C.A. Says It Doesn’t Know Officers’ True Names

Thursday, July 13, 2017

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C.A. Says It Doesn’t Know Officers’ True Names

The Fourth District’s Div. Three Explains That It Refers to Officers, Whose Identities Appeared in News Reports, As ‘Does’ Because That’s How They Are Referred to in the Record on Appeal

By a MetNews Staff Writer

The Court of Appeal division in Orange County yesterday said it didn’t identify two police officers who sued the City of Santa Ana other than as “Doe Officer 1” and “Doe Officer 2” because the record doesn’t include their true names.

The Fourth District’s Div. Three filed its opinion in Santa Ana Police Officers Association v. City of Santa Ana on June 13 as an unpublished opinion and on July 6 certified it for publication (appearing at 2017 S.O.S. 3462). Two officers sued over the city’s reliance, in disciplinary proceedings, on a surreptitiously recorded videotape revealing their improper comments and apparent theft of snacks at a marijuana dispensary that was raided; the appeals court, in an opinion by Justice Richard D. Fybel, held the use of the videotape was proper because the officers had no reasonable expectation of privacy at the scene of a police action.

News Reports

The officers had been identified in 2015 news reports as Brandon Matthew Sontag and Nicole Lynn Quijas.

(Jorge Arroyo had also been identified in reports and was a plaintiff in the Orange Superior Court action, but dropped out as an appellant.)

Yesterday, the appeals court modified the opinion by adding this footnote:

“Doe Officer 1 and Doe Officer 2 are named in the complaint as plaintiffs under their fictitious names only. The officers’ names are not revealed anywhere in the appellate record. The record on appeal is limited because the appeal arises from a judgment entered after a demurrer was sustained without leave to amend. Thus, we do not need to reach the question whether to reveal their names.”

Reaching the question would have entailed consideration of whether the officers’ names could be withheld under the catch-all provision of the new state Rule 8.90, in ¶(b)(10): “Persons in other circumstances in which personal privacy interests support not using the person’s name.”

Officers Cite Authority

The defendants did not object in the trial court to the officers being accorded anonymity and Orange Superior Court Judge Ronald L. Bauer did not require disclosure. Each officer said in a declaration:

“I have been informed and believe that my true identity is being withheld pursuant to Penal Code §§832.5-832.8. Evidence Code §§1043-1046, and due to several threats received as a result of the underlying incident. (See Long Beach Police Officers Association v. City of Long Beach (2014) 59 Cal.4th 59, 75).”

The cited sections of the Penal Code and Evidence Code deal with personnel records. The California Supreme Court opinion declares that the identities of police officers involved in shootings is not exempt from disclosure under the Public Records Act.

Kennard’s Opinion

At Page 785, then-Justice Joyce Kennard (now retired) said:

“We do not hold that the names of officers involved in shootings have to be disclosed in every case, regardless of the circumstances. 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….”

While Bauer was affirmed as to the first cause of action—alleging a violation of the California Invasion of Privacy Act—he was reversed as to the second cause of action, alleging a breach of the Public Safety Officers Bill of Rights Act by declining to permit discovery of certain materials. Controversies between the officers—who were discharged, then reinstated—and the city are ongoing.