United States v. Reid, 369 F.3d 619 (1st Cir. 05/27/2004)

[1] United States Court of Appeals For the First Circuit


[2] No. 03-1159


[3] 369 F.3d 619


[4] May 27, 2004


[5] UNITED STATES OF AMERICA, APPELLEE,
v.
RICHARD C. REID, DEFENDANT, APPELLANT.


[6] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, Chief U.S. District Judge]


[7] Owen S. Walker, with whom Elizabeth L. Prevett and the Federal Defender Office were on brief, for appellant.


[8] Gary S. Katzmann, Assistant U.S. Attorney, with whom Michael J. Sullivan, U.S. Attorney, Gerard T. Leone, Jr., First Assistant U.S. Attorney, and Timothy Q. Feeley and Colin Owyang, Assistant U.S. Attorneys, were on brief, for appellee.


[9] Before Boudin, Chief Judge, Lynch and Howard, Circuit Judges.


[10] The opinion of the court was delivered by: Lynch, Circuit Judge.


[11] On December 22, 2001, Richard Reid tried unsuccessfully to destroy American Airlines Flight 63 over the Atlantic Ocean by detonating explosives hidden in his shoes. The plane was diverted to Boston, where Reid was arrested. On October 4, 2002, Reid pleaded guilty to eight terrorism-related offenses, *fn1 and on January 30, 2003, he was sentenced to serve the remainder of his life in prison. At the sentencing hearing, Reid declared his continuing allegiance to the terrorist Osama bin Laden, adding: "I think I ought not apologize for my actions. I am at war with your country . . . ." A few days later, Reid was transferred from Massachusetts to a maximum security federal prison in Florence, Colorado (ADX Florence), where he remains today.


[12] This interlocutory appeal *fn2 concerns the conditions of Reid's pre-sentence confinement. Reid contends that the government violated his First Amendment rights by restricting his access to news media while he was detained in Massachusetts. As a federal prisoner housed at the Massachusetts Correctional Institute at Cedar Junction, Reid was permitted to use funds from his prison account to purchase a subscription to Time magazine. Under a set of "special administrative measures" imposed on Reid by the U.S. Marshals Service (USMS) at the direction of the Attorney General, an FBI special agent removed the "letters to the editor" section from each issue of Time (the Time letters) before giving the magazine to Reid. The special agent also clipped two articles about terrorism from the magazine and withheld them from Reid. Reid petitioned the district court for access to the withheld material on First Amendment grounds. After a hearing on January 21, 2003, the district court denied Reid's request.


[13] We conclude this appeal has been overtaken by changes in the factual and legal circumstances of Reid's confinement. Although there remains a substantial dispute between the parties concerning Reid's access to Time, we nonetheless dismiss the appeal under the branch of the mootness doctrine barring courts from deciding a case when no practical consequences would flow from the decision.


[14] I.


[15] A. Special Administrative Measures


[16] Reid challenges the "special administrative measures" (SAMs) that governed his confinement while in Massachusetts. The Attorney General's power to promulgate SAMs for individual prisoners derives from 28 C.F.R. § 501.3 ("Prevention of acts of violence and terrorism"). See Yousef v. Reno, 254 F.3d 1214, 1219 (10th Cir. 2001). That regulation permits the Attorney General, who has plenary power over the management of federal prisons, see 18 U.S.C. § 4001(b), to impose on any individual prisoner "special administrative measures that are reasonably necessary to protect persons against the risk of death or serious bodily injury." § 501.3(a). To impose such SAMs, the Attorney General or the head of any federal law enforcement or intelligence agency must certify that, with respect to the prisoner in question,


[17] there is a substantial risk that [the] prisoner's communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.


[18] Id. Once authorized, SAMs may impose restrictions on the inmate's housing or privileges, including correspondence, visiting, interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to protect persons against the risk of acts of violence or terrorism.


[19] Id. The affected prisoner must be notified of the SAMs and the basis for their imposition. § 501.3(b).


[20] SAMs are not indefinite in duration. Before the September 11, 2001 terrorist attacks, the risk assessment underlying a set of SAMs was deemed valid for 120 days; when that period expired, a new risk assessment had to be conducted before the SAMs could be reimposed. Yousef, 254 F.3d at 1219; United States v. Johnson, 223 F.3d 665, 672 (7th Cir. 2000). After the September 11 attacks, the Bureau of Prisons amended § 501.3 to permit SAMs to remain in force for up to a full year with the approval of the Attorney General. § 501.3(c); see 66 Fed. Reg. 55062, 55062 (Oct. 31, 2001). The agency justified the extension by stating that the September 11 attacks had demonstrated "beyond question" that some terrorist conspiracies "are carried out over a long period--far in excess of 120 days." 66 Fed. Reg. at 55063. Though a prisoner might have limited ability to assist such efforts, the agency found, that fact "do[es] not diminish the urgent need for law enforcement authorities to curb the inmate's ability to participate in planning or facilitating those acts through communications with others within or outside the detention facility." Id.


