Delay of UC Davis Pepper Spray Report Has Its Roots in Police Privacy Laws

On Tuesday, an Alameda County judge granted a UC campus police officers’ union request for a restraining order concerning the release of the university's report on the campus pepper-spray incident last November. The judge ruled that union attorneys should be able to read the report before it's released to the public.

Last November, UC Davis campus police doused a group of student protesters with the spray. Student and public outrage ensued, and the university assigned a task force to investigate the incident . The group was scheduled to release its findings yesterday afternoon, but it postponed at the last minute after learning of the request for a restraining order by the officers’ union.

The judge ordered the task force to give its report to the officers’ attorneys so they could determine which parts, if any, contain information about accused officers that might violate legal  protections for police.

Steve Montiel, a UC spokesperson, said the university was disappointed with the judge’s decision. “We feel it’s important for this report to be made accessible to the UC Davis community and the public. It’s important so that the healing can begin and so the university can move forward.”

At issue are privacy protections afforded law enforcement officers. Police union attorney John Bakhit said the law prohibits public dissemination of information about officers’ personnel histories. He referred to section 832.7 of the California Penal Code, which says officer personnel records are confidential and shall not be disclosed in any criminal or civil proceeding.

That law was passed after a 1974 requirement that law enforcement agencies establish a system for investigating and documenting complaints against peace officers; and a 1974 California Supreme Court ruling requiring the Los Angeles County Sheriff’s Department to produce records that could aid a defendant in establishing  excessive force during an arrest.

Before the high court ruling, law enforcement agencies saved records of complaints, assuming they would be kept confidential. But in the wake of the decision, agencies realized they might have to disclose that information in legal proceedings, and they were accused of shredding the records.

In response, the legislature in 1977 enacted Penal Code 832.7—the one Bakhit cites in the UC Davis case. The code was designed to define specific circumstances under which complaints against police can be released.

Another protection for police, the Public Safety Officers Procedural Bill of Rights Act, was passed in 1977. It says that no statement made by a public safety officer "under duress, coercion or threat of punitive action shall be admissible in any subsequent civil proceeding.”

Bakhit said that is exactly what happened in the pepper-spray case. “These officers were compelled to speak to these 'quote' investigators,” he said, “and that in and of itself gives [the investigators] access to confidential information.”

The most recent legal battle over officer confidentiality was in 2006, when the California Supreme Court upheld police privacy laws. Copley Press, which published the San Diego Union Tribune, sued the county to gain access to an appeals hearing involving the termination of a sheriff’s deputy. The state Supreme Court rejected Copley’s demands.

Michael Risher, staff attorney with the ACLU, says the UC Davis report should be published in full, and that California courts have interpreted the police privacy laws too broadly.

“If California law really prohibits the university from making this information public, that's a big problem, and the law should be changed...This veil of secrecy that protects internal discipline proceedings does not prevent the government from releasing the names of police officers who are involved in interactions with the public.”

Related:

• Peace Officers’ Bill of Rights
• How California Law Shields Oakland Police Violence (ColorLines)