ACLU Staff Attorney Urges Full Release Sooner Rather than Later –
Following Friday’s court ruling, it comes as little surprise that the release of the pepper spray report will be further delayed. While the judge’s ruling on Friday appeared to clear the way for a release of portions of the report, that decision ultimately rests with the university, as well as with Former Supreme Court Justice Cruz Reynoso. Mr. Reynoso, in a letter to President Mark Yudof, on Tuesday indicated that he would prefer that the report be released in whole rather than in piecemeal fashion.
“As I previously stated, the Task Force has worked very hard and diligently over the past few months to ensure that the Davis community and the public get a thorough account of the events that took place on November 18, 2011, and has produced thoughtful recommendations to meet your charge to the Task Force,” the former justice wrote. “Releasing portions of the Task Force report in piecemeal fashion would provide a skewed view of our findings and undercut the rationale behind our recommendations.”
He added, “In effect, it would provide the campus a distorted view of our work and undermine our efforts with an incomprehensive account of the events that took place. In fact, several Task Force members have indicated they will be compelled to withdraw their support of authorship.”
Mr. Reynoso also took time to criticize the Pubilc Safety Officers Procedural Bill of Rights and the accompanying penal codes that have served to delay or prevent release of this report.
“I also want to convey to you my personal perspective on the disservice this statute has brought about in permitting a lawsuit which has thus far prevented the university community and the public from receiving the report,” he wrote.
On Tuesday, the Vanguard spoke at length to ACLU staff attorney Michael Risher, who explained the ACLU position on what transpired in the courtroom on Friday.
“UC has made clear from the beginning that they want to control the release of the report and [to] release in the way that they want to release,” he said.
He said that could mean that they want to ensure that all interested parties in the community get the full report and thus the full picture of what happened all at once. It could also mean UC desires to control the media coverage around this report and make it more predictable.
“I’m not completely surprised that they did not immediately turn around and release those portions of the report that the court said that they could release,” Mr. Risher added.
He was a little surprised that they had not yet announced their intentions as to when they would release the report. We spoke with Mr. Risher prior to the release of Cruz Reynoso’s letter, which indicates that the parties will go back to court on March 28 and that “there is a good chance that the Task Force will be able to release the report in its entirety following this hearing.”
Mr. Risher has requested that they release, if not the full report, “as much of the report as possible.”
We asked Mr. Risher why it was his desire to release as much of the report as possible now, rather than wait for the entire report to be cleared for release.
“It’s been a long time,” he responded. “If we’re only talking about a delay of another week, then that’s not so much of a problem.”
His fear however is that if this gets caught up in the appeals process it could be six months to a year before we see the report.
“If in fact, we’re contemplating waiting until the appeals process is complete, and from all indications the officers are going to take an appeal if the judge permits UC to release any kind of report,” he said, noting that the judge has indicated that he would prohibit the release of those sections of the report that are in dispute. “If the police are successful in getting a stay during the appeals process, in cases like this that could mean a delay of six months, a delay of a year.”
“That’s the type of… delay that’s not acceptable,” he said. “This report is ready to be released. It should be released sooner rather than later. I’m not concerned about a week’s delay, I’m concerned about a year’s delay.”
One of the areas in dispute was section six of the Kroll report. Section six of the report contained procedures on the operation of the police on the quad. During that section, Judge Grillo expressed concern that the officers had made “statements about individual officers’ conduct and whether that conduct was right or wrong.”
Originally the judge wrote, “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.”
However, on Friday he backed off that claim, specifically with section six of the Kroll Report, which he called “a different animal” from the rest of the report which largely laid out information that one could get in the public realm.
Mr. Risher explained that the judge was putting this report into two separate categories.
“Many of the materials in the report and many of the sections, the court thinks and the police agreed at the hearing with respect to these, cannot possibly implicate the privacy interests or the statutory secrecy provisions that apply to the police officers that have brought this lawsuit,” he explained.
The bulk of the report, he explained, “simply has nothing to do with what the police officers are suing about.”
There are a large number of sections that simply have nothing to do with the police officers, and there is no reason that the police officers are in a position to have any say in their release, Mr. Risher continued.
“The judge also made it clear… that he doesn’t believe that the officers’ legal arguments are correct. In his tentative opinion at least, [he ruled] that all segments of the report can be lawfully released,” Mr. Risher said. “However, he does recognize that there are certain parts of the report that implicate the officer’s privacy interests. That implicate, possibly, their statutory rights to secrecy.”
