Los Angeles County District Attorney George Gascon has requested local law enforcement agencies in Los Angeles County provide his office with a list of names and serial/employee identification numbers of current and former deputies and police officers who have engaged in acts of “moral turpitude,” including, but not limited to, those with sustained findings of tampering with evidence, misappropriating property, false statements/failure to make statements, family violence, unreasonable force or violating its policy of equality. He has requested that law enforcement departments provide this information to the District Attorney’s Discovery Compliance Unit within the next few weeks. The stated justification for Mr. Gascon’s request is to facilitate the District Attorney’s prosecutorial obligation to learn of any impeachment evidence concerning potential witnesses under Brady v. Maryland.
Although the United States Supreme Court in Brady v. Maryland determined that the prosecution is subject to a constitutional duty to disclose to the defense materially exculpatory evidence, including potential impeachment evidence, the California Supreme Court has repeatedly held that the names of peace officers, when connected or linked with employee discipline and investigation of complaints, are confidential and not subject to disclosure absent a Pitchess motion. (See Copley Press Inc. v. Superior Court (2006) 39 Cal. 4th 1272, 1297; Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal. 4th 278, 295; Long Beach Police Officers Association v. City of Long Beach (2014) 59 Cal. 4th 59, 73.)
No Brady obligation exists for a law enforcement agency to create or produce a list of “Brady Officers” to the District Attorney’s Office or other prosecutorial agency before the institution of a specific criminal case. Moreover, any disclosure of such confidential peace officer information by law enforcement agencies to prosecutors under these circumstances without compliance with the Pitchess procedure would violate Penal Code section 832.7(a) and the well-established statutory and constitutional right of privacy of peace officers in their personnel records. However, it should be noted that Section 832.7(a) would not restrict the disclosure of peace officer records which have recently been identified through SB 1421 as non-confidential (i.e., records involving discharge of a firearm, use of force resulting in death or great bodily injury, sustained finding of engaging in sexual assault of a member of the public, or sustained finding of dishonesty).
Unfortunately, there are several other district attorneys in California who seem to follow the lead of Mr. Gascon on anti-police measures, so we suggest that all of our clients be mindful that this attempt to eviscerate peace officer rights may surface in other counties.
In order to maintain and protect the statutory and constitutional right of privacy of peace officers in their personnel records, we are advising our local law enforcement employee organizations in Los Angeles County to immediately ascertain the position of their respective employing agency as to the pending Brady list request by the District Attorney’s Office. In fact, a number of our association clients are working with our office to take steps to assert legal arguments in opposition to this unlawful request. We urge all of our association clients (especially those in Los Angeles County) to join in the effort by contacting your RLS labor representative.