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