Vanguard Plays Huge Role in Order, Stayed Until Late July Pending Appeal
On Tuesday, Alameda County Superior Court Judge Evelio Grillo handed the LA Times and Sacramento Bee, as well as advocates for transparency and open government, a major victory when the judge ordered the University of California to turn over an unredacted copy of the Kroll and Reynoso Reports on the pepper spray incident, with the names of all involved police officers.
There is a “strong public policy supporting transparency in government,” Judge Grillo wrote in his decision adding, “[t]he public’s interest in the … conduct of peace officers is substantial” because “[p]eace officers ‘hold one of the most powerful positions in our society; our dependence on them is high and the potential for abuse of power is far from insignificant.’ “
“In this action today, the court provided transparency for what was missing from the earlier Pike Litigation,” Thomas Burke, one of the attorneys for the newspapers told the Vanguard on Tuesday. “The bottom line is that the Reynoso Task Force Report will be publicly released without any censorship.”
Judge Grillo, the same judge who ruled on the earlier case, Pike, in which the attorney for the police officers’ union at the last moment attempted to block the release of the Kroll and Reynoso Reports on the grounds of the Police Officer’s Bill of Rights.
In this case, the judge noted that there are different legal issues since the Pike matter was decided under the California Constitution and the Police Officers Procedural Bill of Rights Act, and this case concerns the Public Records Act.
“[Judge Grillo] understood why this case was actually quite different from his earlier case two months ago,” said Linda Lye, staff attorney for the ACLU, who filed an amicus brief in this matter. “One of the key matters that the court has to consider is the privacy and interests of the police officers, whether there is any risk of harm or harassment, and the public interest in having access to this information.”
“It will be as Reynoso and the Task Force had intended all along, which was have it be public,” Mr. Burke told the Vanguard. “It’s not a good thing to be issuing a report that was supposed to be unvarnished to have to release the report with things blacked out and until today’s ruling that’s the way it looked.”
“The court really understood the importance of transparency and accountability and there was just no evidence in this case that there was an ongoing risk of any harm,” Ms. Lye added.
The judge also stayed the order and final judgment until July 27, 2012 in order to permit attorneys for the police officer’s union to file a petition in appeal.
The Ruling
As indicated, Judge Grillo noted that there are different legal issues here, since the Pike matter was decided under the California Constitution and the Police Officers Procedural Bill of Rights Act and this case concerns the Public Records Act.
“The FUPOA has not demonstrated that the exemption in Gov. Code 6265(k), incorporating Penal Code section 832.7, prevents the Regents from disclosing the unredacted Report,” the judge ruled.
In this case, Judge Grillo ruled that attorneys for the police officer’s union have failed to demonstrate that the report is “peace officer personnel records” and therefore denied that the Police Officer’s Bill of Rights applies in this case. Moreover, they have “not demonstrated that the Report includes information obtained from peace officer personnel records. There is no indication that Kroll obtained any documents or information from peace officer personnel files.”
He added, “The legislature adopted Penal Code 832.7 to serve a specific purpose. The Supreme Court in Pitchess addressed the need to limit requests for the peace officers employment information in criminal or civil proceedings, and the legislature codified Pitchess in Penal Code 832.7 and Evidence Code 1043.”
Under the Public Records Act, in order to establish an exemption, the union must be able to establish that either they have “a legally protected privacy interest,” “a reasonable expectation of privacy in the circumstances” or “conduct by defendant constituting a serious invasion of privacy.”
He writes, “As police officers paid by the public and authorized by the public to exercise authority over individual members of the public, the FUPOA cannot reasonably expect that information about the actions of police officers will be shielded from public scrutiny other than as provided by statute.”
He rules that they did not have a reasonable expectation of privacy as the officers “were operating in a public area while displaying their names on badges and were observed by many demonstrators and onlookers.” As such, “The members of the FUPOA can have little or no expectation of privacy regarding UCDPD’s activities during the Incident.”
