Lois Henry

Saturday, Jul 27 2013 10:00 PM

LOIS HENRY: The CHP stonewalls the public on the Silva case

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    Californian columnist Lois Henry

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By Lois Henry

Sometimes I read stuff in the paper that just makes my jaw drop. Like, how about a state agency -- whose main function is to interact with the public -- refusing to let the public see the policies governing how it's supposed to conduct that interaction?

That's the California Highway Patrol, by the way.

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Lois Henry appears on "First Look with Scott Cox" every Wednesday on KERN 1180 AM from 9 to 10 a.m. The show is also broadcast live on www.bakersfield.com. You can get your two cents in by calling 842-KERN.

Oh, but wait, don't answer yet!

The CHP has also refused to name its two officers who were involved in the David Sal Silva death.

The agency has never cited an actual legal reason for not giving up the names, it's just refused them. Case closed. Not quite, but we'll come back to that.

Silva died May 8 after a Kern County sheriff's deputy awakened him while he was sleeping on a strip of lawn across from Kern Medical Center.

Silva reportedly became agitated and it took seven deputies, a dog and two CHP officers to subdue him. Silva died on the sidewalk after being hobbled or possibly hogtied.

The hobbling/hogtying issue is potentially a big deal considering lawyers have suggested that may have been the underlying cause of Silva's death.

The Kern County Coroner's office has said Silva died of hypertensive heart disease and labeled his death an accident.

And while witnesses have said Silva was hogtied (wrists and ankles lashed together behind the back), Kern County Sheriff Donny Youngblood has said he was hobbled, which typically refers to leg-restraint only.

Those issues will likely be battled out in court.

•••

Meanwhile, we at the paper thought we'd ask a fairly simple question: What are the sheriff's and CHP's policies on hobbling and hogtying?

The Sheriff's Office shared Kern's policies right away.

The CHP, not so much.

It claimed its policies on the use of what it called its "Nylon Leg Restraint" have been "deemed confidential for officer safety and security reasons and, as such, are exempt from disclosure," according to an article by Steven Mayer published in The Californian July 21.

That was from the CHP's lawyer, Jonathan Rothman, who cited good, old Section 6254(f) of the California Public Records Act to withhold the information.

That section gives law enforcement agencies a number of exemptions from disclosing certain information, including "security procedures."

We can argue all day long over whether "security procedures" include CHP policies on the appropriate use of hobbles and hogtying.

I, of course, would argue that the two are not the same. In support, I would note that there is no case law that has ever interpreted 6254(f) to allow law enforcement agencies to withhold their policies from public review.

Policies on how agencies deal with the public absolutely should be open to public review.

Aside from all that, Rothman's comment that the policies "are deemed confidential for officer safety and security reasons" is cynical in the extreme.

Under that scenario, anything could be "deemed" confidential for officer safety and withheld.

The law only allows a limited number of very specific exemptions from releasing information. Add to that, Article 1, Section 2 of the California Constitution directs public agencies to broadly interpret laws in favor of the public's right of access and to narrowly construe laws if they restrict that access.

The CHP's attitude flies in the face of that edict.

***

Now, back to the names of the CHP officers involved in the Silva incident.

As I said, the CHP has never given a reason for withholding the names.

Even Youngblood, during his May 23 press conference, refused to attach the names of the deputies to the timeline he laid out on Silva's death. He had released their names following the incident and said the deputies had received death threats.

Because of that, he said at the time, his office would not release the names of any deputies involved in major incidents going forward.

He has since altered that stance and named deputies in an officer-involved shooting last month.

I asked Youngblood about his change of heart and his answers were terse.

He said the department would continue to release names prior to shooting review board findings "unless there is a reason not to."

I asked if he could give me his list of reasons "not to" and he said "No." I asked "why not" and he declined to answer.

OK, I'm glad Youngblood is moving in the right direction.

But not releasing an officer's name when he/she is involved in a major incident should only be considered under very limited and defined circumstances. Such as the officer is undercover.

A badge and a gun gives a cop immense power. Knowing officers' names is an important check on that power.

The vast majority of case law has recognized the need for that check.

As it happens, another case came down just last week that says officers must be named.

In a published opinion (that means it holds a lot of weight), the First District Court of Appeal found that officers who pepper sprayed students during a 2011 protest at UC Davis must be named. The Federated University Police Officers Association had sued to stop the names from being released.

The First District Court of Appeal relied on previous cases decided by the California Supreme Court, which has repeatedly found that the names of officers are not private.

In its conclusion on the UC Davis case, the First District Court of Appeal wrote: "As our Supreme Court has emphasized, '[t]he public has a legitimate interest not only in the conduct of individual officers, but also in how . . . local law enforcement agencies conduct the public's business.'"

I presented that case and all my best arguments to the CHP's Rothman who said that I had indeed "raised several issues." He pledged to respond.

As you can see from the distinct absence of names of the CHP officers as well as the agency's hobble/hogtying policies, I still have a bit of convincing to do.

Opinions expressed in this column are those of Lois Henry, not The Bakersfield Californian. Her column appears Wednesdays and Sundays. Comment at http://www.bakersfield.com, call her at 395-7373 or e-mail lhenry@bakersfield.com

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