Written by David Greenwald Friday, 16 March 2012 06:25
University of California's General Counsel issued a quick response to the tentative ruling that was made public late on Thursday.
Charles Robinson, being cautious, said, "We are encouraged by this positive development. Because it's a tentative ruling, it would be premature to comment further until the hearing scheduled for tomorrow concludes."
What becomes very clear is that the court has sided with the General Counsel for the University of California, as well as with attorneys for the ACLU, on both the content of the report not resulting from the Internal Affairs process, and that because the report was based largely on already available public accounts, there can be no expectation of privacy and the records cannot be deemed personnel records or deemed confidential under California law.
As Judge Evelio Grillo duly notes, "Under the Officer's proposed interpretation, if a university or city investigating police conduct or practices generally (and not the actions of individual officers) compiles public information regarding that conduct or particular practice, then section 832.7 could cloak any resulting report even though the underlying information is freely available to the public. It cannot be the law that a public entity cannot collect, compile, and distribute public information about its police department without running afoul of section 832.7."
Indeed, as the court also notes, "The Incident has already received substantial publicity and that the Report is replete with footnotes that reference citations to the internet, newspapers, and other forms of media. Starting from a situation where a photo of the Incident has already become an internet meme, there is little potential for incremental harm to the Petitioners from the release of a report that consists largely of information and photographs that have already gone viral."
In our view, the only question was whether the Kroll/Reynoso report utilized internal personnel records - Judge Grillo made it very clear that they had not.
Quoting from the Kroll report itself, the court states, "[T]he Kroll Team has had virtually no contact with the Internal Affairs (IA) investigative team. The IA investigative team has not provided or shared any information with the Kroll team, including a witness list."
Additionally, "the Kroll investigation obtained documents from UC Davis, but the Kroll report states that there were 'records withheld [by UC Davis and/or UCDPD] on the basis of peace officer personnel record provisions.' "
More importantly, "UC Davis has not shared any documents generated in the IA process with Kroll or with the Task Force."
It is not surprising that William Bratton and his team would be cognizant enough of these concerns to avoid this pitfall, and having avoided it, there does not seem good cause for a court to withhold the findings from the public.
The Kroll report states, "As personnel investigations are deemed confidential, under California law, this report does not include information obtained from any interview of any officer whose use of force is being reviewed or who has been deemed a potential subject of discipline; only witness officers have been interviewed."
Out of an abundance of caution, Judge Grillo has stayed the imposition of the order for sufficient time to allow for appellate review, but we do not believe this is a close call.
Aside from almost complete agreement with arguments put up by both the ACLU and UC General Counsel, the notable aspect of the Judge's ruling is how much we learn about the content about both Kroll and Reynoso's report.
The court, in its listing of facts, writes, "The Kroll report is extensive and detailed. The report collects and contains facts regarding all aspects of the Incident, from how the administration's decision-making process worked, to how the administration communicated instructions to the UCDPD, to the content of those instructions, to how the UCDPD planned for clearing the Quad, to how the UCDPD supervised officers at the Quad, to the actions of individual officers at the Quad."
"The Kroll report does not recommend any discipline for any police officer," the court says.
However, the Kroll report does make "recommendations regarding decision-making by the UC Davis administration, the organization of the systemwide UC police force, and proposed training for UC police officers."
The court goes on to say: "The Reynoso report, which attaches the Kroll report, reviews the factual summary in the Kroll report, makes conclusions regarding responsibility for the Incident, and makes policy recommendations."
Most revealing, perhaps, is that the report "assigns responsibility to specific individuals, including police officers, for various specific decisions."
While we may not know what responsibility is assigned for specific decisions, that statement is highly revealing in that the report finds fault in official public actions.
We also know from the segment on the Kroll report that we have a good idea how the administration's decision-making process worked, how and what was communicated from the administration to UCD Police.
If anything, that is the most critical question of all - who told whom to do what. To a large degree, we were not going to learn a whole lot new about the actions of Lt. Pike. That incident is available in public and has been scrutinized ad nauseum.
What we need to know, however, is the involvement of upper administration. Vice Chancellor John Meyer is the direct superior to Police Chief Annette Spicuzza, and yet we know almost nothing of his role in this incident. His name has rather conveniently remained outside of the public discussion.
Moreover, we know that in the immediate aftermath of the event, Chancellor Linda Katehi made statements implying justification for the pepper spraying. Those statements changed to regret, apology, and eventually a tactic where she blamed the incident itself on the acts of the officers, while at the same time apologizing.
We now know that in the immediate aftermath of the incident, the university contracted with a public relations firm for over $100,000 to help with their clearly faltering crisis management communications.
If anything, this report should be able to show us, through email communications received by Kroll and analyzed by Cruz Reynoso's task force, exactly what transpired and what the Chancellor or Vice Chancellor did or did not communicate to the police, as to the authorization of use of force in clearing the quad.
The efforts by the attorney for Lt. John Pike are telling. They were a clear reach.
