A court is blocking L.A. County sheriff from handing over a list of 300 problem deputies
The Los Angeles County Sheriff’s Department has collected the names of about 300 deputies who have a history of past misconduct — such as domestic violence, theft, bribery and brutality — that could damage their credibility if they testify in court.
Sheriff Jim McDonnell wants to send the names to prosecutors, who can decide whether to add them to an internal database that tracks problem officers in case the information needs to be disclosed to defendants in criminal trials.
For the record:8:50 AM, Feb. 20, 2017
An earlier version of this article incorrectly said that Assistant Sheriff Todd Rogers proposed forwarding the list of deputy names to prosecutors. Rogers says he proposed only to send warning letters to those deputies about the plan, which was developed by others.
But McDonnell’s move has set off a heated battle that pits the privacy rights of officers against efforts by law enforcement agencies to be more transparent.
The union that represents rank-and-file deputies strongly opposes providing the names to prosecutors and has taken the department to court. The Assn. for Los Angeles Deputy Sheriffs argues that the disclosure would violate state laws protecting officer personnel files and draw unfair scrutiny on deputies whose mistakes might have happened long ago.
An appeals court last week sided with the union, temporarily blocking the Sheriff’s Department from sending names to the district attorney’s office.
The legal battle is being closely watched by other law enforcement agencies, including the Los Angeles Police Department, which is considering whether to adopt the same practice, said Cmdr. Stuart Maislin, who heads the LAPD’s internal affairs group.
The approach has recently earned praise from the state’s Supreme Court and gained new attention at a time of increasing demands for police accountability nationwide.
At stake is an issue fundamental to the criminal justice system: the obligation of prosecutors to hand over evidence that could help the defense, including information that could undermine an officer’s credibility.
Under the landmark 1963 U.S. Supreme Court ruling in Brady vs. Maryland, prosecutors must turn over exculpatory evidence to defendants. Failing to disclose such evidence can result in faulty convictions.
Jerry Coleman, a special assistant district attorney in San Francisco County who teaches prosecutorial ethics at the University of San Francisco School of Law, said the ripple effects of such a failure can spread well beyond the courtroom.
“They affect not just our relations with police but our relations with victims, and the integrity of the criminal justice system entirely, and the public’s sense of honesty in the proceedings,” he said.
But finding out whether an officer has a history of dishonesty or other misconduct is not easy.
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. Prosecutors — and defense attorneys — require a special court order to glean even basic information from an officer’s personnel file.
“That gives [officers] the sense that these are the most private of secrets,” Coleman said.
The Contra Costa County district attorney’s office, which has long had an informal agreement with area police departments to notify prosecutors about problem officers, is now trying to formalize that policy in writing, said Deputy Dist. Atty. Steven Bolen.
At issue is whether it’s up to police departments to tip off prosecutors about officers who have a history of misconduct or whether prosecutors are supposed to find out about problem officers on their own.
The Los Angeles district attorney’s office, which does not have access to police discipline files, learns about potential misconduct from prosecutors who complain about wrongdoing, from law enforcement agencies when they present criminal cases in which officers are suspects and from news articles, D.A. spokesman Greg Risling said in e-mails.
Risling declined to comment on the sheriff’s list and would not make anyone in the district attorney’s office available to answer questions about how prosecutors learn about police misconduct.
A lawyer for the deputies’ union contends that the district attorney’s office would refuse to accept the names of deputies with disciplinary histories.
She pointed to a declaration filed in court this month by ALADS in which Jason Lustig, the prosecutor in charge of handling police misconduct evidence for the district attorney, stated his office “actively declines to accept information from a peace officer personnel file if the information is offered by a law enforcement agency without the express permission of the involved officer.”
Lustig also said there is no policy or practice by which any local law enforcement agency notifies his office of potential officer misconduct.
But Assistant Sheriff Todd Rogers said he believes the Sheriff’s Department has “a clear constitutional obligation to disclose” to the D.A. the names of deputies with potential credibility issues.
“This is consistent with the sheriff’s commitment to transparency,” he said.
In 2015, he noted, the state Supreme Court praised San Francisco police for notifying local prosecutors about officers who had problematic histories. And soon afterward, the attorney general’s office advised the California Highway Patrol that doing so was legal.
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 send just the deputies’ names, not their entire personnel files, the letters said.
While the officers’ names aren’t intended to become public, their presence on a list kept by prosecutors means deputies could be one step closer to having their disciplinary files scrutinized by a judge and having their police work called into question during a court proceeding.
In its legal action, the deputies’ union filed a redacted copy of one of the letters, which also warned that deputies could be given new job duties to limit their liability. The letters urged them to use their own video and audio recording devices in interactions with the public.
“It was clear to me that anybody receiving this letter would be concerned,” Rogers said. “We understand that and we’re gonna be sensitive to that.”
The department denied a public records request sent by The Times for unredacted copies of the letters, citing, among other rules, peace officer confidentiality laws.
About 15 management-level employees up to the rank of lieutenant also received the warning notices, according to the L.A. County Professional Peace Officers Assn., which represents higher-level department staff. That union filed an unfair labor practices complaint on behalf of its members, said Lt. Brian Moriguchi, the association’s president.
The organization is not joining the lawsuit; its members are represented by ALADS in the case because the misconduct occurred long ago when they were working as deputies, Moriguchi said.
We shouldn’t try to cut off their heads for the rest of their lives
Elizabeth Gibbons, an attorney for the deputies’ union
ALADS’ president, Det. Ron Hernandez, said sending a list of deputies’ names to prosecutors would be an unfair additional punishment on top of the internal discipline deputies already experienced. Hernandez said lumping deputies together on a so-called “Brady List” might give the impression that they all committed gross misconduct, whereas some of the wrongdoing was minor.
“We’re not trying to hide anything that’s gone on in the past. The fact of the matter is, nobody wants to be wrongly accused of anything. That applies to everyone else in the world, so it should apply to deputies too,” he said.
Elizabeth Gibbons, an attorney for ALADS, said relevant information in an officer’s personnel file, if it must be reviewed by a judge, should be considered on a case-by-case basis.
Gibbons provided an example that if a deputy with an otherwise spotless reputation were found to have fibbed about what time he came into work one morning, it shouldn’t disqualify him from testifying years later in an unrelated matter, such as an embezzlement investigation.
“We shouldn’t try to cut off their heads for the rest of their lives,” she said.
Superior Court Judge James Chalfant ruled last month that the Sheriff’s Department could give the D.A.’s office the names of problem officers only when there’s a pending case in which that officer might testify.
“The disclosure of a deputy’s name in conjunction with this list will create a negative stigma for the deputy,” Chalfant wrote in his decision.
But ALADS contested that ruling, asking for a stricter prohibition. On Wednesday, a two-judge appellate court panel granted the union’s request to put a temporary hold on any transmission of names, even in pending cases.
“It would not surprise me if this case eventually winds up in the California Supreme Court,” said the Sheriff’s Department’s lawyer, Geoffrey Sheldon.
MORE LOCAL NEWS
The stories shaping California
Get up to speed with our Essential California newsletter, sent six days a week.
You may occasionally receive promotional content from the Los Angeles Times.