In the end, attorneys for Lt. Pike and other officers represented by the Federated University Police Officers Association, must have felt that while they could delay the report, they were only forestalling the inevitable.
On March 28, Judge Evelio Grillo rejected arguments from the union’s attorney, ruling, “The Regents are permitted to disclose the entire Report after redacting the names of UCDPD officers as stated above. The Regents must replace the ranks and true names with the common rank of ‘Officer’ and pseudonyms.”
Judge Grillo gave the attorneys 21 days to appeal, but on Monday it was announced that those efforts had been dropped.
According to a release from UC, “The task force rescheduled the public release after attorneys for UC and the police union jointly asked an Alameda County Superior Court judge to lift a stay he had imposed.”
Pending the judge’s ruling after a hearing scheduled for this morning, the task force now plans to outline its findings and recommendations to the UC Davis community – students, faculty and staff – on Wednesday, April 11, from 3:30 to 4:45 p.m. in Freeborn Hall at UC Davis.
The downloadable task force findings, recommendations and background documents are tentatively scheduled to be available beginning at noon on April 11 at www.ucdavis.edu. A live webcast of the public meeting will also be accessible from the campus home page, and audio will be broadcast live outside Freeborn Hall.
UC’s spokesperson Steve Montiel indicated that the university wanted to make public the substance of the report as quickly as possible. They were willing to drop an appeal over the names which might have delayed the report.
He said, “An appeal would have tied it up for months… [and] could have dragged on for an unacceptable amount of time, while this agreement would serve the most pressing need – to provide the campus with the fullest possible picture of what happened that day as well as recommendations of how to prevent further occurrences.”
He argued that the names, most of which were only the names of those officers interviewed as witnesses, would not impact the material findings of the report.
Michael Risher of the ACLU, another party to this dispute, indicated to the Vanguard that they would be agreeing to the dismissal of the suit at today’s hearings.
“The ACLU will agree to be dismissing the case [Tuesday],” he said. This will allow the university and police to enter into agreement to immediately release the report, withholding the names of the police officers with the exception of John Pike and Annette Spicuzza.
Mr. Risher viewed this as a “good thing,” as he has long advocated for “the report to be released as much as possible, as soon as possible.”
At the same time, he wants to make it clear, “That this is not going to in any way affect the right of anyone else, including the ACLU or the media, or any member of the public to attempt to get the names under the public records act.”
“It is certainly my position that the university and the attorneys could not enter into an agreement that would infringe on any member of the public’s right to use the PRA,” he added.
Redacting the Names of the Other Officers
Last month the Vanguard identified UCD Officer Alex Lee as the second pepper sprayer.
In the Vanguard‘s view at this point, and facing a potentially lengthy appeals process, it seems right that the university would take the path to get as much of the report released as possible.
The attorney for the police officers did not go on the record yesterday with the media, however it is widely believed that they saw the handwriting on the wall and believed they would not ultimately prevail. The action blocking the release of the report gave the appearance that the police had something to hide, which undoubtedly was a blow to them from a public relations perspective.
Nevertheless, the Vanguard believes that ultimately the police officers’ names need to be released. Anonymity provides a measure of protection for the officers, but it also shields the university from accountability.
The judge granted the preliminary injunction based on what he called “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.”
ACLU Staff Attorney Michael Risher noted at that time, “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.
At this point, it would take a public records act request to get the names of the other officers.
In a December 23, 2011 email that the Vanguard acquired via a public records act request, Chief Counsel Steven Drown wrote to Debbie Davis, Editor of the Davis Enterprise, indicating there was a meeting between staff of the Enterprise, along with CalAware’s Terry Franke and UC Davis officials, to “discuss Cory’s request for the name of the second UC Davis Police Department officer who used pepper spray during the November 18, 2011, campus conflict.”
Mr. Drown argued that, under the circumstances of this case, the officer’s name is exempt from disclosure under the California Public Records Act.
Mr. Drown would argue that “the disclosure of the officer’s name, given other publicly available information, would indicate that the officer is the subject of a University internal affairs investigation concerning the November 18 incident.” He adds, “It was my view that this information is a confidential personnel record under Penal Code section 832.7 and 832.8, which cannot be disclosed to the public unless a ‘Pitchess Motion’ has been granted by a reviewing court.”
Mr. Drown added, “As you know, the name of one of the officers, Lieutenant John Pike, became widely known due to his identification by onlookers and widely broadcast electronic media. The name of the second officer is not widely known.”
“To disclose the name of the second officer now would disclose the fact that the officer is subject to an internal affairs investigation, which is confidential personnel information exempt from disclosure under the authorities described above.”
Mr. Drown would later indicate to the Enterprise that the names would only be turned over if a judge ordered him to do so.
However, Terry Francke, director of CalAware, told the Vanguard he believes that a good case can be made at this point that the names of officers would not be exempt, but that would depend largely on how a judge interpreted threats against Officer Pike and whether a judge would rule given the passage of time and the calming of tensions, that a clear threat to the safety of the officers outweighed the public’s right to know the names of the officers.
The Vanguard at this point is pondering whether to press this issue in court.
—David M. Greenwald reporting