[21] B. SAMs Imposed on Reid


[22] In February 2002, approximately two months after Flight 63 landed in Boston, the Attorney General authorized the USMS to issue SAMs regulating Reid's pre-trial confinement. Cf. 28 C.F.R. § 501.3(f) (allowing branches of the Justice Department other than the Bureau of Prisons to issue SAMs for persons in their custody). After the district court objected to the initial version of Reid's SAMs, see United States v. Reid, 214 F. Supp. 2d 84, 92 (D. Mass. 2002), a new version was issued on June 19, 2002. It was under the June 2002 SAMs that the USMS restricted Reid's access to Time magazine.


[23] The June 2002 SAMs purported to control all of Reid's written and recorded communications, including his receipt of written materials. Under the caption "Inmate Communications Prohibitions," the document provided:


[24] The inmate is prohibited from passing or receiving any written or recorded communications to or from any other inmate, visitor, or anyone else except as outlined and allowed by this document.


[25] The SAMs then set forth detailed rules governing Reid's access to visitors, telephone calls, and legal, consular, and non-legal mail. Reid's Time subscription qualified as incoming non-legal mail: (Non-legal/Non-consular) Mail - Any mail not clearly and properly addressed to/from the inmate's attorney and marked privileged, or consular mail (incoming or outgoing):


[26] i. Copied - Shall be copied (including the surface of the envelope) by the warden, or his/her designee, of the facility in which the inmate is housed.


[27] ii. Forwarded - Shall be forwarded, in copy form, to the location designated by the FBI.


[28] ...


[29] iv. Mail Seizure - If outgoing/incoming mail is determined by USMS or FBI to contain overt or covert discussions of or requests for illegal activities, the soliciting or encouraging of acts of violence or terrorism, or actual or attempted circumvention of SAM, the mail shall not be delivered/forwarded. The inmate shall be notified in writing of the seizure of any mail.


[30] These were the only provisions in the June 2002 SAMs pertaining to Reid's Time subscription.


[31] C. Reid's Motions for Access to Time


[32] Reid initially challenged these restrictions in June 2002, when he indicated his intent to subscribe to Time and filed a motion to prevent the government from interfering with the magazine's delivery. Because Reid had not yet subscribed to Time, however, the district court denied the motion as not ripe.


[33] Reid actually began subscribing to Time in September 2002. Initially, it appears, the magazine was delivered to him complete and without undue delay. Then, on October 30, the government informed defense counsel that it had removed an article about terrorism from Reid's October 21, 2002 issue of Time under the "Mail Seizure" provision of the SAMs. Reid tried to challenge that decision through administrative channels, cf. 28 C.F.R. § 501.3(e) (providing that inmates subjected to SAMs may seek review through an administrative process), but the government successfully took the position that administrative remedies were unavailable to Reid, apparently because he had not yet been sentenced.


[34] Reid responded by filing a renewed motion in the district court to enjoin the government from interfering with his Time subscription. He argued that government's censorship of his subscription violated his First Amendment rights. Reid also sought permission to purchase a radio, which was prohibited by the SAMs.


[35] The government defended the SAMs and their application to Reid's Time subscription and radio request as reasonably necessary for valid penological and national security purposes. The government justified this argument in part by reference to materials filed under seal. Certain outbound correspondence from Reid had been seized during his confinement in Massachusetts. The substance of that correspondence is not at issue in this case; the government submitted it simply to substantiate its claim (articulated in public) that Reid had indeed attempted to communicate with others while in custody. *fn3 The government also emphasized that Reid is an admitted member of al Qaeda, a terrorist organization that, according to the government, trains its members to exploit "innocent-looking" communications to relay coded messages to and from prison in the event of capture.


[36] On January 2, 2003, the district court held a hearing on Reid's motion. As to the radio, the motion was denied, and Reid has not appealed that decision. As to Time magazine, the court denied Reid's motion as moot after the government offered to give Reid the only two Time articles it had yet seized under the SAMs. *fn4 The court agreed to be available on short notice if the government further interfered with Reid's access to the magazine.


[37] Approximately one week later, Reid filed another motion concerning his Time subscription. He explained that the government had informed him after the January 2 hearing that (1) all further issues of Time magazine would be held by the USMS for thirty days before delivery, with the possibility that some terrorism-related materials would be withheld longer or even permanently, and that (2) all letters to the editor would be removed and withheld permanently. He again sought to enjoin the government from interfering with the complete and prompt delivery of the magazine.


[38] A new hearing was scheduled for January 21. The government told the district court that withholding the Time letters was necessary to ensure that Time did not unwittingly become a vehicle for al Qaeda agents to convey coded messages to Reid in prison. The defense attacked that argument, pointing out that Time publishes only 2-3% of the letters it receives and that those letters are subject to fact-checking and other editorial control. The government responded that deleting the letters was a reasonable exercise of penological discretion under the SAMs because coded messages in the letters -- the possibility of which, the government said, could not be ruled out completely -- might provoke "outbursts" by Reid and might enable him to continue his criminal activities through outgoing correspondence.


[39] The district court expressed some skepticism about the government's argument, observing:


[40] Mr. Reid is a very tall individual. But he's not ten feet tall. And this constant reiteration of we've got to keep data away from him, we've got to keep his data out of the hands of the public lest disaster befall, respectfully, is wearing a bit thin.


[41] Nevertheless, the court denied Reid's motion on the ground that the SAMs permitted the restriction: I don't see any right that [Reid] has articulated to receive Time Magazine that would overcome the appropriate general concerns set forth in the SAMs. I've respected the SAMs throughout. . . . And while I see nothing wrong with letting him have Time Magazine . . . I see no right for him to have Time Magazine.