“In Pike, the FUPOA presented substantial evidence that its members were likely to suffer significant harm if their names and identifying information were erroneously disclosed before the case can be adjudicated on its merits,” he wrote. “Lt. Pike presented a declaration detailing harassment and threats to him after he was identified as an officer who was involved in the Incident.”
The judge noted, “Based on this evidence, the court made a preliminary conclusion that the potential harm to other officers from disclosing their participation in the Incident was far from speculative.”
However, attorneys for the LA Times and Sacramento Bee presented evidence that the names of officers other than Lt. Pike who were involved in the incident have already been disclosed (through the reporting of the Vanguard).
The judge writes, “There is no evidence that those officers have been subject to intimidation or harassment since the disclosure of their names. There is also no evidence that Lt. Pike has been subject to intimidation or harassment in the past three months.”
Significance of the Ruling and the Vanguard’s Involvement
“The significance overall [of this ruling] is that it wasn’t sufficient to just release some names when the whole goal of the Reynoso report was to make clear to everyone that was involved, Lt. Pike did not act alone that day, and the chief of police didn’t just direct him,” Thomas Burke said. “There are any number of other officers who were carrying out public business involved in the operation – the botched operation that was so criticized by the Task Force Report.”
“It didn’t make any sense to just make certain names available and single out particular officers when there were any number of officers who were involved,” he said.
Thomas Burke noted that the work of the Davis Vanguard was critical in this ruling. The judge specifically noted and recognized the importance of internet postings regarding this incident that were filed as exhibits.
“The LA Times does present evidence of internet postings after the Pike preliminary injunction order of March 28, 2012,” the judge wrote.
“In this action, the LA Times has presented evidence that the names of officers other than Lt. Pike who were involved in the Incident have been disclosed,” Judge Grillo wrote. “There is no evidence that those officers have been subject to intimidation or harassment since the disclosure of their names. There is also no evidence that Lt. Pike has been subject to intimidation or harassment in the past three months.”
Linda Lye of the ACLU, who filed the brief in support of the release of the document, said this was critical to Judge Grillo’s decision.
“[The Vanguard’s] investigative journalism had a lot to do with the result that was achieved today,” Ms. Lye told the Vanguard.
“There was just no evidence in this case that there was an ongoing risk of any harm,” Ms. Lye said. “Why this was particularly clear was because the Davis Vanguard had since the time of the Pike decision revealed the names of additional officers and the police presented no evidence that these additional officers that were involved in the pepper spray, and whose names are now out in the public, there’s no evidence that they’ve been subjected to any kind of harassment whatsoever.”
“So these claims of harassment and danger are highly speculative, they’re lacking in any evidentiary basis,” she said. “On the other side of the scale we have a very strong interest in the public knowing the identities of officers involved in a highly significant event involving misconduct.”
“The only evidence that they introduced in this matter was the same evidence they introduced in the last matter which they had previously done under seal,” Ms. Lye said.
She said, in the prior case, they did not have the opportunity to review that evidence and determine what the problems with their evidence were.
“Now we know what that evidence was and it consisted of a declaration from [Lt.] Pike about how he was subjected to blasts of emails, text messages, and fake pizza delivery orders in the four weeks following the disclosure of his identity,” Ms. Lye said. “That’s the only evidence they had.”
“What’s significant is that two additional officers, thanks to the Davis Vanguard, have been identified as being involved in the incident – there was no evidence whatsoever that in the time that followed that they had been subjected to any kind of harassment,” she continued. “What the public record really shows is there is absolutely no basis to conclude that there is a present, ongoing threat to these officers in anyway.”
The public nature of the event also affects the calculus as to whether the officers had a significant privacy interest.
In this case, the judge ruled that, given the fact that the officers were operating in public, with names on their badges, observed by demonstrators and onlookers and caught on video greatly diminishes any reasonable expectation of privacy.
Without a reasonable safety concern or a privacy claim, the officers were left without a valid reason for their names to be withheld.
“Under the public records act, the people have the right to know what the government is up to, even something that receives much media attention,” Ms. Lye continued.
Linda Lye said that their view is that the judge got the law right here, and she expects that this will be upheld upon appeal.
