In a unanimous decision published today, the California Supreme Court held that the Los Angeles County Sheriff’s Department (LASD) could share with prosecutors the names of deputies on its “Brady list” in particular cases without seeking a court order after a Pitchess motion. The Court held that the LASD would not violate Pitchess “by sharing with prosecutors the fact that an officer, who is a potential witness in a pending criminal prosecution, may have relevant exonerating or impeaching material in that officer’s confidential personnel file.” In so holding, the Court decided a novel question of constitutional and statutory law. (LCW Partner Geoff Sheldon argued the case in the California Supreme Court on behalf of the prevailing party County of Los Angeles.)
The theoretical background of the case is as follows. 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.
At the same time, 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, along with others in the Evidence Code, 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 here 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 found to 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’s office 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 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.
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. The trial court’s injunction, however, provided an exception for deputies who were potential witnesses in a pending criminal prosecution. i.e., it allowed for a type of Brady “alerts.” Under the injunction, the names of these deputies could be disclosed on an individual basis outside the Pitchess process. On appeal, however, the Court of Appeal approved the injunction and went a step further to hold that even Brady alerts were improper. Absent compliance with the Pitchess processes, 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.
On October 11, 2017, the California Supreme Court granted review of the case. After the parties submitted briefing thereafter, including supplemental briefing at the Court’s request, and after the Court heard oral argument on June 5, 2019, it issued its decision today.
In an opinion by Chief Justice Cantil-Sakauye, the Supreme Court reversed the decision of the Court of Appeal and held that the “confidentiality” language of the Pitchess statutes authorized a sheriff’s department to share Brady alerts with prosecutors for particular cases.
The Court first evaluated the extent to which the new law SB 1421, effective January 1, 2019, affected its analysis. That law, which was passed and went into effect while this case was pending, made non-confidential, and in fact open for public inspection, many types of police officer personnel records that could cause an officer to be included on a Brady list. This includes, among other specific types of records, those relating to incidents in which a sustained finding was made of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime and also any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.” The Court found basically that although some of this SB 1421 information might constitute what places an officer on a Brady list, it was not exhaustive of the types of misconduct and information that might do so. Thus, the passage of SB 1421 did not make it so Brady lists and alerts contain only non-confidential information, and the Court still had to resolve the issue presented by this case. (The Court also observed in a footnote that it was not deciding at this point whether SB 1421 affects the confidentiality of records that existed before the statute’s January 1, 2019 effective date.)
In reaching the merits, 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 alerts to prosecutors. The Court reasoned as follows:
“In common usage, confidentiality is not limited to complete anonymity or secrecy. A statement can be made ‘in confidence’ even if the speaker knows the communication will be shared with limited others, as long as the speaker expects that the information will not be published indiscriminately.” . . . So, for example, it is hard to imagine that the term “confidential” would categorically forbid one employee of a custodian of records, tasked with maintaining personnel files, from sharing those records with another employee assigned to the same task. Put differently, deeming information “confidential” creates insiders (with whom 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.
(Quoting authority.) The Court concluded: “Viewing the Pitchess statutes ‘against the larger background of the prosecution’s [Brady] obligation,’ we instead conclude that the Department may provide prosecutors with the Brady alerts at issue here without violating confidentiality.” (Quoting authority.)
The Court did not hold that a sheriff’s department could forward an entire Brady list to prosecutors, but addressed Brady alerts, in particular the process by which a sheriff’s department advises prosecutors that a witness in a particular case is on the list. The Court’s holding will greatly facilitate the ability of law enforcement and prosecutorial agencies to work together to comply with obligations under Brady, without, as the Court explained, significant compromise of officer state law rights secured by the Pitchess statutes.
Association for Los Angeles Deputy Sheriffs v. Superior Court (Los Angeles County Sheriffs Department), No. S243855 (August 26, 2019)