Judge Delays Release of Pepper Spray Report At Least Until March 16



Critics Question the Use of Police Bill of Rights in This Case

An Alameda County judge has ordered the University of California to withhold a UC Davis task force report on the pepper-spraying incident at the campus, at least until after a hearing that is scheduled for March 16.

“In granting the temporary restraining order requested by a UC campus police union attorney, Judge Evelio M. Grillo emphasized that he was not ruling on the merits, but only preserving the status quo until the hearing on March 16,” University of California General Counsel Charles Robinson said in a statement to the media on Tuesday.

“We are obviously disappointed that public disclosure of the findings and recommendations of the task force chaired by former California Supreme Court Justice Cruz Reynoso has been delayed. The work of the task force represents a crucial step forward for the UC Davis campus as it attempts to move beyond the events of Friday, Nov. 18,” he said.

“The task force has worked diligently to provide the UC Davis community and the public at large with a full, expeditious accounting of the incidents in question,” Mr. Robinson continued.  “We look forward to the next round, and we will fight vigorously in court to ensure that the task force report sees public light as soon as possible.”

In the order signed by Judge Grillo, the University of California Board of Regents was ordered “to show cause why a preliminary injunction should not be ordered restraining and enjoining you and your employees and agents… from releasing the Kroll report, from releasing confidential peace officer personnel files, and from violating California Penal Code sections 832.7 and 832.8 regarding the confidentiality of peace officer personnel files.”

Attorney John Bakhit, representing Lt. John Pike of the Federated University Police Officers Association, filed a motion under PC sections 832.7 and 832.8 to prevent “the unlawful release of confidential peace officer personnel information” by the University of California through the Kroll report.

Under Penal Code section 832.7(a), “Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section S32.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.”

They argue that personnel records represent “”any file maintained under that individual’s name by his or her employing agency and containing records relating to ‘any one of several categories of information.’  Most notable: “Employee advancement, appraisal, or discipline,” or “Complaints or investigations of complaints.”

They further note that, under section 832.8, “the confidentiality provided by these Penal Code provisions extends to the administrative appeal hearings of peace officers where those officers are appealing disciplinary actions.”

Specially, they argue in this case, “The investigative materials and findings in the Kroll report constitute confidential personnel records.”

They argue: “This case does not involve a situation in which the Regents intend to simply release the name of officers involved in a critical incident. Instead, the Regents intend to release a comprehensive report including [information] based on misconduct complaints against several police officers.”

They add, “Perhaps most disturbing is the fact that the report includes the compelled statements of many of those officers.”

Tuesday also saw the intervention of the ACLU into this debate.

Staff attorney Michael Risher disagreed with this case’s applicability to PC section 832, in light of the Public Safety Officer’s Procedural Bill of Rights, Government Code sections 3300-3311, more commonly referred to as the Police Officer’s Bill of Rights (POBR).

“To the extent that they are trying to prevent the release of names, the law doesn’t support that,” Mr. Risher told the Vanguard on Tuesday.

He said that there may be material in the report that is protected, but he has not seen the report and therefore cannot evaluate that material.  However, he believes that if the law prevents the bulk of the report from being released to the public, then the law has to be changed.

“If in fact California law makes it impossible to create and release a report like this, a report that is so important into letting the people of this state understand how this horrible pepper-spray incident happened,” he said, “If the law prevented that from being created and released to the public, we need to change the law.”

Since its advent in the early 1980s, this has been area of controversy, as California goes much further than any other state in not only protecting the rights of peace officers, but also seeming to hide their misconduct from public scrutiny.

“Police officers in other states don’t get these types of incredible veil of secrecy for everything related to disciplinary proceedings,” Mr. Risher told the Vanguard.  “Police officers have enormous authority as they walk the streets – they carry guns, they can arrest us, they can toss us in jail.  We the people of this state should have the right to know which police officers are abusing their authority, and which officers quite frankly are carrying out their duties without generating any complaints.”

Michael Risher argued that these codes “create a veil of secrecy with anything having to do with police officer discipline, complaints against police officers, or how police officers have abused their authority.”

“That is very different from a police officer’s bill of rights, and it’s a big problem,” he stated.  He argued that it is perfectly appropriate for police officers to have procedural protections when they have been accused of wrongdoing and are in the process of fighting those charges.

The problem is that all complaints against police officers, regardless of whether they are founded or unfounded, “all of those complaints are also completely shielded from public scrutiny and the public has no idea of knowing whether the officer that they are interacting with has recently been accused of some serious offense and for whatever reason is still on the force.”

Under these penal and government codes, contents of a police officer’s personnel file, records of complaints, records of investigation and anything having to do with the police disciplinary procedure are all kept confidential.

Under the 2006 decision in Copley Press v. Superior Court, the California Supreme Court held that records of an administrative appeal of sustained misconduct charges are confidential and may not be disclosed to the public.

Advocates argue that the decision prevents the public from learning the extent to which police officers have been disciplined as a result of misconduct.

