BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2011-2012 Regular Session B 2 5 4 3 AB 2543 (Alejo) As Amended June 11, 2012 Hearing date: July 3, 2012 Government Code SM:dl PEACE OFFICER BILL OF RIGHTS: "BRADY LISTS" HISTORY Source: Peace Officer Research Association of California (PORAC) Prior Legislation: SB 638 (DeLeon) - Died, Senate Public Safety AB 1873 (Koretz) - Ch. 63, Stats. 2002 AB 2040 (Diaz) - Ch. 391, Stats. 2002 AB 2559 (Cardoza) - Ch. 971, Stats. of 2000 AB 1016 (Hertzberg) - Ch. 25, Stats. 1998 AB 3434 (House) - Ch. 1108, Stats. 1996 Support: American Federation of State, County, and Municipal Employees (AFSCME); Association for Los Angeles Deputy Sheriffs; Association of Orange County Deputy Sheriffs; Bakersfield Police Officers Association; California Association of Highway Patrolmen; California Coalition of Law Enforcement Associations; California Fraternal Order of Police; California Professional Firefighters; California State Firefighters Association; Long Beach Police Officers Association; Los Angeles County Probation Officers Union; Los Angeles County Professional Peace Officers Association; Los Angeles Police Protective League; Los Angeles School Police Association; Napa Police Officers Association; Newport (More) AB 2543 (Alejo) Page 2 Beach Police Association, Riverside Sheriffs' Association; Sacramento County Deputy Sheriffs Association; San Bernardino Police Officers Association; San Francisco Peace Officers Association; San Mateo County Deputy Sheriffs Association; Santa Ana Police Officers Association; Southern California Alliance of Law Enforcement; State Coalition of Probation Organizations; Vallejo Police Officer's Association Opposition: American Civil Liberties Union; California Public Defenders Association; California State Sheriffs Association; California State Association of Counties (CSAC); California Association of Joint Powers Authorities; League of California Cities; California Peace Officers Association; California Police Chiefs Association KEY ISSUES SHOULD ANY PUBLIC AGENCY BE PROHIBITED FROM TAKING ANY PUNITIVE ACTION, OR DENIAL OF PROMOTION ON GROUNDS OTHER THAN MERIT, AGAINST ANY PUBLIC SAFETY OFFICER BECAUSE THAT OFFICER'S NAME HAS BEEN PLACED ON A BRADY LIST? SHOULD ANY PUBLIC AGENCY BE PROHIBITED FROM TAKING ANY PUNITIVE ACTION, OR DENIAL OF PROMOTION ON GROUNDS OTHER THAN MERIT, AGAINST ANY PUBLIC SAFETY OFFICER BECAUSE THAT OFFICER'S NAME MAY BE SUBJECT TO DISCLOSURE PURSUANT TO BRADY V. MARYLAND? SHOULD IT BE PROHIBITED TO INTRODUCE 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 IN ANY ADMINISTRATIVE APPEAL OF A PUNITIVE ACTION, OR IN ANY CIVIL PROCEEDING BETWEEN THE OFFICE OR THE PUBLIC AGENCY, EXCEPT AS SPECIFIED? PURPOSE (More) AB 2543 (Alejo) Page 3 The purpose of this bill is to provide that (1) no punitive action, or denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer 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 ; (2) this shall not prohibit a public agency from taking punitive action, denying promotion on grounds other than merit, or taking other personnel 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, or may otherwise be subject to disclosure pursuant to Brady v. Maryland , if the actions taken by the public agency otherwise conform to this chapter and to the rules and procedures adopted by the local agency; (3) 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, or in any civil proceeding between the officer or the public agency, except as follows: (4) evidence that a public safety officer's name was placed on a Brady list may only be introduced if, during the administrative appeal of a punitive action against an officer, the underlying act or omission for which that officer's name was placed on a Brady list is proven and the officer is found to be subject to some form of punitive action. Evidence that a public safety officer's name was placed on a Brady list pursuant to this subdivision shall only be used for the sole purpose of determining the type or level of punitive action to be imposed. Current law generally governs law enforcement agencies conducting internal affairs investigations of peace officers. (Gov. Code §§ 3300-3313.) This is known as the Public Safety Officers Procedural Bill of Rights Act: Existing law provide peace officers with several procedural rights in these investigations. (Gov. Code § 3304.) Some of those procedural rights include: (More) AB 2543 (Alejo) Page 4 No public safety officer shall be subjected to punitive action, or denied promotion, or be threatened with any such treatment, because of the lawful exercise of the rights granted under this chapter, or the exercise of any rights under any existing administrative grievance procedure. Nothing in this section shall preclude a head of an agency from ordering a public safety officer to cooperate with other agencies involved in criminal investigations. If an officer fails to comply with such an order, the agency may officially charge him or her with insubordination. No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal. Except as specified, no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency's discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct. In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed discipline by a Letter of Intent or Notice of Adverse Action articulating the discipline that year, except as specified. The public agency shall not be required to impose the discipline within that one-year period. Where a pre-disciplinary response or grievance procedure is required or utilized, the time for this response or procedure shall not be governed or limited by this chapter. If, after investigation and any pre-disciplinary response or procedure, the public agency decides to impose discipline, the public agency shall notify the public safety officer in writing of its decision to impose discipline, including the date that the discipline will be imposed, (More) AB 2543 (Alejo) Page 5 within 30 days of its decision, except if the public safety officer is unavailable for discipline.