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Tentative Ruling in Pike v. University of California Board of Regents, issued March 15, 2012. Note: This is a copy of the ruling retrieved from the Alameda County Superior Court website that the court posted in its entirety in a menu of case documents. It's not an official copy of the order (for instance, is not formatted as a legal document, does not carry full information on the case title, and does not include the signature of the judge issuing the order, Evilio Grillo. As noted in the ruling's final paragraph, this order is stayed until April 2, 2012, to allow the plaintiffs in the case (lawyers for UC Davis Police Sgt. John Pike and others) to appeal the order. This Tentative Ruling is issued by Judge Evelio Grillo.

The motion of Plaintiffs John Pike and The Federated University Police Officer's Association (collectively "Petitioners") for a preliminary injunction came on regularly for hearing on March 16, 2012, in Department 31 of this Court, Judge Evelio Grillo presiding. Petitioners, appeared by counsel John Bakhit, of Lackie, Dammeier & McGill. Defendant the Regents of the University of California (the "Regents") and Opposing Party appeared by counsel Nancy Sheehan of Porter/Scott. Intervener the American Civil Liberties Union of Northern California (the "ACLU") appeared by counsel Michael Risher.

The Court having considered the pleadings and arguments submitted in support of and in opposition to the motion, and good cause appearing, it is hereby ORDERED that: (1) the motion of the Petitioners for a preliminary injunction is DENIED, and (2) the motions of the Petitioners and the Regents to seal portions of the record are DENIED.

BACKGROUND FACTS.

Starting in mid-November 2011, there were protests at UC Davis regarding tuition and other issues, and on November 17, 2011, students put up an Occupy encampment at the UC Davis Quad. By the next day, the UC Davis administration had decided to remove the

encampment and to that end the administration directed the UC Davis Police Department ("UCDPD") to take action. In the course of interacting with the demonstrators at the Quad, an officer or officers used pepper spray on several of the demonstrators. The administration's decision and efforts to remove the encampment, including specifically the UCDPD's use of pepper spray (collectively the "Incident"), was both widely reported and widely criticized. Following the Incident, UC Davis placed three police officers on administrative leave and commenced an Internal Affairs investigation. UC Davis also organized a task force (the "Task Force") headed by Cruz Reynoso to review the Incident and to make recommendations regarding police procedures, command protocols, campus policies, and oversight structures. UC Davis also retained Kroll Associates, Inc. as an independent contractor to collect information and to prepare a report regarding the Incident and to make policy level recommendations. The resulting combined Reynoso/Kroll Report (collectively the "Report") is the subject of this motion.Kroll's investigation was separate from any Internal Affairs ("IA") investigation by the UCDPD. The Kroll report states, "[T]he Kroll Team has had virtually no contact with the Internal Affairs (IA) investigative team. The IA investigative team has not provided or shared any information with the Kroll team, including a witness list." (Kroll report page 6 fn 1.) The Kroll investigation obtained documents from UC Davis, but the Kroll report states that there were "records withheld [by UC Davis and/or UCDPD] on the basis of peace officer personnel record provisions." (Kroll report page 7.) UC Davis has not shared any documents generated in the IA process with Kroll or with the Task Force. (Meyer Dec., para 6.) The Kroll investigation interviewed police officers who were witnesses to the Incident under an agreement with counsel for those officers that the officers would be given administrative immunity and that they could not be subject to discipline for anything they revealed during those interviews. (Bakhit Dec., paras 8-9; Woodall Dec., para 2.) Kroll

did not interview police officers who were the subject of IA investigations. (Woodall Dec., para 2.) The Kroll report states, "As personnel investigations are deemed confidential, under California law, this report does not include information obtained from any interview of any officer whose use of force is being reviewed or who has been deemed a potential subject of discipline; only witness officers have been interviewed." (Kroll report page 6 fn 1.) The Kroll report is extensive and detailed. The report collects and contains facts regarding all aspects of the Incident, from the how the administration's decision-making process worked, to how the administration communicated instructions to the UCDPD, to the content of those instructions, to how the UCDPD planned for clearing the Quad, to how the UCDPD supervised officers at the Quad, to the actions of individual officers at the Quad. The Kroll report does not recommend any discipline for any police officer. The Kroll report states, "Kroll's report does not address the issue of discipline to be imposed, if any, on individual officers for any use of force that occurred on November 18." (Kroll report page 6 fn 1.) The Kroll report makes recommendations regarding decision-making by the UC Davis administration, the organization of the systemwide UC police force, and proposed training for UC police officers. Kroll makes no recommendations regarding any individual person or police officer. The Reynoso report, which attaches the Kroll report, reviews the factual summary in the Kroll report, makes conclusions regarding responsibility for the Incident, and makes policy recommendations. (Reynoso report page 5.) The Reynoso report's factual summary is entirely derivative of the Kroll report. (Reynoso report page 6.) Regarding assigning responsibility for the Incident, the Reynoso report assigns responsibility to the UC Davis administration and to members of the UCDPD. The report considers various decision points in the Incident and describes how and why those decisions were made by specific individuals. (Reynoso report pages 10-16 (deficiencies at the administrative level) and pages 17-20 (deficiencies in the police operation).) The report then assigns