Vanguard Article Added to Filings From UC, Arguing For the Release of the Name
Last week, Alameda County Superior Court Judge Evelio M. Grillo issued an order that in part denied the motion of the attorneys for Lt. John Pike and the Federated University Police Officers Association to prevent the release of the report known as the Reynoso and Kroll reports. The judge set a new hearing for today, where motions will continue to attempt to seal court records.
The positions of both sides remain unchanged. Attorneys for the officers’ union argue that the report amounts to the release of confidential personnel records under Penal Code section 832.7. The University responds that these reports were not commissioned for the purpose of discipline and therefore do not fall under the Penal Code’s auspices.
Moreover, they warn, “Unless the Court terminates the temporary restraining order in its entirety, the University will be faced with the choice of releasing a fragmented version of the Reports, which will undermine the effort of the Reynoso Task Force, or withholding the Reports until review is sought in the Court of Appeal.”
The court directed counsel for the police union and the University of California “to meet and confer on the issue of whether Penal Code section 832.7 and the right to privacy preclude the public disclosure of those sections of the Reports that are still subject to the temporary restraining order.”
The parties agreed on about five more items. However, there remain a number of points of dispute.
Most notable, the attorneys for the union object to the second section of the Reynoso report, which they argue contains an analysis of the actions of the police: “Each section is captioned as a criticism of the actions taken by individual police officers. Indeed, virtually every sentence includes harsh criticisms, analysis of policy violations, or conclusions of the Kroll report.”
“As such, the entire section must remain confidential,” the plaintiffs in this action argue.
The plaintiffs also want stricken comments that are a “detailed analysis of the police chief’s actions” and that are “numerous appraisals of her performance.” The plaintiffs argue: “Although the police chief is not party to this action, she is legally entitled to the same confidentiality as would be any other police officer in California.”
Although the police attorneys no longer object to the first paragraph of the Kroll report being released, “the remainder of the section contains detailed information regarding the individual officers and appraisals and conclusions in violation of the Penal Code,” they add. “The mere fact that some of the material relied upon in the report (i.e. YouTube.com still photos) may also exist in the public domain does not waive its confidentiality as used in this particular context.”
They conclude: “The analysis of whether the information in the Kroll and Reynoso Reports can be disclosed under state law does not turn on the reason the Reports were commissioned. Such a ruling would completely undermine the legislative intent of the confidentiality statutes at issue. It would create the ultimate pretext for law enforcement employers to release information related to peace officer personnel investigations.”
The defendant in this action, the University of California, has largely not changed its position, “Neither the Kroll Report nor the Reynoso Report fall within the parameters of Penal Code section 832.7, nor does any statutory or constitutional right to privacy preclude full release of these documents.”
“Defendant believes that these documents should be released to the public in full, without redaction. Moreover, it is clear that many areas in the Kroll Report that Plaintiffs contend should remain confidential are actually no more than factual recitations based on information available to the Kroll Investigators,” the University of California argues.
As such, “These portions of the report do not amount to an assessment of peace officer conduct. Further, in many instances, the source of the information is someone other than a sworn officer or is a document, and thus should not run afoul of Plaintiffs’ contention that information obtained from witness officers cannot be released.”
Impact of the Vanguard’s Article on Tuesday Naming Officer Alexander Lee
On Tuesday following the Vanguard‘s release of the name of the second pepper-spraying officer, Attorney J. Daniel Sharp for the Regents of the University of California submitted a separate declaration and filing, arguing, “The privacy accorded to peace officer personnel records under Penal Code §§ 832.7 and 832.8 do not apply to public communications by governmental entities regarding widely publicized events such as the incident on the UC Davis Quad on November 18, 2011.”
The brief adds, “The Regents file herewith the Declaration of J. Daniel Sharp attaching a news story published today (March 27, 2012) showing that the identification of a second police officer who is mentioned in the Kroll/Reynoso Report has been available to the public since November 29, 2011, when photographs of the officer were published on the internet with the officer’s name visible on his uniform.”
In short, the University of California is now arguing for the release of the name, as it is now part of the public record.
What is interesting is that, while the attorneys for the UC Regents are arguing now that the second officer’s name should not be redacted in the report, UC Davis’ general counsel is declining to name the other officer – even though at this point the cat is out of proverbial bag.
