An Oakland judge on Friday set the stage for the release of most of an investigation into the Nov. 18 pepper-spraying incident at UC Davis, but he agreed to keep confidential some portions about individual police officers at least for now.
The ruling by Alameda Superior Court Judge Evelio Grillo left both sides claiming partial victory in a dispute over how much detail can be released about the actions of UC Davis police during a campus demonstration last fall over tuition hikes.
He also appeared to clear the way for release soon of a lengthy report on the incident by former state Supreme Court Justice Cruz Reynoso, the first in a series of inquiries into how plans to remove the protesters turned into a nightmare for the university and its students.
The Reynoso report was coupled with an investigation by Kroll, a security consulting firm led by former Los Angeles Police Chief William Bratton.
"Now the university can release virtually the entire report by Justice Reynoso and large portions of the Kroll report," said Michael Risher, an attorney for the Northern California branch of the American Civil Liberties Union.
"It's a clear win for the university and a clear loss for the officers. For us, it's in-between."
Risher, who is suing the university on behalf of students hit by pepper spray, fought to win release of all the documents used in the investigation, which originally was requested by UC Davis Chancellor Linda P.B. Katehi.
The report was set to be unveiled March 6 at a campus meeting, but a legal challenge by the union representing campus police halted the release and led to Friday's court ruling in Oakland.
John Bakhit, an attorney for the Federated University Police Officers Association, filed a court challenge contending that the report could not be released with information about campus officers that could affect their jobs.
"We believe we accomplished our goal today," Bakhit said in the courthouse hallway after the judge issued a preliminary injunction to protect the portions of the reports that named officers and criticized their actions.
The pepper-spray controversy erupted Nov. 18 after Occupy UC Davis students and supporters set up a tent encampment on campus to protest rising college costs.
After demonstrators refused to disperse, campus police moved in and, in videos that spread like wildfire across the Internet, Lt. John Pike began pepper-spraying a group of protesters who had linked arms and were sitting on the ground. Amid a worldwide uproar, Katehi said she never would have approved police moving on the students if she had known force would be used.
UC Davis Police Chief Annette Spicuzza, along with Pike and another unnamed officer, were suspended over the incident and are the subject of a separate internal affairs probe. They did not cooperate with the Reynoso task force, which hired Kroll to conduct interviews with officers and witnesses.
The judge's decision Friday appeared at odds with a tentative ruling he issued late Thursday that indicated he was leaning toward releasing virtually all of the information in the reports.
But after hearing arguments from lawyers representing officers and the university, he left open the possibility that some sections might need to be kept from the public under provisions of the state Penal Code that are meant to protect the privacy rights of peace officers.
In particular, the judge said, he had concerns about Section 6 of the Kroll report that discussed the actions of named officers and offered assessments of whether their behavior was right or wrong.
In comparison with the rest of the report, which the judge said lays out facts largely in the public record and makes policy recommendations for campus police and UC officials, the Kroll findings in Section 6 "are kind of a different animal," he said.
The judge privately reviewed a copy of both reports, which have been seen by only a handful of lawyers, and weighed lawyers' briefs submitted earlier this week. On Friday, the judge and lawyers went through the reports together, section-by-section and page-by-page, to determine the content in dispute.
Police attorney Michael Morguess argued the Kroll investigation was like an internal affairs investigation conducted by a third party and is protected under law from public disclosure. Officers who witnessed the spraying had been ordered by the acting chief to talk to the Kroll investigators, he noted.
Nancy Sheehan, a Sacramento attorney representing the university, said the Kroll investigation was different from an internal affairs review. Its purpose, she said, was to get to the bottom of what happened and why and to inform the policy recommendations contained in the Reynoso report. The officers who spoke to Kroll investigators were granted immunity from discipline under the terms of an agreement with the police union, she said.
But Sheehan told the judge Friday that the university is willing to withhold the identity of the second officer involved in the pepper-spraying so he would not be subject to the kind of threats Pike has received.
In the end, Grillo lifted a temporary restraining order over much of both reports, allowing the university to make those portions public, but he issued a preliminary injunction over sections that police lawyers objected to releasing.
He ordered the lawyers to work out their differences as best they can and to return March 28 for another hearing, when he said he would rule on whatever sections remained at issue.
University officials said they still do not know when the reports will be released.
UC general counsel Charles Robinson said he would confer with Reynoso to determine when the university would release the reports and if it made sense to release them piecemeal. Without the complete text, some portions could appear misleading or lack context, he said.
UC spokesman Pete King said the reports would not be released at least until the judge issues his written decision Monday specifying the sections, pages and lines that are protected by the preliminary injunction.
Next week is finals week at UC Davis, complicating the timing.
"Our interest remains in getting this out into the public as soon as possible," King said.