Filing sealed by court is unlawful censorship, newspaper attorneys argue

An appellate court order sealing a previously public court filing that disclosed parts of a report on an officer-involved shooting was an unconstitutional censorship of the press, attorneys for the Los Angeles Times and other news organizations wrote in papers filed Thursday.

The 2nd District Court of Appeal on Wednesday ordered sealed a document filed nine days earlier by the Pasadena Police Officers Assn., which included about a dozen excerpts from an independent consultant’s report on the 2012 fatal shooting of an unarmed teenager by two Pasadena police officers.

An attorney for the union asked for the order, saying the union’s filing had “inadvertently, and mistakenly, included verbatim excerpts” of the report it had previously argued was the officers’ confidential personnel information and should remain secret. The union was challenging a Los Angeles County Superior Court judge’s ruling in October that portions of the report could be released.

In an opposition filed Thursday, attorneys for The Times argued that because the information had already been handed over to members of the public and the newspaper, sealing it after the fact would in effect be “prior restraint,” or censoring information before publication.

“The result of the Court’s Order has been the immediate and absolute chilling of the [newspaper’s] speech,” attorneys wrote, calling the union’s request for the order more than a week after its papers were made publicly available an “attempt to put the genie back in the bottle.”

Noting that the U.S. Supreme Court has said only information such as the movement of troops at wartime or “information that would set in motion a nuclear holocaust” would justify prior restraint, the newspaper’s attorneys wrote that the union’s situation “does not come close to presenting such extraordinary circumstances.”

Police union attorney Richard Shinee did not respond to a request for comment Thursday afternoon.

A coalition of several media and 1st Amendment organizations, including the Associated Press, the New York Times and the Reporters Committee for Freedom of the Press, separately asked to be heard in the case and urged the court to reverse its sealing order, calling it unconstitutional.

“Permitting the March 25 order to stand would set a dangerous precedent of restricting publication of lawfully obtained information,” attorneys for the press and free speech organizations wrote. “The order removes information of public concern from the hands of the media, preventing the press everywhere from reporting on issues of intense public interest.”

The case arose out of the death of Kendrec McDade, a 19-year-old who was shot and killed by Officers Matthew Griffin and Jeffrey Newlen as they responded to a report of armed robbery. The shooting was determined to be justified by the Los Angeles County district attorney’s office and by the police department’s internal review.

The department commissioned a report on the incident by the Office of Independent Review consulting group. The police union sued last year to block the city from releasing it publicly, citing the officers’ rights; they were opposed by The Times as well as McDade’s mother and Pasadena community groups.

The McDade family and the Pasadena chapter of the NAACP joined The Times in arguing to vacate the order.

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