Tentative Ruling Denies Police Efforts to Block Pepper Spray Report

In a tentative ruling from Judge Evelio Grillo of the Alameda Superior Court, the court denied the motions by Attorney John Bakhit, appearing on behalf of Lt. Pike for a preliminary injunction and to seal portions of the record of the UCD pepper-spraying incident..

One of the key arguments made by the General Counsel for the University of California, as well as attorneys for the ACLU, was the separation between the Kroll report and the Internal Investigation.

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, while “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.”

Instead, the Kroll investigation interviewed police officers who were witnesses to the November 18 pepper-spray incident “under an agreement with counsel for those officers that the officers would be given administrative immunity and that they could not be subject to discipline for anything they revealed during those interviews.”

But they did not interview police officers who were the subject of the IA investigations.

The Kroll report as cited by the court 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.”

The Court adds, “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.

The court states, “Kroll’s report does not address the issue of discipline to be imposed, if any, on individual officers for any use of force that occurred on November 18.”

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.”

“The report then assigns responsibility to specific individuals, including police officers, for various specific decisions,” the court says.

But the Reynoso report also does not recommend any disciplinary action.

The Court argues that large portions of the report cannot be reasonably construed to be covered by Penal Code 832.7, which applies specifically to ” ‘peace officer or custodial officer’ records.”

The court says, “The court’s review suggests that the following portions of the Report are outside the scope of section 832.7 because they concern the actions of the UC Davis administration, rather than the actions of UCDPD officers.”

Nor do they deem the report to be “peace officer personnel records,” which would constitute “any file maintained under that individual’s name by his or her employing agency and containing records” relating to employee advancement, appraisal, or discipline, complaints, or investigations of complaints.

The court added, “What is highly significant later in the analysis is that, although UC Davis appears to be the employing agency, Kroll and the Task Force were not provided with confidential or privileged information internal to UC Davis or the UCDPD and instead relied entirely on documents and interviews that could have been obtained by journalists or members of the public.”

Therefore, “Petitioners have not demonstrated a ‘reasonable probability’ of success in proving that the Report includes information obtained from Peace officer personnel records,” and “the Report expressly states that there were ‘records withheld [by UC Davis and/or UCDPD] on the basis of peace officer personnel record provisions.’ “

Moreover, the court argues, “The court cannot accept Petitioners’ argument that if information is listed in section 832.8(a)-(f), then section 832.7 prohibits an employing agency from disclosing the information even if the agency obtained the information from a public source.”

The Judge notably adds: “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.”

Moreover, the court argues that the plaintiffs have failed to establish that they have an expectation of privacy in the circumstance.

The Judge writes, “At present the Petitioners can have little or no expectation of privacy regarding the Incident given that the Incident has been the subject of public scrutiny and videos of the demonstration and the UCDPD’s use of pepper spray have ‘gone viral’ on the internet.”

Judge Grillo adds, “As police officers paid by the public and authorized by the public to exercise authority over individual members of the public, the Petitioners could not reasonably expect that reports of their actions in the news media, the internet, and other public sources of information would be shielded from public scrutiny by a statute whose purpose is to protect the confidentiality of personnel records and information.”

In terms of the balance of harm, the court notes that “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.”

However, the Regents, on the other hand, stand to suffer considerable harm if they are unable to “disclose and discuss information and recommendations regarding the incident at issue until the case can be adjudicated on its merits.”  There is a “strong public policy supporting transparency in government.”

The court concludes, “Balancing the harms, the court finds the Regents and the public will suffer more harm if the court erroneously restricts the disclosure of the Report than the Petitioners would suffer if the court improvidently permits the disclosure of the Report.”

—David M. Greenwald reporting

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