[42] The court added that it was persuaded to rule for the government in part because of Reid's "ongoing intent" to harm the United States: "I make no bones about that. This man shows an ongoing intent of hostility to the United States and I, I have that very much in mind."


[43] Reid filed this interlocutory appeal on January 27, 2003. Three days later, on January 30, Reid was sentenced to life in prison, and on the following day he was committed to the custody of the Bureau of Prisons (BOP). On February 4, 2003, the BOP transferred Reid from Massachusetts to ADX Florence, the maximum security facility in Colorado where he will serve his sentence.


[44] II.


[45] On appeal, Reid asks this court to decide three questions: (i) whether the June 2002 SAMs were procedurally invalid; (ii) whether those SAMs were unconstitutionally overbroad under the First Amendment; and (iii) whether the USMS's withholding of the Time letters under the June 2002 SAMs violated Reid's First Amendment rights. The government defends the SAMs but also urges dismissal on a variety of grounds, including (1) that this court lacks appellate jurisdiction over Reid's interlocutory appeal, and (2) that this appeal has been mooted by events after the district court denied Reid's motion, including the expiration of the June 2002 SAMs and Reid's February 2003 transfer to ADX Florence.


[46] For the reasons explained below, we conclude that Reid's appeal to this court is moot. Accordingly, we do not reach the government's challenge to our appellate jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85 (1999) (jurisdictional issues may be addressed in any sequence); cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 66-67 (1997) (court may assume without deciding that standing exists in order to analyze mootness).


[47] Article III prohibits federal courts from deciding "moot" cases or controversies -- that is, those in which "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)); Gulf of Maine Fishermen's Alliance v. Daley, 292 F.3d 84, 87 (1st Cir. 2002). Mootness problems may arise at any point in a proceeding. "Even if an actual case or controversy exists at the inception of litigation, a case may be rendered moot (and, therefore, subject to dismissal) if changed circumstances eliminate any possibility of effectual relief." Me. Sch. Admin. Dist. No. 35 v. Mr. & Mrs. R., 321 F.3d 9, 17 (1st Cir. 2003); see also Mangual v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003). That is because, under Article III, federal courts have no authority to decide questions that cannot affect the rights of the litigants before them. Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (citing North Carolina v. Rice, 404 U.S. 244, 246 (1971)).


[48] In lay terms, we recognize, it might be somewhat odd to describe Reid's claims in this case as "moot." Without a doubt, there is a substantial and continuing dispute between Reid and the government concerning his access to Time magazine. The government still has not turned over the Time letters that it seized; Reid still demands access to those letters. In that pragmatic sense, the controversy remains "live" and the parties adverse.


[49] The problem is that even if this court decided the questions raised in Reid's appeal, the pragmatic dispute between the parties would be unaffected. That is because the factual and legal circumstances surrounding Reid's case have changed so dramatically that Reid no longer asserts an injury that is "likely to be redressed by a favorable judicial decision" in this proceeding. Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis, 494 U.S. at 477). Any opinion on the merits of Reid's appeal to this court would be merely advisory. Accordingly, we have no choice but to dismiss the case as moot. See Mangual, 317 F.3d at 60 ("If events have transpired to render a court opinion merely advisory, Article III considerations require dismissal of the case.").


[50] We reach this conclusion for several reasons. First, the June 2002 SAMs -- the regulations that Reid challenges on constitutional and procedural grounds -- are no longer in effect. By regulation, those SAMs expired on June 19, 2003, one year after their adoption. See 28 C.F.R. § 501.3(c). No interest of Reid's would be served by invalidating them now: the June 2002 SAMs no longer determine his conditions of confinement, and there is no claim for damages (actual or nominal) for Reid's alleged deprivations while those SAMs were still in effect. Cf. Mr. & Mrs. R., 321 F.3d at 17 (changed circumstances do not moot claims for money damages). As we observed in the Daley case, which similarly involved an attack on a regulation that expired while the litigation was pending, "[t]his court has no means of redressing either procedural failures or substantive deficiencies associated with a regulation that is now defunct." 292 F.3d at 88.


[51] Moreover, the BOP has imposed on Reid a new set of SAMs, effective August 14, 2003, at the ADX Florence facility in Colorado (the Colorado SAMs). Unlike the June 2002 SAMs, the Colorado SAMs contain provisions specifically regulating Reid's access to the mass media. The Time letters initially seized by the USMS in Massachusetts have been forwarded to ADX Florence, where the FBI has seized them anew under the mass media provisions of the Colorado SAMs. *fn5 As a result, even an order from this court finding that the June 2002 SAMs were unconstitutional would not result in Reid's recovery of the seized Time letters. The Colorado SAMs -- the only basis for the government's continued withholding of the Time letters -- are not before us.


[52] Nor has Reid articulated any persuasive reason why this court should decide his appeal notwithstanding the expiration of the June 2002 SAMs and his transfer to ADX Florence. This is not a case involving a defendant's property interest in something taken by the government --defense counsel made clear at oral argument that Reid is not interested in an order declaring that the Time letters are his property and must be returned to his family or to his lawyer. Cf. Fed. R. Crim. P. 41(g) (authorizing motions for the return of seized property).


