Despite the illustration of the absurdity of attempting to protect the names of officers already in the public domain, Judge Evelio Grillo has ordered the release of the full report with redaction of names of specific officers not already named, as Lt. John Pike and Police Chief Annette Spicuzza have been named, but has stayed the release until April 20, 2012 to allow the attorneys for the Police Officer’s Union to appeal to an appellate court.
University of California General Counsel Charles Robinson said after the ruling on Wednesday, “We are pleased that Judge Grillo agrees, in almost every respect, with our arguments for full public disclosure of reports from the task force chaired by former California Supreme Court Associate Justice Cruz Reynoso. While he also ordered names of some police officers in the reports to be redacted, we would like that information ultimately to be made public.”
“He imposed a 21-day stay to allow campus police union attorneys time to decide whether they will appeal,” Mr. Robinson continued. “During that time the task force and university are permitted to release only those parts of the report that the judge previously permitted to be released, plus a few additional sections that police union attorneys agreed to. As a result, there still are substantial portions of the Reynoso Task Force and Kroll reports that cannot be released during the 21-day stay.”
At this point it is unclear when the report would be released. Previously Justice Reynoso indicated he was inclined to release the entire report rather than piecemeal. That might change if the release is extended beyond the 21-day stay.
“Judge Grillo said UC retains discretion on the timing and form of release of the reports. We will confer with Justice Reynoso about when and how the reports will be released to the UC Davis community and the general public,” Charles Robinson said.
But he, along with President Yudof, continue to back a full release to the public.
He concluded, “All of us – including Justice Reynoso and UC President Mark G. Yudof – remain committed to full public disclosure of the findings and recommendations of the task force. Sharing and discussing the task force report with the UC Davis community – students, faculty and staff – is a vitally important step toward healing and understanding.”
Judge Grillo’s Final Ruling
This is a preliminary injunction and the standard of proof is the likelihood that the plantiff would prevail on the merit under Penal Code Section 832.7. Judge Grillo ruled, “Petitioners have not demonstrated a ‘reasonable probability’ of success in proving that Penal Code section 832.7 prevents the Regents from disclosing the Report.”
So Judge Grillo ruled that he does not see a reasonble probablility of success in proving that the Report is expressly an investigation under section 832.5. He added, “The Report is not within the literal language of section 832.5 because the Task Force’s investigation was not a response to ‘complaints by members of the public’ against specific officers. The Task Force was concerned with the Incident as a whole and how the policies and procedures of UC Davis and the UCDPD failed or worked.”
Specifically he ruled, “The Petitioners have not demonstrated a ‘reasonable probability’ of success in proving that the Report is a de facto investigation under section 832.5.”
Instead, he argued, “The Report is a policy level document that makes policy level recommendations. UC Davis charged the Task Force with investigating and addressing policy level problems that contributed to the Incident.”
Moreover, “The court has also considered that the Report is not within the class or type of section 832.5 records that section 832.7 was designed to protect from disclosure.”
Furthermore, the judge ruled, “Petitioners have not demonstrated a ‘reasonable probability’ of success in proving that the Report was conducted ‘in concert’ with a section 832.5 investigation.”
Judge Grillo noted both that the investigation was separate from any “IA investigation” and that there were, in fact, records withheld from the Kroll report on the basis of “peace officer personnel record provisions.” Moreover, the judge noted, “UC Davis states that UD Davis has not shared any documents generated in the IA process with Kroll or with the Task Force.”
Judge Grillo also ruled, “Petitioners have not demonstrated a ‘reasonable probability’ of success in proving that the Report is ‘peace officer personnel records.’ “
Reading The Names
It is important to remember, at this point, that this is a preliminary injunction, not a final ruling. However, based on the evidence presented by attorneys for the police officers, Judge Grillo ruled, “Petitioners have presented substantial evidence that they are likely to suffer significant harm if their names and identifying information is erroneously disclosed before the case can be adjudicated on its merits.”
Indeed, the judge noted, “Lt. Pike has presented a declaration detailing harassment and threats to him after he was identified as an officer who was involved in the Incident. After Lt. Pike’s name was made public, a person or persons circulated his contact information on the internet and he subsequently received hundreds of letters, over 10,000 text messages, and over 17,000 email messages. Most of the letters and messages where threatening or derogatory. In addition, unidentified persons ordered magazines, products and food for delivery to Lt. Pike’s home.”
Thus, Judge Grillo argued, “Given this history of threats and harassment, the potential harm to other officers from disclosing their participation in the Incident is far from speculative.”
The issue of future possibilities of harm, Judge Grillo held, is “speculative,” and the judge also noted, “The Regents will suffer substantial harm if it cannot disclose and discuss information and recommendations regarding the Incident until the case can be adjudicated on its merits. There is a ‘strong public policy supporting transparency in government.’ “
The Vanguard once again spoke with ACLU Staff Attorney Michael Risher, who has filed a third party brief and participated in the proceedings on Wednesday.
“It’s a preliminary injunction,” Mr. Risher said, “Judges have broad discretion to craft preliminary injunctions to fit the facts as they see them. I don’t know all of the evidence that the judge looked at, that should become public in 21 days.”
Nevertheless, he felt that the order was overly broad. Given the length of time that has passed since the incident, he is not sure that new revelations would bring forth the same level of harassment that Lt. Pike experienced in the days immediately following the highly publicized and volatile incident.
“It’s not clear to me that releasing the names of other officers that weren’t involved in such a notorious way of officer Pike… or didn’t pepper spray anyone but were just witnesses, would subject them to any sort of harassment, particularly now months later after people’s passions have cooled,” he said.
Michael Risher is unclear about whether the university will appeal that portion of the ruling.
“Whether we [the ACLU] will appeal that portion of the judge’s order, will really depend on [whether] we’re able to look at the rest of the report 21 days from now,” he said. He added that, at that point, if they are able to see the entirety of the report, they will be in a better position to assess whether the names are crucial to understanding the incident.
The critical question is whether the evidence supports the argument that the officers would suffer some sort of harassment and how important it is to have that information out there right now, he said.
“Eventually that information has to be released,” Mr. Risher added. “Whether it needs to be released right now, if the rest of the report is comprehensive enough that it paints a fairly complete picture, I don’t know whether it’s worth it.”
However, with anonymity comes lack of accountability, which Mr. Risher said, “Is why eventually these names will have to be released.”
Because it is only a preliminary injunction, either the injunction will end or there will have to be a trial and the evidence presented to determine whether or not there is currently a credible threat to preclude the release of the names further.
Obviously, with every passing month, the risk to the officers of retaliation is greatly diminished.
As it stands, there is a large amount of information that could be released today, but based on the inclinations of Justice Reynoso, we do not believe that will happen.
There is also another chunk of information that the judge has ruled does not violate 832.5 or 832.7, but he has left the window open for the attorneys for the police officers to appeal.
Finally, he has ruled that the names of all but Lt. Pike and Chief Spicuzza be redacted. UC or the ACLU could appeal that. It seems less likely that that will happen, at least initially. We will have more on this tomorrow.
—David M. Greenwald reporting