When the police union stepped in to prevent the release of the Kroll and Cruz Reynoso reports last year, they relented at allowing the reports to go forward, but with the names of all of the officers not named – all but John Pike and Chief Annette Spicuzza – redacted. It was the height of absurdity.
Facing lengthy litigation, the UC Regents rightly reasoned that allowing as much information to go forward in a timely manner made the most sense. We agree.
However, the Vanguard decided to make the issue moot by identifying other key officers involved in the event – Officer Alexander Lee, who was the second pepper sprayer, and Lt. Barry Swartwood, who was the incident commander who presumably had scene command over Lt. Pike and approved of the order to pepper spray.
The idea that identities could be withheld was absurd – as the photo captured by the Davis Wiki attests, these actions occurred in plain sight.
As the California Appellate Court noted, “This is not a confidential personnel matter protected by the Pitchess statutes. As our Supreme Court has emphasized, ‘[t]he public has a legitimate interest not only in the conduct of individual officers, but also in how . . . local law enforcement agencies conduct the public’s business.’ “
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.”
The Sacramento Bee and Los Angeles Times filed suit, attempting not just to discover the names of the officers, but really, and more importantly, to have a court rule that there is no lawful rationale for withholding such information from the public.
Importantly, a trial court made two critical rulings.
First, the “court concluded the names of officers were not made confidential by section 832.7, subdivision (a), because the names were not records relating to complaints or investigations of complaints concerning an individual officer’s performance of duties. “
This would have been a dangerous precedent if the court found that even an external investigation by a third party could be deemed a personnel investigation protected under the Police Officers Bill of Rights.
Second, the court ruled against the notion that “the officers faced a risk of harm if their names were disclosed, and that the alleged harm outweighed the benefit of disclosure.”
This is where the Vanguard‘s decision to investigate proved critical.
As the appellate court notes, “The court rejected this argument as well, pointing out that some of the officers’ names had been discovered (not as a result of any action by the parties to this proceeding), and there was no evidence that they had been subject to intimidation or harassment. “
In other words, because the Vanguard disclosed the names of Alexander Lee and Barry Swartwood and neither suffered harassment or harm as the result of those disclosures, the argument put forth by the police officer’s union was negated.
At the time of the release, some critics noted that, while the Vanguard had every legal right to print publicly available information, it was acting irresponsibly as judge, jury and executioner in taking the law into its own hands.
On its face, this is an absurd argument that attempts to back of the underlying principle behind the police officer’s union contentions that, somehow, events that happen in plain sight can be withheld from the public.
Following the delayed release of the Kroll Report and the Reynoso Task Force Report, Cruz Reynoso, who was named by UC President Mark Yudof to head up a task force looking into the events of November 18, 2011, was outspoken about the delay and the problems with the Police Officer’s Bill of Rights.
“Some of the delays were caused by the negotiations with the policemen’s union to see whether the Kroll Investigators could meet with some of the police officers – that got resolved,” Justice Reynoso told a large audience following the release of the report. He continued, “The greatest delay happened because of the lawsuit.”
Mr. Reynoso did not blame the lawyers who brought the lawsuit, but rather the law. “They brought it based on some legislation that has come from Sacramento. So my blame is on the legislators who have passed legislation that sometimes is referred to as the policeman’s bill of rights.”
“The reality is, as you can see in this case, that it does not permit the community to know exactly what happened, who’s responsible for it, what can be done to correct it,” he continued. “I think that that’s a great disservice to the communities that deal with police officers who, after all, are public servants. And I personally think it’s a disservice to the police.”
Justice Reynoso is correct. POBR presents a huge problem for the notion of transparency and accountability in police actions.
Since its advent in the early 1980s, this has been area of controversy, as California goes much further than any other state in not only protecting the rights of peace officers, but also seeming to hide their misconduct from public scrutiny.
“Police officers in other states don’t get these types of incredible veil of secrecy for everything related to disciplinary proceedings,” ACLU Staff Attorney Michael Risher told the Vanguard last year. “Police officers have enormous authority as they walk the streets – they carry guns, they can arrest us, they can toss us in jail. We the people of this state should have the right to know which police officers are abusing their authority, and which officers quite frankly are carrying out their duties without generating any complaints.”
Michael Risher argued that these codes “create a veil of secrecy with anything having to do with police officer discipline, complaints against police officers, or how police officers have abused their authority.”
Under the 2006 decision in Copley Press v. Superior Court, the California Supreme Court held that records of an administrative appeal of sustained misconduct charges are confidential and may not be disclosed to the public.
Advocates argue that the decision prevents the public from learning the extent to which police officers have been disciplined as a result of misconduct.
The Copley Press decision essentially undid the legislatively-enacted distinction between employing agencies and independent agencies. This allowed police records to be cloaked in confidentiality.
“They’ve been relentless over the past 25 years to create a tool for law enforcement agencies to work without public scrutiny,” Tom Newton, executive director of the California Newspaper Publishers Association, says of police unions. “With Copley, they hit the jackpot.”
It is one thing for the law to protect personnel decisions and disciplines, the types of protections that ordinary employees enjoy. But what happens in the public, in plain view, under color of authority, is a different matter.
The court in the pepper-spray case ultimately ruled that the police were not allowed unanimity in their actions, but the courts need to go a step further and separate the line between police officers being held accountable for their actions that occur in the public sphere, under color of authority, from private personnel decisions.
Until that happens, we will end up having to fight tooth and nail for public disclosure. Only the fact that this event was caught on video allows us even a semblance of justice.
—David M. Greenwald reporting
The event to me wasn’t to name names in order to judge the officers who followed the lead of the Lt.s, it was more to remove the pack mentality that people in general feel when they are with others knowingly doing something that is overboard or wrong and then trying to hid in the pack. I don’t think identifying anyone was out of order if it helps the next officer/person/citizen to think twice about thinking they are free of accountability if they are part of a group.
Nice commentary, David. Either the courts could fix this, or the legislature could pass a new law to fix it (or someone or some group could put a proposition on the ballot to fix it).