Summer is winding down and in a few short weeks- school will be back in session for many districts throughout the Central Valley. I hope you have had the chance to make some fun memories with family and friends.
Deputy Jared Mullis Facing Criminal Charges
The Fresno County District Attorney has filed criminal charges against Deputy Jared Mullis in the accidental shooting death of Sergeant Rod Lucas on October 31, 2016. The criminal complaint charges Mullis with involuntary manslaughter, along with a gun enhancement charge.
Alongside his attorney, Roger Wilson, Deputy Mullis made his first court appearance on Thursday, August 3rd in Fresno County Superior Court. He entered a plea of not guilty.
The charges have brought about strong feelings and opinions by many deputies and FDSA members. Nine months after the tragedy- Sgt. Lucas’ death continues to affect many who knew and worked with him. He was a highly respected law enforcement officer- and his death has left a void in the Special Investigations Division (SID), and beyond. As a representative of our association, I have been keeping in contact with Deputy Mullis and his legal team. He remains an FDSA member and has been provided legal representation through the Legal Defense Fund. Deputy Mullis remains devastated by what has happened. He opens his eyes each day to a very heavy burden. The events of that day changed many lives and created a lot of heartache for everyone involved.
As the case against Deputy Mullis moves through the legal system, I ask that you be mindful and considerate of everyone involved. This is a difficult and painful journey for both the Lucas and Mullis families.
Brady List Disclosures
For several years, the Brady list has been a hot topic among California law enforcement officers. Recently, there have been some new developments that I feel are important to share. The following is an article published from our legal team, Messing, Adam & Jasmine.
Public Safety Departments Cannot Voluntarily Share Brady Lists with DA's or Any Other Non-Department Persons
Law enforcement agencies cannot disclose the names or other identifying information of officers who are on Brady lists to any outside body, including prosecutorial agencies, absent compliance with the Pitchess process. This notable victory for peace officer privacy rights came this week in Ass'n for Los Angeles Deputy Sheriffs v. Superior Court of County of Los Angeles. Factual Background Last year, the Los Angeles Sheriff's Department ("LASD") Command Staff compiled a Brady list of nearly 300 deputies whose personnel files contained sustained allegations of misconduct allegedly involving moral turpitude or other bad acts relevant to impeachment. The Department intended to disclose the list to prosecutors who handle LASD investigations. Prosecutors could have then either filed their own Pitchess motions to discover the underlying misconduct or advised the defense of the disclosure. LASD sued to prevent the Department's voluntary disclosure of this Brady list to anyone outside of the LASD, absent complete compliance with the Pitchess statutes (Cal. Evidence Code, sections 1043 and 1045 and California Penal Code sections 832.7 and 832.8). Following a lengthy hearing, the trial court granted a preliminary injunction prohibiting disclosure of the list. But the trial court permitted LASD to voluntarily disclose information on officer misconduct if it believed that disclosure was necessary to comply with Brady v. Maryland (1963) 373 U.S. 83 (1963). Brady requires that the prosecution must turn over all exculpatory evidence to the defense. The court reasoned that the constitutional mandates of Brady supersede statutory obligations under Pitchess. Court of Appeal Holding A 2-1 majority of the Second District Court of Appeal agreed that injunctive relief was warranted to prevent the general disclosure of Brady list information on officers absent compliance with Pitchess. However, the court of appeal went further and rejected the trial court's view that law enforcement agencies may violate Pitchess if they believe that voluntarily disclosure of officer misconduct is necessary to comply with Brady. Thus, it ordered the trial court to strike from its injunction any language allowing disclosure of Brady list information to any individual outside of the LASD, even if the deputy is a witness in a pending criminal trial, "absent a properly filed, heard, and granted Pitchess motion, accompanied by a corresponding court order." What This Ruling Means for California Peace Officers This ruling reaffirms peace officer privacy rights under Penal Code sections 832.7 and 832.8 and bars public safety employers from proactively disclosing Brady information to prosecutors and defense counsel absent compliance with Pitchess. The employer may still maintain an internal Brady list -- it just cannot disclose it absent a court order. The court also found that transfer or other change in duties based upon placement on a Brady List does not implicate POBR absent evidence the action was for "punitive purposes."
