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