More than a decade ago, the Los Angeles District Attorney’s Office began to take the position that the Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963) applied to law enforcement disciplinary decisions. In Brady itself, the Court had held that the prosecution in a criminal case has an obligation to disclose to a criminal defendant any potentially exculpatory information. The significant development in the Los Angeles area was that the Brady rule began to be applied to disciplinary records.
Mike Stone, the Los Angeles-area police lawyer who has written extensively about Brady trends, has described the implication of the rule as follows: “If a police officer is a material or substantial witness in a criminal case, he or she may be subject to impeachment by the introduction of information that could cause the trier of fact to question the officer’s motives, accuracy, truth, honesty, veracity, integrity or credibility, and therefore, the believability of the officer’s testimony. Any witness, not just a peace officer, is subject to impeachment along these lines.”
Over time, court decisions began to appear that supported the broad interpretation of the Brady rule. Moreover, some decisions held that Brady obligations extend to all members of the “prosecution team,” including the law enforcement agencies, to identify potential “Brady materials.” Some district attorney offices began to maintain “Brady lists” containing the names of officers whose credibility could potentially be subject to challenge.
Most recently, a number of arbitrators have begun to reject termination decisions made by law enforcement agencies based solely on an officer’s presence on a Brady list. These arbitrators – as exemplified by a decision involving the Kansas City Police Department summarized in this newsletter – require an employer to prove not just that an officer has been placed on a Brady list, but also to establish underlying acts of dishonesty that would warrant termination.
In the meantime, the California Legislature decided to address the issue of “Brady lists” head-on. On October 12, 2013, California Governor Jerry Brown signed Senate Bill 313, a law adding a new 3305.5 to the California Public Safety Officers’ Procedural Bill of Rights Act. Under the new law, “a punitive action, or denial of promotion on grounds other than merit, shall not be undertaken by any public agency against any public safety 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.”
The new law does not prohibit an employer from taking disciplinary 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 if the actions taken by the public agency otherwise conform to [the requirements of the Bill of Rights] and to the rules and procedures adopted by the local agency.” The statute also makes clear that “evidence that a public safety officer’s name has been placed on a Brady list, or may otherwise be subject to disclosure pursuant to Brady v. Maryland, shall not be introduced for any purpose in any administrative appeal of a punitive action” except to the extent that the employer proves that the officer “has committed the underlying acts or omissions that will result in a punitive action.”
With SB 313, California becomes the first state to amend its statutory peace officer bill of rights to address Brady issues. Given the pervasiveness with which Brady issues are appearing in disciplinary cases, it can be safely predicted that other states will soon be considering statutes along the lines of SB 313.