To put it simply, there are sections with no question that they should be released, but there are other sections that, while the judge believes they are not protected, the officers have standing to at least raise concerns about those sections.
For those sections, the judge has directed UC go back and talk with the officers to see if they can reach an agreement and move additional material to the not-contested category, which could then enable their release.
“It sounds as if section six is one that the court believes the officers are at least entitled to argue to an appellate court, that the judge is wrong and those sections cannot be released,” Mr. Risher said.
One of the points that came up on Friday was the possibility that UC would support the suppression of the name of the second officer involved in the pepper spraying.
Michael Risher indicated that he has formally requested all of the names of the involved officers from UC, and has not received those names.
Mr. Risher indicated that the ACLU was involved in a case where the court decision came down about a month ago, reaffirming “a position that I certainly think has been the law since 1997 in the state, that the government cannot withhold the names officers involved in a shooting or a criminal incident like this one as a general matter.”
“They can withhold those names if they think there are specific reasons to believe that the release of those names would endanger the officers’ safety,” he said. UC maintains that there have been threats against Lt. John Pike since the November 18 pepper spray incident.
There is, therefore, a fear that if other officers’ names would be made public they would also be subjected to such threats.
Mr. Risher indicated that he does not know the specific nature of these threats, but noted that oftentimes these are not credible threats. He did not completely discount the possibility of safety concerns, though he agreed that the distance in time from the initial incident would mitigate against such a direct and heated environment that Lt. Pike faced in the days and weeks immediately after the pepper-spray incident.
“That’s a very fact-specific determination as to whether the public interest in non-disclosure clearly outweighs the interest in disclosure because of the potential threat to the officers,” he added.
Mr. Risher also agreed that, while UC can argue for its non-disclosure, it will be difficult to prevent the public from knowing which officers were involved. There are a number of ways that can become public.
April 2 right now could be a date when UC finally releases the report. What it will look like and what ends up being redacted may be decided during the next court hearing on March 28.
Concluded Mr. Reynoso, “We want to move as expeditiously as possible for the public release of the Task Force report; however, considering the Court’s actions I am proposing to release the Task Force report the first week of April, subject to any further legal action.”
—David M. Greenwald reporting
“One of the areas in dispute was section six of the Kroll report. Section six of the report contained procedures on the operation of the police on the quad. During that section, Judge Grillo expressed concern that the officers had made “statements about individual officers’ conduct and whether that conduct was right or wrong.”
I doubt it comes as a surprise that one of the disputed sections is that containing procedures of the operation of the police on the quad. This would seem to me to be at the heart of the matter of what went wrong that day. Much was made at the time about the standard of what a “reasonable officer” would do under the circumstances. If during the investigation, it was found that there was significant difference of opinion amongst the officers present about the reasonableness of the actions taken, this would not look favorable to the officers performing the spraying and of course they would prefer it be redacted.
“”The Judge also made it clear… that he doesn’t believe that the officer’s legal arguments are correct. In his tentative opinion at least, [he ruled] that all segments of the report can be lawfully released,” Mr. Risher said. “However, he does recognize that there are certain parts of the report that implicate the officer’s privacy interests. That implicate, possibly, their statutory rights to secrecy.”
A simple one word change in the last sentence expresses how I feel about this situation. How about
“That implicate, possibly, their statutory rights to coverup.” ? This is the heart of what I feel is unjust about this law that prevents the the public from learning the truth about a controversial police action. I do not feel it is just that in cases of potential excessive force, the police should have protections over and above those of other citizens. As I pointed out previously, police are not the only members of our society that are subject to threats because of their occupation and should not have special laws to hide behind when their own actions do not meet the standard of the law.
this article is based on the opinion of an ACLU attorney. nuff said. been there, argued that.
My guess is it will be a long time before we see this report. What about the other investigations? When will we find out about further disciplinary actions related to the officers and administrators involved?
“this article is based on the opinion of an ACLU attorney. nuff said. been there, argued that. “
Then don’t read it.
Witness officers’ comments towards of actions of other officers (or anybody else for that matter) is NOT protected by statute. Nor are these comments in any to be can be said to be binding on any subsequent discipline that may take place, even though the Union attorney claims so. Without having yet seen these comments, we may safely assume at least some witness officer comments are critical of other officers’ performance.
It is quite possible that witness officer comments will never be revealed until the pending civil suit reaches trial stage. Even then, the University will settle rather than to allow this public embarrassment.
Where this point is relevant is the IDENTITY of these same witness officers. Case law has been established that allows names of accused officers to be excluded if threats to personal safety have been shown.
