Wednesday, February 8, 2012
C.A. Rules for Newspaper in Suit Over Long Beach Police Shootings
Identities of Officers Held Not Exempt From Disclosure Under California Public Records Act
By KENNETH OFGANG, Staff Writer
The identities of police officers involved in shootings are not exempt from disclosure under the California Public Records Act, the Court of Appeal for this district ruled yesterday.
Div. Two affirmed a ruling by Los Angeles Superior Court Judge Patrick T. Madden, who denied a motion for preliminary injunction by the Long Beach Police Officers Association. The union sought to block the city from complying with two public records requests by Los Angeles Times police reporter Richard Winton.
Winton made his requests after officers shot and killed Douglas Zerby, an intoxicated, unarmed 35-year-old man on Dec. 12, 2010. Officers said they mistook a garden hose nozzle that Zerby was carrying for a gun.
Winton asked for the identities of all officers involved in the Zerby shooting, and separately requested that the city name all officers involved in shootings since 2005. The city notified the LBPOA that it would make the disclosure absent a court order to the contrary.
The union filed suit, the city responded by supporting the union, the Times’ parent company intervened, and the judge granted a temporary restraining order pending a hearing on the preliminary injunction motion. The union said it feared for the safety of officers once their identities as having been involved in shootings became disseminated online.
Following a hearing, however, Madden said the information did not fall under the CPRA’s exemptions for unwarranted invasion of personal privacy, investigative reports, or personnel records. He also rejected an argument under the “catchall” provision that the public interest in nondisclosure outweighed the public interest served by disclosure of the names.
The judge denied the preliminary injunction motion without prejudice, saying the union or the city could seek to block disclosure upon a stronger evidentiary showing that a particular officer’s safety would be jeopardized by disclosure.
The Court of Appeal granted a stay, delaying disclosure pending the outcome of the appeal. But yesterday the court concluded that Madden was correct.
“We share the [trial court’s] view that relevant case law leads to the inexorable conclusion that the names of officers involved in officer-involved shootings over a five-year period must be disclosed under the CPRA, absent any particularized showing of the interests served by nondisclosure,” Justice Kathryn Doi Todd wrote for the court.
The justice said the names of officers, unconnected with any disclosure of what action, if any, was taken against them as a result of the shooting, does not fall under the privacy or personnel records exemptions, under prior cases. Nor can the parties “transform an officer’s identity into confidential information by asserting that the officer’s involvement in a shooting has resulted in an appraisal or discipline.”
She distinguished Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, in which the court held that an officer’s identity was protected in a situation in which the disclosure would necessarily have made public the fact that he was subjected to discipline.
Doi Todd went on to say that neither the privacy exemption, nor the catchall exemption, could support barring disclosure, given the substantial interest in disclosure.
Dismissed as Speculative
She dismissed as speculative a declaration by a police lieutenant asserting that officers, including two who had been involved in shootings, had been the subject of threats. The declarant also noted that gang graffiti threatening police had recently appeared and was under investigation, and that the Internet could be used to locate the home addresses of officers whose names were known.
Similar evidence has been rejected in other cases, the justice explained.
“We agree with the trial court that appellants’ assertion of possible threats was inadequate under the [personal privacy] exemption, absent any evidence indicating that the safety or effectiveness of any particular officer was threatened by the disclosure of his or her name,” the jurist wrote.
Nor had the city or the union offered anything more than speculation in support of its claim that secrecy was in the public interest, which must be shown in order for the catchall exemption to apply, the justice said.
Attorneys on appeal were James E. Trott and Larry J. Roberts of the Law Offices of James E. Trott for the union; Deputy City Attorney Christina L. Checel for Long Beach; and house counsel Karlene W. Goller, with Kelli L. Sager, Rochelle L. Wilcox and Jeff Glasser of Davis Wright Tremaine, for the Times.
The Los Angeles Police Protective League filed an amicus brief for the Long Beach officers, while several ACLU affiliates supported the Times.
The case is Long Beach Police Officers Association v. City Of Long Beach (Los Angeles Times Communications LLC), 12 S.O.S. 635.
Copyright 2012, Metropolitan News Company