Meanwhile, the University of California, despite being named to the suit, did not oppose disclosure.
Judge Grillo wrote, “As the public entity in possession of the Report, the Regents w[ere] required to respond to the Public Records Act request. The Regents responded that it could not produce the unredacted Report because it was constrained by the judgment in Pike.”
However, Judge Grillo ruled that the Regents w[ere] not correct in taking this position.
“The Regents were not correct in this position,” the judge wrote, noting that the Pike judgment expressly excluded “any obligation the Regents may have to provide the redacted information as required by law.”
The court reads the Regents’ position as stating, “The Regents ha[ve] reviewed the material you requested and ha[ve] determined that a California court is more likely than not to find that the names of the Officers in the unredacted Report are protected by the California Constitutional right to privacy and therefore exempt from disclosure under Gov. Code 6255(a).”
We know that UC Davis’ legal Counsel, Steven Drown, told the Davis Enterprise they would not turn over the names without a court order.
Mr. Drown argued in December 2011 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.”
We view this as the university covering themselves and allowing the court itself to be the arbiter of the law.
“The University of California has always been in favor of the release of the full report,” University of California Spokesperson Brooke Converse told the Vanguard. “UC will abide by the court’s ruling on this matter.”
—David M. Greenwald reporting
About time. Good job [i]Vanguard[/i].
[quote]The judge writes, “There is no evidence that those officers have been subject to intimidation or harassment since the disclosure of their names. There is also no evidence that Lt. Pike has been subject to intimidation or harassment in the past three months.”[/quote]
This is key… Lt. Pike has not been subject to intimidation or harassment in the last three months. Had he been subject to harassment, I suspect this ruling might have been different.
Now that we have the names of all the officers, what does this information do for us, the public?
You are correct – had Pike continued to have been subject to intimidation, the case for safety interests would have been stronger. The fact that he hadn’t and the fact that none of the other police officers had clearly weighed strongly.
“Now that we have the names of all the officers, what does this information do for us, the public? “
You have two lawyers in this article who expressed their opinion. My view is several fold:
1. For future incidents, this sets a precedent that officers will not be able to hide behind anonymity
2. Transparency and public scrutiny
3. Basic fairness – as Burke put it, Pike did not act alone and Spicuzza did not only give orders to Pike
Well done, David.
Great job, David.
Way to go Vanguard team !!
[quote]1. For future incidents, this sets a precedent that officers will not be able to hide behind anonymity
2. Transparency and public scrutiny
3. Basic fairness – as Burke put it, Pike did not act alone and Spicuzza did not only give orders to Pike[/quote]
This doesn’t make sense to me. You just conceded that had there been harassment against Pike, the court very well might have gone the other way. It was all dependent on what the public decided to do or not do to Lt. Pike. I don’t think this sets any precedent whatever. If a similar incident were to happen tomorrow, and threats were made against an officer involved, I don’t think law enforcement would have any less of an argument that the names of other offices involved should be withheld as long as a threat exists. If that were indeed the case, how has that resulted in more transparency and public scrutiny or public fairness?
Where I thought you might be going w this is the need to know the names of the officers to be able to determine if they were disciplined or not. To hole the University’s police department accountable. So my question there is are you going to follow that issue, and how closely? Or can you follow that issue, since officer discipline seems to be a personnel matter. I’m not clear to what extent you can pursue this…
ERM. Good questions
“You just conceded that had there been harassment against Pike, the court very well might have gone the other way. “
That’s what the law says – it requires a compelling reason for the state not to disclose the record.
“. I don’t think this sets any precedent whatever. If a similar incident were to happen tomorrow, and threats were made against an officer involved, I don’t think law enforcement would have any less of an argument that the names of other offices involved should be withheld as long as a threat exists.”
Where I disagree is that I think threats are unusual rather than the rule. I think this provides a very powerful case where the police attempted to create an argument for non-disclosure and they were rebuffed first in Pike and now in the LA Times matter.
The courts re-affirm here that the threats cannot be speculative, that they must be real, and they must be contemporary.