UCD campus counsel Steve Drown told the local paper on Tuesday, “Lt. Pike was the subject of horrendous, terribly threatening messages, to the extent that he had to change his personal circumstance in response to the extraordinary harassment.”
He added, “We made a judgment that (under the California) Public Records Act the public interest in preventing the harassment of this officer outweighed the public interest in knowing his individual identity.”
The paper reported, “UC mentioned the posting of A. Lee’s name by a blogger in a brief filed with the court on Tuesday.”
According to the paper, “Drown said that a name being posted online ‘does not change our calculus’ about making it public.” He reported to that paper in December that he would only release the name if ordered by the judge.
Michael Risher, ACLU staff attorney told the Vanguard that the distance in time since the event argues against Officer Lee being exposed to the same array of threats as Lt. Pike was.
The difference in positions, at this point, lies with the difference between the public records act – a relatively weak law that allows agencies broad discretion as to what they should or should not redact and the arguments against Penal Code 832.7, and whether a name constitutes personal and confidential information.
As former Davis Police Chief Phil Coleman noted on the Vanguard on Tuesday, “If you serve the public, you should be accountable to the public. The Peace Officers’ Bill of Rights protects your personnel records and discipline records, not your name tag.”
—David M. Greenwald reporting
[quote]UCD campus counsel Steve Drown told the local paper on Tuesday, “Lt. Pike was the subject of horrendous, terribly threatening messages, to the extent that he had to change his personal circumstance in response to the extraordinary harassment.”
He added, “We made a judgment that (under the California) Public Records Act the public interest in preventing the harassment of this officer outweighed the public interest in knowing his individual identity.”[/quote]
Bingo!
Remember the PRA only impacts one part of this and that is the obligation of the agency to turn over records that have been requested. That is a tiny part of this picture.
@ERobertsMusser – Elaine, the police are not in charge here. It is their actions that have been resoundingly condemned world-wide. The COMMUNITY wants to read the report in order to separate out the good from the bad and so we can start to move on. THAT outweighs any penalty for the officer’s poor behavior. We know who he is. Everybody knows who he is. Your argument fails.
The COMMUNITY wants to read the report in order to separate out the good from the bad and so we can start to move on.
“move on?” Lol! For someone who wants to “move on” you sure want to drag every officers name through the ringer, months (and possibly years) after the fact and not let it go. Apparently, neither can the vanguard. It is your side that can’t move on.
The officer’s name has been known, to anyone who viewed the photograph, since it’s publication, a couple of months ago . Anyone wishing to “harass” the officer has had plenty of time .
“Lt. Pike was the subject of horrendous, terribly threatening messages, to the extent that he had to change his personal circumstance in response to the extraordinary harassment.”
Yeah, he strikes me as a particularly sensitive and vulnerable victim ;-)!
UCD would do well to send Pike, Lee and Spicuzza packing as soon as possible or Katehi will have so much trouble on her hands that no amount of fundraising can save her job .
If officer anonymity is such an important principle, why do officers wear name tags? Why don’t our officers go about with black ski masks on, just in case they do something that someone may not like so as to protect them from any kind of threat?
It would seem to me that wearing a name tag is the same as using your real name on a blog. It introduces a sense of responsibility for your actions. Even a sworn officer of the law has to be responsible to the community in which they live. Or do we prefer to have anonymous, ski-mask wearing officers that can pick up unruly citizens at will. We know where that leads.
Tentative Ruling this morning from the Judge – the report can be released in full, but with all officers names (except Pike) redacted. They are having the hearing today. Even if this is the outcome, the Judge will issue a stay until April 27, so that Pike and the Union can appeal it, if they choose. (Per article in the Sac Bee at 11:00 am)
That’s a joke. First, they once again move back the date. We are now looking at late April – this thing is going to be out at the earliest this summer and probably not until the Fall.
Second, redacting the officers names is a joke. I think there is a public right to know. We may litigate on that under the PRA based on a conversation I had this morning on it.
Ryan Kelly: [i](Per article in the Sac Bee at 11:00 am)[/i]
SacBee, 3/28/12, 11:50 a.m.: Judge tentatively OKs redacting cop names from pepper spray report ([url]http://www.sacbee.com/2012/03/28/4373072/lawyers-return-to-court-to-argue.html[/url])
April 30 is the earliest that it can now be released (with the redaction of officer’s names). We’ll see if the Union files an appeal. If they do, then we won’t see any version of this report until mid-Summer at the earliest. I would expect that they will appeal for any number of reasons. I can just imagine the discussions taking place in the Union’s attorney’s offices:
Reasons to appeal:
1) To possibly get more of the report redacted.
