L.A. County sheriff can't give prosecutors the names of problem
deputies, appeals court rules

Los Angeles Times - July 11, 2017

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.

'Moral turpitude'

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.

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