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June 3, 2014

California Supreme Court Mandates the Release of Identifying Information of Peace Officers Involved in Shootings under the CPRA

On May 29, 2014, the California Supreme Court mandated the release of the names of police officers involved in shootings.  The decision in Long Beach Peace Officers Association v. City of Long Beach stemmed from an incident on December 12, 2010 in which two Long Beach police officers responded to a call about an intoxicated man brandishing a gun on neighboring property.  After a man pointed an object resembling a gun at them, the officers opened fire and killed the man.  As it turned out, the object the man had in hand was a garden hose spray nozzle with a pistol grip.  The shooting came to be known as the “Zerby shooting.”

Three days later, a reporter for the Los Angeles Times made a request under the California Public Records Act (“CPRA”) for the names of the officers involved in the Zerby shooting, as well as the names of the officers involved in shootings for the six (6) years preceding that shooting.  The Long Beach Peace Officers Association (“Union”) filed for injunctive relief to enjoin the release of the information.  In support of its request, the Union attached a declaration from its president, expressing concern that the release of the officers’ names could result in threats against them and their families.  The Union also referenced a recent police shooting which led to death threats against the involved officer, as well as an anonymous post on an internet website that suggested that harm be done to officers involved in on-duty shootings.
The Supreme Court performed a thorough analysis of the exemptions to disclosure under the CPRA and concluded that none applied to prohibit the disclosure of the officers’ names.  The Court paid specific attention to the “catchall” exemption in Gov. Code § 6255(a), which allows a public agency to “justify withholding any record by demonstrating that . . . on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”  Ultimately, the Court found that the catch-all exception did not apply as the balancing of interests tipped in favor of disclosure: 

Vague safety concerns that apply to all officers involved in shootings are insufficient to tip the balance against disclosure of officer names. As we have said in the past, [a] mere assertion of possible endangerment does not ‘clearly outweigh’ the public interest in access to . . . records.

The Court also contrasted a law enforcement agency’s duty to disclose information under the CPRA with its duty to preserve confidentiality of personnel records under the Pitchess statutory framework. The Court concluded that the names of officers involved in shootings do not constitute a confidential personnel record, but instead, the type of information that would regularly be produced pursuant to a CPRA request.  The Court summarized its holding as follows:

Understandable are the general safety concerns of officers who fear retaliation from angry members of the community after an officer-involved shooting, especially when the shooting results in the death of an unarmed person.  But the Legislature, whose laws we must construe, has not gone so far as to protect the names of all officers involved in such shootings.  That the Legislature generally considers it important for the public to know the identities of the officers serving the community is reflected in the statutory provision requiring a uniformed officer to display either a name or an identification number (Pen. Code, § 830.10).

Lastly, it is important to note that the underlying petition for an injunction was dismissed without prejudice.  In so doing, the Court put the onus on parties resisting CPRA requests to articulate, with particularity, legitimate threats to the officers whose names are sought.  Thus, the Court left an opening for these types of CPRA requests to be denied in exceptional circumstances.  

Takeaway Points for Public Agencies:

  • The Supreme Court mandated the disclosure of the identifying information of officers involved in shootings under the CPRA.
  • In order to prevent disclosure of the name of officers involved in shootings, there must be a particularized showing of a legitimate threat of danger to the officer.  Mere speculation is insufficient.  

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