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California Supreme Court Fails To Resolve ‘Constitutional Crisis’ Created By Police Privacy Laws

A narrow ruling on Brady lists ensures that protecting the police will continue to prevail over due process.

Photo illustration by Elizabeth Brown. Photo from the Los Angeles Sheriff’s Department Facebook.

For years, California courts have bent over backward to reconcile the state’s unusually strict police privacy laws with Brady v. Maryland, the 1963 U.S. Supreme Court decision that requires prosecutors to disclose evidence favorable to the defense. 

The latest attempt to “harmonize” these laws, as the courts have put it, came on Aug. 26 when the California Supreme Court ruled that law enforcement agencies can “alert” prosecutors that an officer set to testify has a history of misconduct. 

The media hailed the decision as “big news” and affirmation that “a suspect’s right to a fair trial outweighs the privacy rights of officers who might have a history of bad behavior.”

But the decision is at best a narrow win for transparency. It reversed a lower court ruling that barred the Los Angeles County Sheriff’s Department from disclosing any information, even to prosecutors, from its so-called Brady list of problem deputies without a court order. The approximately 300 deputies on the list have records that include bribery, false testimony, racial discrimination, and domestic violence. 

Because of the state Supreme Court decision, the names of the troubled deputies can be shared with the prosecution (and perhaps defense attorneys, though the court declined to specifically say) before an officer testifies in court, a practice already used in about two dozen California counties, including San Francisco and Sacramento. 

But this modicum of transparency, while perhaps progress against California’s long history of shielding police from scrutiny, still falls well short of the constitutional requirements for prosecutors and law enforcement under the Brady rule. Indeed, the decision demonstrates that California law on police privacy remains in inexorable conflict with the Constitution’s due process guarantee and systematically undermines the constitutional rights of people in criminal cases. 

While courts persist in the futile exercise of “harmonizing” state law with the Constitution, people charged with crimes head to trial or plead guilty without critical evidence that remains buried in the personnel files of the police.

The Brady rule places an obligation on prosecutors to search for, identify, and disclose material that might help the defense, including information that undermines the credibility of prosecution witnesses—which, in nearly every criminal case, include police officers. The U.S. Supreme Court has explained that the rule extends to “any favorable evidence known to others acting on the government’s behalf in the case, including the police.” 

There is no serious dispute that “favorable evidence known to … the police” includes records in police personnel files. In 2013, the U.S. Court of Appeals for the Ninth Circuit, which hears cases from California, overturned an Arizona murder conviction in part because prosecutors failed to disclose personnel records showing that an officer had been suspended for lying. The court wrote that “the personnel file fit within the broad sweep of [Brady]” and could have been used to impeach the officer, a key trial witness.

And despite its narrow ruling in August, the California Supreme Court echoed that rationale. “There can be no serious doubt that confidential personnel records may contain Brady material,” the court wrote. “An officer may provide important testimony in a criminal prosecution. Confidential personnel records may cast doubt on that officer’s veracity. Such records can constitute material impeachment evidence.” 

Prosecutors need access to police files so they can do the search and disclosure that the Brady rule requires. In his 2015 law review article, “Brady’s Blind Spot,” and in a brief filed with the California Supreme Court, Jonathan Abel, now a public defender in San Francisco, argues that the state is at the extreme end of “only a dwindling handful of jurisdictions [that] constrain prosecutors’ Brady searches.” California, he wrote, “emerges as the state that seemingly goes farther than any other in hiding police misconduct from prosecutors and defendants.”

Around the country, advocates, including me, have demanded that prosecutors compile and publicly release lists of problem officers, and refuse to work with officers who have records of dishonesty, bias, or unwarranted violence. 

