Pepper Spray Report Delayed: Partial Victory on Friday For Everyone But the Public

Reynoso-pepperspray

While Judge Evelio Grillo’s tentative ruling seemed to reject arguments from attorneys for Lt. John Pike and the Federated University Police Officers Association, the hearing and his ruling on Friday made things less clear – as he blocked the release of some sections of the report, cleared the way for the release of others, set another hearing date for March 28, and set a full release date for April 16.

Originally, Judge Grillo indicated through his tentative ruling that he would order the release of all of the information in the report.

 

He had concluded, “Balancing the harms, the court finds the Regents and the public will suffer more harm if the court erroneously restricts the disclosure of the Report than the Petitioners would suffer if the court improvidently permits the disclosure of the Report.”

The hearing on Friday was a long and arduous process, as at times they went through the report line by line.  After considerable time and energy, Judge Grillo considered the possibility of withholding some information.

For now the report has not been released, as spokespersons for the UC Office of the President indicate that the university will wait for the judge’s final order.  Justice Cruz Reynoso at that point will decide when the report will be released.  Previously, UC Davis had set a public forum in which the report would be released and discussed.

In speaking to reporters outside of the courtroom on Friday, UC General Counsel Charles Robinson indicated that he would defer to Justice Reynoso as to how the report would be released.

“We are making some progress toward our overall objective of trying to get the entire report released,” Mr. Robinson.  “One could imagine a circumstance where releasing just a part of the report could be misleading or not provide sufficient context.”

The police union’s attorneys were claiming victory.

“We believe we accomplished our goal today,” said John Bakhit. “All the sections we asked to be held back were held back. We’re happy – but it’s temporary.”

Complicating matters was a seemingly sudden reversal of the university’s position.  The union argued that, while normally the names of officers would not be considered confidential, the union wanted them withheld because of threats that Lt. Pike has apparently received.

Section six of the report contained procedures on the operation of the police on the quad.  During that section, Judge Grillo expressed concern that the officers had made “statements about individual officers’ conduct and whether that conduct was right or wrong.”

Originally the Judge wrote, “At present the Petitioners can have little or no expectation of privacy regarding the Incident given that the Incident has been the subject of public scrutiny and videos of the demonstration and the UCDPD’s use of pepper spray have ‘gone viral’ on the internet.”

He added, “As police officers paid by the public and authorized by the public to exercise authority over individual members of the public, the Petitioners could not reasonably expect that reports of their actions in the news media, the internet, and other public sources of information would be shielded from public scrutiny by a statute whose purpose is to protect the confidentiality of personnel records and information.”

However, on Friday he backed off that claim, specifically with Section 6 of the Kroll Report, which he called “a different animal” from the rest of the report which largely laid out information that one could get in the public realm.

ACLU Staff Attorney Michael Risher argued that it was a clear victory for the university and a clear loss for the officers.

The university can release just about the entire report by Justice Cruz Reynoso, along with large portions of the Kroll Report.

However, the ACLU was not happy that the full report may never be released.

The university had originally backed full disclosure, however, backed off that as university attorney Nancy Sheehan told the judge that the university would be willing to withhold the identity of the second officer involved in the actual pepper spraying in order that he avoid the threats that Lt. Pike had received.

Given the amount of time that has actually passed, it seems unlikely that other officers – and we learned that there are at least five or six who are subject to inquiry over and above the ones that have been put on administrative leave – would suffer a similar fate to Lt. Pike, who has become a caricature at this point, with his image emblazoned all over the internet.

In short, there will be another hearing on March 28, the university will decide whether to release portions of the report on Monday, and we will have to wait another month at least before this is resolved.

In that way, the lawyers and the university have won, and the public has lost out.

—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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18 Comments

  1. E Roberts Musser

    [quote]However, on Friday he backed off that claim, specifically with Section 6 of the Kroll Report, which he called “a different animal” from the rest of the report which largely laid out information that one could get in the public realm.

    ACLU Staff Attorney Michael Risher argued that it was a clear victory for the university and a clear loss for the officers.[/quote]

    So it appears at first blush that the police had justification for concern. Only time will tell if it holds up and part of the report is redacted (I suspect it will be)…

  2. David M. Greenwald

    My interpretation is that UC decided this was the quickest way to release the report. If it is only a name, then I suspect this is fool’s gold for the police because it is going to be easy enough to figure out who it was.

  3. davisite2

    It is becoming increasingly clear that the legal discovery process and witnesses under the threat of perjury in the Federal lawsuit being handled by the ACLU is necessary. The sincerity of UCD’s public “disappointment” about the delays and potential redacting is open to serious question as the short attention span of the public will “soften” adverse consequences with the passage of time before release.

  4. roger bockrath

    Who ever knows the name of the second pepper spraying officer would be well to make it public so that the police have no further reason to redact the portions of the Kroll/Reynoso Report critical of police behavior. The public has a right to know what police officers, on the public payroll and on public property, did or did not do in violation of California Statute. Hiding behind privacy issues is simply stalling and hoping the public’s notoriously short memory allows them to get away with illegal behavior.

  5. medwoman

    “So it appears at first blush that the police had justification for concern”
    Only if their goal is to hide the truth of what happened behind a technicality. If the police are standing behind the action of these officers, there should be no problem in releasing their identities. If their actions are found to have not been justified and/or illegal, surely this is something that the public has the right to know. I am sure that anyone who does their job incorrectly, or commits a crime would prefer that it not be detected and publicized. I fail to see why police, who already were filmed in the act, should receive protections over and above any other citizen in this regard.

