Is Secrecy Justified When Police Officers Kill? California Supreme Court Says No.

On Aug. 9, 2014, a young black unarmed man, Michael Brown, was fatally shot by police in Ferguson, Missouri. Some witnesses said he had his arms raised in the air when he was shot in the head, shoulder, arm and hand. The shooting led to various riots and protests from hundreds to thousands on the streets of Missouri as they demonstrated and protested.

The Ferguson police department initially refused to release the name of the officer who shot Brown.  Ferguson Police Chief Thomas Jackson stated he wouldn’t identify the officer out of concern for the officer’s safety, saying that death threats were made against the officer, both directly to the Ferguson police and also on social media. The department relented a week later, and voluntarily released officer Darren Wilson’s name.

Had the Michael Brown shooting happened in California, the name of the officer involved would have been released to the public without any questions asked because of the 2014 ruling by the California Supreme Court. While the disclosure of police names is a current controversy across the country, California officers’ names must be disclosed due to the results of the Douglas Zerby shooting.

On Dec. 12, 2010, Long Beach Police Department officers responded to an emergency call about an intoxicated man waving a gun in the garden of neighboring property in Long Beach, California.

DouglasZerby When the police arrived, they opened fire on the man when he pointed a black object in a two-handed posture. The police officers shot and killed 35-year-old man, Douglas Zerby, who was carrying a garden hose nozzle.

Three days after the shooting of Zerby in Long Beach, LA Times Reporter Richard Winton made a California Public Records Act request to the City to release the names of the Long Beach police officers involved in the shooting.  He also asked for all the names of all Long Beach police officers in officer-involved shootings from Jan. 1, 2005 to Dec. 11, 2010.

Under the California Public Records Act, the public has access to inspection and disclosure of certain governmental records upon request. While the actual police incident report is exempt from disclosure, information such as the time and circumstances of calls to police, name and details of arrests, warrants, charges, and hearing dates must be disclosed under the law, according to The First Amendment Project.

This California Public Records Act request sparked a lawsuit questioning whether or not the public had the right to the names of California police officers involved in shootings.

WaterNozzle On Dec. 30, 2010, the Long Beach Police Officers Association went to the superior court to block the police department from releasing the name of the officer to the Los Angeles Times. The union felt that releasing the names of police officers could expose the officers and their families to harassment.

“It was for the protection of the officers and their families, and perhaps to protect innocent people. The feeling was in this day and age of the Internet, releasing the individual’s name is tantamount to also putting their address with their name,” said Long Beach police union attorney, James E. Trott.

Trott explained that the Internet makes it accessible to find out somebody’s address, which can lead to information about an officer and his or her family. He also mentioned that it could lead to the harm of innocent people if an officer has a common name and someone planning to retaliate finds information about the wrong person with the same name.

The trial court ruled that none of the disclosure exemptions in the California Public Records Act protected the names of police officers and therefore the public deserved access to officers’ identities.

The case was brought to the California Supreme Court after the Police Union and the City appealed without success.

One issue in the litigation was over the Pitchess statute, a California law that can require a court to keep officer’s “personnel records” – records relating to internal disciplinary actions imposed on officers and also the officer’s home address– from being made public. The police union then fought that the Pitchess statute protected the names of police officers.

However, the LA Times argued that the names of police officers are not “personnel records.”  The attorneys claimed that the Pitchess Statute and California Public Records Act generally protects the disclosure of an officer’s discipline, citizen complaints, or “reports or findings” records, but not the officer’s name.

On May 29, 2014, the state’s highest court ruled 6-1 in favor of the LA Times, holding that the disclosure of police officers’ names generally must be released because the public‘s interest in police conduct outweighs officers’ personal privacy interest. The court decided that names could be withheld only if there is substantial evidence that officers’ safety is at risk.

“It can’t just be mere speculation that there is going to be harm to an officer, it has to be something that is imminent danger or imminent threat to the officer,” said Jim Ewert, General Counsel, California Newspaper Publishers Association.

While Lieutenant Jeff Hallock believes that the public has the right to know officers’ names, he also thinks cases need to be incident driven in case an officer’s life is in jeopardy.

“If there’s anything that may compromise their safety, I think that’s something that needs to be taken into consideration before a name is released,” Lieutenant Hallock said.

After four years of court battles, the ruling made it possible for the public to have access to the facts in order to make their own judgments about the shootings.

“In many cases, you read, hear, or see the results of investigations that shootings are justified. But, there is really no independent investigation. There’s no way for the public to see it for itself whether that authority had indeed been abused,” Ewert said.

California Attorney General stated that disclosing police officers’ names would only communicate a statement of fact, but would not imply any judgments that the actions were taken inappropriately.

“Releasing the names of officers gives information for the public to analyze what happened in the public event. When there’s openness instead of secrecy there’s greater accountability,” said Karlene Goller, UC Irvine Media Law Professor, who represented the LA Times in this case.

The California Supreme Court held in Long Beach Police Officers Association v. Los Angeles Times Communications that Pitchess statutes are silent as to whether the names of officers involved in shootings are protected personnel records. It was ruled that officers’ names are not protected since uniformed officers are required to display their name or identification number while on duty.

The Union and City sought a blanket rule preventing the disclosure of officers’ names every time an officer is involved in a shooting. This Supreme Court rejected this rule because that would protect the names of officers involved in heroic shootings.

Attorney James E. Trott believes that the release of officer’s names may affect police conduct.

“Now you are thinking of your families well-being, those are the things going through your head that didn’t before,” Trott said.

On the other hand, according to Lieutenant Hallock and General Counsel Jim Ewert, the release of officer’s names will not have an affect on police officer’s decision-making using force.

“You’re reacting to what you’re seeing at that moment. And you’re so dialed into what’s in front of you,” Hallock said.

“In short term it doesn’t seem that it’s affected them. Just in Los Angeles County alone, we’ve seen three instances now since the ruling where there have been allegations of police abuse, unjustified shootings, and shootings of unarmed individuals,” Ewert said.

A Federal jury later awarded Zerby’s family $6.5 million after concluding that the officers had behaved recklessly when they shot Zerby. In Mark Zerby v. City of Long Beach the jury ruled that the involved officers were negligent and used excessive force.

“I was there that night. I saw the body. I saw the hose, and until I was really right on top of it, I thought it was a gun,” said James E. Trott, lawyer who represented the Long Beach Police Officers Association.

The lawyer’s who represented the Zerby family claimed that the officers acted with malice or reckless disregard for life when they opened fire on Zerby without any verbal warning before shooting multiple times.

The City of Long Beach filed an appeal on Nov. 1, 2013, claiming that the defendants did not act negligently. The appeal is currently pending in the U.S. Court of Appeals, Ninth Circuit and has yet to be determined.

While the Zerby shooting became a monumental case for California, some believe that knowing officer’s names is just a small piece to a much larger puzzle regarding police privileges and misconduct.

“The Supreme Court’s decision with respect to the disclosure of shooter’s names, is just a very tiny crack in the open door to let the public see police misconduct. But, it’s a very, very narrow crack,” Ewert said.