Police must ID officers in on-duty shootings, court rules

May 29, 2014 5:06 PM PT

Reporting from San Francisco — Police agencies must reveal the names of officers involved in on-duty shootings unless there is specific evidence that disclosure would pose a safety threat, the California Supreme Court decided Thursday.

The 6-1 ruling by the state’s highest court is expected to end blanket police policies against disclosure and reverse a statewide trend toward keeping officer names private. The court said the California Public Records Act does not permit police agencies to cite general concerns about officer safety to justify withholding names.

“If it is essential to protect an officer’s anonymity for safety reasons or for reasons peculiar to the officer’s duties — as, for example, in the case of an undercover officer — then the public interest in disclosure of the officer’s name may need to give way,” Justice Joyce L. Kennard wrote for the majority. “That determination, however, would need to be based on a particularized showing.

“Vague safety concerns that apply to all officers involved in shootings are insufficient to tip the balance against disclosure of officer names,” Kennard wrote.

Policies on releasing names vary among law enforcement agencies. The Los Angeles Police Department generally identifies officers involved in shootings. The Los Angeles Sheriff’s Department does not. Mike Durant, president of the Police Officers Research Assn. of California, said he believes “many if not most” police departments in the state have policies against releasing officers’ names.

The case stemmed from an effort by the Los Angeles Times to obtain the names of Long Beach police officers involved in the fatal shooting of Douglas Zerby, 35, in 2010. The officers mistook a garden hose nozzle Zerby was holding for a gun.

Times reporter Richard Winton made a California Public Records Act request for the names of the officers who shot Zerby and the identities of all Long Beach officers who had been involved in on-duty shootings in the previous five years.

The Long Beach Police Officers Assn. went to court to prevent the city from disclosing the names, citing the confidentiality of personnel records and a need to protect officer safety. Lower courts ruled for The Times, but the police group and the city of Long Beach appealed.

Justice Ming W. Chin, in a dissent, said the ruling would impose “an obvious and substantial burden on law enforcement agencies” when the public seeks the names of officers involved in shootings over a lengthy time period. The kind of evidence required to keep names private will be unavailable in most cases, Chin said.

“Because the lives of our officers and their families are at stake, I would not require a law enforcement agency to wait until there is a specific threat — or worse, an actual attack — before allowing it to withhold information that puts its officers and their families at risk,” Chin wrote.

Kelli L. Sager, who represented The Times in the case, agreed that police agencies will have a “difficult burden to meet” if they try to withhold officer names.

“This is a matter of extreme public importance, and The Times has been litigating this issue with police departments throughout the state for many years,” Sager said.

Law enforcement agencies in California for many years routinely released the names of officers who shot people on the job. The practice changed in 2006, when the state high court ruled that all records of police officer disciplinary proceedings must be confidential. Police unions argued the ruling also protected the privacy of officers involved in shootings.

But the court said Thursday that the 2006 decision applied to confidential personnel records and discipline matters, not the names of officers.

“When it comes to the disclosure of a peace officer’s name, the public’s substantial interest in the conduct of its peace officers outweighs, in most cases, the officer’s personal privacy interest,” Kennard wrote.

Other law enforcement groups sided with the Long Beach police union in the case, arguing that disclosures would endanger officers and their families because home addresses and telephone numbers can be obtained on the Internet.

Lt. Steve James, president of the Long Beach Police Officers Assn., called the ruling “very concerning.”

“What happens when we receive a credible threat after the name of an officer is released?” James asked. “We can’t get that information back.”

Long Beach Assistant City Atty. Michael Mais said the city was unlikely to ask the court to reconsider because it would probably be futile. He said Long Beach would now release officer names in all cases except when it can show a “particularized, credible threat” against an officer.

“It would be a situation where someone is making a direct threat to an officer immediately following a shooting,” Mais said. “If someone says, ‘I am going to go after that police officer when I find out who he is, and I am going to harm him and his family,’ the burden would be on the city to show that is a real threat.”

Long Beach lawyers will meet with the Police Department to discuss The Times’ public record request, now 4 years old, for the names of officers involved in shootings before the Zerby killing, Mais said.

James Trott, who represented the Long Beach police association, called Thursday “a sad day for law enforcement.”

But the Los Angeles Police Department, the state’s largest local law enforcement agency, generally releases the names of officers involved in shootings without any consequences. “We haven’t had any real issues,” said Cmdr. Andrew Smith, an LAPD spokesman.

LAPD officers are involved in dozens of shootings each year, and each is investigated by a specialized police unit. Investigators scour social media and websites, meet with anti-gang and community liaison officers and check with the involved officers themselves, Smith said. If any plausible threats are uncovered, they are passed on to the detectives for further investigation.

It is rare that threats are uncovered, and typically names are released within several days of a shooting. Although officers are sometimes apprehensive about having their names made public, Smith said he knew of no cases in which officers were harmed because of having their names released. “For us, this procedure has worked well,” he said.

The Los Angeles Sheriff’s Department, which patrols large unincorporated areas of the county and scores of smaller cities, has rejected requests from media for the names of deputies involved in shootings.

When The Times sued the Sheriff’s Department in 2009 over its refusal to identify two officers involved in the fatal shooting of an unarmed suspect and those in other shootings, the sheriff waged a court battle for more than a year and a half before being ordered to release the names. A spokeswoman for the Sheriff’s Department said the agency “will comply with the court’s decision,” but details of a new policy had not yet been decided.

Long Beach Police Chief Jim McDonnell, a candidate for sheriff, said he welcomed the court’s action. McDonnell said he had been inclined to release the officer names to The Times in 2010, but the police union sued to keep them secret.

“Too often,” McDonnell wrote in an email, “law enforcement treats the vast majority of what it does as secret and dissuades public involvement, when in fact very little need be kept confidential and the engagement of our community should be embraced and welcomed.”

The Times, backed by other media and California ACLU groups, had argued that the public had the right to know the identities of officers who use lethal force.

“The court’s decision is a victory for Californians and for transparency in government,” said Times Editor Davan Maharaj. “Reporting on how police perform their duties is a core part of our mission. This ruling will strengthen the ability of journalists across California to do their job.”

Los Angeles prosecutors eventually revealed the names of the officers who shot Zerby in a report that exonerated the police. A caller had told police that there was an intoxicated man with a gun outside a Belmont Shore apartment complex. A federal jury later awarded Zerby’s family $6.5 million after concluding that the two officers had behaved recklessly in shooting Zerby. An autopsy showed he was shot 12 times.

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Dolan reported from San Francisco, Rubin from Los Angeles.