  6. JustSaying

    [quote]“The public has a right to know what police officers, on the public payroll and on public property, did or did not do in violation of California Statute.”[/quote]Right, and as soon as they’re charged with such a violation, we’ll have our right to know satisfied.[quote]“I fail to see why police, who already were filmed in the act, should receive protections over and above any other citizen in this regard.”[/quote]The reason, of course, is that it’s California law. So, of course, we should follow the law, correct? If this case enlightens us the way it ought to, we’ll change the law. In the meantime, you really do see why police get such special protections, right?

  7. JustSaying

    I was trying to respond to medwoman’s very specific point about why police “receive protections over and above any other citizen,” not arguing that anonymity is their right.

  8. medwoman

    JustSaying

    What I believe is that just laws should be followed and unjust laws should be changed as rapidly as possible. I personally see it as an injustice that those to whom we give power over us should receive greater protections when accused of abuse of that power than are accorded to those they are charged with protecting.

  9. AdRemmer

    [quote]What I believe is that just laws should be followed and unjust laws should be changed as rapidly as possible.[/quote]

    Please submit [i]YOUR[/i] list of ‘unjust’ laws [that apply] at your earliest convenience.

    thanx

  10. medwoman

    AdRemmer

    Obviously I cannot comply with this request since I have no idea what you will interpret as “applying”.
    However, I will be happy to provide a couple of examples of what I consider unjust laws that have existed or been proposed within my lifetime.
    First, the historical example. The law Rosa Parks broke when she refused to give up her seat to a Caucasian passenger. Obviously unjust and in need of prompt change.
    One proposed example from current news: forcing women to undergo vaginal probe US prior to having an abortion while not placing an identical burden on women planning to continue their pregnancy or on men for any medical procedure when not necessary to conduct the procedure in question.
    My admittedly completely lay attitude toward determining ” just” from “unjust” with regard to a law is first, does it apply equally to all individuals under similar circumstances regardless of gender, race, religion, socioeconomic …. status. If a proposed or existing law does not meet at least this minimal requirement, I do not see how it could be deemed “just”.

    Your thoughts ?

  11. E Roberts Musser

    [quote]It’s not clear that anonymity is a right granted under California law.[/quote]

    The problem is what JustSaying noted: “Right, and as soon as they’re charged with such a violation, we’ll have our right to know satisfied.” Holding a specific officer up to public ridicule without any chance for defense is inappropriate. Then there is the death threat issue…

  12. E Roberts Musser

    [quote]What I believe is that just laws should be followed and unjust laws should be changed as rapidly as possible.[/quote]

    I’m assuming you believe the law that protects the identity of police officers under investigation is unjust? So you think it is okay to hold a specific police officer up to public ridicule even tho he has not been charged w any wrongdoing/disciplined, and has no opportunity to defend himself? Even tho to do so may result in death threats?

  13. David M. Greenwald

    Elaine: What about the case where a prominent person is charged with molesting a child. He gets arrested, news is blaring, he’s on the front of every paper and the lead of every news cast. Then it comes out the family of the ‘victim’ is lying and the charges are dropped. Why does the police officer get more protection than other potentially innocent people charged with horrible crimes?

  14. E Roberts Musser

    [quote]Elaine: What about the case where a prominent person is charged with molesting a child. He gets arrested, news is blaring, he’s on the front of every paper and the lead of every news cast. Then it comes out the family of the ‘victim’ is lying and the charges are dropped. Why does the police officer get more protection than other potentially innocent people charged with horrible crimes?[/quote]

    Perhaps the molester should get more protection?

  15. E Roberts Musser

    Quite frankly, I don’t think the news media exercises very good judgment when it reports on things where specific names are involved. Not sure I know a good answer tho…

  16. JustSaying

    “Elaine: What about the case where a prominent person is charged with molesting a child. He gets arrested, news is blaring, he’s on the front of every paper and the lead of every news cast. Then it comes out the family of the ‘victim’ is lying and the charges are dropped. Why does the police officer get more protection than other potentially innocent people charged with horrible crimes.”

    Same answer as before: Because it’s the law now. So, let’s follow the law–it doesn’t violate any of our basic rights–and change it since or if this case is exposing any abuse. How about letting the courts determine whether the current law even applies the way the police union contends before we get all upset about what the union argues the law means?

    This is not to suggest that I’m for unjust laws and that I’m against just laws, if you please. I hope it goes without saying that medwoman’s and I agree on this point.

    And what does a “news is blaring” Freedom of the Press point have to do it?

  17. medwoman

    Elaine,

    “I’m assuming you believe the law that protects the identity of police officers under investigation is unjust? So you think it is okay to hold a specific police officer up to public ridicule even tho he has not been charged w any wrongdoing/disciplined, and has no opportunity to defend himself? Even tho to do so may result in death threats?”

    What I believe is that the law should apply equally to police as to any other member of our society.
    And in this particular instance, I think protecting the names of those involved, if that is what is being protected is a little ridiculous being that the images are all over the internet making it possible for anyone really desiring to find out the identity of the police present to likely be able to do so.

    Also, death threats are not uniquely applied to the police in our society. People in many walks of life are the subject of death threats. Should we make everyone’s identity a secret.? For instance it is not unusual for an emergency physician to be threatened with death if they do not save the life of a given patient. Doctors who perform the completely legal procedure of abortion routinely receive death threats. I myself received a death threat from a white supremacist who apparently didn’t feel I was taking adequate care of his wife before he was in no uncertain terms escorted off hospital property. So, if this law does not apply equally to other members of society as to the police, yes, I believe it to be unjust and in need of change.

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