BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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          |SENATE RULES COMMITTEE            |                        SB 313|
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                                    THIRD READING


          Bill No:  SB 313
          Author:   De León (D), et al.
          Amended:  4/24/13
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  5-1, 4/9/13
          AYES:  Anderson, Block, De León, Knight, Steinberg
          NOES:  Hancock
          NO VOTE RECORDED:  Liu


           SUBJECT  :    Public Safety Officers Procedural Bill of Rights Act

           SOURCE  :     Peace Officer Research Association of California
                      California Association of Highway Patrolmen


           DIGEST  :    This bill prohibits a public agency from taking  
          punitive action, or denying promotion on grounds other than  
          merit, against a public safety officer, because the officers  
          name was placed on a Brady list, and prohibits the introduction  
          of any evidence in an administrative appeal of a punitive action  
          that the officer's name was placed on a Brady list, except as  
          provided.

           ANALYSIS  :    Existing law generally governs law enforcement  
          agencies conducting internal affairs investigations of peace  
          officers.  This is known as the Public Safety Officers  
          Procedural Bill of Rights Act.  Existing law provides peace  
          officers with several procedural rights in these investigations.  
           Some of those procedural rights include: 

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          1.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, or the exercise of any rights under any existing  
            administrative grievance procedure.

          2.Nothing 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/her with insubordination.

          3.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/her employing  
            agency without providing the public safety officer with an  
            opportunity for administrative appeal.

          4.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.

          5.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.

          6.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, within 30 days of  
            its decision, except if the public safety officer is  
            unavailable for discipline.

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          This bill adds the following provisions to the Public Safety  
          Officers Procedural Bill of Rights:

          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 (1963) 373 U.S. 83.

          2.Nothing prohibits 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  
            the specified 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 (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:

             A.   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 shall only be used for the sole  
               purpose of determining the type or level of punitive action  
               to be imposed.

          4.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  

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            (1963) 373 U.S. 83."

           Background
           
          In the landmark case of Brady v. Maryland, 373 U.S. 83 (1963),  
          the United States 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 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 Circuit Court of  
          Appeals 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 Circuit Court  
          of Appeals 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  

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            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 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.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   Local:  
           No

           SUPPORT  :   (Verified  5/15/13)

          Peace Officer Research Association of California (co-source) 
          California Association of Highway Patrolmen (co-source) 
          Association for Los Angeles Deputy Sheriffs
          Association of Orange County Deputy Sheriffs
          California Correctional Peace Officers Association
          California Fraternal Order of Police
          California Public Defenders Association
          California Statewide Law Enforcement Association
          Long Beach Police Officers Association
          Los Angeles County Probation Officers Union
          Los Angeles County Professional Peace Officers Association
          Los Angeles Police Protective League
          Riverside Sheriffs Association
          Sacramento County Deputy Sheriff's Association
          Santa Ana Police Officers Association


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           OPPOSITION  :    (Verified  5/15/13)

          American Civil Liberties Union
          California Association of Joint Powers Authorities
          California Police Chiefs Association
          California State Association of Counties
          California State Sheriffs' Association
          League of California Cities
          Marin County Council of Mayors and Councilmembers

           ARGUMENTS IN SUPPORT  :    The Los Angeles County Probation  
          Officers Union states:

               The Public Safety Officers Procedural Bill of Rights  
               (POBOR) provides a set of rights and procedural protections  
               to peace officers.  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 - even  
               if the misconduct had not actually occurred.  As a result,  
               the employment of public safety officers can be terminated  
               based on nothing more than allegations of misconduct, once  
               an officer is placed on the "Brady list."
               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 can  
               result 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.

               SB 313 seeks to stop the unfair practice of punitive action  
               against peace officers for the mere reason of being placed  
               on the Brady list.  SB 313 allows management to take  
               actions against officers for the underlying action that  
               caused the officer to be investigated based on merit and  
               for the underlying reason they are investigated. 

               Placement on a "Brady List" is a "scarlet letter" for peace  
               officers.  Taking disciplinary action against an officer,  

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               up to and including firing that officer, should never occur  
               unless the underlying cause is both proven true, and the  
               conduct warrants such action.

           ARGUMENTS IN OPPOSITION  :    The California State Sheriff's  
          Association states:

               Once a law enforcement officer has engaged in misconduct  
               that requires law enforcement agencies and/or district  
               attorneys' offices to make disclosures under the United  
               States Constitution pursuant to Brady, the ability of that  
               officer to serve a department is compromised.  An officer  
               may no longer be allowed to testify in court because doing  
               so could subject a criminal case to reversal or subject a  
               county to civil liability if a wrongful conviction results.  
                Unfortunately, if an officer is no longer able to testify  
               under oath, he or she is no longer able to serve reliably  
               on patrol, effectuate arrests, or file reports.  However,  
               SB 313 would prohibit the reassignment of that officer to  
               other departmental functions, because that could be  
               considered punitive.  Ultimately this may result in  
               untrustworthy and unreliable officers patrolling the  
               community, undermining the public trust and credibility of  
               the rest of the department.


          JG:nk  5/16/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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