Appellate Court Holds Disclosure of Names of Officers on the Brady List Unlawful

Earlier this month, the Second District Court of Appeal issued a ruling in Association of LosAngeles Deputy Sheriffs v. Superior Court (“ALADS”) that will change the way many law enforcement agencies use so-called Brady lists. ALADS, the employee organization representing Los Angeles County deputies, challenged the Los Angeles County Sheriff’s Department’s Brady list policy, alleging it violated state law by disclosing peace officer personnel records without a Pitchess order. In so doing, the court distinguished from People v. Superior Court (Johnson) (2015) 61 Cal.4^th 696 wherein our our Supreme Court commended a similar process used to continually notify the district attorney’s office of which officers' personnel records may contain Brady material.  ALADS held that, while the Sheriff’s Department could compile a Brady list for internal use, it could not share that list with prosecuting agencies, or advise those agencies that a deputy was on the list.

This case addressed whether California law protecting peace officer personnel files from disclosure conflicted with prosecutor’s constitutional obligation under Brady v. Maryland (1963) 373 U.S. 83 to disclose to criminal defendants all evidence in their possession favorable to the defense and material on the issue of guilt or punishment. Pursuant to Penal Code 832.7, personnel records and information cannot be disclosed in a criminal proceeding unless the prosecution or defense first files a Pitchess motion, pursuant to Evidence Code sections 1043-45. The Pitchess statutes require the prosecutor or a defendant to file a motion identifying the potential Brady material at issue and showing good cause to obtain information from a peace officer’s personnel records. Upon a showing of good cause, the court then reviews the personnel records at issue and determines what – if anything – must be disclosed.  Johnson held “the prosecution fulfills its Brady obligation if it shares with the defendant any information it has regarding whether the personnel records contain Brady material and then lets the defense determine whether to file a Pitchess motion."  It did not address the obligation to provide a Brady list or Brady tip, nor the legality of providing such information about non-witness officers. 

At issue in ALADS was whether the Sheriff’s Department could disclose to prosecutors the names of deputies who had Brady material in their personnel files without requiring the prosecutors to go through the Pitchess process. The Sheriff’s Department created a Brady list of deputies whose personnel files contained sustained misconduct allegedly involving moral turpitude or other bad acts relevant to impeachment, then proposed to disclose that list to the district attorney and other prosecuting agencies. With that information, prosecutors could then file Pitchess motions to discover the underlying misconduct, or advise the defense of the disclosure, so it could file its own motion. ALADS opposed the proposed policy, on the grounds it violated Penal Code section 832.7, by disclosing personnel records to prosecutors without requiring them to first comply with the Pitchess rules. ALADS sued, seeking an injunction barring the Sheriff’s Department from disclosing to prosecutors its Brady list or any individual on the list to anyone outside the Sheriff’s Department, absent compliance with Pitchess procedures.

The trial court partially granted the injunction ALADS sought, barring the Sheriff’s Department from disclosing the list to prosecutors. However, the trial court authorized the Department to disclose to prosecutors the identity of individual officers on the Brady list, without complying with Pitchess, so long as any disclosed deputy was also a potential witness in a criminal case. ALADS appealed the decision, arguing Penal Code 832.7 did not allow the Sheriff’s Department to disclose the fact that a deputy was on the Brady list absent compliance with Pitchess, even when that deputy was a potential witness in a criminal case.

The appellate court sided with ALADS. The court noted that Penal Code 832.7(a) protects not only personnel records, but “all information obtained from those records.” According to the court, the fact that a deputy had an administratively founded allegation of misconduct was information from his or her personnel records, and was thus protected from disclosure absent compliance with the Pitchess procedure.  Because the information was covered by Penal Code 832.7, the Sheriff’s Department could not disclose it to prosecutors.

This case will impact law enforcement agencies statewide. It prohibits law enforcement agencies from providing Brady lists to prosecutors, and prevents them from disclosing the identity of individuals on such lists absent a court order compelling such disclosure.  Supreme Court review is a distinct possible.