Metropolitan News-Enterprise


Friday, May 30, 2014


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S.C. Rules for Newspaper in Suit Over Long Beach Police Shootings

Identities of Officers Held Not Exempt From Disclosure Under California Public Records Act




The identities of police officers involved in shootings are not categorically exempt from disclosure under the California Public Records Act, the state Supreme Court ruled yesterday.

In a 6-1 decision, with Justice Ming Chin, the lone decenter, the justices affirmed lower court rulings favoring the Los Angeles Times in its bid to obtain the names of Long Beach police officers involved in several shootings over a six-year period.

The city and the police officers’ union had contended that officers would be harassed and that they and their families faced potential harm if the city were to comply with two public records requests by Times police reporter Richard Winton.

2010 Shooting

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.

The reporter 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 Long Beach Police Officers Association 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 Los Angeles Superior Court Judge Patrick T. Madden granted a temporary restraining order pending a hearing on the preliminary injunction motion.

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. 

Denial Without Prejudice

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.

Div. Two of the Court of Appeal affirmed Madden’s ruling two years ago.  

The lower courts were correct, retired Justice Joyce L. Kennard, sitting on assignment, wrote yesterday for the Supreme Court.

 “We do not hold that the names of officers involved in shootings have to be disclosed in every case, regardless of the circumstances,” Kennard wrote. “We merely conclude, as did the trial court and the Court of Appeal, that the particularized showing necessary to outweigh the public’s interest in disclosure was not made here, where the Union and the City relied on only a few vaguely worded declarations making only general assertions about the risks officers face after a shooting.”

The exemption sought in this case, the jurist noted, was so broad it would apply to an officer “who acted in a heroic manner that was unlikely to provoke retaliation of any kind, in which case officer safety would not be an issue.” She emphasized that Madden denied relief without prejudice, giving the union the opportunity to claim an exemption in any specific instance in which the facts warranted it.

Disclosure of 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, Kennard said.

“It may be true that such shootings are routinely investigated by the employing agency, resulting eventually in some sort of officer appraisal or discipline,” she wrote. “But only the records generated in connection with that appraisal or discipline would come within the statutory definition of personnel records….We do not read the phrase ‘records relating to…appraisal[] or discipline’ [in Penal Code §832.8] so broadly as to include every record that might be considered for purposes of an officer’s appraisal or discipline, for such a broad reading of the statute would sweep virtually all law enforcement records into the protected category of ‘personnel records.’”

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.

Kennard went on to say that neither the privacy exemption, nor the catchall exemption, could support barring disclosure, given the substantial interest in disclosure.

“In a case such as this one, which concerns officer-involved shootings, the public’s interest in the conduct of its peace officers is particularly great because such shootings often lead to severe injury or death,” she wrote. “Here, therefore, in weighing the competing interests, the balance tips strongly in favor of identity disclosure and against the personal privacy interests of the officers involved.”

Chin argued in dissent that documents containing the officers’ identities are exempt as “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”

 His colleagues, he argued, had overstated the public interest in disclosure, and understated the officers’ interest in secrecy. The court’s ruling, he wrote, would not inform the public which, if any, officers had misused their authority; is inconsistent with public policy expressed in legislation that largely protects peace officer personnel records from disclosure;  and “will impose an obvious and substantial burden on law enforcement agencies that want to protect their officers.”

The case is Long Beach Police Officers Association v. City of Long Beach (Los Angeles Times Communications LLC), 14 S.O.S. 2650.


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