As the Sacramento Bee argued in their editorial last week, "The state's Public Safety Officers Procedural Bill of Rights Act, which deals with personnel investigations of police officers, should not stop this report. The Reynoso Task Force report is separate from UC Davis' own internal affairs investigation into complaints of officer misconduct, which would be the basis for any personnel actions concerning the accused officers."
They note that Justice Reynoso has written that he is "undeterred in my commitment to release the complete and unredacted work of the Task Force, a view shared by President Yudof."
"That is the right stance," the Bee opines.
"In the Reynoso Task Force report, the public deserves to know the full who, what, where, when and why of events - not anonymous 'Officer A' or 'Action X' redactions," the Bee writes. "The public should be as troubled as Reynoso and Yudof by last-minute shenanigans to stop or get amendments to blunt the edges and value of the Reynoso Task Force report."
The Vanguard agrees. The effort to stop publication here is clear, blatant and transparent. Fortunately, as regressive as the California law is on this matter, even California law does not appear to be on Lt. Pike's side.
It is ironic, but the legal actions by Lt. Pike help not the officer himself and his actions, but the administration of the University of California.
President Mark Yudof was able to make a self-serving statement of righteous indignation.
"I am disappointed," President Yudof said, "and I have asked the UC General Counsel's office to do everything in its power in court to turn back this attempt to stifle these reports."
"The work of the Reynoso Task Force, supported by outside investigators from the Kroll group, is a fundamental stepping stone needed to carry the UC Davis campus past the events of Friday, Nov. 18," he added. "The entire UC Davis community deserves a fully transparent and unexpurgated accounting of the incidents in question. Though I have not seen the reports, I am told the task force and its supporting investigators have provided just such an accounting."
Likewise, Chancellor Katehi got to take the moral high ground.
"I am tremendously disappointed by this delay and know that many of you will be as well. We requested this inquiry to learn precisely what happened last November 18, utilize that knowledge to ensure that our campus is a safe, tolerant and inclusive community, and help us move forward together," she said in a statement Monday evening.
She added, "Hopefully, this delay will be brief and we will receive the task force's findings soon. Meanwhile, work continues as we near completion of the campus's own internal affairs investigation into complaints of officer misconduct, which would be the basis for any personnel actions concerning the accused officers."
Now, no matter what the report reveals, she can claim that she attempted to hide nothing and merely wanted the truth to come out.
Will there be the magical email that authorizes the use of force? Short of that, it is hard to see how the chancellor would meet her demise.
That is the question that remains, and the question that ironically the police and their union have prevented from coming forward. The public will get that answer sooner than later, hopefully, so we can all move on.
---David M. Greenwald reporting
If anything, this report should be able to show us through email communications received by Kroll and analyzed by Cruz Reynoso's task force, exactly what transpired and what did the Chancellor or Vice Chancellor communicate to the police as to the authorization of use of force in clearing the quad.
It appears that the investigation of Reynoso was quite fruitful, as I said I thought it would be. I suspect that suspicion that the investigation would not be able to uncover the truth were unjustified...
Now let's see if any part of the report is redacted, and how soon the public is able to see the report...
Like most others, I'm primarily interested in the communications and direction that the field officers received, prior to the subsequent improper actions. The officer's union has attempted to delay or dilute the findings. And the University seems to be a tacit partner to this latest delay tactic. University officials find advantage with more delays as much as the employees they purportedly supervise.
I'm not so sure that there is a "smoking gun" that leads to blaming anybody above Lieutenant Pike. In support of this notion, suppose that Pike was following orders-even ambiguous direction--from some higher authority. Pike's lawyer would not be so obstructionist is we have seen, simply because the release of the report would vindicate or mitigate his actions. Pike was doing what he was told, which is at least a partial defense.
The most likely scenario is that there is blame everywhere. The Administration did not act at all, frozen by unfolding events they could not comprehend or decipher. The field officers were left with no direction to guide them and was left to act impulsively. In other words, everybody messed up big time, and there is a collegial advantage by all elements of the University to stall, stall, stall.
The officer's union has attempted to delay or dilute the findings. And the University seems to be a tacit partner to this latest delay tactic.
I'm not following you here. Please explain why you think the University is stalling...
The most likely scenario is that there is blame everywhere. The Administration did not act at all, frozen by unfolding events they could not comprehend or decipher. The field officers were left with no direction to guide them and was left to act impulsively.
Sounds like a possibility... but don't forget the students were no angels in this either. The difference is that we pay the police/University administration big bucks to deal with unruly students in the least restrictive, safe way...
"Or to put it another way, the University is placed in the role of temporary "parent" (in loco parentis) to the student while away from home. A parent would not resort to pepper-spraying their child if the child were to act out... "
Well in this case, I say we should allow the police to paddle the kids. Or maybe cane them like they do in Singapore.
Sorry, but isn't this a cake and eat it too bit of irrational legal thinking. The students want to be treated as adults and children at the same time?
As an aside, what a waste of time and tax-payer money this entire thing is. Our legal system is certainly one of the best in the world, but it is an extremely flawed social construct in that it serves to blow up the trivial. I am asking myself what most of the rest of the world thinks of all the attention paid to this event...?
