California Officer Loses Brady Claim

2013 has not been a good year in court for former Torrance, California police officer Rehan Nazir. Earlier, Nazir lost a case in federal court contending that his termination violated his equal protection rights. In April 2013, Nazir lost a related case in the California Court of Appeals.

Nazir’s difficulties started on April 14, 2007, when he prepared a “probable cause declaration” omitting the fact that he had been provided information by a confidential informant. Sometime in October 2008, the arrestee’s defense counsel learned that Nazir and his partner had used a confidential informant on the night of the arrest and moved to have the criminal charges against his client dismissed. The district attorney’s office dismissed the charges.

The Los Angeles County DA’s office has created an internal repository of information to facilitate compliance with prosecutorial discovery obligations under Brady v. Maryland, 373 U.S. 83 (1963). The repository is referred to as the “Brady Alert System” and is maintained by the Bureau of Prosecution Support Operations, Brady Compliance Unit, of the district attorney’s office. The repository identifies peace officers and government-employed expert witnesses for which “Brady material” exists.

The Brady Compliance Unit of the DA’s office conducted an investigation into the circumstances surrounding Nazir’s arrest of the arrestee. In February 2009, the Unit notified Nazir that it had determined his probable cause declaration and arrest report contained false information within the meaning of Brady, because both documents omitted any reference to the use of a confidential informant. The Brady Compliance Unit further notified Nazir that his name was tentatively being placed in the district attorney’s office “Brady Alert System” as a result of that finding. Nazir was advised he was permitted to file written objections or other written materials explaining his conduct.

Nazir submitted written objections and declarations (including declarations from other Torrance Police Department officers) explaining his conduct on the night of the arrest. Nazir was not allowed to appear personally or otherwise make a formal presentation to the DA’s office before a decision was rendered.

On June 3, 2010, the DA’s office rendered its decision that Nazir’s name would be included in the Brady Alert System, and specifically found that Nazir was the focus of the Torrance Police Department’s internal investigation surrounding the arrest, that Nazir falsified his probable cause declaration and arrest report by omitting the confidential informant information, and that Nazir’s conduct involved moral turpitude. A week later, the Unit formally notified Nazir’s employer, the Torrance Police Department, of the decision to formally place Nazir’s name in the Brady Alert System.

When the City fired Nazir, he filed a state court lawsuit against the DA’s office. The heart of his complaint was that his placement in the Brady Alert System violated California’s statutory Public Safety Officers Procedural Bill of Rights Act (POBRA).

The California Court of Appeals disagreed, and found that the Bill of Rights did not apply to the DA’s office because it was not Nazir’s employer.

Nazir relied on Section 3304 of the Bill of Rights, which reads: “No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.” Nazir contended the use of the phrase “any public agency” compelled the conclusion that a POBRA claim is viable against any public agency, even a nonemploying agency.

The Court did not agree: “Section 3304 provides a number of procedural rights for public safety officers who may be accused of misconduct in the course of their employment. Section 3304 provides that no peace officer shall be subjected to punitive action, or denied promotion, or be threatened with any such treatment, because of the lawful exercise of the rights granted under this chapter, or the exercise of any rights under any existing administrative grievance procedure. Being subjected to punitive action, being denied a promotion, or being threatened with such action for exercising rights under a grievance procedure all indicate a focus on the types of adverse acts an employer may take against an employee. Section 3304 also specifically provides that nothing in the section precludes the head of the agency from ordering the public safety officer to cooperate with the criminal investigations of other agencies.

“We will not read subdivision (b) of Section 3304 in isolation from the balance of the statutory scheme. The provision plainly provides that peace officers must be afforded an administrative appeal when punitive actions are taken against them. Our Supreme Court has analogized Section 3304 to the related statutory scheme set forth in the State Civil Service Act and its provisions giving certain protections to public employees from adverse or punitive actions by their public employers. Section 3304, subdivision (b) cannot reasonably be read to authorize a POBRA claim against a nonemploying public agency wholly unrelated to the peace officer’s employing agency.”

Nazir v. County of Los Angeles, 2013 WL 1303327 (Cal. App. 2 Dist. 2013).