Iowa’s New Brady Statute Grants Protections To Officers

Written on 10/08/2022
Will Aitchison

Through a bill known as House File 2496 and passed in June 2022, Iowa enacted a statute granting both substantive and procedural protections to officers placed on a Brady list. Section 2 of HF 2496 provides that “an officer shall not be discharged, disciplined, or threatened with discharge or discipline by a state, county, or municipal law enforcement agency solely due to a pros­ecuting agency making a determination or disclosure that exculpatory evidence exists concerning the officer.”

HF 2496 thus follows the model first adopted in California and later emulated in Maryland and Washington that forbids discipline “solely” on the basis of an officer’s placement on a Brady list.” Under all four laws, the employer can still discipline the officer for the underlying misconduct, but not simply because the officer has been placed on a Brady list.

HF 2496 goes on to provide some procedural protections against wrongful placement on a Brady list. HB 2496 re­quires that “at a minimum, a prosecutor using a Brady list must have a policy including all of the following:

  1. The criteria used by the prose­cuting agency to place an officer’s name on a Brady-Giglio list;
  2. The officer’s right to receive written notice before the prosecuting agency places the officer’s name on a Brady-Giglio list, and the officer’s right to provide input to the prosecuting agency before the prosecuting agency makes a determination of whether the officer’s name should be placed on a Brady-Giglio list;
  3. The duty of the prosecuting agency to provide notice of the pros­ecuting agency’s decision regarding placement of the officer’s name on a Brady-Giglio list;
  4. The officer’s right to make a request for reconsideration of the prosecuting agency’s determination to include the officer’s name on a Brady-Gi­glio list and to submit supporting and corroborating documents and evidence in support of the officer’s request for reconsideration; and
  5. The applicable time frame and procedures for notifying the officer of the prosecuting agency’s final decision on an officer’s request for reconsideration.

HF 2496 also grants officers the right to request documents, records, and any other evidence in the possession of the prosecuting agency relevant to the determination of whether the officer’s name should be place on a Brady-Giglio list. Officers placed on a Brady list prior to the effective date of the law are also granted an immediate right to appeal their placement on the list.

What HF 2496 does not do is to provide for a hearing before a neutral third party, something a Pennsylvania appeals court recently suggested may be necessary under constitutional due process requirements. Also, HB 2496 specifically provides that the new law “does not create a private cause of action against a prosecuting agency or an em­ployee of a prosecuting agency.”

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