Decades of debate over the public's right to know about police actions vs. officers' rights to privacy are coming to a head as a result of the pepper-spraying of students last November on the UC Davis campus.
Lawyers for the officers who pepper-sprayed students and other protesters seated in defiance during a Nov. 18 demonstration are due in court Friday in Oakland to press their argument that a long-awaited report on the incident cannot be released unless officers' names and other information are redacted.
UC officials and free speech advocates counter that such privacy rights do not apply in this case, and that a public airing of the report in its entirety is of critical importance in holding those involved accountable.
"The pepper-spraying incident that prompted the report generated national outrage at what many perceived as the misuse of excessive force against nonviolent student protesters on the campus of a public university," an American Civil Liberties Union attorney argued in court documents filed Tuesday.
"If the university is not able to explain to the public how it is that an incident such as this occurred, it will never be able to make a convincing case that it has taken the steps that are necessary to ensure that it does not happen again," said Michael Risher, an attorney for the ACLU's Northern California branch.
Lawyers representing the campus officers involved in the pepper-spraying disagree, arguing that release of the report would constitute the "unlawful release of confidential personnel information."
The Federated University Police Officers Association won a temporary restraining order last week to prevent release of the report, the product of months of investigation by the Kroll consulting group and a task force headed by Cruz Reynoso, a former state Supreme Court justice.
The pepper-spraying took place amid a campus protest last November, when students and supporters gathered on the quad to protest rising college costs. Video clips that went viral on the Internet showed an officer methodically spraying a row of seated students after they failed to obey orders to disperse.
Amid the uproar that followed, UC Davis Chancellor Linda P.B. Katehi maintained that the officers had defied her orders by using force, and commissioned an independent investigation, one of half a dozen launched in the incident's wake. She and other university officials have pushed for its release.
"Chancellor Katehi and the UC Davis campus community have a strong interest in moving forward with any changes necessary to ensure that all possible steps are taken to avoid any future events such as the one that occurred on the afternoon of Nov. 18," Nancy Sheehan, an attorney for the UC regents, argued in court documents.
The report's findings have been closely held by the task force. The Alameda Superior Court judge hearing the case has a copy, and agreed to allow the task force to give a copy to the police union attorneys with the understanding they would keep it confidential.
In addition to UC officials and the ACLU, an attorney for The Bee and the Los Angeles Times submitted a letter to the judge contending the report "is indisputably a public record" that should be released.
Over the years, debates over what information involving law enforcement officers can be publicly released have fueled legislation and court decisions that afford California officers some of the strongest protections in the nation. Police unions have won a number of protections, including the Public Safety Officers Procedural Bill of Rights.
That and court rulings limit what information can be released from the interrogation of an officer after an incident such as a police shooting.
Police advocates say the measures are necessary to protect officers' reputations and careers if they are the target of false accusations. In the case of officer-involved shootings, the argument is that such protections speed up the investigation because an officer can talk freely.
"The peace officers bill of rights enabled law enforcement to simultaneously conduct investigations of their own people without sacrificing an individual officer's constitutional rights," said Sacramento defense attorney William Portanova, who has represented officers.
"If a police department is looking at an officer's on-duty behavior, the interrogation of that officer theoretically would be prohibited by the officer's assertion of his Fifth Amendment rights, which all citizens have, including cops. But it is agreed that the need for rapid investigation of police officers' behavior without lawyers' and judges' involvement is a good thing for everybody."
So, for instance, information an officer was ordered to divulge during an internal affairs investigation could not later be turned over to a plaintiff for use in a civil suit against the officer or be used in a criminal probe.
For the Reynoso report, campus police officers were ordered by Acting Chief Matthew Carmichael to cooperate with Kroll investigators.
"To protect your Fifth Amendment right not to incriminate yourself, any information you provide as part of this investigation cannot be used against you in any later criminal proceeding," Carmichael wrote in a January letter to officers.
The police union cites that letter in its legal challenge to a release of the report. But UC attorneys said in documents filed Tuesday that "the letter reflects an agreement reached between the university" and the union, hammered out in January.
The agreement included the understanding that none of the information Kroll investigators received would be used in a separate internal affairs investigation the university is conducting. That probe is expected to conclude in the coming weeks and could determine the job fate of officers involved in the incident.
Three officers have been on paid leave since the incident: Chief Annette Spicuzza; Lt. John Pike, the officer shown in the video clips; and a third whose name has not been made public. They did not cooperate with the Kroll investigation and have not spoken publicly about the matter.
Supporters of the police action have noted that the protesters were given numerous warnings beforehand that they would be subjected to pepper spray if they did not disperse, and the police union noted in court papers that Pike and others were dealing with an "unruly crowd."
The university and the ACLU both contend that the police union is arguing against the release of police personnel records when the Reynoso report does not contain any such information. Instead, they note, the report is similar to others that have been conducted following controversial police actions.
The 2006 use of a Taser against a UCLA student in a library was the subject of such an investigation, as was a probe into the 2009 shooting deaths of four Oakland police officers.
"Perhaps the most famous is the Christopher Report that examined the causes and details of the 1991 videotaped beating of Rodney King, a report that named and criticized officers for their actions that night and discussed instances of alleged prior misconduct by them," the ACLU's Risher wrote.