[53] Rather, Reid contends that this appeal is not moot because a judgment from this court would assist him in future litigation against BOP officials in Colorado. We disagree. This is not an appeal in a civil case; it is an interlocutory appeal from the denial of a motion in a criminal prosecution. If Reid were to prevail, his remedy would be simply the reversal of the district court's January 21, 2003 order. Plainly, the Colorado SAMs would not be affected by our reversal of that order, which was predicated on the now-expired June 2002 SAMs and which the district court itself did not believe would apply beyond the date of sentencing. *fn6


[54] Even aside from the question of available remedies, a victory for Reid in this appeal would not meaningfully assist him in challenging the conditions of his confinement at ADX Florence. *fn7 His procedural challenge to the June 2002 SAMs obviously has no bearing on the validity of the Colorado SAMs, which were separately promulgated. Likewise, even if Reid were to prevail in his substantive overbreadth challenge to the June 2002 SAMs, that would not determine the constitutionality of the Colorado SAMs. Reid's overbreadth argument is framed in terms of executive discretion: he says that mail seizure provisions of the June 2002 SAMs gave the USMS too much discretion to censor constitutionally protected speech. Unlike the June 2002 SAMs, however, the Colorado SAMs expressly cabin the discretion of prison officials to deny Reid access to most mass media. *fn8 So in any overbreadth attack on the Colorado SAMs, the judicial inquiry will be materially different.


[55] Nor would a victory for Reid in his as-applied challenge to the June 2002 SAMs likely bear fruit in Colorado. That is because the relevant legal question in any such First Amendment challenge is whether the restrictions imposed are "reasonably related to legitimate penological interests" under the circumstances. Thornburgh v. Abbott, 490 U.S. 401, 413 (1989) (quoting Turner v. Safely, 482 U.S. 78, 89 (1987)). If challenged, the reasonableness of the Colorado SAMs would be evaluated against the background of Reid's final conviction and sentence, not to mention the grave security considerations that attend the BOP's management of one of the nation's highest security prison facilities. *fn9 See id. at 418 (one factor in evaluating the reasonableness of a prison restriction on incoming publications is the effect that accommodating the asserted constitutional right would have on order and security in the prison). A judgment from this court invalidating the June 2002 SAMs, which were adopted in very different circumstances, would not significantly assist that inquiry.


[56] Nor does Reid's appeal come under the exception to the mootness doctrine for cases "capable of repetition, yet evading review." S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 514 (1911). That doctrine applies only where two circumstances are present: "(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again." Spencer, 523 U.S. at 17 (quoting Lewis, 494 U.S. at 481); see also Daley, 292 F.3d at 88-89.


[57] If the problem in this case were simply that the one-year duration of the SAMs frustrated Reid's ability to obtain judicial review, the capable-of-repetition exception might apply. *fn10 But that is not the situation here. The Colorado SAMs are not the "same action" as the June 2002 SAMs; on the contrary, they impose substantively different restrictions and reflect new factual developments (i.e., Reid's conviction, sentencing, and transfer to a different prison facility). The June 2002 SAMs themselves are not reasonably likely to be repeated. Under these circumstances, the capable-of-repetition exception is unavailable. See Daley, 292 F.3d at 90 (new regulation was not the "same action" for purposes of the capable-of-repetition doctrine because the new regulation was different in scope and based on new factual developments).


[58] In sum, the factual and legal boundaries of the parties' dispute have changed so completely since the district court's January 21, 2003 order that any decision by this court on the issues raised in Reid's appeal would be essentially irrelevant. Reid may still be aggrieved by the government's conduct, but as to the district court order that is the subject of this appeal, Reid lacks "a particularized, concrete stake that would be affected by our judgment." Lewis, 494 U.S. at 479. Accordingly, this appeal is moot and must be dismissed. See id.; Mangual, 317 F.3d at 60; Daley, 292 F.3d at 88.


[59] If Reid still wishes to challenge the government's continued withholding of the Time letters, he may do so by whatever procedures are available to him in Colorado, including any required administrative review. Cf. 42 U.S.C. § 1997e(a); 28 C.F.R. § 501.3(e). Although Reid has expressed concern that the outcome of the present litigation may somehow prejudice him should he choose to file a new action in Colorado, we see no prejudice. Our mootness holding depends on our conclusion that the June 2002 SAMs have expired and have no continuing effect. And to ensure that Reid suffers no adverse consequences from the district court's January 21, 2003 order, we will vacate it. See United States v. Munsingwear, Inc., 340 U.S. 36, 39-41 (1950) (noting that the standard practice in cases that become moot on appeal is to vacate the judgment below).


[60] III.


[61] The appeal is dismissed and the district court order below is vacated. So ordered.



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Opinion Footnotes

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[62] *fn1 Reid pleaded guilty to attempted use of a weapon of mass destruction, 18 U.S.C. § 2332a(a)(1); attempted homicide, 18 U.S.C. § 2332(b)(1); placing an explosive device on board an aircraft, 49 U.S.C. § 46505; attempted murder, 49 U.S.C. § 46506(1) and 18 U.S.C. § 1113; two counts of interfering with an airline flight crew and attendants, 49 U.S.C. § 46504; attempted destruction of an aircraft, 18 U.S.C. § 32(a); and using a destructive device during and in relation to a crime of violence, 18 U.S.C. § 924(c). The ninth count in the indictment -- attempted wrecking of a mass transportation vehicle, 18 U.S.C. § 1993(a) -- was dismissed by the district court. See United States v. Reid, 206 F. Supp. 2d 132, 142 (D. Mass. 2002).


