In an unpublished opinion, Rehan Nazir v. County of Los Angeles et al. (April 2, 2013 B238477), the Court of Appeal decided police officers do not have a right under POBR to appeal District Attorney's decisions to place them on a Brady list. The Court reasoned that POBR only gives officers a right to appeal decisions of their employers and DA's offices are not the employing agencies for police officers. The case does not address a situation, such as with a deputy sheriff or DA investigator, where the county is also the employing agency.
The case is about a city police officer who was placed on a Brady list because of a probable cause declaration. The officer used a confidential informant in his investigation but omitted that information because there was an independent basis supporting probable cause to detain the individual. Later, the DA's office characterized the declaration as untruthful and placed the officer on its Brady list. His department fired the officer. The officer filed a lawsuit saying he had a right under POBR to an administrative process challenging the DA's placement of him on the Brady list. The Court of Appeal disagreed, dismissing his lawsuit.
The Court said POBR protects officers from action "by the public entities which employ them," but not other public agencies. The Court also rejected the argument that section 3304(b) applies to all public agencies. Section 3304(b) says: “No punitive action ... shall be undertaken by any public agency against any public safety officer ... without providing the public safety officer with an opportunity for administrative appeal.” The Court decided "any public agency" means any public agency that employs the peace officer in question, not just any agency whatsoever. As a result, the Court decided the officer could not sue the DA's office under POBR and dismissed his case.
PORAC has promoted a bill, AB 2543, to change the law and prohibit public safety employers from terminating officers merely because they are placed on a Brady list. Several statewide and local public safety labor associations also support the bill. Public safety labor associations can also negotiate a Brady protocol that provides more protections for peace officers.