(Gov. Code § 3304.) Current law provides that no public safety officer shall have any comment adverse to his interest entered in his personnel file, or any other file used for any personnel purposes by his employer, without the public safety officer having first read and signed the instrument containing the adverse comment indicating he is aware of such comment, except that such entry may be made if after reading such instrument the public safety officer refuses to sign it. Should a public safety officer refuse to sign, that fact shall be noted on that document, and signed or initialed by such officer. (Gov. Code § 3305.) This bill would add the following provisions to the Public Safety Officers Procedural Bill of Rights: No punitive action, or denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer 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 (1963) 373 U.S. 83. Nothing in this section shall prohibit a public agency from taking punitive action, denying promotion on grounds other than merit, or taking other personnel 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, or may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83, if the actions taken by the public agency otherwise conform to this chapter and to the rules and procedures adopted by the local agency. Evidence that a public safety officer's name has been placed on a Brady list, or may otherwise be subject to (More) AB 2543 (Alejo) Page 6 disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83, shall not be introduced for any purpose in any administrative appeal of a punitive action, or in any civil proceeding between the office or the public agency, except as follows: Evidence that a public safety officer's name was placed on a Brady list may only be introduced if, during the administrative appeal of a punitive action against an officer, the underlying act or omission for which that officer's name was placed on a Brady list is proven and the officer is found to be subject to some form of punitive action. Evidence that a public safety officer's name was placed on a Brady list pursuant to this subdivision shall only be used for the sole purpose of determining the type or level of punitive action to be imposed. This bill defines "Brady list" to mean "any system, index, list, or other record containing the names of peace officers whose personnel files are likely to contain evidence of dishonesty or bias, which is maintained by a prosecutorial agency or office in accordance with the holding in Brady v. Maryland (1963) 373 U.S. 83." RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION ("ROCA") In response to the unresolved prison capacity crisis, since early 2007 it has been the policy of the chair of the Senate Committee on Public Safety and the Senate President pro Tem to hold legislative proposals which could further aggravate prison overcrowding through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/Overcrowding Crisis Aggravation"), the Committee has held measures which create a new felony, expand the scope or penalty of an existing felony, or otherwise increase the application of a felony in a manner which could exacerbate the prison overcrowding crisis by expanding the availability or length of prison terms (such as extending the statute of (More) AB 2543 (Alejo) Page 7 limitations for felonies or constricting statutory parole standards). In addition, proposed expansions to the classification of felonies enacted last year by AB 109 (the 2011 Public Safety Realignment) which may be punishable in jail and not prison (Penal Code section 1170(h)) would be subject to ROCA because an offender's criminal record could make the offender ineligible for jail and therefore subject to state prison. Under these principles, ROCA has been applied as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress towards reducing prison overcrowding by passing legislation which could increase the prison population. ROCA will continue until prison overcrowding is resolved. For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation. On June 30, 2005, in a class action lawsuit filed four years earlier, the United States District Court for the Northern District of California established a Receivership to take control of the delivery of medical services to all California state prisoners confined by the California Department of Corrections and Rehabilitation ("CDCR"). In December of 2006, plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a three-judge federal panel issued an order requiring California to reduce its inmate population to 137.5 percent of design capacity -- a reduction at that time of roughly 40,000 inmates -- within two years. The court stayed implementation of its ruling pending the state's appeal to the U.S. Supreme Court. On May 23, 2011, the United States Supreme Court upheld the decision of the three-judge panel in its entirety, giving California two years from the date of its ruling to reduce its prison population to 137.5 percent of design capacity, subject to the right of the state to seek modifications in appropriate circumstances. Design