[63] *fn2 Reid's challenge to his criminal conviction is the subject of a separate appeal to this court. See United States v. Reid, No. 03-1198 (1st Cir. docketed Feb. 10, 2003).


[64] *fn3 This sealed correspondence has not been made public. The news media did appear at the January 21, 2003 hearing and move for access to the materials, and the district court required the government to submit an affidavit to support its assertion that national security considerations justified keeping the correspondence under seal. That was done, and on January 28, 2003, the district court denied the motion.


[65] *fn4 The first article that the government seized was from the October 21, 2002 issue of Time. Entitled "Al-Qaeda: Alive and Starting to Kick Again," it described statements by Osama bin Laden and Ayman al-Zawahiri that were broadcast in early October 2002 on the al-Jazeera television network. The second, entitled "Why Can't We Find Bin Laden?," appeared in the November 25, 2002 issue of Time. That article, too, discussed a recorded statement issued by bin Laden. The government voluntarily gave both articles to Reid after the January 2, 2003 hearing, saying that delaying Reid's access to that material for thirty days was sufficient for the government's purposes.


[66] *fn5 In relevant part, the SAMs governing Reid's confinement at ADX Florence provide: Access to Mass Communications: To prevent the inmate from receiving and acting upon critically-timed information or information coded in a potentially undetectable manner, the inmate's access to materials of mass communication is restricted as follows: a. Periodicals/Newspapers - ... ii. Sections of the periodical/newspaper which offer a forum for information to be passed by unknown and/or unverified individuals, including but not limited to classified advertisements and letters to the editor, should be removed from the periodicals/newspapers prior to distribution to the inmate.


[67] *fn6 During the January 21, 2003 hearing, the district court recognized its limited ability to affect Reid's access to Time magazine after sentencing: "Understand that at most I'm thinking of the time between now and the imposition of sentence. . . . Once he's sentenced I think that I would have little, if anything, to say about it. But in the interim maybe I have something to say."


[68] *fn7 Of course, a favorable decision of any kind by this court might be useful to Reid for its precedential value, but the mere desire for a favorable precedent is not sufficient to prevent a case from becoming moot. Bd. of Educ. v. Ill. State Bd. of Educ., 79 F.3d 654, 659 (7th Cir. 1996); United States v. Fischer, 833 F.2d 647, 649 (7th Cir. 1987).


[69] *fn8 The Colorado SAMs ensure Reid access to any "publications determined not to facilitate criminal activity or be detrimental to national security; the security, good order or discipline of the institution; or the protection of the public."


[70] *fn9 As the government noted at oral argument, Reid is not the only convicted terrorist held at ADX Florence. See, e.g., Yousef v. Reno, 254 F.3d 1214, 1216-17 (10th Cir. 2001).


[71] *fn10 But see Gulf of Maine Fishermen's Alliance v. Daley, 292 F.3d 84, 89 (1st Cir. 2002) (plaintiff failed to show that fishing regulations, though effective for only one year, could not be fully litigated within that time frame).

LUWANA JONES, Individually and as the Executor of the ESTATE OF CALVIN COLE, JR. (deceased), Plaintiff, vs. THE CITY OF INDIANAPOLIS, OFFICER MORTON GALLAGHER, OFFICER ALLEN ENGHERT, OFFICER GEOFFREY BARBIERI and JOHN DOE INDIANAPOLIS POLICE OFFICERS, Individually and as Indianapolis Police Officers, Defendants.



CAUSE NO. 02-1152 C Y/K



UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, INDIANAPOLIS DIVISION



216 F.R.D. 440; 2003 U.S. Dist.



June 27, 2003, Decided



SUBSEQUENT HISTORY: Later proceeding at Jones v. City of Indianapolis, 2004 U.S. Dist. (S.D. Ind., Mar. 31, 2004)



DISPOSITION: [**1] Defendants' motion GRANTED IN PART and DENIED IN PART.




COUNSEL: For LUWANA JONES, Plaintiff: Michael K. Sutherlin, MICHAEL K. SUTHERLIN & ASSOCIATES, PC, Indianapolis, IN.



For INDIANAPOLIS, CITY OF, MORTON GALLAGHER, ALLEN ENGLERT, GEOFFERY BARBIERI, JOHN DOE INDIANAPOLIS POLICE DEPARTMENT OFFICERS, Defendants: Julie J. Carrell, OFFICE CORPORATION COUNSEL, Robin M. Lybolt, OFFICE OF CORPORATION COUNSEL, Indianapolis, IN.



For MORTON GALLAGHER, ALLEN ENGLERT, GEOFFERY BARBIERI, Defendants: John F. Kautzman, RUCKELSHAUS ROLAND KAUTZMAN BLACKWELL & HASBROOK, John C. Ruckelshaus, RUCKELSHAUS ROLAND HASBROOK O'CONNE, Indianapolis, IN.



JUDGES: Tim A. Baker, United States Magistrate Judge, Southern District of Indiana.



