Justices appear split on how to address Brady/Pitchess tension

MUNICIPAL MATTERS

The California Supreme Court heard oral argument on June 5 in Association for Los Angeles Deputy Sheriffs v. Superior Court (Los Angeles County Sheriff's Department), S243855. Following the California Legislature's enactment of Senate Bill 1421 and Assembly Bill 748 last year, ALADS has the potential to be the next significant change concerning the confidentiality of police officer personnel records.

SB 1421 requires law enforcement to make open to the public certain records related to officer-involved shootings, uses of force resulting in great bodily injury, dishonesty and sexual assault, while AB 748 prohibits law enforcement for withholding audio and visual recordings related to "critical incidents," such as the discharge of a firearm. At issue in ALADS is whether a law enforcement agency can disclose to prosecutors the name and identifying number of officers who may have exonerating or impeaching material in their personnel file -- a so-called "Brady list -- without obtaining a court order under the Pitchess statutes. See Brady v. Maryland, 373 U.S. 83 (1963); Pitchess v. Superior Court, 11 Cal. 3d 531 (1974); Pen. Code, Sections 832.7-832.8 and Evid. Code, Sections 1043-1045.

ALADS follows the California Supreme Court's decision in People v. Superior Court (Johnson), 61 Cal. 4th 696 (2015), which held that the prosecution's Brady obligation extends to evidence known to others acting on the prosecution's behalf, including law enforcement agencies -- and Attorney General Opinion No. 12-401 (Oct. 13, 2015), in which the attorney general's office opined that, while a prosecutor may not inspect the personnel files of officers absent a court order under the Pitchess statutes, the employing law enforcement agency could nevertheless disclose to the prosecution the names of officers with potential Brady material in their personnel files.

With Johnson and the AG opinion in mind, the Los Angeles County Sheriff's Department reviewed its records for officers with potential Brady material in their personnel files. LASD intended to provide the resulting list to the district attorney's office, identifying several categories of conduct likely to trigger Brady obligations for the prosecution, including instances where officers made false statements, tampered with evidence, obstructed investigations, and used unreasonable force. The Association for Los Angeles Deputy Sheriffs sued seeking injunctive relief to prevent LASD's disclosure. On appeal, the 2nd District Court of Appeal held that LASD could not disclose the identity of officers on the list absent an order following a Pitchess motion.

At its core, ALADS presents the California Supreme Court with another opportunity to revisit the intersection between Brady and the Pitchess statutes. In the past, the court has found that Brady and the Pitchess statutes complement each other. For example, in City of Los Angeles v. Superior Court (Brandon), 29 Cal. 4th 1 (2002), the court held that the Pitchess statutes' limitation of discoverable complaints to those five years old or less does not violate the requirements of Brady, finding instead that the Pitchess statutes "[operate] in parallel with Brady and [do] not prohibit the disclosure of Brady information."

At oral argument, Justice Goodwin H. Liu questioned whether Brady and the Pitchess statutes are complimentary, stating, "[y]ou have now this situation where, actually, potentially exculpatory and material evidence exists, but the prosecution has no means of getting at it." Chief Justice Tani G. Cantil-Sakauye, suggested a more restrained approach, referencing the recent amendments to the Pitchess statutes under SB 1421. The chief justice questioned whether the court should be creating judicial exceptions to the Pitchess statutes when California Legislature may be in a better position to strike the appropriate balance between the privacy rights of officers and the rights of the accused to a defense.

The court must issue an opinion within 90 days of oral argument. Stay tuned. 