Major National Media Join Effort to Overturn Gag Order in McDade Shooting Report Case

Major national and state media weighed in to support the Los Angeles Times and Pasadena police-oversight activists in objecting to an appellate court order that attempts to retroactively seal comments in an official report about the actions of two Pasadena police officers who shot and killed an unarmed young black man in 2012.

The critical comments were in the court files and open to the public for nine days before the appellate sealing order was issued..

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.

Read the amicus letter here

The lawsuit at issue arose from the Pasadena police shooting of Kendrec McDade three 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 per cent of the McDade shooting report released to the Los Angeles Times and Pasadena police-oversight activists who had made Public Records Act Requests for the Report.

Chalfant overruled the objections of attorneys representing the two police officers who shot McDade. The officers and their union then appealed; a hearing on the appeal is set for April 21.

On March 16, the attorneys for the 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 report from the Court files.

On March 25, the attorneys for the officers and the police union said they had mistakenly published the criticisms they are trying to keep secret and asked the Court to require all parties to return the Reply and let them file a copy of their Reply that redacts the criticisms of the officers.

The appellate court agreed and issued the requested order immediately.

The Los Angeles 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 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 one 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 Los Angeles 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 verbatim quotations from the documents after the Court had ordered those comments sealed.

“The appellate court has done the very thing that it has reversed trial courts for doing,” said 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. “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.”