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Court begins to backtrack on unconstitutional ‘sealing-clawback’ order
News Apr 02, 2015
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The California Court of Appeal Wednesday began backtracking on its order sealing and clawing back a brief that contained 10 verbatim excerpts from the OIR McDade Shooting Report. The brief was filed by the very attorneys for the Police Officers who were trying to keep the whole McDade Shooting Report secret — including trying to keep secret the 10 verbatim excerpts from the Report that paradoxically were quoted in their brief. After that brief was publicly available in the court files and in the hands of the opposing attorneys for 9 days, the Police
Officers’ attorneys realized they made a mistake and applied to belatedly have the brief sealed in the court file and the briefs clawed-back that were sent to their adversaries. Division 1 of the 2 District nd Court of Appeals granted the sealingclawback order on March 25 without the opportunity for the opposing parties in the lawsuit to be heard. Attorneys for the opposing parties and major national and state media and free press organizations immediately filed objections to the
sealing-clawback order, citing numerous cases holding that what the Court order did was a constitutionally impermissible prior restraint on free press and free speech rights. Wednesday afternoon, the Court of Appeal implicitly recognized that it made a mistake by saying that it “is considering vacating” its order and giving the Officers’ attorneys 5 days to try to convince the Court not to dissolve the sealing-clawback order.
Civil rights attorney Skip Hickambottom, who represents Anya Slaughter, the mother of the unarmed African-American youth shot by Pasadena PD Officers as well as Pasadena activist and progressive organizations, said: “This is the beginning of the end for the sealing-clawback order. The Court apparently recognized that its order was a mistake. But it is proceeding more judiciously than
it did at first by giving the attorneys for the Officers a chance to convince the Court to change its mind – an opportunity that our side did not have when the sealing-clawback order was issued.”
The lawsuit involving these developments arose from Pasadena PD
Officers Robert Griffin and Jeffery Newlen shooting of the unarmed African-American youth Kendric McDade three years ago. The City commissioned anoutside review of the McDade shooting by the Office of Independent ReviewGroup; it issued its Report last summer. The Officers and their union attemptedto block public release of the Report, but the trial court ordered 80% of the Report
released. The Officers are challenging that release order in the Court of Appeals. The sealing-clawback order has proven ineffective because Hickambottom’s partner Dale Gronemeier distributed the brief to a number of Pasadena police reform activists when it was legal for him to do so before the sealing-clawback order was issued. Michelle White, the former President of the local ACLU chapter who was one of those recipients but is not within the Court of Appeal’s
jurisdiction because she is not a party to the lawsuit, leaked the report to the Pasadena Star News and Pasadena Independent outlets; the Star News and Pasadena Independent published
verbatim some of the quotations from the Report and summarized the rest of them; Pasadena-based public radio station KPCC then followed suit by publishing all of them verbatim. Monday night, White and 6 other local activists read the Report’s excerpts to the Pasadena City Council. Gronemeier welcomed the Court’s order and said that “the Court of Appeal was in danger of looking like the emperor with no clothes because of the widespread disregard for its order. Vacating the sealing-clawback order should not be the only end result of this. California law provides that the disclosure of a significant part of an otherwise-privileged document waives all privileges for the
document. The bonehead disclosure by the Officers’ attorneys has now waived all privileges for the whole McDade Shooting Report, so we should now be getting 100% of the Report, not 80%, and the appeal should be dismissed as moot.”
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