2) Allow time for officers to change employment before the report comes out, so they are not having to answer to it in job interviews,
3) To allow an entire class of students who were here and affected to graduate (leave town).
4) To avoid the possibility of another rally on the Quad when the report comes out.
5) To have fewer townies here when it is released, because people are on vacation.
6) Allow the University’s HR department to complete its internal personnel investigation and any discipline meted out before the release of the report, with being able to get the best deal for their client, without pressure from the community to take stronger action.
7) Local government officials will be on Summer recess and not around to make statements to the media regarding the report.
8) Maybe people will lose interest or something more horrible will happen to distract us.
91 Octane writes,
[i]”move on?” Lol! For someone who wants to “move on” you sure want to drag every officers name through the ringer, months (and possibly years) after the fact and not let it go. Apparently, neither can the vanguard. It is your side that can’t move on.”[/i]
This is not about moving on. This is about holding officers and officials who are on the public pay role responsible for their illegal actions. UCD Police officers Pike and Lee clearly violated penal code sec. 149 in plain view of the news media cameras and many, many witnesses. The actions of their lawyers in trying to hide their identities from the taxpaying public are what is dragging this out. I don’t want to “move on”. I want to hold responsible parties responsible. Only then can we talk about moving on.
To the officers and officials who screwed up: You need to own it. Take responsibility for your illegal actions. Then we can all move on.
Tentative Ruling this morning from the Judge – the report can be released in full, but with all officers names (except Pike) redacted. They are having the hearing today. Even if this is the outcome, the Judge will issue a stay until April 27, so that Pike and the Union can appeal it, if they choose. (Per article in the Sac Bee at 11:00 am)
If this is the case, then I’m not the only one who has a problem with what the vanguard is doing, the court does as well. But the vanuard and co. are judge, jury, and executioner because they know what is best for us all.
Dave Hart: “It would seem to me that wearing a name tag is the same as using your real name on a blog. It introduces a sense of responsibility for your actions.”
responsibility for ones actions in the criminal justice system, not vigilante justice, as is being promoted here.
Dave Hart: “Even a sworn officer of the law has to be responsible to the community in which they live.”
targeting individuals knowing full well there is a possibility for harassement or worse is a malicious thing to do, whether you want to hide behind legalities or not.
“If this is the case, then I’m not the only one who has a problem with what the vanguard is doing, the court does as well”
The court never said one thing either way about the Vanguard’s story.
“But the vanuard and co. are judge, jury, and executioner because they know what is best for us all. “
we have broken no laws, information is publicly available through legal means.
Please retract your statement.
@91 – You are really out of touch with the Davis and UC Davis community on this.
“”move on?” Lol! For someone who wants to “move on” you sure want to drag every officers name through the ringer, months (and possibly years) after the fact and not let it go. Apparently, neither can the vanguard. It is your side that can’t move on.”
It is not he Vanguard, or any poster here who is choosing to drag things out. it is the lawyers for the police officers who are doing that. Since these officers made their choice on how to act in full public view, I cannot see any purpose in preventing the public that pays their salaries from having a full explanation of the process that informed those actions.
Octane: Yesterday when I was arguing about the need for the public to know, you accused me of selectivity and suggested that when it suits my purpose, I argue for privacy. I asked you to explain and provide an instance where that was case, you never responded. If you are going to make accusations, please back them up.
(03-28) 17:47 PDT San Francisco (AP) –The University of California can release a report on the pepper-spraying of student demonstrators by UC Davis police but must first remove the names of most officers, a judge ruled Wednesday.
Alameda County Superior Court Judge Evelio Grillo said the task force report does not contain confidential personnel records of police officers who were interviewed during an investigation into the Nov. 18 crackdown on Occupy Wall Street protesters.
Still, Grillo said he wants the university to redact the names of officers to protect them from harassment. The exceptions are Police Chief Annette Spicuzza and Lt. John Pike, whose names became public during media coverage of the confrontation.
The judge said the document cannot be released for at least 21 days to give the officers a chance to appeal the ruling.
Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2012/03/28/national/a131453D80.DTL#ixzz1qT7uyIgF
The [i]Vanguard[/i]’s story yesterday and this court determination about what the University can release are not legally related in any way.
It’s interesting that the [i]Enterprise[/i] continues to withhold the “name” of the other officer (while publishing “A. Lee” in its story and photos) yesterday. The [i]Enterprise[/i] reporter explains that the paper is not giving the officer’s first name because, after all these week of effort, it’s been unable to verify Mr. A. Lee’s first name or that someone by that name isn’t showing up for work these days.
It’s weird that the [i]Enterprise[/i] refused to credit the [i]Vanguard[/i] as “the blogger” to which it referred. And even more weird that it pulled a comment from its website that linked to the [i]Vanguard[/i] story on the odd notion that the reporter couldn’t verify David’s verification so didn’t want to allow its readers to locate and read David’s report.
Argue all you want about whether David’s decision to publish his story. But, acting to keep [i]Enterprise[/i] readers from finding a blog (verified or not) is a role that most editors and reporters would find offensive.
[quote]Argue all you want about whether David’s decision to publish his story. But, acting to keep Enterprise readers from finding a blog (verified or not) is a role that most editors and reporters would find offensive.[/quote]
It’s often the case that traditional media, like the Enterprise, regard bloggers as having questionable standards. They don’t like to credit them because they don’t think they follow the minimal principles of good journalism.
just read just saying’s post.
isn’t it interesting, how comment after comment, ripping my position, and another commenter, saying how I am out of touch with davis or something (as if that means there is some sort of problem with me considering we are in the peoples republic of davis)………..(fyi: on the uc davis quad is a murial with a photo of Che Guevara)
the court, being THE MOST OBJECTIVE party in this entire scenario… sees it my, elaine, and rusty’s way in witholding the name.
how did that happen?
I’m going to let everyone in on a dirty little secret, I assumed was known going into this. (maybe that was my mistake)…. there is always a tension between open and closed govt……. there is a balancing act…. our government is not completely open, nor completely closed. Our govt is RELATIVELY open, with exceptions. it is why we have such a thing as “classified” and “top secret” documents. its why President Obama kept his big mouth shut when the US prepeared to go into the Bin Laden compound….. it is why we didn’t know what the manhattan project was until hiroshima was lit up….
“the court, being THE MOST OBJECTIVE party in this entire scenario… sees it my, elaine, and rusty’s way in witholding the name.”
Actually that’s not what the court said. What the court ruled is that the plaintiffs made enough showing that they could prevail to meet the standard of a preliminary injunction. It’s helpful if you actually understand a ruling before you make a comment like you made.
lets put this way: actually, I read it, more than once, and the judge sure as hell didn’t take the position the vanguard did.
or do you need me to reprint the quotes?
You don’t have a copy of the final ruling to quote from.
The Vanguard’s position is that the full report should be public.
His ruling is: “Petitioners have presented 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.”
Here is the standard though:
Petitioners seek a preliminary injunction to prevent the Regents from disclosing the Report to the public. “[T]he question whether a preliminary injunction should be granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.”
All the judge has done here is rule that there is enough evidence that the plaintiff can prevail in showing there is harm.
That is not a final determination on the issue. So he did not determine that the Vanguard’s position is wrong, only that there is enough evidence that he is willing to grant an “interim injunction” in order to have a full hearing.
There are in fact substantial reasons to believe that the officers if their names were to be released would not suffer the same fate as Pike:
1. Passage of time has cooled people’s temperament
2. Lesser roles of the other officers
It is important to remember, at this point, that this is a preliminary injunction, not a final ruling. However, based on the evidence presented by attorneys for the police officers, Judge Grillo ruled, “Petitioners have presented 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.”
it is clear the judge would not have done what the vanguard did, period. spin that anyway you like.
it is also clear that the judge’s reasoning for the injunction is at odds with the vanguards reasoning for releasing the name.
and based on his reasoning, it is a stretch of the imagnation to believe the judge would approve of targeting the officer in the extreme manner in which you did. again, spin that anyway you like.
You keep shifting your argument here
first it was: “the court, being THE MOST OBJECTIVE party in this entire scenario… sees it my, elaine, and rusty’s way in witholding the name.”
When that was shown to be untrue, you tried: “lets put this way: actually, I read it, more than once, and the judge sure as hell didn’t take the position the vanguard did.”