Lieutenant Pike has stated that he has received threats. This gives the Union attorney the opportunity to say the witness officers MAY be subjected to similar threats if their names are revealed as part of the investigation publication. Therefore, the union attorney argues, witness officer statements AND their source must be excluded to preserve personal safety.
From a strictly legal point, the union attorney has made a clever argument to further delay and edit the final report. It has given the ruling judge pause, and lengthy appeals on any ruling are almost assured.
Mr. Reynoso, a product of the appellate court system, criticizes the POBOR for allowing this legal point to be raised. The irony here is that it was appellate court rulings on the threat issue that allowed it to be raised and possibly expanded.
91Octane
“…
this article is based on the opinion of an ACLU attorney. nuff said. been there, argued that.”
So you have decided that ideas are not worth considering if they come from a source associated with a group with whom you do not usually agree ? If this is your position, it sounds like a fairly circumscribed way to view the world.
I’m surprised that there is discussion about suppression of the name of the other officer. That name has been available on the daviswiki at http://daviswiki.org/November_18,_2011_UC_Davis_Police_Response_to_Occupy_UC_Davis for months.
Good article and good work getting quotes from those closely involved.
This report is important and symbolic of the transparency, or lack thereof, of UC and the administration. I agree that release of the entire report is important, but if calling the “bluff” of the police union by not releasing the section they care about moves this along, then so be it.
I don’t think it is out of the realm of possibility that the administration is using the police union as a cover to control release of a report that might show how far up the chain the decision to use pepper spray went.
“Then don’t read it.”
sound advice.
[quote]For those sections, the judge has directed UC go back and talk with the officers to see if they can reach an agreement and move additional material to the not-contested category, which could then enable their release.[/quote]
In other words, “Children, children, can you please go back and talk to each other like civilized adults and come to some kind of agreement, so this doesn’t have to come back to court?”. The judge in this case is making perfect sense, essentially admonishing both sides. Reynoso should have known his report was a bit too specific with names, and been a bit more careful about redaction. I strongly suspect his policy conclusions would have been just as sound and backed up by sufficient facts for credibility’s sake without having named names. It matters not one whit if the public could guess as to the identity of the officers – they would not have been specifically named, thereby not giving the police officers’ union an issue to appeal.
[quote]”That implicate, possibly, their statutory rights to coverup.” ? This is the heart of what I feel is unjust about this law that prevents the the public from learning the truth about a controversial police action. I do not feel it is just that in cases of potential excessive force, the police should have protections over and above those of other citizens. [/quote]
The law has to be dealt with in regard to what IT IS, not what you WANT IT TO BE…
I should add that on the wiki page I mentioned above (sorry about the broken link, I don’t know how to fix it), there is a picture that clearly shows the nametag of the second officer, with pepper spray can in hand.
Trying again with the link: [url]http://daviswiki.org/November_18,_2011_UC_Davis_Police_Response_to_Occupy_UC_Davis[/url]
At first, I was surprised about use of pepper spray. I’ve read recently that it also was used on Occupy protestors, in Seattle and Portland at least. One difference, charges against demonstrators are being prosecuted and at leat one pepper-sprayed woman is headed to court.
Re: davisite’s link:
Links that contain a % sign won’t format correctly. Copy and paste this link into your URL address:
http://daviswiki.org/November_18,_2011_UC_Davis_Police_Response_to_Occupy_UC_Davis
Or do a search at DavisWiki for: November 18, 2011 UC Davis Police Response to Occupy UC Davis
Thanks, Don Shor. I didn’t know about the % sign. Here is a link to the same page that doesn’t have the percent in it. Third times a charm to see the picture of the supposedly unknown officer, pepper spray can in hand, with nametag clearly displayed:
[url]http://daviswiki.org/UC_Davis_Students_Pepper-Sprayed[/url]
“The law has to be dealt with in regard to what IT IS, not what you WANT IT TO BE…”
My hope would be this can serve as the impetus to change the law. So I don’t think you are correct.
In tht UCD is [at least] a quasi-public entity, in the name of transparency, where are all of the letters, communications and the like, from Reynoso et al posted on line?
Where can a Davis citizen locate the documents relating to the cost of KROLL, Reynoso et al?
OR…
Is “THAT” different?
“So you have decided that ideas are not worth considering if they come from a source associated with a group with whom you do not usually agree ? If this is your position, it sounds like a fairly circumscribed way to view the world.”
when was the last time you trusted information coming from rush limbaugh? same difference.
