NEW LAW LIMITS EMPLOYER AGENCY’S ACTIONS IF D.A. DECLARES AN OFFICER IS A “BRADY” OFFICER
Senate Bill 313, authored by State Senator Kevin De Leon of Los Angeles, has significantly altered California law regarding what actions a police chief or sheriff can take after the county district attorney declares a peace officer to be a “Brady” officer, even if the reason for that action was a finding of dishonesty by the prosecutor.
SB 313 has amended the Public Safety Officers’ Procedural Bill of Rights Act (POBR) and now prohibits an agency from taking adverse action against a peace officer “. . . solely because that officer’s name has been placed on a Brady list, or that the officer’s name may otherwise be subject to disclosure pursuant to Brady v. Maryland, (1963) 373 U.S. 83.” (Emphasis added.)
It should be noted that the law also states that the “section shall not prohibit a public agency from taking punitive action, denying promotion on grounds other than merit, or taking other personnel action against a public safety officer based on the underlying acts or omissions for which that officer’s name was placed on a Brady list, or may otherwise be subject to disclosure pursuant to Brady v. Maryland . . . , if the actions taken by the public agency otherwise conform to this chapter and to the rules and procedures adopted by the local agency.”
However, in addition, the new law restricts the proffer of such evidence at an administrative appeal. “Evidence that a public safety officer’s name was placed on a Brady list may only be introduced if, during the administrative appeal of a punitive action against an officer, the underlying act or omission for which that officer’s name was placed on a Brady list is proven and the officer is found to be subject to some form of punitive action.”
SB 313 was proposed by PORAC, a police labor organization, because of the concern that each of the 58 county district attorneys apply their own criteria in determining whether or not to place an officer on a Brady list. In addition, there is no guarantee of due process for the officer, nor any guaranteed opportunity to challenge the placing of his or her name on a Brady list.
Those concerns are valid and should be addressed, however this law does not accomplish those goals and focused on the wrong target.
Brady v. Maryland
Approximately fifty years ago, the United States Supreme Court held, in the case of Brady v. Maryland, that “. . . suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” It makes no difference if the prosecutor withholds such information intentionally or inadvertently.
In a series of subsequent cases, the Supreme Court held that the prosecutor has a duty to disclose such information to the defense, whether or not the defense even requests such information; that the prosecution has the duty to seek out any evidence which could assist the accused in his or her defense; and knowledge of such information by others, who are part of the prosecution team, is deemed knowledge by the prosecutor.
Such evidence includes exculpatory evidence, as well as evidence which could be used to challenge the credibility of a material prosecution witness. For example, in the case ofGiglio v. United States, 405 U.S. 150 (1972), the Court held that “(w)hen the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule.”
The courts have held that it is not the prosecutor’s duty to secure a conviction but, rather, to insure that justice is done. As such, the burden of finding and disclosing such evidence falls on the prosecutor and failure to disclose “Brady” material will result in the reversal of a conviction, regardless of whether or not the prosecution was aware of the existence of such evidence. As such, we have seen increasing efforts by prosecutors to find and disclose such evidence.
The problem confronting law enforcement is, as stated above, the lack of any uniform process to be followed before a decision is made by a prosecutor that a peace officer’s credibility is subject to challenge and, therefore, places the name of the officer on a “Brady” list.
That action results in the name of the officer being disclosed to the defense anytime the officer is a material prosecution witness and, obviously, can seriously damage the officer’s ability to testify in the future and can result in the end of an officer’s career.
Impact of SB 313
The problem with SB 313 is twofold: first, the chief or sheriff cannot take any personnel action involving that officer which might be perceived as adverse, such as removing the officer from patrol duties, based solely on the fact that he or she has been declared a “Brady” officer by the D.A.
As such, a “Brady” officer remains in the field despite the fact that the D.A. may refuse to prosecute cases involving that officer.
In addition, if that officer is a backup officer, whose testimony is crucial to prove a fellow officer acted properly if the primary officer’s behavior is questioned, the backup officer’s credibility is subject to challenge based on being on a “Brady” list.
That places the primary officer at great risk since his or her actions, which may have been perfectly appropriate, may be found to have acted improperly, if the “Brady” officer’s testimony is not believed.
Second, what this new law also does, from a practical perspective, is to now require the administrative appeal hearing be bifurcated, assuming the agency imposes discipline for the underlying misconduct and the employee challenges the discipline. Since the law now prohibits the introduction of evidence regarding the placement of an officer on a “Brady” list until after the hearing officer/body determines that misconduct, in fact, occurred, there must be two parts to the proceeding.
SB 313 states that, “(i)f the hearing officer or other administrative appeal tribunal finds or determines that a public safety officer has committed the underlying acts or omissions that will result in a punitive action . . . and evidence exists that a public safety officer’s name has been placed on a Brady list, . . . then the evidence shall be introduced for the sole purpose of determining the type or level of punitive action to be imposed.” (Emphasis added.)
HOW THIS AFFECTS YOUR AGENCY
As stated above, this new law significantly changes what, if any, personnel action can be taken by a police chief or sheriff, assuming the D.A. places an officer on a “Brady” list. It also alters the structure of an appeal hearing regarding imposition of discipline, since it requires that the hearing officer/body first deliberate and determine that the misconduct has been proven and then reconvene to take testimony regarding the proposed discipline.
In cases where the charge of misconduct involves dishonesty, and assuming the imposed discipline was termination of employment, it is imperative that the employer be able to justify that action. Obviously, evidence of the inability of the officer to testify effectively, which is an essential part of a peace officer’s duties, must be presented to the hearing officer or body.
Due to the efforts of the California Police Chiefs’ Association (CPCA) and the California State Sheriffs’ Association (CSSA) the law was amended to mandate that such information will be presented before the appeal officer/body can rule on the appropriateness of the level of discipline.
Once the charge of misconduct has been upheld, “. . .then the evidence [of the Brady listing]shall be introduced for the sole purpose of determining the type or level of punitive action to be imposed.” Absent that amendment, the original language of the bill made it discretionary as to the introduction of such important evidence.
The impact of this legislation remains to be seen but, potentially, it creates serious problems for law enforcement officers in the field being backed up by a “Brady” officer, as well as for law enforcement management in deciding how to deal with a “Brady” officer due to the severe restrictions imposed on management by SB 313.
Seeking advice and guidance from your agency’s legal advisor is important when interpreting and applying new laws and we urge you do so in this case in particular.
As always, if you wish to discuss this matter in greater detail, feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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