UC Davis pepper spray report can be released, judge rules 

click to enlarge An Occupy protestor wears a gas mask during a demonstration at the UC Davis campus on November 21, 2011 in Davis, California. Thousands of Occupy protestors staged a demonstration on the UC Davis campus to protest the UC Davis police who pepper sprayed students who sat passively with their arms locked during an Occupy Wall Street demonstration on November 18. - JUSTIN SULLIVAN/GETTY IMAGES
  • Justin Sullivan/Getty Images
  • An Occupy protestor wears a gas mask during a demonstration at the UC Davis campus on November 21, 2011 in Davis, California. Thousands of Occupy protestors staged a demonstration on the UC Davis campus to protest the UC Davis police who pepper sprayed students who sat passively with their arms locked during an Occupy Wall Street demonstration on November 18.

An Oakland judge said Wednesday that the University of California can release virtually all of a long-awaited report on the pepper-spraying of protesters at UC Davis by campus police officers in November except for the names of most officers.

However, Alameda County Superior Court Judge Evelio Grillo stayed the issuance of the nearly-complete version of the report for 21 days to allow attorneys for the Federated University Police Officers Association, which represents officers at UC Davis and other UC campuses, an opportunity to appeal his ruling.

John Bakhit, one of the police union's attorneys, said after Wednesday's hearing that he wants to talk to the union's members before he decides whether to appeal.

The union filed suit earlier this month to try to stop a task force headed by former California Supreme Court Justice Cruz Reynoso to release its findings to the UC Davis community.

The 12-member task force was created to investigate an incident at an Occupy protest Nov. 18 in which campus police officers doused pepper spray on sitting protesters who had set up an encampment on the Davis campus.

Grillo issued a temporary restraining order on March 6 which blocked UC from releasing the report at that time.

But in a mixed ruling on March 16 he denied the police union's request for a preliminary injunction for most of the task force's report but granted a preliminary injunction for parts of a fact-finding report by Kroll Associates, a security firm hired by UC Davis to investigate the incident.

Grillo directed lawyers for the police union and for UC, which is headquartered in Oakland, to meet and confer before today's hearing to try to reach an agreement on which parts of the Kroll report can be made public and which parts should remain confidential.

The two sides reached an agreement on the release of some parts of the report but the police union wanted to bar the release of conclusions about the conduct of specific officers because they said it could have an effect on officer evaluations and discipline.

But Grillo said the report is "a policy-level document" that isn't focused on the actions of specific officers but instead is focused on the policies of UC Davis administrators and makes recommendations on improving the police response to future demonstrations.

The judge said if the case were to proceed to a trial UC attorneys have established a reasonable probability that the public's interest in releasing the bulk of the report outweighs any reasonable expectation of privacy for the officers whose actions are described in the report.

However, Grillo said the police union has demonstrated that there's a reason for concern about the safety of the officers who are being investigated.

He said Lt. John Pike, the incident commander whose pepper-spraying of students was shown on national television and posted on the Internet, has received more than 10,000 text messages, more than 17,000 email messages and hundreds of letters, most of them containing "threatening or derogatory" messages.

But Grillo said Pike's name is already in the public domain as is the name of UC Davis Police Chief Annette Spicazza, who was put on paid administrative leave after the incident, so their names can be included in the public version of the report. He barred the release of the additional 20 officers who are mentioned in the full version of the report.

UC General Counsel Charles Robinson said after the hearing that the university could choose to release the previously-approved part of the report before the 21-day stay expires for the nearly-complete version but he wants to consult with Reynoso and UC Davis officials before it acts.

Robinson said Reynoso and UC Davis officials might not want to release the report in a piecemeal fashion.

"They spent a considerable amount of time making sure that they had a fair and balanced presentation of the facts," Robinson said.

He said, "We're very pleased with the judge's position Wednesday because it largely reflects our opinion."

Bakhit said, "We absolutely don't agree" with Grillo's decision to release most of the report but he said "we still consider it a win that the names of most of the officers will be protected."

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