Right to Discovery in Interrogations Explained (Expanded)
The Fourth District Court of Appeal made a significant interpretation of the Public Safety Officers Procedural Bill of Rights Act ("POBR") (Gov. Code § 3300 et seq.) in the case of Santa Ana Police Officers Association v. City of Santa Ana, 2017 WL 2879796 (2017) that has the potential to impact many administrative investigations of peace officers. In the underlying case, the officers were surreptitiously recorded during an undercover raid of a marijuana dispensary and were investigated for allegedly inappropriate comments made while collecting and logging evidence. After the initial interviews of two officers, the Department wanted to interview them a second time, and the POA claimed that the Department, pursuant to Government Code section 3303(g), was required to give the officers "a transcribed copy of any notes made by a stenographer or ... any reports or complaints made by investigators or other persons except those which are deemed by the investigating agency to be confidential," in addition to the recording of the first interview prior to the second interview. The Department refused to hand over the materials before the second interview, and the POA brought suit. The trial court sustained the City's demurrer without leave to amend. On appeal, the Court concluded that both the plain language of the statute and the decision in Pasadena Police Officers Association v. City of Pasadena, 51 Cal.3d 564, 572 (1990) required reversal of the trial court's decision. The Pasadena decision has historically stood for the proposition that an officer has no pre-interrogation discovery rights and that Government Code section 3303(g) requires a department to give an officer a recording of the first interview prior to the second interview. The Santa Ana Court concluded that interpreting the Pasadena decision and the statute together, if an officer is entitled to the recording, the statute language renders the right to notes/reports/complaints coextensive with the right to the audio. This means that the officer is entitled to both the audio and the writings prior to any subsequent interview. At first glance, the Santa Ana decision seems inconsistent with the Pasadena decision. However, the Pasadena decision really only says that an officer is not entitled to the notes/reports/complaints until after an interrogation. The Santa Ana court appears to reconcile Pasadena by interpreting it as meaning after the FIRST interrogation. The Santa Ana decision has major implications for administrative interrogations of peace officers because usually a department does not conduct a second interview unless the officer is suspected of being dishonest in the first. Now, the officer (and his or her representative) may be able to see the investigator's analysis and other witness statements before giving the second interview - which will significantly assist in a more meaningful defense for the officer. The decision will also impact investigations of firefighters under the Firefighter Bill of Rights Act, which has the same language as POBR in this regard.
CABT (Coalition Against Big Trucks)
This is an update from the Coalition we (FDSA) through the lead of PORAC are involved with. I have been a representative from the Central Cal chapter dealing with this issue for our region. There will be updates on this CABT since the issue is rising again in Washington DC.
The House Appropriations Committee met recently to mark up the Transportation, Housing and Urban Development (THUD) appropriations bill where it was expected that bigger-truck proponents would offer an amendment to mandate longer double-trailer trucks, or Double 33s, nationwide. Similar efforts to allow heavier trucks lost momentum in the days leading up to the vote. Bigger-truck proponents were vigorously working the Hill and the longer-truck amendment in particular was building momentum. The CEOs of FedEx and UPS, joined by Amazon lobbyists, were meeting with Members up to the final days and hours to push the Double 33s amendment to committee approval. As of 30 minutes before the markup, we fully expected the longer double-trailer truck amendment to be filed. Despite the intense lobbying from these powerful companies, outreach from community leaders like you outweighed the push for Double 33s, and last night the bigger-truck amendments were not offered. Our coalition delivered an effective message about the negative impacts bigger trucks would have on highway safety and the nation’s infrastructure--and we prevailed. Thank you for all you have done to get us to this win--it was your calls, letters and emails that have made the difference in this campaign! We were victorious in this stage of a hard-fought campaign, but we are still far from the end. The THUD appropriations bill needs to go to the House floor. The same process also starts in the Senate as early as next week--you will recall in 2015 that the Senate Appropriations Committee decided by one vote to approve these longer doubles. While the vote is a setback for the other side, proponents show no signs of giving up--these truck size and weight increases are too important to their bottom line. They will not stop, but neither will we. I must emphasize again how vital your work is to this process. Without your expertise and commitment to keeping our roads safe and preserving our infrastructure, we would not be where we are right now. On behalf of motorists, taxpayers, and CABT staff, thank you. Please let me know if I can answer any questions, and I will continue to keep you updated. Thank you again for all you do for our communities.