capacity is the number of inmates a prison can house based on one inmate per cell, single-level bunks in dormitories, and no beds in places not designed for housing. Current design capacity in CDCR's 33 institutions is 79,650. (More) AB 2543 (Alejo) Page 8 On January 6, 2012, CDCR announced that California had cut prison overcrowding by more than 11,000 inmates over the last six months, a reduction largely accomplished by the passage of Assembly Bill 109. Under the prisoner-reduction order, the inmate population in California's 33 prisons must be no more than the following: 167 percent of design capacity by December 27, 2011 (133,016 inmates); 155 percent by June 27, 2012; 147 percent by December 27, 2012; and 137.5 percent by June 27, 2013. This bill does not aggravate the prison overcrowding crisis described above under ROCA. COMMENTS 1. Need for This Bill According to the author: The Public Safety Officers Procedural Bill of Rights Act (POBOR) provides a set of rights and procedural protections to specified public safety officers. The Act fails to address a disturbing trend in law enforcement in which public agencies take punitive actions against their public safety officer employees based solely on the officers' inclusion on "Brady" lists without regard to the underlying facts. There have been numerous instances where a local public (More) AB 2543 (Alejo) Page 9 agency has taken punitive action, including the denial of promotions and dismissal, against a public safety officer employee based on that officer's placement onto a Brady list for alleged misconduct - whether or not the misconduct actually occurred. As a result in some cases, the employment of public safety officers is terminated based on nothing more than allegations of misconduct, which renders illusory the Public Safety Officers Procedural Bill of Rights Act. The standard for placing public safety officers on Brady lists varies from county to county. Some counties implement and maintain a Brady policy with no discernible standards for inclusion or mechanisms for appeal, which results in the arbitrary and perpetual placement of public safety officers on Brady lists. Because prosecutors enjoy absolute prosecutorial immunity and immunity under the Eleventh Amendment, it is impossible to challenge one's placement on a Brady list, even if that placement was malicious or made in error. AB 2543 seeks to stop the unfair practice of taking punitive action against peace officers for the mere reason of being placed on the list. Instead, this bill maintains management's authority to take actions against officers for the underlying action that caused the officer to be investigated. Lacking uniform criteria for being placed on the Brady List, public safety officers should be evaluated based on their merits and for the underlying reasons they are investigated. 2. What is a Brady List? In the landmark case of Brady v. Maryland, 373 U.S. 83 (1963), the U.S. Supreme Court held that where a prosecutor in a criminal case withholds material evidence from the accused person that is favorable to the accused, this violates the Due Process Clause of (More) AB 2543 (Alejo) Page 10 the 14th Amendment. (Ibid at 87, see also Giglio v. United States, 405 U.S. 150 (1972).) Brady and Giglio impose on prosecutors a duty to disclose to the defendant material evidence that would be favorable to the accused. If the prosecutor is aware of misconduct, past or present, on the part of a police officer who may be called as a witness in a case, and that misconduct could discredit or "impeach" the officer's testimony, the prosecutor has an obligation to turn that evidence over to the defendant. "Impeachment evidence is exculpatory evidence within the meaning of Brady. Brady/Giglio information includes 'material . . . that bears on the credibility of a significant witness in the case.'" (United States v. Blanco, 392 F.3d 382, 387-388 (9th Cir. 2004, citations omitted).) Failure to divulge this information may result in a variety of sanctions being imposed on the prosecution including, e.g., striking a witnesses' testimony or complete reversal of a conviction. "Reversal is required when there is a 'reasonable possibility' that the error materially affected the verdict." (United States v. Goldberg, 582 F.2d 483, 488 (9th Cir. 1978), cert. denied, 440 U.S. 973, 59 L. Ed. 2d 790, 99 S. Ct. 1538 (1979).) A federal court recently described why this obligation is imposed: "Prosecutors are entrusted with the authority and responsibility to protect public safety and uphold the integrity of the judicial system. They perform the latter, in part, by ensuring that criminal defendants are offered all potentially exculpatory or impeaching information." (Lackey v. Lewis County, 2009 U.S. Dist. LEXIS 94674 (D. Wash. 2009).) As a result of this obligation, prosecutors' offices have a duty to seek that information out from other law enforcement agencies. Because the prosecution is in a unique position to obtain information known to other agents of the government, it may not be excused from disclosing what it does not know but could have learned." A prosecutor's duty under Brady necessarily requires the (More) AB 2543 (Alejo) Page 11 cooperation of other government agents who might possess Brady material. In United States v. Zuno-Arce, 44 F.3d 1420 (9th Cir. 1995) (as amended), we explained why "it is the government's, not just the prosecutor's, conduct which may give rise to a Brady violation." Exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does. That would undermine Brady by allowing the investigating agency to prevent production by keeping a report out of the prosecutor's hands until the agency decided the prosecutor ought to have it, and by allowing the prosecutor to tell the investigators not to give him certain materials unless he asked for them. (United States v. Blanco, 392 F.3d 382, 387-388 (9th Cir. 2004).) The term "Brady list" refers to a list kept by a prosecutor's office, of police officers for whom the prosecutor's office has determined evidence of misconduct exists that would have to be turned over to the defense pursuant to Brady v. Maryland. 