Friday, September 11, 2015
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C.A. Rejects Officers’ Bid to Block Release of Shooting Report
By KENNETH OFGANG, Staff Writer
An independent consultant’s report on the fatal shooting of an unarmed college student by two Pasadena police officers is largely subject to public disclosure under the California Public Records Act, the Court of Appeal for this district ruled yesterday.
Div. One, in an opinion by Justice Jeffrey Johnson, agreed with Los Angeles Superior Court Judge James Chalfant that the report by the Office of Independent Review Group was a public record within the meaning of the statute. The panel also agreed that portions of the report fall under the CPRA exemption for police officer personnel records, but said Chalfant’s ordered redactions went too far.
Materials “unrelated to personnel files of individual officers…including descriptions of the PPD’s responsiveness (or the absence thereof), and recommendations by the OIR,” must be released, Johnson wrote. The case was sent back to the trial court with instructions that portions of the report previously ordered disclosed by Chalfant, along with portions cited by the court in a sealed appendix, and perhaps others, be released.
The city retained the OIR Group to look into the 2012 shooting of Kendrec McDade, 19. Officers Matthew Griffin and Jeffrey Newlen shot McDade during a nighttime encounter after a man reported two men robbed him at gunpoint.
The officers said they feared for their safety, and that McDade was clutching his waistband when he was shot. A 17-year-old boy who had been with McDade later acknowledged his role in the theft that led to the shooting.
Victim’s Acknowledgement
The victim of the theft later acknowledged that there were no weapons, and that he lied because he thought he would get a faster response from police. Oscar Carillo pled guilty to two misdemeanors, making a false report to an emergency dispatcher and making a false report to police, and was sentenced to three years’ probation, including 90 days in jail and an additional 90 days on a Caltrans crew.
McDade’s parents sued the city and settled for more than $1 million. The District Attorney’s Office concluded that the officers’ actions were not criminal, based on what they reasonably believed to be true, and three Pasadena Police Department internal investigations resulted in the conclusion that the officers had acted in self-defense and in defense of one another.
The city retained the OIR Group to evaluate the department’s handling of the case and make recommendations for any needed reforms. The deputy police chief explained that the report would have no effect on the officers’ service records or their opportunities for promotion.
While the OIR report remains officially secret, portions of it became public knowledge when they were attached to a brief filed by a police union lawyer in connection with the appeal from Chalfant’s order.
Filing Ordered Sealed
That filing was ordered sealed by the Court of Appeal within days, but media outlets reported that the OIR was critical of the officers’ conduct, saying they “repeatedly made tactical decisions that were not congruent with principles of officer safety,” including not broadcasting their belief that the men they were pursuing were suspected of robbery, or that they were believed to be armed.
The officers’ “decision not to respond Code 3 to the felony call,” the report said, “has significant implications because, in Pasadena Police vehicles, activating lights and siren automatically activates the in-car video camera.”
The report was completed in August of last year, and requests for its release under the PRA were made by the Los Angeles Times and others. After the city indicated it would release a redacted version, Officers Matthew Griffin and Jeffery Newlen and the Pasadena Police Officers Association filed a “reverse” PRA action, asking the trial court to enjoin release of any of the report.
The plaintiffs argued that the report was completely privileged, and that the “Pitchess” statutes on discovery of police personnel records applied. The city asserted that the PRA’s personnel-records exemption applied to about 20 percent of the report, and waived its right to assert the separate exemption for law enforcement investigatory files.
Chalfant ruled the report was a public record, that the interest in disclosure was “particularly great,” and that release was required, other than as to portions the judge found to be confidential personnel records.
Johnson, writing for the Court of Appeal, said the trial judge was correct as to the nature of the report.
“The information and analysis contained in the report is precisely the sort the disclosure of which will promote public scrutiny of and agency accountability for specific uses of deadly force,” he wrote.
The justice noted that the definition of what constitutes a peace officer personnel record is limited by Penal Code §832.8 to records generated in connection with a citizen complaint, or administrative appraisal or discipline.
The report, he said, was partially related to the PPD’s disciplinary investigation, so those portions are exempt from disclosure. But the report’s “analyses...aimed at the PPD’s training, tactics and review process in the wake of the McDade shooting, not the individual officers,” are beyond the scope of the exemption, as is its discussion of a separate probe by the PPD’s Criminal Investigations Division, Johnson wrote.
Attorneys on appeal were Richard A. Shinee of Green & Shinee for the officers and the union, Chief Assistant City Attorney Javan N. Rad for Pasadena, Dale L. Gronemeier and Elbie J. Hickambottom Jr. of Gronemeier & Associates for parties who intervened in the trial court, including McDade’s mother and the Pasadena chapter of the NAACP, and Kelli L. Sager, Rochelle L. Wilcox and Jonathan L. Segal of Davis Wright Tremaine, in-house lawyer Jeff Glasser, and Jean-Paul Jassy and Kevin L. Vick of Jassy Vick Carolan for the Times.
The case is Pasadena Police Officers Association v. Superior Court (City of Pasadena), 15 S.O.S. 4348.
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