The Copley Press decision essentially undid the legislatively-enacted distinction between employing agencies and independent agencies.  This allowed police records to be cloaked in confidentiality.

“They’ve been relentless over the past 25 years to create a tool for law enforcement agencies to work without public scrutiny,” Tom Newton, executive director of the California Newspaper Publishers Association, says of police unions. “With Copley, they hit the jackpot.”

The decision itself held that San Diego Civil Service Commission records on administrative appeals by police officers were confidential because the Civil Service Commission performed a function similar to the police department in the disciplinary process and thereby functioned as the employing agency.

According to a 2009 Orange County Register article, “California laws enacted more than 30 years ago to protect honest peace officers from over-zealous internal investigations have become a safety net for bad cops.”

“The mandates – the most stringent in the nation — have given troubled officers special privileges that make it harder to get rid of them and nearly impossible for the public to learn whether they’ve been adequately disciplined,” they continue.  “Laws that began as an effort to protect police and the integrity of their work expanded over time, giving more and more cover to officer misconduct. Attempts to scale back those laws have met with opposition from California’s highly organized police unions, who argue it could affect officer safety.”

“California is the most restrictive state in the nation, when it comes to police secrecy,” said Jim Chanin, a former ACLU attorney in San Francisco. “It’s California’s dirty little secret.”

“In 2006, the California Supreme Court in the notorious Copley Press case, the Court held that cities… that for years had increased public trust in the police by having citizen review boards,” Michael Risher told the Vanguard.  “The Supreme Court held that these penal code provisions that protect police officers personnel files, records and complaints against them, made those public proceedings illegal.”

“It protects a wide range of internal materials about police officer discipline, it does not however, provide cover for the police officers and the government to refuse to release information about the activities of police officers in public,” he said.

He cited case law from appellate courts that police agencies had to release the names of officers in officer-involved shootings.  A ruling that was recently upheld.

“For fifteen years the law has been consistent that police agencies have to release the names of officers involved in critical incidents,” he said, including, he believes, use of force.  “That is not covered by the statutory veil of secrecy.”

The decision by lawyers acting on behalf of John Pike, however, has created a public backlash as it appears to be a decision to thwart the release of information to the public and protect wrongdoers.

“I think it’s a great disservice not only to the people but to the police themselves because they will appear as a group that doesn’t want the public to know what happened,” Justice Reynoso said on Monday evening.

Both he and UC President Mark G. Yudof expressed a commitment to making the full report accessible to the public.

“Due to the uncertainty created by this legal development, General Counsel has advised that any information relating to the Task Force Report or Kroll should not be released publicly by the University or individual members of the Task Force,” Justice Reynoso wrote to task force members.

He added: “I was very frustrated to receive this news today. However, let me assure you that I am undeterred in my commitment to release the complete and unredacted work of the Task Force, a view shared by President Yudof.”

“I am disappointed,” President Yudof said, “and I have asked the UC General Counsel’s office to do everything in its power in court to turn back this attempt to stifle these reports.”

“The work of the Reynoso Task Force, supported by outside investigators from the Kroll group, is a fundamental stepping stone needed to carry the UC Davis campus past the events of Friday, Nov. 18,” he added.  “The entire UC Davis community deserves a fully transparent and unexpurgated accounting of the incidents in question. Though I have not seen the reports, I am told the task force and its supporting investigators have provided just such an accounting.”

Chancellor Linda Katehi, herself embattled, expressed similar regret that the report was delayed.

“I am tremendously disappointed by this delay and know that many of you will be as well. We requested this inquiry to learn precisely what happened last November 18, utilize that knowledge to ensure that our campus is a safe, tolerant and inclusive community, and help us move forward together,” she said in a statement Monday evening.

She adds, “Hopefully, this delay will be brief and we will receive the task force’s findings soon. Meanwhile, work continues as we near completion of the campus’s own internal affairs investigation into complaints of officer misconduct, which would be the basis for any personnel actions concerning the accused officers.”

—David M. Greenwald reporting


About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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21 thoughts on “Judge Delays Release of Pepper Spray Report At Least Until March 16”

  1. Neutral

    [i]hides their misconduct from public scrutiny[/i]

    Absolutely. Much better for an ‘informed citizenry’ to become the triers of fact in a public forum. Shall we all gather at the UCPD for a rousing round of the ‘shame game’? After all, underlying the verbiage here is a clear bias toward [i]punishment[/i], exculpatory facts be damned. Bah.

    Individual police officer’s names are largely irrelevant in this case, because those [i]truly[/i] responsible were nowhere near the Quad. They were instead sitting with panoramic views in finely equipped offices on the upper floors of Mrak Hall. Start there, where the buck stops, and work to the street, not the other way around.

    Your arguments, and those of the ‘press’, and UC administrators and lawyers demanding the report be released with names in plain view are wholly without merit.