OPINION BY: Tim A. Baker



OPINION:

[*441] ENTRY ON DEFENDANTS' MOTION FOR A PROTECTIVE ORDER AND FOR A LIMITED STAY OF DISCOVERY

After being apprehended for fleeing from the Indianapolis Police Department ("IPD") following a traffic stop, IPD transferred Calvin Cole, Jr. to the hospital in a paddy wagon. Upon his arrival to the hospital, Cole was pronounced dead. As a result, Cole's mother, Luwana Jones, individually and as the personal representative of her late [**2] son ("Plaintiff"), filed suit against the city of Indianapolis and several officers from its police department in their individual capacities (collectively "Defendants").

[*442] In discovery, Plaintiff sought to depose IPD investigators, and obtain documents relating to the IPD investigation that followed Cole's death. Defendants objected and moved for a protective order, claiming that this information is protected by the law enforcement investigatory privilege and the deliberative process privilege. Plaintiff claims that the information sought is factual rather than evaluative in nature, and is crucial in proving her case. Defendants have also moved for a limited stay in discovery pending the United States Department of Justice's ("DOJ") investigation into Cole's death. For the reasons set forth below, Defendants' motion for a protective order is GRANTED IN PART and DENIED IN PART, and Defendants' motion for a limited stay of discovery is GRANTED.



I. Background

A. Nature of Action

The complaint alleges that on the evening of March 6, 2002, Defendant IPD officer Morton Gallagher observed Cole driving at a high rate of speed. [Compl. PP 9-11]. When Gallagher pulled Cole over, [**3] Cole exited his vehicle and fled. With the assistance of several IPD officers, including Defendants Allen Englert, Geoffrey Barbieri, and other unknown IPD officers, IPD arrested Cole. [Id. at PP 11, 13, 16, 18-19]. Using a pair of handcuffs, one of the officers delivered at least two blows to Cole's head and neck area. In addition, another unknown officer kneed Cole in the back as Cole pleaded for them to stop. [Id. at PP 21-23]. Another officer "maced" Cole for four to five seconds. [Id. at P 25].

IPD placed Cole in a paddy wagon and transported him to Wishard Memorial Hospital. Upon arrival at the hospital, Cole was unconscious, and subsequently was pronounced dead. Cole suffered a blunt force injury to the head which contributed to his death. [Id. at PP 26-28].

Plaintiff filed suit against the city of Indianapolis, the above-named police officers, and other unknown police officers in their individual capacities asserting excessive force claims under 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments, and asserting wrongful death claims under Indiana Code § § 34-23-1-1and 34-23-1-2.

B. Focus of the Discovery [**4] Dispute

On March 6, the same day as Cole's death, IPD's homicide branch initiated an internal investigation. [Foley Affid., P 4]. Sgt. Prater led the investigation, and Lt. Rice assisted. As is routine in any IPD homicide investigation, the officers collected evidence and took witness statements of fellow police officers and other witnesses. [Id. at PP 5-6]. However, approximately one month later, in April 2002, the DOJ initiated its own investigation, and ordered that IPD's investigation cease. [Id. at P 7]. The DOJ's investigation is on-going. While the outcome of this investigation cannot be predicted, it could result in the indictment of one or more of the individually named Defendants in this case. As part of its investigation, the DOJ interviewed Sgt. Prater, Lt. Rice, and several other IPD officers. [Id. at P 8].

On January 21, 2003, Plaintiff sent to Defendants a notice of deposition and subpoena duces tecum requesting documents and the depositions of Sgt. Prater and IPD Officer Lossie Branscumb, the officer who drove the paddy wagon on the night of Cole's death. Contending that Branscumb is a fact witness, Defendants did not object to Plaintiff taking [**5] his deposition. Plaintiff deposed Branscumb on February 5. However, on February 3 Defendants filed a motion to quash the subpoena with regard to the Prater deposition, claiming his testimony was protected by the law enforcement investigatory privilege. On February 5, the Court denied Defendants' motion to quash, ordered Plaintiff to re-notice Sgt. Prater's deposition on a date convenient to both parties, and ordered that Prater's deposition be sealed for a 30-day period. [Docket No. 26, 28].

On February 10, Plaintiff sent to Defendants a subpoena duces tecum requesting the deposition of Sgt. Prater and requesting documents compiled by IPD in the course of its investigation of the Cole homicide. In response, on February 12, Defendants filed a motion to quash the subpoena claiming that the documents sought were protected by the [*443] investigatory privilege. [Docket No. 29, P 10]. In the meantime, Plaintiff served a request for production of documents. Defendants again objected, contending the requested documents are "official, confidential, deliberative, and/or investigatory in nature and thus are privileged from discovery." [Defs.' Br., p. 4]. This cause is before the Court on Defendants' [**6] fully-briefed motion for a protective order and for a stay of discovery. The Court held oral argument on the pending motion on June 24, 2003.



II. Discussion

A. Applicability of the Freedom of Information Act & Indiana Law

Before turning to the merits, the Court notes that in support of their respective positions, the parties rely on both the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et. seq., and Indiana Code § 5-14-3-4. The FOIA defines "agency" in 5 U.S.C. § 552(f) as follows:

(f) For purposes of this section, the term-





(1) "agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.