3. The Effect of This Bill This bill would prevent any public agency from taking any punitive action or denial of promotion against any public safety officer 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 agency could take such action, however, as a result of the underlying conduct that resulted in the officer being placed on, or being subject to being placed on, a Brady list. For example, if a peace officer is convicted of petty theft, a misdemeanor, his employing agency might decide that a 30-day suspension was warranted. However, the District Attorney's office might decide that, because that crime involved dishonestly or "moral turpitude," and could therefore be used to impeach the officer's testimony, in order to comply with Brady requirements, the fact of that conviction would have to be disclosed to any defendant in any case in which that (More) AB 2543 (Alejo) Page 12 officer needed to be called as a witness. Therefore, the DA's office might put that officer's name on a "Brady list" to flag for any of the deputy DA's the need to disclose this evidence if they ever need to call that officer as a witness. The fact that this "Brady material" has to be disclosed, and could be used to impeach the officer's testimony, could seriously damage the prosecutor's ability to obtain a conviction in any case in which that officer was a necessary witness. Consequently, the officer's employing agency might conclude that that officer could no longer perform their job duties and needed to be dismissed or, at a minimum, the officer needed to be transferred to duty that did not involve making arrests, which the officer would undoubtedly consider a punitive action. This bill would prohibit any public agency from taking any punitive action against the officer based on the fact that he or she was placed on a "Brady list" but would allow that action so long as it is based only on the underlying conduct that caused the officer to be placed on the list. In the hypothetical example described above, this would mean the officer could be suspended, transferred or fired for committing the petty theft but not for the fact that the DA's office placed the officer on the "Brady list." In practical terms it would be difficult, if not impossible, for an employer to establish whether the punitive action, or denial of promotion, was taken because of the DA's decision to place the officer on the Brady list or because of the underlying reason the DA took that action, i.e., the petty theft conviction. This bill goes farther, however, and provides that no punitive action could be taken because "the officer's name may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83." In other words, no punitive action or denial of promotion could be taken based on the fact that an officer's conduct might result in their being placed on a Brady list. It is foreseeable that the effect of this bill would be that in many instances where an adverse employment action is taken against an officer for misconduct that has been clearly (More) AB 2543 (Alejo) Page 13 established (e.g. a criminal conviction), the employee could claim the action was based on the concomitant fact that the misconduct is subject to disclosure under Brady. It is not clear how the employer could prove otherwise. By making it more difficult for agencies to fire officers whose testimony may be impeached with their own acts of dishonesty, the end result could be that prosecutors will have a harder time obtaining convictions in cases involving those officers or may decline to even file charges in such cases. Another foreseeable effect could be that police and sheriff's departments will be forced to retain officers whose misconduct, for example for use of excessive force, has subjected the department to liability, and could do so again in the future. Because that misconduct may be subject to disclosure under Brady, any attempt by the employing department to terminate the officer, or even move him or her to a desk job, could be challenged on the grounds that it was not the misconduct that motivated the disciplinary action, but the fact that it would be subject to disclosure under Brady. The sponsors of the bill have stated that the discretion given to district attorneys to place an officer on a Brady list allows for unwarranted personnel action to be taken against peace officers at the whim of a DA. They state that there are examples of this being done for malicious reasons and they correctly point out that the courts have held that DA's have immunity for these decisions. (Neri v. County of Stanislaus Dist. Attorney's Office, 2010 U.S. Dist. LEXIS 99839 (2010).) Members may wish to consider whether the potential for a DA to act maliciously in this way justifies the remedy proposed in this bill given the burden this bill might place on a law enforcement agency in an employment action against an officer for misconduct, where that is truly warranted. WILL POLICE AGENCIES BE ABLE TO ESTABLISH THAT A DISMISSAL OR DENIAL OF PROMOTION WAS NOT DUE TO THE FACT THAT AN OFFICER'S MISCONDUCT MIGHT BE SUBJECT TO DISCOVERY UNDER BRADY? WILL THIS RESULT IN MORE OFFICERS WITH RECORDS OF MISCONDUCT (More) AB 2543 (Alejo) Page 14 KEEPING THEIR JOBS OR BEING PROMOTED? COULD THIS RESULT IN CRIMINAL CASES BEING DISMISSED OR NEVER FILED DUE TO THE OFFICER'S LACK OF CREDIBILITY AS A WITNESS? COULD THIS COMPROMISE PUBLIC SAFETY? ARE DISTRICT ATTORNEYS PLACING OFFICERS ON BRADY LISTS MALICIOUSLY? IF THIS HAS HAPPENED, IS THIS BILL AN APPROPRIATE RESPONSE? 