By Thomas Cribbins*
Police misconduct is a salient issue in the United States. From full-scale departmental mismanagement to individual officer misconduct, criminal or otherwise immoral activities by law enforcement officers are serious violations of public trust. Fortunately, our criminal justice system has rules that require misconduct by officers to be disclosed. I am referring to Giglio v. United States that requires evidence that could undermine the credibility of a government witness, including law enforcement officers, to be disclosed to the defendant.[i] However, while this information is made available when necessary, should officers that have damaged credibility testify in court? And if these officers cannot be trusted, why are they still patrolling, investigating and arresting citizens? One example where states are struggling to answer to those questions comes from California Government Code §3305.5.
On the surface, California is making strides towards positive reforms in police misconduct. Just this year, the disclosure of investigations and reports of police misconduct will be greatly enhanced.[ii] Despite these new reforms, California Government Code §3305.5,[iii] adopted in 2013, provides a devilish administrative obstacle to addressing police misconduct. §3305.5 prohibits law enforcement agencies from taking punitive action, or even denying promotions, against officers that prosecutors have Giglio-listed. Being Giglio-listed refers to when an officer is placed on a list, usually made and maintained by prosecutors, to remind prosecutors that this particular officer has impeachment evidence that must be disclosed to defense counsel. This administrative law undermines criminal justice reform in California.
California law has long required that law enforcement agencies maintain extensive records of public complaints against officers for at least 5 years, unless they are found to be frivolous.[iv] While these records of complaints were previously confidential, the new amendments to §832.7 allow the public to access certain records relating to possible misconduct that might result in an officer being Giglio-listed. The specific categories in this law require disclosure of the discharge of a firearm, deadly or serious force, sexual assault by the officer, dishonesty, or the falsification of records by the officer.[v] No longer can law enforcement agencies in California hide information regarding police officers’ severe misconduct.
In January 1, 2020, the California Evidence Code will also be amended to change discovery rules that apply to police personnel records.[vi] Now, there is an expedited process for defense counsel to request access to police personnel records. And with public access under §832.7 to the most egregious records of misconduct, it will be easier for defendants to substantiate a deeper look into officers’ credibility. §1043 still requires defense counsel to provide evidence of the cause for access to the officer’s personnel records, but armed with the new public access to certain police misconduct records, it will be easier to examine an officer’s credibility. These new reforms also allow for broader access to supervisory officers’ personnel records.[vii] Previously, the supervisor’s personnel records were only subject to disclosure with cause if the supervisor had been present at the arrest or had contact with the defendant prior to booking.[viii] Now, if supervisors have command influence or issued directives during the arrest, their personnel records are also discoverable. Unfortunately, these new reforms are undermined by another part of California’s administrative employment doctrine.
Despite these reforms, a bill passed in 2013 complicates long-term solutions to addressing police misconduct. California Government Code §3305.5 (§3305.5) prohibits California law enforcement agencies from taking any punitive action, including in professional advancement, against an officer because of their Giglio-impaired status.[ix] This is perhaps the starkest tension in the law: the prohibition divorces trustworthiness and honesty from considerations of officer effectiveness and merit. To be clear, the statute allows for punitive actions relating to the underlying conduct motivating the Giglio listing in the first place, but the punitive action cannot be grounded in the officer’s Giglio-impaired status or the agency’s fear that the officer may now be Giglio-impaired. The statute undermines itself. Officers could simply argue that the department is misrepresenting the reason for the adverse action when they are worried about the officer being Giglio-impaired. This statute grants immense power to officers accused of misconduct to simply allege that departments are acting based on the officer’s Giglio-status. This weakness could handcuff law enforcement agencies to keep unscrupulous officers on the street.
Officers argue that without any sort of due process for how prosecutors may decide which officers are Giglio-listed, they may be arbitrarily handicapped by a prosecutor.[x] But if prosecutors cannot trust officers, how can an officer perform their job effectively? The pursuit of justice with respect to the arrests and investigations carried out by Giglio-listed officers will be impeded by a lack of trustworthiness, especially when prosecutors will still be referred cases involving impeachable officers.
The legislative history registers many of these concerns and concludes that they are justified because they protect officers from arbitrary employment decisions essentially made by prosecutors.[xi] But again, just because an officer is listed, doesn’t mean they have to be fired. The merits of whether an officer should be fired for misconduct will be heavily fact-dependent and subject to a separate analysis.[xii] However, §3305.5 precludes independent judgement by the agency. Since an officer could simply assert that the agency is taking punitive action because of the officer’s Giglio status, §3305.5 creates more interlocutory, bureaucratic obstacles to addressing police misconduct.
This law creates a new, bigger problem of shielding bad officers in service to a smaller, rarer problem of firing good officers as a result of conspiracy between prosecutors and the police department. In the legislative record, no evidence was presented to show that officers are routinely the innocent subject of conspiracies by prosecutors to have them fired.[xiii] §3305.5 protects many more bad officers than it prevents the mistreatment of good officers being railroaded. Without §3305.5, there still is no law requiring that officers be fired for being Giglio-listed. To the contrary, the law simply protects officers who are preventing departments from acting. It would seem more efficient to handle the rare cases where an illegitimate listing occurs as a wrongful termination or retaliation issue rather than handcuffing departments from addressing legitimately Giglio-listed officers. Rather than focusing on preventing rare retaliatory misclassifications and terminations by prosecutors and police departments at the sacrifice of protecting many more bad officers legitimately Giglio-listed, maybe we should use the power of the law to sort out those rare frivolous listings under existing employment law. This is not to claim that our current employment law is without need for improvement and refining, but this is where we can focus our attention to reform rather than creating a wholesale safe harbor for untrustworthy officers.
In summary, what this issue comes down to is a tension between protecting employees and ensuring that law enforcement officers and agencies can be trusted. California has decided that protecting unscrupulous police officers trumps the public’s trust in police officers. Not only does it allow devious officers to continue patrolling the streets as if nothing happened, it degrades the ability of prosecutors to secure necessary and just convictions of real criminals. Failing to prosecute dangerous criminals and allowing unscrupulous officers to continue working as police officers endangers the public. This statute essentially protects bad actors, denigrates public trust, and leaves law-abiding officers and prosecutors powerless to address either problem. Shouldn’t we hold law enforcement officers to a higher standard of moral conduct? Does California believe the officers that need explicit protection are the officers already found to be dishonest?
* Thomas Cribbins is a Junior Editor on MJEAL. He can be reached via email at email@example.com.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] Giglio v. United States, 405 U.S. 150 (1972).
[ii] Cal. Penal Code § 832.5 (Deering), Cal Evid Code § 1043 (Deering).
[iii] Cal. Gov’t Code § 3305.5 (Deering).
[iv] Cal. Penal Code § 832.5 (Deering).
[v] Cal. Penal Code § 832.7 (Deering).
[vi] Cal Evid Code § 1043 (Deering).
[vii] Cal. Evid. Code § 1047 (Deering).
[viii] 2019 Cal ALS 585, 2019 Cal AB 1600, 2019 Cal Stats. ch. 585.
[ix] Cal. Gov’t Code § 3305.5 (Deering).
[x] See 2013 Legis. Bill Hist. CA S.B. 313.
[xi] See id.
[xii] See id.
[xiii] See id.