Harrell v. Fleming, 285 F.3d 1292, 1293 (10th Cir. 2002), quoting § 552(f). See also DeHarder Inv. Corp. v. Indiana Housing Finance Authority, 909 F. Supp. 606, 616 (S.D. Ind. 1995). The term "agency" in the FOIA [**7] does not apply to municipal agencies such as IPD or its officers. See, e.g., Kerr v. United States District Court for the Northern District of California, 511 F.2d 192, 197-98 (9th Cir. 1975) aff'd 426 U.S. 394, 48 L. Ed. 2d 725, 96 S. Ct. 2119 (1976) (FOIA does not apply to municipal corporations); Esseily v. Giuliani, 2000 U.S. Dist. LEXIS 11525, 2000 WL 1154313, *1 (S.D.N.Y. 2000), citing Washington v. Police Dep't, 1994 U.S. Dist. LEXIS 11717, 1994 WL 455512 at *1 (S.D.N.Y. 1994) (refusing to apply FOIA to New York City police department); Rankel v. Town of Greenburgh, 117 F.R.D. 50, 54 (S.D.N.Y. 1987) (FOIA does not apply to municipalities). See also Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 484 (2nd Cir. 1999), quoting Philip Morris, Inc., v. Harshbarger, 122 F.3d 58, 83 (1st Cir. 1997) ("FOIA ... applies only to federal executive branch agencies"). As a result, the Court finds the parties' references to FOIA misplaced.

The parties' reliance on I.C. § 5-14-3-4 also misses the mark. "Whenever a principal claim in federal court arises under federal law, with pendent jurisdiction over a state claim, federal common law of privileges apply. [**8] " Wilstein v. San Tropai Condominium Master Ass'n, 189 F.R.D. 371, 375 (N.D. Ill. 1999), quoting in part Memorial Hospital For McHenry County v. Shadur, 664 F.2d 1058, 1062 (7th Cir. 1981) ('The principal claim ... arises under ... a federal law. Because the state law does not supply the rule of decision as to this claim, the district court was not required to apply state law in determining whether the material sought ... is privileged. Instead, the question of whether the privilege asserted ... should be recognized is governed by federal common law."); Addis v. Holy Cross Health System Corp., 1995 U.S. Dist. LEXIS 10122, 1995 WL 429270, *3-4 (N.D. Ind. 1995) ("in a non-diversity case such as this, the existence of an asserted privilege must be determined by reference to federal common law even where, as here, the action includes pendent claims under state law.") (internal citations and quotations omitted).

The parties conceded at oral argument that FOIA and I.C. § 5-14-3-4 do not apply in this instance. Defendants asserted, however, that these statutes provide strong evidence of public policy that a privilege should be afforded. While these statutes may be indicative [**9] of certain public policies regarding disclosure, in the final analysis this Court is bound by federal common law in assessing Defendants' asserted privileges.

B. Law Enforcement Investigatory Privilege

The law enforcement investigatory privilege is "a qualified common law privilege protecting civil as well as criminal law enforcement investigatory files from civil discovery." [*444] In re Adler, Coleman, Clearing Corp., 1999 WL 1747410, *3 (S.D.N.Y. 1999), citing Friedman v. Bache Halsey Stuart Shields, Inc., 238 U.S. App. D.C. 190, 738 F.2d 1336, 1341 (D.C. Cir. 1984). See also Hernandez v. Longini, 1997 U.S. Dist. LEXIS 18679, 1997 WL 754041, *3-4 (N.D. Ill. 1997) (law enforcement investigatory privilege arises under common law and is "incorporated under Fed. R. Civ. P. 26(b)"); United States v. Lilly, 185 F.R.D. 113, 115 (D. Mass. 1999) ("The federal courts have recognized a qualified common-law privilege ... for law enforcement investigatory information."). The purpose of the privilege "is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witnesses and law enforcement personnel, to safeguard [**10] the privacy of individuals involved in an investigation, and otherwise prevent interference in an investigation." In re Polypropylene Carpet Antitrust Litigation, 181 F.R.D. 680, 686-87 (N.D. Ga. 1998), quoting In re Department of Investigation, 856 F.2d 481, 484 (2d Cir. 1988). See also United States v. Winner, 641 F.2d 825, 831 (10th Cir. 1981) ("The law enforcement investigative privilege is based primarily on the harm to law enforcement efforts which might arise from public disclosure of ... investigatory files.").

"A finding that the documents fall within the scope of the law enforcement investigatory privilege does not end the Court's analysis." Polypropylene, 181 F.R.D. at 688. The law enforcement investigatory privilege is not absolute. It can be overridden in appropriate cases by the need for the privileged materials. See Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir. 1997), citing Tuite v. Henry, 321 U.S. App. D.C. 248, 98 F.3d 1411, 1417-18 (D.C. Cir. 1996). The balancing of that need -- the need of the litigant who is seeking privileged investigative materials - against [**11] the harm to the government if the privilege is lifted "is a particularistic and judgmental task." Dellwood Farms, 128 F.3d at 1125. It is therefore confided to the discretion of the district court, meaning that appellate review is deferential. Id., citing Tuite, 98 F.3d at 1415-16. Defendants, the party claiming the privilege, bear the burden of justifying application of the investigatory privilege. See Doe v. Hudgins, 175 F.R.D. 511, 514-15 (N.D. Ill. 1997).