  2. David M. Greenwald


    This is my fault because I buried probably the most important point in the middle and therefore should not criticize you for posting without fully reading this, but I will highlight this coming directly from their pleadings:

    [quote]Specially they argue in this case, “the investigative materials and findings in the Kroll report constitute confidential personnel records.”

    They argue: “This case does not involve a situation in which the Regents intend to simply release the name of officers involved in a critical incident. Instead, the Regents intend to release a comprehensive report including based on misconduct complaints against several police officers.”

    They add, “Perhaps most disturbing is the fact that the report includes the compelled statements of many of those officers.”[/quote]

    In other words, this is not about names.

  3. Neutral

    [i]In other words, this is not about names.[/i]

    I did indeed read your entire article, and I disagree. Redacting the names, and any personal identifiers of the officers involved still allows for release of the full report. (‘Officer 1’ works just as well to illustrate a point as ‘John Smith’). I stand by my comment above.

  4. eagle eye

    Did the police union get some advance notice of what is in the report,
    or, how is it that the union seems to know its contents?

    The union appears to be stalling and looking for lengthy delay: Civil suits will eventually open up personnel files through discovery, as pointed out above. It will just take a long time to reach that point. And depositions of the officers involved will surely be interesting.

  5. David M. Greenwald

    Neutral: I don’t believe you are correct nor do the lawyers for UC, the ACLU or Cruz Reynoso himself. The names are not the limit of what they are trying to keep out – if it were, this would have been out on Tuesday.

  6. David M. Greenwald

    In answer to the question from Eagle Eye and other questions, I asked Brooke Converse, spokeperson for UCOP.

    She told me:

    “No, [neither] the officers, the union nor their lawyers received an advanced copy.

    Their concerns were based on conjecture on what could be in the report.

    It was decided in court that the lawyers for the union will now receive a copy of the report. They will have a chance to review it under a protection under which prevents them from sharing it with anyone, including their clients.”

  7. Rik Seyman

    All the most important information was known to the Chancellor personally at the time she appointed the Commissioin. And the University, being the owner of that information, could have provided it then. The Chanellor did do a couple of very short versions it: a)” I told the police not to do arrest and not to use force” and b) “I did not tell the police to arrest anyone or to use force.” (the b version is what she stated at the December 14th hearing at the Capital) Of course there was an immediate and serious credibility problem, which the Commission never had any hope of resolving, at least not as soon as the police officers were put on investigative leave. If you think the University’s legal counsel didn’t understand that from moment One, perhaps it is because you did not work across the table from these big boys like I did representing University employees for ten years.

  8. Ryan Kelly

    The union lawyers are only interested in keeping out information from and/or about UC police officers, saying that anything they described about that day is confidential and a personnel matter. This includes even the names of the officers who were there on that day. But they seem fine with the release of the names, actions and testimony from everyone else, which includes other employees of the University – faculty, staff and administrators.

    I find the quest for special treatment for UC police officers really disturbing. It changes how I feel about the UC police department. This is a strategic mis-step by their attorney.

  9. AdRemmer

    Too bad thw lawyers qquoted in the “story” don’t seem mention the required mechanisms [standards, motions, and the like] to be employed before certain data is released…

  10. Mr Obvious

    [quote]Their concerns were based on conjecture on what could be in the report. [/quote]

    Can you really blame them after the last Cruz lead inquest in Yolo County?

  11. David M. Greenwald

    “Can you really blame them after the last Cruz lead inquest in Yolo County? “

    Other than it never being completed, what is your objection?

  12. Mr Obvious

    There were no rules, it wasn’t sworn testimony, people were free to say whatever they wanted, no subpoena power, and no binding outcome.

  13. David M. Greenwald

    Most of that was unavoidable given the structure of the body. Unfortunately we never got to see them write a report or make recommendations. I fail to see how exactly that impacts this particular investigation which was conducted by Kroll not Mr. Reynoso.

  14. E Roberts Musser

    From the LA Times:
    [quote]Police union attorney John Bakhit said he was not seeking to squelch the entire report about the police tactics, which was written by a task force chaired by former state Supreme Court Justice Cruz Reynoso with help from a security consulting firm headed by former Los Angeles police Chief William J. Bratton. But Bakhit said he wanted UC to cut out the portions containing what he said appeared to be confidential personnel information that he likened to a patient’s hospital records. Even though the names of two of the officers are widely known and have appeared in media reports, other information about them has not been disclosed and other officers have not been identified, he added.[/quote]

  15. E Roberts Musser

    [quote]I wonder when that quote was taken, until yesterday he apparently would not have even seen the report.[/quote]

    The quote was taken from the LA Times this afternoon…

  16. David M. Greenwald

    I am aware of that. That does not tell us when they got the quote. The stipulation is that while the attorney now has a copy of the report, he cannot comment on it or publicly discuss it.

  17. E Roberts Musser

    [quote]I am aware of that. That does not tell us when they got the quote. The stipulation is that while the attorney now has a copy of the report, he cannot comment on it or publicly discuss it.[/quote]

    It doesn’t mean he cannot share it w his client…

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