Most university students are legal adults. Does in loco parentis apply?
No. In fact, the university has to stress this over and over to students and their parents - that students are adults now.
Regardless of who issued orders or what they were, you have to wonder about the thought process of the pepper-spraying officer on that day. We will most likely never know as it will be the subject of a personnel investigation and confidential. You have to wonder why the Lt. Pike viewed these students as such a threat that he needed to "spray them down." People have defended him saying he was surrounded, blocked, etc. But the facts don't support the threat to be at such a level that it would warrant what he did. What did he see? I wonder. Too bad we will never know.
Jeff Boone wrote:
Our legal system is certainly one of the best in the world, but it is an extremely flawed social construct in that it serves to blow up the trivial. I am asking myself what most of the rest of the world thinks of all the attention paid to this event...?
What is interesting with these types of statements (Yolo PD, Asset heavy ACLU lawyere, et al) is no one ever seems to cite the perfect system, or for that matter, any evidence of a BETTER CJ system, that currently exits in our world. hmmm...
"The students want to be treated as adults and children at the same time? "
I don't think the students want to be treated as children at all. I think they simply do not want to be subjected to excessive force. I don't see that as a childish desire. And I certainly do not agree that this is a trivial event. Pepper spray this time. Batons in Berkekey. How much needs to go on unheeded and without better means to deal with civilian unrest before we have the potential for another Kent State ?
I think it is extremely Important for both sides, the students, and the authorities to examine their own actions and determine what they could do differently too prevent another such encounter. If that process needs to involve independent evaluation and or legal action, then that is the price to be paid. I would much prefer that all involved be open and transparent about their thought processes and actions which would save everyone a lot of time, effort, and money but doesn't seem likely in our adversarial system.
Phil Coleman states,:
And the University seems to be a tacit partner to this latest delay tactic.
I don't understand where he gets the information leading him to this conclusion.
The administration is one of the parties suing the police union for release of the Kroll/Reynoso Report. This I find ironic because the cops are always going to cry "just following orders. Katahi has already stated that she specifically said no use of force. That pretty much leaves Assistant Chancellor John Meyer, who sits squarely between Katahi and Specuzza as the guy who gets thrown under the bus.
Administration would seem to have an interest in protecting Meyer from public humiliation and possible firing but seem to be demanding immediate un-redacted release of the Report.
Another ironic fact is that stalling is not going to make this thing go away. The longer the police union and Pike's attorney stall, the more inches this incident gets in media all over the world. Pikes name has become a house hold word all over the U.S. and much of the world. Regardless of who authorized the use of force on peaceful protesters, I doubt this individual is ever again going to hold a job in law enforcement.
"There is a lawsuit and there appears to be agreement that an independent investigation is needed at this point. Experience on the Vanguard has shown that any reply is likely to result in a blizzard of posts countering everything. This whole issue is essentially being litigated here. I don't happen to think this is the best venue for that."
The attempt to suppress the report by Pike makes me stand by my original opinion that Pike in charge of his officers didn't like the students chanting"f**k the police" and decided he was going to teach them why you should not disrespect the police. For me the only question I have is did anyone else authorize the use of Pepper or will the institutional support of his actions be limited to the immediate reaction of the Chancellor that condoned his actions through her failure to condemn them until the manure hit the fan..
See the breaking news in the Sac Bee. The report will be released with information regarding the police redacted for now. The lawyers for the police revealed that up to 5 officers are under investigation and may receive disciplinary action - not just the two officers that are now on administrative leave. 6-10 officers who were named in the report and those names and any police testimony will be withheld.
It makes me want to see the information even more. It now makes me look at the UC Davis Police officers and wonder. What a colossal strategic error. The Kroll report is ineffective without all of the information. If conclusions and suggestions are made in the report, will we understand without the full information?
There is no loco parentis and these aren't children. Elaine: as a lawyer, don't you think you should look up the law before you post things of this sort?
The term in loco parentis, Latin for "in the place of a parent"" refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent. Originally derived from English common law, it is applied in two separate areas of the law.
First, it allows institutions such as colleges and schools to act in the best interests of the students as they see fit, although not allowing what would be considered violations of the students' civil liberties.
The fact of the matter is universities and colleges would prefer to pretend they have no duty under the in loco parentis doctrine, and have clearly convinced many in the public of that as evidenced by the reactions to my benign comment, when in fact they do...
The in loco parentis doctrine was successfully applied in a case of a college student being assaulted and killed on campus bc the college failed to employ simple safety procedures and did not lock certain entrances. It was deemed the University acted in loco parentis, and had an affirmative duty to make sure access to student dorm rooms was not unfettered...
Are you trying to deny the in loco parentis doctrine?
The case comes from memory, but the in loco parentis doctrine stuck in my mind. I don't know if this was the case or not, but it certainly sounds like the one (my memory is hazy on the subject):
Holding in Dixon v Alabama 1961: Due process requires notice and some opportunity for a hearing in a state supported college. Show me where it stands for the proposition that the in loco parentis doctrine does not apply...
Read following links:
This one is particularly good: