door review of an officer's personnel file, "and such a motion, if filed, may not succeed," the ruling says.

The Los Angeles deputy sheriffs union said in a written statement that it is "disappointed" in the ruling.

"ALADS still stands on the fact that the Brady List is a direct product of a flawed disciplinary process," the statement says, "which may be filled with bias, grudges faulty analysis and outright misrepresentation."

The union noted that the "Brady alerts" are confined under the ruling to deputies who are potential witnesses in criminal cases. The union said it would request negotiations with the sheriff to develop a policy for the notifications.

But not every California law enforcement agency maintains a Brady list like the Los Angeles sheriff does, and the ruling doesn't require them to start. But agencies who keep a list can't be barred from sharing it with district attorneys.

"Not only was the prosecutor disabled from insisting that the police turn (misconduct information) over, but the police themselves were forbidden from turning it over, and it’s that last part of it that gets addressed here," Stanford law professor Robert Weisberg said. "Police departments are allowed to give this information to the prosecutor."

The Supreme Court's ruling doesn't directly conclude whether the general public can access parts of an agency's Brady list under Senate Bill 1421, the state's new police transparency law. The law, which took effect Jan. 1., granted access through a public records request to information about sexual assault, dishonesty and serious uses of force by California officers.

The ruling says that entries on a Brady list derived from SB 1421's categories are no longer confidential, however.

"Because such records are not confidential, information 'obtained from' those records is also not confidential," the opinion says. "[T]he Pitchess statutes do not prevent the Department from disclosing — to anyone — the identity of officers whose records contain that nonconfidential information."

Read the ruling below.