“Where I thought you might be going w this is the need to know the names of the officers to be able to determine if they were disciplined or not. To hole the University’s police department accountable. “
That might be something that we do down the line. But to me the arguments made by the judge and the two attorneys are compelling.
The judge writes:
[quote]The LA Times has a significant interest in public disclosure of the unredacted Report. There is a “strong public policy supporting transparency in government.”(Marken v. Santa Monica-Malibu Unified School Dist (2012) 202 Cal.App.4th 1250, 1271.) Specifically, “[t]he public’s interest in the … conduct of peace officers is substantial” because “Peace officers ‘hold one of the most powerful positions in our society; our dependence on them is high and the potential for abuse of power is far from insignificant.’” (CPOST, supra, 42 Cal.4th at 293). In addition, there is a strong public policy that government information is to be disclosed promptly if it is not confidential. For example, Public Records Act claims are to be resolved “at the earliest possible time.” (Gov’t Code 6258.)[/quote]
“Significance of the Ruling and the Vanguard’s Involvement”
if the vanguards head gets any bigger it is gonna pop like a balloon. Quite frankly I think it is sad commentary that internet blogs have any bearing on courts’ decisions, if that is indeed the case. I find that dangerous.
Congratulations David for making a difference.
I totally disagree with 91 Octane and the influence of bloggers. When a common person can have access to or influence on something at the political and/or court level, then there is truly a democracy. Unfortunately, in the past only those that were politically connected had the power to make any real influence.
When a common person can have access to or influence on something at the political and/or court level, then there is truly a democracy.
one person who is unelected and answerable to noone? how is that a democracy? it is the exact opposite.
[quote]I totally disagree with 91 Octane and the influence of bloggers. When a common person can have access to or influence on something at the political and/or court level, then there is truly a democracy. Unfortunately, in the past only those that were politically connected had the power to make any real influence.[/quote]I
I think Fight Against Injustice has made a critical point here. We are fairly new to the use of “self published” information in which anyone by blogging, or text messaging or Twitter can send a message of public importance to masses of people within minutes. While I agree with 91 Octane that there are some potential downsides to moving potentially inflammatory information quickly to many people, I also believe firmly in our right of free speech. I see investigative journalism as just that, free speech. In this case, I feel that provision of information ( most of which was already in the public realm, just residing in different places waiting to be put together) in a comprehensible manner was a sound piece of journalistic work. In a democracy I feel that it is the right of every individual to attempt, through legal means, to put forward their best argument for what they believe to be right using the information available to them. I would go so far as to say that it is not only the right, but also the obligation of the individual to do this to the best of their ability in cases where they are aware of what they perceive to be wrong doing regardless of the identity of the perpetrator.
Octane states that we are “answerable to noone (sic)”
Nothing could be further from the truth. We are accountable to the laws of this state.
Medwoman – I never argued about anyones right to free speech or right to express their opinion. I never argued one way or another against in terms of pros/cons of internet traffic. Maybe I need to be clearer – I argued against the court citation of internet blogging as a partial basis for their decision. that is what I find morally wrong and quite frank unfair to the officers – to have their right to justice partially hang in the balance of an internet blogger.
[quote]Where I disagree is that I think threats are unusual rather than the rule. I think this provides a very powerful case where the police attempted to create an argument for non-disclosure and they were rebuffed first in Pike and now in the LA Times matter. [/quote]
The courts did not rebuff Pike, as long as he could show he was being threatened. That was always the standard and nothing has changed. As long as Pike can show that he is being threatened, the names of the other officers could have been withheld.
[quote]That might be something that we do down the line. But to me the arguments made by the judge and the two attorneys are compelling. [/quote]
I’m surprised at the Vanguard’s tepidness on the issue of following up on officer discipline, bc that was one of the main reasons the Vanguard gave for vociferously insisting it needed to know the redacted officers’ names. If not for that reason, which now appears to be the case since the Vanguard isn’t promising to try and follow up on that issue, why do we even need to know the officer’s names – of what use is it otherwise?
“I argued against the court citation of internet blogging as a partial basis for their decision.”
