Release of the Pepper Spray Report Further Delayed

ACLU Staff Attorney Urges Full Release Sooner Rather than Later –

Following Friday’s court ruling, it comes as little surprise that the release of the pepper spray report will be further delayed.  While the judge’s ruling on Friday appeared to clear the way for a release of portions of the report, that decision ultimately rests with the university, as well as with Former Supreme Court Justice Cruz Reynoso. Mr. Reynoso, in a letter to President Mark Yudof, on Tuesday indicated that he would prefer that the report be released in whole rather than in piecemeal fashion.

“As I previously stated, the Task Force has worked very hard and diligently over the past few months to ensure that the Davis community and the public get a thorough account of the events that took place on November 18, 2011, and has produced thoughtful recommendations to meet your charge to the Task Force,” the former justice wrote. “Releasing portions of the Task Force report in piecemeal fashion would provide a skewed view of our findings and undercut the rationale behind our recommendations.”

He added, “In effect, it would provide the campus a distorted view of our work and undermine our efforts with an incomprehensive account of the events that took place. In fact, several Task Force members have indicated they will be compelled to withdraw their support of authorship.”

Mr. Reynoso also took time to criticize the Pubilc Safety Officers Procedural Bill of Rights and the accompanying penal codes that have served to delay or prevent release of this report.

“I also want to convey to you my personal perspective on the disservice this statute has brought about in permitting a lawsuit which has thus far prevented the university community and the public from receiving the report,” he wrote.

On Tuesday, the Vanguard spoke at length to ACLU staff attorney Michael Risher, who explained the ACLU position on what transpired in the courtroom on Friday.

“UC has made clear from the beginning that they want to control the release of the report and [to] release in the way that they want to release,” he said.

He said that could mean that they want to ensure that all interested parties in the community get the full report and thus the full picture of what happened all at once.  It could also mean UC desires to control the media coverage around this report and make it more predictable.

“I’m not completely surprised that they did not immediately turn around and release those portions of the report that the court said that they could release,” Mr. Risher added.

He was a little surprised that they had not yet announced their intentions as to when they would release the report.  We spoke with Mr. Risher prior to the release of Cruz Reynoso’s letter, which indicates that the parties will go back to court on March 28 and that “there is a good chance that the Task Force will be able to release the report in its entirety following this hearing.”

Mr. Risher has requested that they release, if not the full report, “as much of the report as possible.”

We asked Mr. Risher why it was his desire to release as much of the report as possible now, rather than wait for the entire report to be cleared for release.

“It’s been a long time,” he responded.  “If we’re only talking about a delay of another week, then that’s not so much of a problem.”

His fear however is that if this gets caught up in the appeals process it could be six months to a year before we see the report.

“If in fact, we’re contemplating waiting until the appeals process is complete, and from all indications the officers are going to take an appeal if the judge permits UC to release any kind of report,” he said, noting that the judge has indicated that he would prohibit the release of those sections of the report that are in dispute.  “If the police are successful in getting a stay during the appeals process, in cases like this that could mean a delay of six months, a delay of a year.”

“That’s the type of… delay that’s not acceptable,” he said.  “This report is ready to be released.  It should be released sooner rather than later.  I’m not concerned about a week’s delay, I’m concerned about a year’s delay.”

One of the areas in dispute was section six of the Kroll report.  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.”

However, on Friday he backed off that claim, specifically with section six 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.

Mr. Risher explained that the judge was putting this report into two separate categories.

“Many of the materials in the report and many of the sections, the court thinks and the police agreed at the hearing with respect to these, cannot possibly implicate the privacy interests or the statutory secrecy provisions that apply to the police officers that have brought this lawsuit,” he explained.

The bulk of the report, he explained, “simply has nothing to do with what the police officers are suing about.”

There are a large number of sections that simply have nothing to do with the police officers, and there is no reason that the police officers are in a position to have any say in their release, Mr. Risher continued.

“The judge also made it clear… that he doesn’t believe that the officers’ legal arguments are correct.  In his tentative opinion at least, [he ruled] that all segments of the report can be lawfully released,” Mr. Risher said.  “However, he does recognize that there are certain parts of the report that implicate the officer’s privacy interests.  That implicate, possibly, their statutory rights to secrecy.”

To put it simply, there are sections with no question that they should be released, but there are other sections that, while the judge believes they are not protected, the officers have standing to at least raise concerns about those sections.

For those sections, the judge has directed UC go back and talk with the officers to see if they can reach an agreement and move additional material to the not-contested category, which could then enable their release.

“It sounds as if section six is one that the court believes the officers are at least entitled to argue to an appellate court, that the judge is wrong and those sections cannot be released,” Mr. Risher said.

One of the points that came up on Friday was the possibility that UC would support the suppression of the name of the second officer involved in the pepper spraying.

Michael Risher indicated that he has formally requested all of the names of the involved officers from UC, and has not received those names.

Mr. Risher indicated that the ACLU was involved in a case where the court decision came down about a month ago, reaffirming “a position that I certainly think has been the law since 1997 in the state, that the government cannot withhold the names officers involved in a shooting or a criminal incident like this one as a general matter.”

“They can withhold those names if they think there are specific reasons to believe that the release of those names would endanger the officers’ safety,” he said.  UC maintains that there have been threats against Lt. John Pike since the November 18 pepper spray incident.

There is, therefore, a fear that if other officers’ names would be made public they would also be subjected to such threats.

Mr. Risher indicated that he does not know the specific nature of these threats, but noted that oftentimes these are not credible threats.  He did not completely discount the possibility of safety concerns, though he agreed that the distance in time from the initial incident would mitigate against such a direct and heated environment that Lt. Pike faced in the days and weeks immediately after the pepper-spray incident.

“That’s a very fact-specific determination as to whether the public interest in non-disclosure clearly outweighs the interest in disclosure because of the potential threat to the officers,” he added.

Mr. Risher also agreed that, while UC can argue for its non-disclosure, it will be difficult to prevent the public from knowing which officers were involved.  There are a number of ways that can become public.

April 2 right now could be a date when UC finally releases the report.  What it will look like and what ends up being redacted may be decided during the next court hearing on March 28.

Concluded Mr. Reynoso, “We want to move as expeditiously as possible for the public release of the Task Force report; however, considering the Court’s actions I am proposing to release the Task Force report the first week of April, subject to any further legal action.”

—David M. Greenwald reporting