California appellate court vacates prior restraint order

Tom Isler | Prior Restraints | News | April 20, 2015

A California appellate court reversed course on Friday and vacated what media lawyers described as an unconstitutional prior restraint order.

Last month, the court sealed a legal brief filed by the Pasadena Police Officers Association that quoted from a confidential report on the 2012 police shooting of teenager Kendrec McDade. The court’s order also directed the parties to the lawsuit, including the Los Angeles Times, which had long sought to obtain the report, to return all copies of the brief to the court. The police union didn’t move to seal the brief until nine days after it had been filed.

The Reporters Committee for Freedom of the Press, on behalf of nine media and free speech organizations, submitted a friend-of-the-court letter urging reversal of the sealing order. The Reporters Committee wrote: “An order to seal an already viewed document and return copies of that document to the court, with the implicit understanding that the party cannot retain or publicize that information, functions as a prior restraint on speech.”

Last year, a California trial court ordered the City of Pasadena to release the report with only limited redactions. The police union filed a petition with the appellate court to prevent disclosure.

In support of its position, the police union publicly filed a legal brief that quoted excerpts from the confidential report. More than a week later, apparently after realizing its error or rethinking its legal strategy, the police union asked the court to seal the brief and to order all parties to return to the brief to the court. The appellate court granted the request, which the Los Angeles Times immediately challenged.

On Friday, the appellate court reversed itself without explanation. The court’s short order simply vacated its prior order, unsealed the brief in its entirety, directed the clerk to return copies to the parties, and ordered the redacted version of the brief to be “stricken.”

The Los Angeles Times has published portions of the confidential report that have been made public. According to the newspaper, the report concludes that the police’s conduct was “troubling” and that the officers repeatedly made tactical errors that put themselves in such a position that they perceived deadly force to be necessary. The officers were cleared of wrongdoing by the police department, the newspaper reported.