That makes me wonder if you really understand the basis for the decision. Under the law, a government agency is required to turn over what are considered to be public records unless they can show a compelling reason not. As laid out in this article, there are basically two possible reasons: a privacy and a safety interest.
The Vanguard’s reporting only comes into play in as much as the police officer’s union attorney were unable to make any kind of showing that there was a danger after two of the officer’s names were reported.
“I’m surprised at the Vanguard’s tepidness on the issue of following up on officer discipline, bc that was one of the main reasons the Vanguard gave for vociferously insisting it needed to know the redacted officers’ names. “
You’re reading into my words here. To this point we have had no determination by the DA’s office and no indication that the internal investigation is completed. I can assure you, that we will press when the time comes.
“The courts did not rebuff Pike, as long as he could show he was being threatened.”
No, the court in the Pike decision denied that they had claims in this case under the police officer’s bill of rights, but at that time agreed that they showed enough to keep the temporary injunction in place over the release of names. However, they had tried to get whole sections of the Kroll report redacted and the court rejected those arguments.
[quote]but at that time agreed that they showed enough to keep the temporary injunction in place over the release of names[/quote]
Right and so that could have been appealed but the parties agreed to basically let it go so they could release the report without months if not years of delay.
[quote]You’re reading into my words here. To this point we have had no determination by the DA’s office and no indication that the internal investigation is completed. I can assure you, that we will press when the time comes.[/quote]
Here were your words:
[quote]That [i][b]might[/b][/i] be something that we do down the line. But to me the arguments made by the judge and the two attorneys are compelling.[/quote]
It sounds to me like this entire issue was more about “I have a right to that information and by G-d I’m going to get it” than “I have a need for that information because…” My personal feeling is that the public is not any more “well informed”, once the Reynoso report was released, by having the actual names of the officers – unless the desire is to follow up on what disciplinary action is taken against individual officers…
I believe that the public has the right to the information for the reasons laid out in the article and my comments.
Vanguard should get credit, but I’m surprised by the lack of congratulations by the Vanguard to the Davis Wiki, which posted the officers name and photo before the Vanguard did the follow-up research.
The Davis Wiki is a true gem. As is the Vanguard, but give credit where credit is due.
I would say the DavisWiki played a critical role with the photo they posted and the Davis Enterprise did some initial heavy lifted back in December we were able to piggyback on.
91,
[i]argued against the court citation of internet blogging as a partial basis for their decision. that is what I find morally wrong and quite frank unfair to the officers – to have their right to justice partially hang in the balance of an internet blogger. [/i]
I think the purpose of citing the Vanguard is that it had publicly released the officer’s name and no threats resulted. This was a fact considered by the judge. Officer(s) were involved in the incident, the officer(s) name’s were made public in the context of this incident, but no threats were made against the officer(s).
I don’t believe the court considered much else as it relates to the Vanguard’s reporting.
91 Octane
[quote]argued against the court citation of internet blogging as a partial basis for their decision. that is what I find morally wrong and quite frank unfair to the officers – to have their right to justice partially hang in the balance of an internet blogger. [/quote]
I apologize if I misinterpreted your concern. And I would like to clarify. Like Superfluous Man, I do not feel that the court based it’s decision on consideration of the Vanguard’s position but rather by information provided. I do feel that part of the judicial process is to consider the questions placed before the judge in the context of the law, but also because judges are human, within the context of the totality of the judges knowledge base including new information that is acquired from a number of sources, some of which will inevitably include the news media. The question I have for you is would you have had the same response if the judge had quoted information obtained from say a nationally respected newspaper, or magazine ?
I just love watching the Octane/Musser “duo” lick boots — the best free entertainment online! Watch them take the side of armed cops against seated students! Watch them take the side of a massive bank against a university! Watch them take the side of the administration against students and faculty! Watch their unerring instinct for whoever has the finest, heaviest boot to lick! And now watch them rebut this by appealing to some standard of politeness, even as the mixture of spittle and boot polish drips down their jowls, utterly unable to deny their habit of siding with whoever has the most toxic combination of physical and economic power in any given situation!