On April 26, the Vanguard ran a second article removing any doubt that the second officer involved in the pepper spray incident was Alexander Lee, recently promoted from security guard in the UC Davis Police Department to police officer.
A few days later, the Davis Enterprise ran a follow-up story also naming Officer Alexander Lee, and noting that university officials had confirmed there were only three officers suspended over the pepper-spray incident and that they were all UC Davis officers.
Nevertheless and despite the fact that two local news entities have known for certain the identity of the second pepper-spraying officer for nearly a month, the Los Angeles Times and the Sacramento Bee filed suit on Wednesday against the UC Board of Regents in which they demand the release of police officers’ names that were removed from the Reynoso and Kroll Reports.
The Vanguard has named just two of the officers involved. Along with Officer Alexander Lee is also scene commander, Lt. Barry Swartwood. We could have named them all, but believe only those two are really implicated in the incident.
According to an article in the Los Angeles Times this morning, “The lawsuit, filed in Sacramento County Superior Court, contends that when university officials agreed in a court settlement last month to redact all but two names, they ‘failed to represent the interests of the press and public,’ leaving the newspapers with ‘no choice but to bring this petition to protect the public’s right of access to this important information.’ “
The Times article notes, “Wednesday’s litigation is the latest tussle over transparency in the matter.” They cite the union’s efforts to block release of key portions of the reports back in March where UC Officials argued for the full release of the reports, but eventually in the name of expediency allowed the reports to be released with only the names of Lt. Pike and former UC Davis Police Chief Annette Spicuzza – whose identities were widely known – to be released.
The LA Times reports, “UC officials said they acquiesced to the settlement last month to expedite the already delayed report. But reporters for the Sacramento Bee and the Times continued to pursue access to the names under the California Public Records Act.”
They add, “In denying the newspapers’ requests, UC officials said the judge’s permanent injunction barred them from revealing the names.”
The paper adds, “Attorney Thomas R. Burke, who is representing the newspapers, countered Wednesday that Pike’s declaration presented ‘only speculative concerns about his safety’ and ‘didn’t have anything to say about the other officers.’ “
“It’s far more important to make sure that people responsible for spraying industrial-grade pepper spray into the eyes of passive students are fully accountable for their involvement,” Mr. Burke said. In commissioning the Reynoso task force, he added, the Regents “wanted an unvarnished public explanation of what happened and that is a mission that we are trying to fulfill with this litigation.”
“In particular, the idea that government agents can anonymously plan and execute operations using chemical weapons against protesters in the public square is antithetical to the most fundamental notions of democracy, which depend upon public scrutiny of official conduct,” the suit said as reported by the Sacramento Bee this morning. “The Regents’ withholding of the names of the officers also contradicts California law, which requires officers to wear name tags on their uniforms.”
UC Davis Spokesperson Barry Schiller will get the Vanguard additional information this morning.
The Vanguard published the name of Officer Alexander Lee back on March 27 after getting ahold of a photo from November 27 that depicted Officer A. Lee.
The Enterprise apparently had these photos, as well, as they reported: “Still photographs show the second officer’s name badge as reading ‘A. Lee.’ The Enterprise has been attempting to obtain the officer’s first name for months, without success.”
The Enterprise attempted to obtain the name of the officer through the front door, going to considerable lengths to determine Officer Lee’s identity.
As a December 23, 2011 email from Chief Counsel Steven Drown to Debbie Davis, Editor of the Davis Enterprise, indicates, 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.”
So here you have a case where the UC Davis Chief Campus Counsel argues that this is protected under Penal Code Sections 832.7 and 832.8 and a few months later, at least initially, UC’s General Counsel Charles Robinson is arguing the opposite.
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 then went on to cite Copley Press v. Superior Court of San Diego County, where the “California Supreme Court found that the name of a peace officer who was subject to disciplinary action was protected from disclosure.”
The Vanguard was able to put several key pieces of information together. A week of November 14-18 active roster showed the name “A. Lee,” matching the picture from the Davis Wiki. A full name was acquired from the June 2011 roster which showed Alexander Lee, the only Lee in the UC Davis Police Department as a security guard.
Finally a later request showed that Alexander Lee was a police officer.
To recap. We know that A. Lee was on the active duty roster for the week of November 14-18. We know from his picture he was a police officer. We confirmed it was Alexander Lee with the June 2011 duty roster which showed that Alexander Lee was a security guard. We also know that there was only one Officer Lee working at UCDPD at the time. And we know that Officer Lee is now a police officer. Put it all together and we have clear and convincing evidence that A. Lee is Officer Lee.
There will be a tendency to dismiss the suit by the Sacramento Bee and Los Angeles Times as the aim to discover what we already know. However, there are some crucial legal fights that are quite frankly worth fighting.
One of Cruz Reynoso’s chief complaints about the process was the ability of officers to hide their identities and misconduct behind the Peace Officer’s Bill of Rights. To the extent that a lawsuit can tear down those protections – even if we can easily find out who the officers are in the report – then it is worthwhile.
Moreover, the fact that it was simple to discover the names of the police officers is aside from the point because in future incidents the misconduct may not have 60 video recordings with which to identify the officers.
Finally, to be quite clear, the Sacramento Bee and Los Angeles Times still have the resources to have in-house attorneys who can make these kinds of challenges. The Vanguard‘s suit against the city of the Davis, much smaller in scope, relied on the generosity of a very capable attorney. It is doubtful an entity like ours would have the resources to take on the peace officer’s union and UC.
—David M. Greenwald reporting