4. Recent Amendment Regarding Administrative Appeals A recent amendment to the bill addresses when evidence that an officer's name was placed on a Brady list could be introduced at an administrative appeal of a punitive action against an officer. Under this provision, such evidence could only be introduced if "during the administrative appeal of a punitive action against an officer, the underlying act or omission for which that officer's name was placed on a Brady list is proven and the officer is found to be subject to some form of punitive action. Evidence that a public safety officer's name was placed on a Brady list pursuant to this subdivision shall only be used for the sole purpose of determining the type or level of punitive action to be imposed." This appears to contemplate a bifurcated administrative hearing process with one phase to determine the validity of the misconduct charged, and a second phase to determine the employer's motive in taking the punitive action. Only in the second phase could evidence of the officer having been placed on a Brady list be introduced. This would apply only to administrative appeals of punitive actions, not in civil actions, where the total ban on introduction of evidence regarding Brady would still apply. This exception also states that it only applies to cases in which an officer's name is actually placed on a Brady list whereas the prohibitions of the bill would apply to the broader category of whenever an officer's misconduct is (More) AB 2543 (Alejo) Page 15 subject to disclosure under Brady. This amendment doesn't appear to alter the basic dilemma presented by this bill, how would the employer ever be able to establish that the reason an action was taken against the employee was the employee's misconduct as opposed to the fact that the misconduct is disclosable under Brady? 5. Argument in Support The California Association of Highway Patrolmen state: (More) The Public Safety Officers Procedural Bill of Rights (POBOR) provides a set of rights and procedural protections to specified public safety officers; however, the Act fails to address a disturbing trend in law enforcement in which public agencies take punitive actions against their public safety officer employees based solely on the officers' inclusion on "Brady" lists without regard to the underlying facts. There have been numerous instances where a local public agency has taken punitive action, including the denial of promotions and dismissal, against a public safety officer employee based on that officer's placement onto a Brady list for alleged misconduct whether or not the misconduct actually occurred. As a result in some cases, the employment of public safety officers is terminated based on nothing more than allegations of misconduct, which renders illusory the Public Safety Officers Procedural Bill of Rights Act. The standard for placing public safety officers on Brady lists varies from county to county. Some counties implement and maintain a Brady policy with no discernible standards for inclusion or mechanisms for appeal, which results in the arbitrary and perpetual placement of public safety officers on Brady lists. Because prosecutors enjoy absolute prosecutorial immunity and immunity under the Eleventh Amendment, it is impossible to challenge one's placement on a Brady list, even if that placement was malicious or made in error. 6. Argument in Opposition The California State Association of Counties, League of California Cities and California Association of Joint Powers Authorities state: AB 2543 would prohibit a public agency from taking (More) AB 2543 (Alejo) Page 17 punitive action against a public safety officer or denying a promotion on grounds other than merit because the officer's name is placed on a Brady list or the officer's name is subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83. AB 2543 places unnecessary restrictions on a public agency's ability to discipline a public safety officer for the underlying action that resulted in that officer being placed on the Brady list because the employer will be required to prove that the punitive action is not related to the existence of the Brady list. We believe this to be an impossible standard since the employee will always argue his or her discipline is the result of the Brady list. Recent amendments to AB 2543 further require the public agency, in order to raise the issue in an administrative appeal, to prove the underlying act or omission for which the officer's name was placed on the Brady list and that, and that, as a result, the officer is found to be subject to punitive action. Public agency employers need the authority to appropriately discipline their workforce in order to maintain trust and confidence from the community they serve. AB 2543 simply adds another administrative process public employers must go through to effectively manage their employees without citing any evidence that public safety officers are not sufficiently protected by the Public Safety Officers Procedural Bill of Rights Act. ***************