9th Circuit blocks release of sheriff’s internal jail-death reviews, denying Union-Tribune’s request

The 9th Circuit Court of Appeals has rejected a request from The San Diego Union-Tribune and other news organizations to reconsider a ruling that blocked the release of internal Sheriff’s Office records tied to nearly a dozen people’s deaths in local county jails.

The decision closes out litigation that began in 2023, when the Union-Tribune, Voice of San Diego and Prison Legal News sought access to reports produced by the Sheriff’s Critical Incident Review Board, or CIRB. The board, an internal panel, meets after someone dies or is seriously injured in custody to assess what went wrong and whether policy changes are needed.

In June 2023, U.S. District Judge Jinsook Ohta ordered that CIRB reports tied to 11 incidents be unsealed, writing that “there are valid and compelling reasons for the public to be informed about conditions inside the county jails.”

The documents were first sought by lawyers for Frankie Greer, who suffered a traumatic brain injury after he had a seizure and fell from his top bunk at the Central Jail. The county agreed in early 2023 to settle the case for $7.75 million.

Shortly after Ohta’s ruling, county lawyers filed an appeal, arguing that CIRB reports are shielded by attorney-client privilege because a sheriff’s lawyer participates in the meetings.

In February, a 9th Circuit panel overturned Ohta’s order in a 2-1 decision. In March, the news organizations requested an en banc hearing — or a review of the case by all 9th Circuit judges.

But on Wednesday, the full court declined to rehear the case.

Since the February ruling, county lawyers have asked judges in other lawsuits tied to jail deaths to withhold CIRB reports or reverse prior decisions to hand over the records.

Attorney Grace Jun, who’s litigated several jail-death cases, said Thursday’s decision would “absolutely” block access to those reports going forward.

“As far as future requests are concerned, the county will object to producing any responsive documents based on privilege,” she said. “Given the 9th Circuit’s ruling and the denial en banc, I don’t see a judge ordering those documents to be produced.”

Plaintiffs’ attorneys say CIRB reports have been crucial in showing the Sheriff’s Office knew about deficiencies in its jails but didn’t make changes.

In a March 1, 2023, order denying the county’s motion for summary judgment in the Greer case, Judge Ohta cited similar findings in several CIRB reviews and noted that top sheriff’s officials, including former Sheriff Bill Gore, signed off on the reports.

“Supervisory Defendants became personally aware of numerous inmate deaths resulting from jail personnel failures … to address serious medical needs identified during medical screenings and effectively communicate those medical needs between jail divisions to provide adequate care,” she wrote.

While running for sheriff in 2022, Kelly Martinez pledged to release CIRB reports to the public if she was elected. After winning the seat, Martinez reversed course and decided to release only brief summaries from the meetings.

The sheriff’s website includes summaries for 2022 cases and all but two 2023 cases. No 2024 reviews have been posted. When asked about this, a Sheriff’s Office spokesperson said the department was working on it.

Both the California State Auditor and the county’s Citizens’ Law Enforcement Review Board have recommended that full CIRB reports be released publicly. A law authored by former state Sen. Toni Atkins, aimed at reducing jail deaths, requires the release of “documents setting forth findings or recommended findings” after a death.

But lawyers for the Sheriff’s Office have withheld the records, claiming attorney-client privilege and arguing that disclosing them would undermine the sheriff’s ability to examine missteps and misconduct by staff.

San Diego attorney Timothy Blood, one of the lawyers who sued for CIRB reports on behalf of the news organizations, said the 9th Circuit decision “gives the county a roadmap on how to hide these documents from the public.”

“However, lawyers representing these families have found other ways to uncover the truth,” he added.

These lawsuits have cost the county tens of millions of dollars over the last few years alone.

“A good steward of taxpayer money would disclose the CIRB documents,” Blood said. “We hope the sheriff will choose that role or that the county will compel her.”