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Expected release of UC Davis pepper spray report

Path (Mostly) Cleared for Davis Report
March 19, 2012

Most of the investigative report into how police officers’ dispersal of a non-violent protest at the University of California at Davis culminated in the use of pepper spray on seated, unmoving students will be released to the public, after a judge lifted a temporary restraining order requested last week by the UC police union and the main officer involved. Other parts, related to the conduct of specific officers, will remain sealed for now.

After hearing testimony from lawyers for Davis and for the Federated University Police Officers Association, Alameda Superior Court Judge Evelio Grillo denied the latter’s request for a preliminary injunction for the majority of the report. The parts that addressed specific officers’ behavior -- the sections that the union sought to block – will remain under injunction pending another hearing March 28.

A UC-Davis spokesman, Barry Shiller, said the university will need to consult with the head of the task force that conducted the investigation, former associate Supreme Court Justice Cruz Reynoso, before deciding whether, how and when to share the report with the public (while noting that the judge's order isn't final until today). Shiller said that nothing would be released until this week at the earliest, and it wasn't yet clear "how, in what form or when any of the permissibly-released content from the report would be made available to UC Davis."

The report is the product of one of two investigations into the Nov. 18 incident that became a public relations nightmare, in which a campus officer used pepper spray on students sitting at close range during a nonviolent protest. The students had been blocking a walkway as officers tried to take down the Occupy encampment; after they’d been sprayed in the eyes and face, the officers began dragging them off the sidewalk, with onlookers screaming and chanting “shame on you” in the background.

Video of the confrontation (below) quickly went viral and sparked shock and outrage among many students, faculty members, civil libertarians and even the general public.
 

 

The ruling follows a tentative ruling issued late Thursday, in which Judge Grillo said the public release of the report appeared to violate neither the state penal code nor the Constitution, as the petitioners had claimed.

In requesting the stay, John H. Bakhit, a lawyer for the police union, cited a state penal code that prohibits the public release of confidential personnel information including personal data, discipline, and “complaints, or investigations of complaints, concerning an event or transaction in which he or she participated … and pertaining to the manner in which he or she performed his or her duties.”

In the tentative ruling that explained the judge's thinking, Grillo said the union did not make a satisfactory case that the report should be kept secret under the penal code. The document didn’t include recommendations for disciplining officers, the judge said, and the complaints it addresses are regarding “police procedures or practices,” not individuals.

“Under the Officer’s proposed interpretation, if a university or city investigating police conduct or practices generally (and not the actions of the individual officers) compiles public information regarding that conduct or particular practice, then [the penal code] could cloak any resulting report even though the underlying information is freely available to the public,” the judge wrote. “It cannot be the law that a public entity cannot collect, compile and distribute public information about its police department without running afoul of [the penal code].”

Further, the judge said that because the union could not establish that the report’s release would violate the penal code and thus failed to show that the police had a legally protected privacy interest, it by default could not win its other, Constitutional claim for invasion of privacy.

The judge did concede that the plaintiffs “might be subject to harassment and that their safety might be threatened” if their “allegedly confidential information” was disclosed, but that potential harm is “speculative” only.

“Furthermore, 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,” the judge wrote. “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.”

Public concern and the need for transparency mean greater harm would fall on the Board of Regents and the public from not disclosing the report, the judge said.

The report had been scheduled for release early last week, but was blocked when a state court approved a temporary restraining order request filed by the UC police union and Lt. John Pike, the officer who pepper-sprayed the students. The union’s lawyer said he had been tipped off about the content of the report, which apparently included sensitive personnel information about the officers involved that could be a threat to their safety. Pike reportedly left Davis after receiving death threats following the incident.

The report’s release has been riddled with delays. First, the task force twice requested more time to produce the report, then the temporary restraining order put it on hold for another two weeks. The repeated postponements have further exacerbated frustrations on a campus that’s waiting for answers and looking for closure. UC President Mark G. Yudof said after the union requested a stay that the report’s release was “a fundamental stepping stone” needed for Davis to move forward.

The investigation is separate from another internal one that’s examining police conduct, which is expected to wrap up soon. This investigation was into how Davis and the police planned for the encampment removal and how they carried it out, and was intended to help develop recommendations regarding campus policies and police procedures and commands.

 

 

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