When that was shown to be untrue, you shift to: “it is clear the judge would not have done what the vanguard did, period. spin that anyway you like.”
That wasn’t the point in question. We released the name of an officer in an article, the Judge is deciding on a preliminary injunction. The two are not congruent in the least.
“it is also clear that the judge’s reasoning for the injunction is at odds with the vanguards reasoning for releasing the name.”
It’s not an injunction, it is a preliminary injunction. And again there is a specific standard for a preliminary injunction that is far lower than that for a permanent one.
The other point is that the issues are completely different between a judge granting again a preliminary injunction and a media outlet publishing a news story based on legally obtained information. You are basically arguing cats and dogs here.
both paragraphs are a total tapdance around the main issue.
like I said, spin it anyway you’d like.
In your estimation, what is the “main issue”?
[quote]It is not he Vanguard, or any poster here who is choosing to drag things out. it is the lawyers for the police officers who are doing that. Since these officers made their choice on how to act in full public view, I cannot see any purpose in preventing the public that pays their salaries from having a full explanation of the process that informed those actions.[/quote]
I would argue it is the ACLU that is dragging things out now. If they simply agree to substituting Officer #1, Officer #2, etc. for any names, we could read and digest Reynoso’s report…
To dmg: The judge in this case does not currently side with the Vanguard’s position…
“I would argue it is the ACLU that is dragging things out now.”
On what basis do you even have a plausible argument here?
(A) The ACLU did not file the preliminary injunction
(B) The ACLU has not said that they would appeal
(C) The ACLU even if they do appeal, would not preclude the report from coming out
(D) The police asked for a 30 day delay before the sections of the report they dispute come out
(E) The police intend to appeal those disputes
(F) The ACLU attorney yesterday got the judge to reduce the delay from 30 days to 21 days
You have no basis to claim that the ACLU has done anything to drag things out.
“To dmg: The judge in this case does not currently side with the Vanguard’s position… “
As an attorney you should understand that the judge here is ruling on a very narrow issue in deciding on the preliminary injunction.
In your estimation, what is the “main issue”?
I think you know what it is, if you don’t make an educated guess… my last shot hit its mark, otherwise we wouldn’t be trying to bog the discussion down in some argument over the differences between a preliminary injunction vs. an injunction.
if you need a hint, I’ll give it to you, I said it, elaine said it, and even the vanguard touched on it in on of its headlines.
Okay, you’re response tells me that you are not interested in engaging in a conversation on this and merely want to throw pot shots. That’s fine, enjoy.
[quote]You have no basis to claim that the ACLU has done anything to drag things out.[/quote]
Sure I do – an unwillingness to compromise. Clearly the police are not going to get major portions of the report redacted, so the ACLU got its way on almost all of the issues. However, if the ACLU would merely give in on the issue of the officers names, substituting Officer #1, Officer #2, etc., the public could see essentially the entire Reynoso report. We could then move on to formulating policy to avoid incidents like the USB debacle…
“Sure I do – an unwillingness to compromise.”
Even if true, how does that amount to “dragging it out” when they have (A) not appealed or indicated they would and (B) their appeal wouldn’t preclude “the public could see essentially the entire Reynoso report.”
I fail to see where you have articulated any actual delay incurred because the ACLU. Please specify where that delay has occurred and the causal mechanism.
To dmg: Hello – an unwillingness to compromise… it takes two to make a compromise work…
“To dmg: Hello – an unwillingness to compromise… it takes two to make a compromise work..”
But where is that holding up the process?
The hold up in the process is the dispute between UC and the Police over material that the judge ruled is not a personnel file and what the police is claiming is a personnel file. The judge ruled in favor of UC, he is giving the police 21 days to appeal. That is the hold up. The ACLU’s role is immaterial to that hold up.
[quote]The hold up in the process is the dispute between UC and the Police over material that the judge ruled is not a personnel file and what the police is claiming is a personnel file. The judge ruled in favor of UC, he is giving the police 21 days to appeal. That is the hold up. The ACLU’s role is immaterial to that hold up.[/quote]
Are you trying to tell me if the ACLU agreed to redacting the names, that the police union would still hold things up? I don’t think so, based on your commentary. You seemed to indicate the judge already ruled that but for the names, the rest of the report could be released, no? The names are the sticking point…