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Some of UC pepper spraying report can be made public, judge rules

March 16, 2012 |  2:16 pm


An Alameda County Superior Court judge Friday partially denied a request by a campus police union to block a UC investigative report about the pepper-spraying of UC Davis student protesters in November -- clearing the way for university officials to release those portions of the report that don't address the conduct of specific officers.

But Judge Evelio Grillo granted the injunction barring dissemination of contested sections of the report pending another hearing March 28.

Grillo also ordered the Federated University Police Officers Assn. and UC attorneys pressing for the full release of the material to try to come to agreement on three other sections that counsel for the officers said they had not had time to sufficiently review. 

The Nov. 18 student protest took place as part of the Occupy movement, and images of UC Davis Police Lt. John Pike casually spraying seated protesters in the face went viral.  Afterward, UC Davis placed three officers on administrative leave and began an internal affairs investigation. [Updated at 4:49 p.m.: Attorneys for the campus police union said in court Friday that “more than three” officers were under investigation by Internal Affairs.] UC attorneys said in court Friday that "six to 10" officers are named in the report, including those who were witnesses to the incident and those who are under investigation.

Separately, the university convened a task force headed by former state Supreme Court Justice Cruz Reynoso to make recommendations regarding police procedures in light of the event. Kroll Associates, a security consulting firm headed by former Los Angeles Police Chief William J. Bratton, was retained to collect information on the incident and make policy recommendations.

On Friday in an Oakland courtroom, Grillo permitted release only of those sections that police attorneys do not wish to conceal - nearly the entire Reynoso report, which deals with broader policy issues, and certain sections of the Kroll report that deal with administrative actions.

The campus police union contends that sections pertaining to individual officers meet the definition of  "personnel" files that are confidential under state law. Grillo struck a skeptical tone in his questioning but nevertheless put off making a determination until the next hearing, in part to give the parties a chance to review those sections that police attorneys hadn't read thoroughly. They received the reports last week.

John Bakhit, one of the attorneys representing campus officers, said, "All the sections we asked to be held back were held back. We're happy -- but it's temporary."

While officer names would not normally be confidential, the union is seeking to hold back the names of officers because they say Pike has received numerous threats.

Only witness officers were interviewed for the Kroll report and they were offered immunity from any discipline. The subjects of internal affairs investigations were not interviewed. But Bakhit's co-counsel, Michael Morguess, argued that because they were compelled to talk to investigators and spoke about officers who were under investigation, that material should be withheld.

Grillo challenged him repeatedly. "Any time there's an allegation of police misconduct and IA interviews someone, any other information developed by the employer about that misconduct is confidential and no one can see it?" he pressed.
 
Michael Risher, an attorney for the American Civil Liberties Union of Northern California, which has joined UC officials in opposing the injunction, is in the odd position of not having seen either report. But when Grillo tried to tell UC to provide the sections no longer bound by injunction, Risher declined.

"Our position in this case is that the public needs access to this report," he said after the hearing. "We don't want to see anything that the public doesn't have access to."

UC General Counsel Charles Robinson said he would confer with Reynoso, his client and the head of the task force, before deciding whether to release the report "piecemeal," though he indicated the portions not bound by injunction could be requested under the California Public Records Act.

"We are making some progress towards our overall objective of trying to get the entire report released," he said.

Robinson said that, speaking hypothetically, it "may not make sense" to release it in bits. "One could imagine a circumstance where releasing just a part of the report could be misleading or not provide sufficient context," he said. 

Attorneys for the Sacramento Bee and the Los Angeles Times also filed briefs in the case, seeking access to the full report.

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-- Lee Romney in Oakland

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