And some prosecutors have taken bold steps in this direction. St. Louis City Attorney Kim Gardner has an “exclusion list” of officers from whom her office will not take cases, including 22 officers recently found to have made racist social media posts. The conduct of other prosecutors, however, reminds us that the Brady rule exists because many of them cannot be trusted to disclose information that might hurt their cases. On Aug. 23 in Texas, a judge ordered Harris County District Attorney Kim Ogg’s office to pay a rare monetary sanction for withholding an officer’s disciplinary record, even after the defense asked for it.    

But in California the terms of the debate are different. The state is so secretive and so protective of police that in many cases the question is not whether the prosecution will withhold relevant police records, but whether prosecutors have access to the records in the first place.

In California, most police personnel records are confidential under the 1978 Pitchess statutes, the laws that define which records are discoverable in litigation and how they can be obtained. They require prosecutors and people charged with crimes to seek court orders for records through the time-consuming and byzantine “Pitchess procedures,” a Kafkaesque process that has trampled due process in the state for decades. 

Even a victory under Pitchess doesn’t mean that records are produced; often a judge will release only the names and contact information of people who complained against an officer, and send prosecutors and defense counsel to do their own investigation into what happened. 

A major development came in 2018, when California enacted a new law, Senate Bill 1421, that gives the public greater access to police files. But the law, which took effect this year, applies only to a specific subset of misconduct, such as records related to police shootings, some cases of sexual assault, and lying on the job. In a February 2019 brief, a group of ACLU chapters in California  argued that such categories “are still far more limited than what Brady requires,” and exclude officers who engage in bribery, racial discrimination, sexual harassment, excessive force that doesn’t cause death or serious injury, or domestic abuse, all of which could trigger Brady disclosures. 

For these categories of misconduct, records are available only through the Pitchess procedures, which the California Supreme Court’s August decision left intact. 

A recent Los Angeles Times series found that the Pitchess laws routinely keep police misconduct under wraps, and in many cases defense lawyers do not even bother with the time-consuming procedures so clearly designed to protect police. 

“Pitchess violates every concept of due process,” said Jacque Wilson, a public defender in San Francisco. “The hell with Pitchess.” 

Absent satisfying these procedures, though, the most prosecutors can hope for is an “alert” from police that a testifying officer has something in their background that might require disclosure under Brady rules. The alert does not mean that prosecutors receive the officer’s actual records or even a description of the misconduct—just a name and a heads-up. That’s all the state Supreme Court approved in August; it didn’t even mandate these sort of alerts for the approximately 30 counties that don’t already use them, leaving it up to police to decide whether to report their own employees.

The California Supreme Court decision leaves what the ACLU chapters called a “constitutional crisis” —the conflict between Pitchess laws and constitutional obligations under the Brady rule—unresolved. It’s a crisis the court appeared to acknowledge but did nothing about. Now we know that Brady alerts are allowed, but they are not mandatory. There is also SB 1421, and public defenders have filed requests under that law for the records of officers in their jurisdictions. 

But that still leaves wide swaths of critical information, including Brady lists themselves, subject to the state’s strict privacy protections. Although alerts from law enforcement may help unearth that information in some cases and in some places, the Brady doctrine and the right to a fair trial that it protects demand more. It demands more than alerts and even more than lists of tainted officers. 

At a minimum, prosecutors must be able to search personnel files for Brady material. By ignoring this reality, and continuing to pretend that Pitchess and Brady can coexist, the California Supreme Court has ensured further litigation and more delay while due process in the criminal legal system hangs in the balance. 

But any attempts to further increase transparency—either through the courts or the statehouse—would most likely meet fierce opposition from law enforcement unions. In an Aug. 26 statement, the Association for Los Angeles Deputy Sheriffs said it was “disappointed” in the Supreme Court’s ruling. Unions continue to insist on special protections for their members that both flout the Constitution and treat them differently from others in the criminal legal system. 

“We’ve always seen this double standard and it just seems unfair,” Wilson, the San Francisco public defender, said. “Everything in our client’s history including the kitchen sink comes out, but when it comes to the police officers, everything is so secretive.” 

Kyle C. Barry is senior legal counsel for The Justice Collaborative.