Will court say ‘Brady tips’ strike acceptable balance?

In October 2016, the Los Angeles County Sheriff's Department compiled a Brady list of 300 deputies with sustained misconduct that LASD believed constituted impeachment material under Brady v. Maryland. Only deputies' names would be placed on this Brady list, and no information from their personnel files would be disclosed absent a Pitchess motion. Following notification by LASD to the affected deputies, the Association for Los Angeles Deputy Sheriffs filed suit to enjoin LASD from disclosing the names.

The trial court issued a preliminary injunction prohibiting LASD from disclosing its Brady list to the Los Angeles district attorney's office unless any listed officer became a potential witness in a criminal prosecution or pursuant to Pitchess motion. See Pitchess v. Superior Court, 11 Cal. 3d 531 (1974). ALADS filed a petition for writ of mandate with the court of appeal to strike any language permitting disclosure of a deputy's name without a Pitchess motion. The court of appeal held that although LASD can maintain an internal Brady list, the names on that list are confidential and cannot be disclosed absent a Pitchess motion. ALADS v. Superior Court, 13 Cal. App. 5th 413 (2017).

The Supreme Court granted review of ALADS and will address the question of whether the name and identifying badge number of an officer may be disclosed to a prosecutor without a Pitchess motion when that officer is a potential witness in a criminal prosecution and has relevant exonerating or impeachment evidence in their personnel file. ALADS v. Superior Court, 403 P. 3d 144 (2017).

Penal Code Section 832.7(a) specifically states that peace officer personnel records are "confidential" and may only be disclosed through the Pitchess process. California's appellate courts have long held that prosecutors do not have access to confidential peace officer personnel records absent compliance with Pitchess. Whether the confidentially conferred by Section 832.7(a) prevents disclosing a peace officer's name alone for purpose of compliance with the Brady requirement is an issue the Supreme Court has not directly addressed.

Insight into how the Supreme Court will rule in ALADS is found in People v. Superior Court (Johnson), 61 Cal. 4th 696 (2015), where the court held that prosecutors do not have unfettered access to peace officer personnel files to satisfy their Brady obligation. Although the court did not directly address the question of whether officers' names themselves are confidential, it stated, "the police department has laudably established procedures to streamline the Pitchess/Brady process ... through the use of Brady tips to the prosecution who in turn would notify defense counsel that an officer's personnel file may contain Brady material." The court cited the Brady tip procedure used by the San Francisco Police Department for disclosures to the district attorney's office as a way to streamline the process and protect a defendant's right to due process while satisfying a prosecutor's obligation to the defense.

In Johnson, the Supreme Court supported greater efficiency in the Pitchess/Brady process. The court also suggested that prosecutors should not be required to file a Pitchess motion against every officer witness in every case in order to comply with their Brady obligation.

During the pendency of review in ALADS, the Legislature passed Senate Bill 1421 which amended Penal Code Section 832.7 to mandate the disclosure of certain limited peace officer personnel records outside of Pitchess procedures. SB 1421 went into effect Jan. 1, 2019. Although the court denied two extraordinary writs of mandate challenging SB 1421, it requested supplemental briefing in ALADS on the impacts of SB 1421 the same day.

Another important aspect of the ALADS opinion will be the court's first interpretation of SB 1421. The court is anticipated to conclude that SB 1421 creates an alternative procedure, a public records request, for prosecutors to obtain Brady materials if the materials also meet the definition of records subject to public disclosure. SB 1421 covers records relating to (1) the discharge of a firearm, (2) use of force investigations, (3) sustained findings of dishonesty, and (4) sustained findings of sexual assault. Since prosecutors can obtain these records through a public records request, presumably the court will conclude they can also obtain a "tip" as to their existence through such a request. However, the procedures and timelines for obtaining records under SB 1421 are not the same as the Pitchess procedures. Moreover, the records subject to SB 1421 are simultaneously more expansive and narrower than the records that may be subject to a "Brady tip."

Finally, the ALADS decision is expected to resolve a lingering dispute over whether SB 1421 is applicable to records generated prior to 2019. SB 1421's retroactivity was squarely addressed in the supplemental briefs. My office filed a brief on behalf of the Peace Officers Research Association of California arguing retroactive application would upset the reasonable expectations of privacy and violate the statutory and constitutional rights of victims. The California attorney general took the opposite position. SB 1421 provides no express privacy protections for victims of the underlying crimes, whose commission often results in the call for law enforcement that resulted in the use of deadly force. Marsy's Law grants crime victims constitutional rights, including the right to have their information withheld from defendants. Moreover, officers using deadly force often meet the definition of "crime victims" and are themselves entitled to privacy under Marsy's Law. Prior to 2019, the investigation of the underlying crime was comingled with the investigation of the officer's justification for the use of force.

While the Supreme Court is widely expected to uphold the confidentiality of peace officer personnel records, it is unclear whether the court will hold that the mere disclosure of the existence of potential Brady material in an officers' personnel file violates the Pitchess protocol. Given the court's dicta in Johnson regarding the efficiency of "Brady tips," the court may well conclude that the "Brady tip" strikes an imperfect but acceptable balance between peace officer confidentiality and the due process rights of criminal defendants. The court will hear oral arguments on Wednesday.