The names of Los Angeles County Sheriff’s Department deputies who’ve lied, stolen, falsified reports and committed other types of “moral” misconduct are confidential and cannot be handed over to prosecutors — even in pending criminal cases in which the deputies are listed as potential witnesses — a Los Angeles appeals court ruled Tuesday.
The decision by the state’s 2nd District Court of Appeal makes clear just how secret officers’ identities and personnel files are in California. The ruling is also the latest turn in the fight over a secret list compiled by Los Angeles County’s sheriff of 300 deputies whose history of misconduct could damage their credibility if they are ever called to testify in criminal cases.
“It’s a victory for cops everywhere,” said Elizabeth Gibbons, an attorney for the Assn. for Los Angeles Deputy Sheriffs, the union that represents rank-and-file deputies.
Last fall, the union sued the department over Los Angeles County Sheriff Jim McDonnell’s attempt to disclose the names to the district attorney’s office. The union had argued that revealing the names to prosecutors, even in pending cases, would violate state peace officer confidentiality laws and draw unfair scrutiny of deputies whose mistakes might have happened long ago.
The appeals court agreed on the strict confidentiality of law enforcement personnel files. But it left open the possibility that names could be disclosed pursuant to a court order.
California has some of the strictest protections on law enforcement officer records in the country. Discipline hearings, personnel files and even the names of officers accused in internal affairs investigations are secret.
“Notifying an outside agency, even a prosecutor’s office, that a deputy has an administratively founded allegation of misconduct involving moral turpitude cannot be characterized as anything other than disclosing information obtained from the peace officer’s personnel file,” the court said in its opinion.
But some advocates for police transparency slammed the decision.
“There should not be greater concern for protecting officers with histories of lying, domestic abuse, evidence tampering and other immoral conduct from public scrutiny than for ensuring that individuals accused of crimes receive a fair trial,” said Melanie Ochoa, a staff attorney for the American Civil Liberties Union of Southern California.
The ACLU, along with other advocacy groups, filed a friend-of-the-court brief in March, asking the appeals court to reject the deputies union’s request that none of the names of problem deputies be sent to prosecutors.
Brady vs. Maryland
McDonnell’s effort to send deputies’ names to prosecutors had nothing to do with recommending that the officers be charged with crimes, the department contended. Instead it would have been a heads-up to the district attorney’s office that the deputies were potentially vulnerable to attacks on their credibility if they were ever called to testify, and that prosecutors would potentially have to alert defense attorneys about the names.
Under the 1963 U.S. Supreme Court ruling in Brady vs. Maryland, prosecutors are obligated to alert defendants to any evidence that could aid the defense. That evidence includes information that could undermine an officer’s credibility. Not doing so could result in wrongful convictions.
Right now, police agencies in at least a dozen counties in California regularly do precisely what McDonnell was attempting. Some departments, including those in San Luis Obispo, Santa Barbara and Ventura, have been giving prosecutors the names of problem officers for well over a decade.
Legal experts say Tuesday’s decision could begin to change that.
Although the ruling pertains to the Sheriff’s Department, analysts say it could embolden police unions across the state to refuse a prosecutor’s request to identify problematic officers who might be called as witnesses.
“I think police unions will start flexing their muscles,” said Jerry Coleman, a special assistant district attorney in San Francisco County who teaches prosecutorial ethics at the University of San Francisco School of Law. “The result of that will only be a step backward in ‘Brady’ discovery, and that’s a shame.”
The majority opinion by Los Angeles County Superior Court Judge Douglas W. Sortino, who is temporarily assigned to the appeals court, did not grant all of the deputies union’s requests. Sortino and Presiding Justice Tricia A. Bigelow, who concurred on the decision, disagreed with the Assn. for Los Angeles Deputy Sheriffs’ argument that the department should not compile a so-called Brady list in the first place.
The court also said, contrary to the union’s argument, that the department would not necessarily be in violation of the law if it were to transfer deputies on the list to alternate assignments.
Justice Elizabeth Grimes issued a dissenting opinion, arguing that disclosing the deputies’ names to prosecutors in pending criminal cases would not violate officer confidentiality laws.
The legal battle began after the department warned about 300 deputies in October that their personnel files contained evidence of “moral turpitude.” The letters said such acts could include accepting bribes or gifts, misappropriating property, tampering with evidence, lying, obstructing investigations, falsifying records, using unreasonable force, discriminatory harassment and family violence.
The targeted group represents about 3% of the department’s roughly 9,100 deputies.
In the letters, the department said the list would include only deputies found guilty of wrongdoing by internal investigators. The agency would provide prosecutors with just the deputies’ names, not their entire personnel files, the letters said.
A Superior Court judge agreed in January that providing the entire list of names would violate state law, but said the department could turn over the names of problem deputies when there’s a pending criminal case in which that officer might testify. In February, a two-judge appellate panel granted the union’s request to put a temporary hold on any transmission of names while it prepared for the ruling issued Tuesday.
Dignity and Power Now, an advocacy group for inmates and their families, started a petition to the appeals court months ago to allow the Sheriff’s Department to send the deputies’ names to prosecutors. The petition gathered nearly 13,000 signatures.
The group said in a statement that the appellate court decision negatively “impacts the safety of the community the county is entrusted to protect.”
But Gibbons, the union attorney, said Tuesday’s ruling merely clarifies existing law and rightly protects officers’ privacy.
“The fundamental problem with this whole list is it comes with baggage, and the baggage is not deserved,” said Gibbons, who said that many deputies are on the list for minor infractions.
The department, in an email sent by spokeswoman Nicole Nishida, declined to comment on the ruling and would not say whether it would appeal.
9:25 p.m.: This article was updated with additional details from the court ruling and comments from a union attorney, police transparency advocates and the department.
This article was originally published at 4 p.m.