BILL ANALYSIS �
AB 2543
Page 1
Date of Hearing: May 8, 2012
Counsel: Milena Blake
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2543 (Alejo) - As Amended: March 29, 2012
SUMMARY : Prohibits any public agency from taking any punitive
action against a public safety officer or denying a promotion on
grounds other than merit of an officer because he or she is
placed on a Brady list, as specified. Specifically, this bill :
1)States that this section does 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, 373 U.S. 83 (1963), if the actions taken by
the public agency otherwise conform to this chapter and to the
rules and procedures adopted by the local agency.
2)Prohibits the introduction of 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, 373 U.S. 83 (1963) in any administrative appeal of a
punitive action, or in any civil proceeding between the
officer and an office or public agency.
3)Defines "Brady list" as 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 to Brady v. Maryland, 373 U.S.
83 (1963).
EXISTING LAW:
1)Creates the Public Safety Officers Procedural Bill of Rights
(POBOR). (Government Code Section 3300 et. seq.)
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2)States that, for purposes of the POBOR, "punitive action"
means any action which may lead to dismissal, demotion,
suspension, reduction in salary, written reprimand, or
transfer for purposes of punishment. (Government Code Section
3303.)
3)States that 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 POBOR, or the exercise of any rights
under any existing administrative grievance procedure.
�Government Code Section 3304(a).]
4)States that 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. �Government
Code Section 3304(a).]
5)States that 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.
�Government Code Section 3304(b).]
6)States that no chief of police may be removed by a public
agency, or appointing authority, without providing the chief
of police with written notice and the reason or reasons
therefor and an opportunity for administrative appeal.
�Government Code Section 3304(c).]
7)States that, except as provided, 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.
�Government Code Section 3304(d).]
8)States that if, after investigation and any predisciplinary
response or procedure, the public agency decides to impose
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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. �Government Code Section
3304(f).]
9)States that notwithstanding the one-year time period specified
in subdivision (d), an investigation may be reopened against a
public safety officer if significant new evidence has been
discovered that is likely to affect the outcome of the
investigation and either the evidence could not reasonably
have been discovered in the normal course of investigation
without resorting to extraordinary measures by the agency or
the evidence resulted from the public safety officer's
predisciplinary response or procedure. �Government Code
Section 3304(g).]
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS :
1)Author's Statement : According to the author, "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)Brady Lists and Disclosure in Criminal Cases : Unlike
civil court cases, there is generally no discovery
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permitted in criminal cases in California, except where
required by a specific statute or required by the United
States Constitution. �Penal Code Section 1054(e).] The
landmark case in the area of criminal disclosures is
Brady v. Maryland. �373 U.S. 83 (1963).] In that case
and its progeny, the United States Supreme Court held
that due process requires the disclosure to the defendant
of evidence favorable to an accused that is material
either to guilt or punishment. (Id. at 87.) This
requirement for disclosure does not distinguish between
impeachment evidence that reflects on the credibility of
the witness, and direct exculpatory evidence. �U.S v.
Bagley, 473 U.S. 667, 676 (1985).]
The Brady disclosure requirement obligates the prosecutor
to turn evidence of misconduct by a police officer who
may be called as a witness in a case, if that misconduct
could discredit or impeach the officer's testimony.
"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).]
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
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
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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)Argument in Support : According to the Peace Officer Research
Association of California , "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
bases 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 these prosecutors enjoy absolute
prosecutorial immunity and immunity under the Eleventh
Amendment, it is impossible to challenge one's placement on a
Brady lists, 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 officer should be evaluated based on their merits and
for the underlying reasons they are investigated."
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4)Arguments in Opposition :
a) According to the American Civil Liberties Union , "The
fact that an officer appears on a Brady list or that his or
her name may be subject to the Brady disclosure can have
serious implications on their capacity to testify in court,
credibly calling into question their ability to make
arrests or serve in other assignments where testimony
and/or veracity are essential requirements. Given these
limitations, police management should be able to take
appropriate personnel action (e.g. transfer or change of
status) to address these concerns. Peace officers are
entitled to all the due process protections provided by
POBAR in connection with such actions."
b) According to the California Public Defender's
Association , "If implemented, this bill may have the
unintended consequence of making it more difficult for the
defense to access information on police officers who have
been committed serious acts of misconduct. This would
prove particularly problematic, as we would contend, be in
violation of a defendant's due process rights under the US
Constitution where a police officer is a witness for the
prosecution?
"Under current law and practice police officers are already
afforded protections, which often serve to keep information
which is arguably exculpatory from the defense. Often,
information which should be disclosed to the defense is in
personnel files which are only discovered by the defense
upon the filing of a Pitchess motion. Further, the level
of misconduct it takes for an officer to be placed on a
Brady list is generally egregious. The officers who do
wind up on such lists have often been convicted of police
brutality, evidence planting or some other legal violation
which would invariably be material if disclosed to the
defense.
"We believe that if implemented, this statute would be in
direct violation of the Supreme Court's decision to Brady
and would give rise to numerous costly lawsuits. In Brady
the court ensured that the prosecution could not stack the
deck in criminal cases by failing to disclose evidence
which would materially impact a defendant's case. This
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bill would upend that decision, and in so doing would lead
to tarnished convictions and lawsuits arising out of those
convictions."
5)Related Legislation : SB 638 (De Leon), had substantially
similar language as this bill. SB 638 was never heard by the
Senate Committee on Public Safety.
REGISTERED SUPPORT / OPPOSITION :
Support
California Coalition of Law Enforcement Associations (Sponsor)
Long Beach Police Officers Association (Sponsor)
San Mateo County Deputy Sheriff's Association (Sponsor)
AFSCME
Association of Los Angeles Deputy Sheriffs
Association of Orange County Deputy Sheriffs Association
Bakersfield Police Officers Association
California Fraternal Order of Police
California Professional Firefighters
L.A. County Probation Officers Union
Los Angeles County Professional Peace Officers Association
Newport Beach Police Association
Peace Officer Research Association of California
Riverside Sheriffs' Association
Sacramento County Deputy Sheriffs Association
San Bernardino Police Officers' Association
Santa Ana Peace Officers Association
Southern California Alliance of Law Enforcement
State Coalition of Probation Organizations
Opposition
American Civil Liberties Union
California Public Defenders Association
California State Sheriffs' Association
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744
AB 2543
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