California's Top Court Finally Allows Law Enforcement Agencies to Share List of Problem Cops With Prosecutors

Powerful unions and state-mandated secrecy made it a fight to know about misconduct.

On Monday, the California Supreme Court unanimously ruled that the state's law enforcement agencies may share the names of officers with misconduct records with prosecutors so that prosecutors can figure out whether such cops should be kept from testifying and whether defense attorneys need to be notified of the cops' records.

The need for such disclosures is obvious. The U.S. Supreme Court's ruling in Brady v. Maryland (1963) requires prosecutors to turn over evidence to the defense that might exonerate the defendant. A corrupt police officer connected to the case could certainly qualify.

But in California, thanks to powerful law enforcement unions and state laws that shield police records from disclosure, there had been a legal privacy barrier making it harder for prosecutors to get this information in the first place. Until recently, state laws even prohibited directly passing along information from police records to lawyers. Those records had to go through a judge, who would be responsible for screening out and sharing only what information about an officer that might be relevant to the case.

Prosecutors and defense attorneys have struggled for decades to get this information, Supreme Court precedent notwithstanding. Some cities and counties in California have been proactive in passing along lists—often called Brady lists—of officers whose past conduct could affect their credibility as witnesses. These lists did not contain details, but apparently even sharing names was a problem for some law enforcement unions.

In Los Angeles County, the sheriff's department had been attempting to pass along a list of about 300 deputies with records of bad behavior to the Los Angeles District Attorney's Office. This did not sit well with the Association for Los Angeles Deputy Sheriffs, who sued to stop the sheriff from sharing just these 300 or so names.

Lower courts ruled in favor of the union. That's how powerfully state laws shielded law enforcement from public awareness of bad behavior. But last year, California passed S.B. 1421, which ended decades of secrecy and allowed public access to certain types of police personnel records, including those where officers were credibly found to have engaged in deception, like perjury or fabricating evidence, on the job. That's certainly the type of behavior that could undermine the credibility of a police witness.

Per yesterday's ruling by the California Supreme Court, the records covered under S.B. 1421 are no longer confidential, and thus may be shared with prosecutors. State law no longer forbids disclosure.

Mind you, S.B. 1421 did not grant public access to all police misconduct records. It focused on incidences where an officer used a firearm or force to cause death or great bodily injury; incidences of sexual assault; and the aforementioned findings of dishonest behavior on the job. And this week's California Supreme Court ruling did not mandate that law enforcement agencies keep a Brady list of problematic officers. But, the ruling notes, "when a department seeks to transmit a Brady alert to prosecutors, allowing the department to do so mitigates the risk of a constitutional violation." The lists may be shared.

The Los Angeles Times notes that there's enough ambiguity in the decision that some law enforcement agencies will likely share less information with prosecutors and defense attorneys than others might share.

Still, the upshot of the ruling is that law enforcement agencies in California may no longer use the state's privacy laws to shield bad cops from public scrutiny. That's a win for both criminal defendants and pro-transparency activists.