California Supreme Court Holds Names of Officers in Police Shootings Should Be Disclosed

by Davis Wright Tremaine LLP

The California Supreme Court has held that the names of police officers involved in shootings generally must be disclosed under state public records law, rejecting arguments by police unions and municipalities that the names should be kept confidential. The 6-1 decision comes more than three years after the Los Angeles Times first sought the names of officers involved in a high-profile shooting by Long Beach, Calif., police, along with the names of other officers involved in shootings over a six-year period. Long Beach Police Officers Association v. City of Long Beach et al., California Supreme Court No. S200872 (May 29, 2014).

The Times’ request under the California Public Records Act was made in December 2010, after Long Beach police shot and killed Douglas Zerby, claiming they thought he was brandishing a weapon. (He was holding a garden hose nozzle.) The police officers’ union sought an injunction to block the city from releasing the names; although the city was the putative defendant in the lawsuit, it joined with the union in arguing that the officers’ identities should be kept secret. The Times successfully opposed the request for an injunction in the trial court, and in February 2012, an intermediate appellate court upheld the trial court’s ruling that the names were not confidential. The California Supreme Court then granted petitions for review filed by both the city and the police union.

The city and the union relied primarily on California laws limiting the disclosure of police officers’ personnel records, known as “Pitchess” statutes. According to the petitioners, law enforcement agencies automatically investigate every police shooting, and ultimately appraise and potentially discipline the officers involved; consequently, they claimed that linking an officer’s name to a particular incident amounted to disclosing confidential personnel information. The Supreme Court disagreed, concluding that while “records generated as part of an internal investigation” are generally confidential, factual information about an incident that might be considered in a personnel probe generally must be disclosed. As the Court explained, merely identifying a particular officer as having been involved in a shooting does not disclose “any confidential personnel matters or other protected information.”

The Court also rejected claims that the names sought by the Times had to be kept secret because of safety concerns. Police officials had submitted declarations warning that gang members would retaliate against officers and their families, and that hostile individuals could use the Internet to find a wide array of sensitive information about individual officers. They cited graffiti in the city of Long Beach that read “Strike Kill a Cop,” and several “Officer Safety Bulletins” the police department had issued about threats against officers in connection with shootings.

But the Supreme Court held that such evidence was too vague and generalized to overcome the strong public 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. 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.” The Court explained that names could be withheld under certain narrow circumstances, for example if an officer was working undercover or if there was a strong particularized showing of a safety risk to a specific officer if his or her name was disclosed.

Justice Joyce L. Kennard authored the decision, with five other members of the Court concurring, including the Chief Justice. Justice Ming W. Chin dissented, believing that the evidence of potential safety threats was sufficient to overcome the public interest in the officers’ names.

Davis Wright Tremaine LLP attorneys Kelli L. Sager and Rochelle L. Wilcox represented the Times in the trial and appellate courts, along with former DWT attorney Jeff Glasser (who subsequently left the firm to become in-house counsel at the Times). Dan Laidman assisted with the effort in the California Supreme Court proceedings. The Times was also represented by its former in-house counsel, Karlene Goller.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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