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National and Local Media seek to overturn appellate gag order on McDade Shooting Report
News Mar 30, 2015
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Anya Slaughter and Kenneth McDade at their son, Kendrec’s funeral- Photo by Terry Miller
Major national and state media weighed in to support the LA Times and
Pasadena police-oversight activists in objecting to an appellate court order that
attempts to retroactively seal criticisms of the Pasadena police – criticisms that
were in the court files and open to the public for 9 days before the appellate
sealing order. The New York Times, Wall Street Journal, Washington Post,
Associated Press, San Francisco Chronicle, Sacramento Bee, and the chain that
includes the Pasadena Star News filed an amicus letter with Division 1 of the
Second District Court of Appeal objecting to the court’s March 25 retroactively
sealing the criticisms.
The lawsuit arises from the Pasadena police shooting of the unarmed
African-American youth Kendric McDade 3 years ago. The City of Pasadena
commissioned an outside review of the McDade shooting that was finally
concluded last summer.
In November, Los Angeles Superior Court Judge James Chalfant ordered
80% of the McDade Shooting Report released to the LA Times and Pasadena
police-oversight activists who made Public Records Act Requests for the Report,
overruling the objections of the 2 Officers who shot McDade. The 2 Officers and
their union then appealed; a hearing on the appeal is set for April 21.
On March 16, the attorneys for the 2 Officers submitted their Reply which
contained 1 ½ pages of verbatim quotations from the report they were trying to
keep secret. Besides disclosing significant portions of the Report to their
adversaries, any member of the public could obtain the 2 Officers’ Reply
containing devastating criticisms of them from the Court files. On March 25, the
attorneys for the 2 Officers said they had mistakenly published the criticisms they
are trying to keep secret and asked the Court to require the parties to return the
Reply and let file a copy of their Reply that redacts the criticisms of the 2 Officers.
The appellate court issued the requested order immediately.
The LA Times and the Pasadena activists immediately filed opposition to
the sealing order, citing authorities that the order is an unconstitutional prior
restrain that violates the First Amendment to the U.S. Constitution and the free
press protections of the California constitution. Among the scores of cases they
cited, they particularly emphasized Hurvitz v. Hoeflin, a 2000 District 2 Court of
Appeal case holding that a court order attempting to retroactively seal an
otherwise privileged document that was inadvertently filed in court records for 1
day was an unconstitutional prior restraint on the right of the press to publish the
document; the Court of Appeal in the Hurvitz case reversed the trial court’s
sealing order.
The LA Times and the Pasadena activists were supported last week by the
Amicus letter from major national and state media and free press organizations.
Also last week after the order was issued, the Pasadena Star News published the
verbatim quotations and summarized others in a s front-page story.
Skip Hickambottom, one of the Pasadena-area civil rights attorneys
representing the mother of McDade and other local activists in seeking release of
the report, said “The appellate court has done the very thing that it has reversed
trial courts for doing. I suspect they will realize they made a mistake and dissolve
the order rather than forcing the Supreme Court to reverse them like they
reversed a trial court. But it all doesn’t matter – the genie is out of the bottle
because the press is ignoring the sealing order. The Pasadena Star News has
followed in the tradition of the New York Times on the Pentagon papers by
ignoring government attempts to suppress critical information that the public
should know about the government that acts in their names.”
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