Changing the Peace Officers’ Bill of Rights
The original legislation addressed internal investigations of citizen’s complaints. Nobody ever imagined this statute ever being applied to outside investigations of alleged police misconduct. The recent effort to extend POBOR requirements beyond internal investigations is precedent setting. Before proposing “reform” legislation, let’s see how appellate courts finally rule.
Meanwhile, was an internal investigation ever initiated? Does anybody know?
The moving papers and the judge’s tentative ruling all make reference to three simultaneous investigations – Kroll/ Reynoso, the IA, and the DA’s investigation.
So, we have a still photo, published on the Davis Wiki website, for all the world to see, that shows a uniformed UC.Davis police officer wearing a name tag that says A. Lee. In his right hand is a can of pepper spray aimed directly into the face of a seated protester from about two feet distance. A quick look back at the video footage of the incident should corroborate this as being the second pepper spraying officer.
Does anybody out there have access to a listing of active UC.Davis officers at the time of the incident so we can determine who A. Lee is. Once this individual’s name is published there will be one less cop to protect form the ire of the taxpaying public who want to know who is “protecting” their student children.
91 Octane
“when was the last time you trusted information coming from rush limbaugh? same difference.”
Poor analogy. True I don’t trust “information” from Rush Limbaugh. Just as I don’t trust “information” from John Stewart. They are both entertainers. Michael Risher is an attorney. Big difference. You don’t think so ? An example. From her posts I can fairly well conclude that Elaine falls considerably further to the right on the political spectrum than I do. That certainly doesn’t mean that I do not respect her opinions and consider carefully what she has to say even when the conclusion I arrive at is that I do not agree.
ERM
“The law has to be dealt with in regard to what IT IS, not what you WANT IT TO BE…”
Agreed. That was the point of my comment that I believe that the law is unjust and should be changed.
Octane: It would also be interesting to note what you object to in terms of what Mr. Risher said. He was basically arguing for a full release? Do you disagree with that? He has concerns about it ending up in a protracted litigation – Do you have objections to that? If he worked for a private law firm instead of the ACLU, did he say anything at all that you object to?
[quote]Thanks, Don Shor. I didn’t know about the % sign. Here is a link to the same page that doesn’t have the percent in it. Third times a charm to see the picture of the supposedly unknown officer, pepper spray can in hand, with nametag clearly displayed: [/quote]
Geeeeeeeeeeeeeeeeeeeeeeeze, I must be getting old. LOL. You youngsters must have good eyes if you are able to read what is on the name tag of the police officer…
[quote]Geeeeeeeeeeeeeeeeeeeeeeeze, I must be getting old. LOL. You youngsters must have good eyes if you are able to read what is on the name tag of the police officer… [/quote]
Click on the picture to see a larger version. It’s quite readable.
[quote]Click on the picture to see a larger version. It’s quite readable.[/quote]
Still cannot see anything remotely like a name on that tag…
You aren’t looking at the right picture then. It’s clear as anything. The question is who the guy is, which seems to be a guarded secret.
[quote]You aren’t looking at the right picture then. It’s clear as anything. The question is who the guy is, which seems to be a guarded secret. [/quote]
I don’t understand. The tag says “A. Lee.” Surely that can’t be a fake name — police are required to use their real names on their nametags, aren’t they? So, is the problem that there is more than one A. Lee? Or is it just that we don’t know what the ‘A’ stands for? I am just surprised that I haven’t seen the name reported in the press at all, unless I missed it. Seems like it ought to be reported. The identity of the second officer is not unknown. Maybe we ought to say “partially known”?
[quote]Still cannot see anything remotely like a name on that tag…[/quote]
At the top of the page, click on the link that says “Second officer?” There are two pictures in that section. Click on the one to the right.
Okay, got it. Didn’t know I had to scroll down to pictures below and blow the picture up. If you have to work that hard at finding the name tag, I’m not quite convinced it is in the “public domain”, especially the “same” as if it would be if his name were to be specifically published in print and held up to public ridicule…
Really? By legal standards, it’s pretty clearly in the public domain, isn’t it? It’s available to anyone with internet access. I bet a lot of people have seen the wiki page. And everything on the wiki is licensed under a Creative Commons Attribution License.
By the way, I wasn’t suggesting that his (I assume a ‘he’, but not sure) name be held to public ridicule. But it does seem to me that it should be more widely known than it is.
[quote]By the way, I wasn’t suggesting that his (I assume a ‘he’, but not sure) name be held to public ridicule. But it does seem to me that it should be more widely known than it is.[/quote]
Why?
Police are public servants and should not have an expectation of privacy. That is why they wear name tags in the first place, yes?