Law murky on identifying police in homeless death

AP News
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Posted: Aug 26, 2011 8:01 PM
Law murky on identifying police in homeless death

The refusal of police to release the names of six officers involved in a violent confrontation with a mentally ill homeless man has sparked anger but legal experts said Friday there is significant debate about whether law enforcement can _ and should _ publicly identify police in such instances.

The Fullerton Police Department maintains it is not giving the officers special protections following last month's death of Kelly Thomas, 37, and the district attorney has launched an investigation into his death. The FBI has also initiated a criminal inquiry into whether the officers violated Thomas' civil rights.

Legal experts say that California law is murky on the question of whether law enforcement agencies should routinely release the names of cops involved in officer-involved deaths, and every department handles things differently depending on their interpretation of the law.

A number of cases currently working their way through the legal system address the tension between the full disclosure required by the state's public records law and another law that exempts key parts of police officers' personnel records, said Michael Gennaco, an independent consultant hired by Fullerton to investigate the Thomas case.

"It's certainly a legal issue that has been percolating up and down the state of California on a number of fronts," he said. "Arguments can be made in both directions about what disclosure is appropriate or what disclosure should occur."

If any of the officers in the Thomas case are criminally charged, their names would automatically become public record.

Barring that, getting the names could be an uphill legal battle depending on the approach taken by the district attorney and the local police department, said Merrick Bobb, executive director of the Police Assessment Resource Center, a non-profit that provides advice on police best practices nationwide.

So far, the Fullerton Police Department has declined to release the officers' names, as has the Orange County district attorney.

The district attorney this week rejected a public records request from The Orange County Register and cited a list of threats to the police following the July 5 incident in its response.

The city has not yet replied to a similar records request from the AP. The coroner's office also rejected an AP request for Thomas' autopsy report.

The decision angered Thomas' father and promises to reinvigorate protesters who have been marching each Saturday outside the Fullerton police station.

"Like everything they do, they cite officer safety, officer privacy, the officers' bill of rights. It's a double standard," said Thomas' father, Ron Thomas. "They're afraid for their safety. Well, you know what? My son was afraid for his safety and he lost that battle. We're all supposed to have rights, but they violated them to the highest extent."

If any officers are eventually charged, the names of those individuals will be released, but they are otherwise protected by the state law dealing with exemptions for things in their personnel files, such as internal investigations, disciplinary actions and performance evaluations, said Sgt. Andrew Goodrich, a spokesman for the Fullerton police.

The law is intended to protect officers in situations involving "the politics and the public fervor" generated by highly charged incidents such as the Thomas death, Goodrich said.

"You have these protections so you don't have a situation where a politician or the management of an organization decides it's politically expedient to take a certain action against a police officer.

"If I arrest the mayor's son, suddenly my job's in jeopardy for arresting the mayor's son. The decisions have to be made putting all the public pressures and politics aside," he said.

Bobb said a number of agencies statewide have interpreted the law the same way since the California Supreme Court handed down its decision in Copley vs. the Superior Court in 2006.

In that case, The Copley Press Inc. challenged the San Diego County Civil Service Commission's closure and sealing of the record regarding an unnamed officer who fought dismissal.

In their ruling, the justices said police officers deserve more protection than other government employees to, among other things, shield "peace officers from publication of frivolous or unwarranted charges."

"The state of the law is such that if they don't want to disclose, they do have some legal grounds for that decision," Bobb said. "If an officer is cleared, then there's no particular reason for his or her name to be made public and some choose not to do so."

Some lower courts, however, have ordered the names of officers released in other cases despite the Copley decision and a number of cases are still moving through the courts, making it an area of law that's still in flux, said Gennaco, the independent consultant.

In some of those cases, the agencies are arguing that the officers face threats if their names are revealed, he said.

That could be at play in the Thomas case, given the district attorney's listing of threats made to the police following the incident.

The current case is also interesting, Gennaco said, because it was a public action but the records requested do not, at this point, involve files from an internal affairs investigation.

The internal probe is on hold until the district attorney's investigation has concluded.

"There's no real guidance on that scenario on what a city needs to do or even what a city should do and I think the arguments could be made on both side for that," he said.

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Associated Press writer Amy Taxin contributed to this report.