By Michael L. Rains and Zachery A. Lopes 7/7/15
On July 6, 2015, the California Supreme Court reaffirmed peace officers’ “strong privacy interest” in the confidentiality of the information in their personnel files, and the long-standing Pitchess motion practice of maintaining the confidentiality of that information to the fullest extent possible when peace officers serve as material witnesses during criminal prosecutions. Rains Lucia Stern had the honor of speaking for both the Peace Officers’ Research Association of California (“PORAC”) and its members, and the San Francisco Police Officers’ Association (“SFPOA”) and its members, by submitting an Amicus Curiae Brief to the Court on behalf of PORAC and the SFPOA in this important matter.
By a unanimous vote, the Supreme Court overturned the Court of Appeal’s decision in People v. Superior Court (Johnson), (2014) 228 Cal.App.4th 1046, which held that District Attorneys may, and in fact should, personally review a peace officer’s confidential personnel file for potential Brady material and disclose such material to the defense, without the need for a prior in camera review by a trial judge. The Johnson Court’s decision upended decades of trial practice whereby both parties in a criminal prosecution, either the District Attorney or the defendant, were required to file a motion and request an in camera proceeding where the Court looked for potentially exculpatory Brady material in an officer’s personnel file. The purpose of this process was to maintain the confidentiality of that personnel file, pursuant to California Penal Code sections 832.7 and 832.8.
During the criminal trial in the case giving rise to the Supreme Court’s decision, the San Francisco District Attorney’s office was told by the San Francisco Police Department (pursuant to an existing agreement between the District Attorney and the Department) that two police officers potentially had Brady material in their personnel file which the criminal defendant might be entitled to obtain. Following established practice, the prosecution filed a Pitchess motion, telling the Court what the Department had told it, and asking the Court to review the personnel file for such information. Instead, the Court ruled that the prosecution should review the confidential information and look for Brady material and that it was not prevented from doing so by existing law. The prosecution, along with the Department itself, appealed this decision, arguing that the District Attorney’s office had neither the right nor interest in going through confidential personnel file information. The Court of Appeal upheld the Superior Court’s decision, finding specifically that the prosecution’s Brady obligation superseded the officers’ privacy interests in their statutorily-mandated confidential information, and that Penal Code section 832.7 included an exception for District Attorneys to examine personnel files when conducting “investigations” of officer conduct. In essence, the Court of Appeal said that the District Attorney was conducting an “investigation” of officer conduct when examining a personnel file for Brady discovery. Thus, peace officer personnel files were not confidential for Brady-review purposes.
The Court of Appeal’s decision was appealed to the Supreme Court. Writing on behalf of PORAC and all of its members, and the SFPOA and all of its members, Mike Rains urged the Supreme Court to grant review of the Johnson decision, pointing out that it directly contradicted clearly established trial practice and eviscerated peace officers’ privacy rights.
The Supreme Court granted review, and Mike Rains and Zach Lopes submitted a brief to the Court on behalf of PORAC and the SFPOA. Mike and Zach emphasized the importance of peace officers’ privacy interest in their confidential information, and argued that allowing the prosecution to rummage through the personnel files of peace officers eviscerates that confidentiality. In addition, Mike and Zach argued that the “investigation” exception to personnel file confidentiality is not intended to apply in routine criminal prosecutions where officers merely serve as witnesses, and pointed out the absurdity of forcing officers to relinquish their privacy rights for simply doing their jobs and investigating criminal activity. Mike and Zach argued the legislature meant what it said when it deemed personnel files confidential, and that the existing Pitchess process, tasking the Court with reviewing personnel file information in chambers away from outside third parties, successfully and fairly maintained the balance between an officer’s right to confidentiality and a criminal defendant’s right to potentially exculpatory Brady information.
The Supreme Court agreed. Relying on many of the same cases cited by RLS and its arguments, the Court held that the confidentiality of personnel file information extends even in the Brady context, is not forfeited by section 832.7’s “investigation” exception, and that District Attorneys cannot review this information absent compliance with Pitchess and a prior in camera court procedure. Importantly, the Court also stressed that the employing agency and District Attorney’s office may agree to procedures similar to what the SFPD and San Francisco District Attorney had agreed to in this case, whereby the Department performed periodic reviews of its officers’ personnel files and informed the District Attorney when those files may contain Brady information. The Court stated that nothing prevents the employing agency from making a preliminary determination as to what is or is not Brady material for notification to District Attorneys, and ultimate presentation to a court for its own determination through a Pitchess motion. On this point, it is RLS’s position that all peace officers are best served by a comprehensive agency policy for Brady review of personnel files by employing agencies, which must include the opportunity of administrative appeal for officers to contest placement on a District Attorney’s “Brady list.”
The Supreme Court has rectified the wrongly decided Superior and Appellate Court decisions of People v. Johnson. Peace officers’ confidentiality of their personnel file information has been strongly reaffirmed, and the process to maintain that confidentiality to the fullest extent possible in the Brady context has been restored.