In balancing the public interest in protecting police investigations against the needs of civil rights plaintiffs, the Court will consider ten factors first announced in Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973), which, "although not exhaustive, are useful in making this determination." Tuite v. Henry, 181 F.R.D. 175, 177 (D.D.C. 1998). These factors are:





(1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information;



(2) the impact upon persons who have given information of having their identities disclosed;



(3) the degree to which governmental [**12] self-evaluation and consequent program improvement will be chilled by disclosure;



(4) whether the information sought is factual data or evaluative summary;



(5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question;



(6) whether the investigation has been completed;



(7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation;



(8) whether the plaintiff's suit is nonfrivolous and brought in good faith;



(9) whether the information sought is available through other discovery or from other sources; and



(10) the importance of the information sought to the plaintiff's case.





Tuite, 181 F.R.D. at 177, citing Frankenhauser, 59 F.R.D. at 344. The Court has "considerable leeway" weighing these factors in the undertaking of the essential balancing process. Tuite, 181 F.R.D. at 177.

1. Defendants' Privilege Claims

Defendants claim that the law enforcement investigatory privilege applies to the following items:





[*445] (1) Any depositions [**13] of homicide or internal affairs investigators;



(2) Handwritten notes of any IPD personnel [Privilege Log Nos. 4, 10,19, 21-25, & 29];



(3) Anonymous letter to the East District [Privilege Log No. 3];



(4) Affidavit of probable cause submitted by Detective Stephen J. Burke [Privilege Log No. 16];



(5) Mecca 552.txt dated 4/15/02 and 4/16/02 [Privilege Log No. 17];



(6) Confidential request for subpoena duces tecum for phone records subpoenaed by grand jury to Ameritech/SBC requested by Sgt. Prater [Privilege Log No. 18];



(7) Handwritten letter from "Herb" to Mr. Allen and corresponding envelope [Privilege Log Nos. 8 & 9];



(8) E-mail dated 7/9/02 to Sgt. Prater and Lt. Rice from Joseph Mason regarding investigation [Privilege Log No. 26];



(9) E-mail dated 7/21/02 to Sgt. Prater from Anthony Finnell regarding investigation [Privilege Log No. 27];



(10) E-mail dated 3/13/02 to Carole Johnson from Lt. Rice regarding investigation [Privilege Log No. 28];



(11) Property room vouchers or disposition orders that could disclose evidence taken by the FBI or DOJ [Privilege Log Nos. 31 & 32]; n1 and



(12) Any interdepartmental [**14] communications regarding the death of Cole [Privilege Log Nos. 5-7, 13-15 & 20].





[Defs.' Br., pp. 10-11]. The Court will now examine whether this evidence is protected by the investigatory privilege.



n1 Citing to Privilege Log No. 32, Defendants claim as privileged the "Entire Internal Affairs File." [Defs.' Ex. D]. However, it is unclear whether the IA file in question is solely on the investigation of Cole's death, or the IA file of each individual officer. Therefore, to the extent Defendants assert a blanket privilege as to the entire contents of any IA file, Defendants' objection is overruled.



2. Application of the Frankenhauser Factors

Defendants contend that the disclosure of the above-referenced evidence will result in irreparable harm to both the Defendants and the integrity of the DOJ's investigation. [Defs.' Br., pp. 8-12]. In response, Plaintiff states that it is "inconceivable" that she be denied access to "crucial" fact witnesses such as Sgt. Prater and Defendants, and [**15] that the information she seeks is not obtainable from any other source. [Pl's Br., pp. 10-12]. To resolve this dispute, the Court will balance Plaintiff's need for the information with that of the public's interest in preventing disclosure by applying the ten Frankenhauser factors.

Though Defendants did not cite Frankenhauser in their briefs, Defendants noted at oral argument that these factors are also set forth in In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988), to which Defendants did cite. [Defs.' Br., p. 8]. Defendants carefully addressed these factors at oral argument. Plaintiff also did not cite to Frankenhauser in her brief, but her brief also failed to adequately address the arguments Defendants offered based upon In re Sealed Cases. Likewise, Plaintiff offered no meaningful discussion of these factors at oral argument, even though the Court's order setting oral argument specifically informed the parties to "focus their arguments" on the application of the Frankenhauser factors (among other topics). [Docket No. 38]. Rather, Plaintiff merely offered a blanket assertion that all of the Frankenhauser factors weigh in favor [**16] of disclosure. This sweeping contention cannot withstand careful consideration, and as a result Plaintiff has forfeited an opportunity to more persuasively argue that the Frankenhauser factors should be applied in her favor.

a) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information

The events surrounding Cole's death has received a great deal of coverage from the local media. The Court agrees with Defendants that disclosure of witness testimony given to IPD during its investigation into Cole's death would have a chilling effect on [*446] witnesses coming forward to assist law enforcement in future criminal investigations. The use of confidential witnesses and informants provide law enforcement with a valuable and necessary tool to combat crime. Many witnesses provide law enforcement with information to solve and prevent crimes with the expectation that their identities not be released to the public. Law enforcement's loss of this valuable tool would not only have a chilling effect on witnesses coming forward, but also have the potential to negatively impact the public's safety. See Hernandez v. Longini, 1997 WL 754041, *3-4 (N.D. Ill. 1997) [**17] ("The purpose of this privilege is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation."). Thus, this factor weighs in favor of Defendants.

b) the impact uponpersons who have given information of having their identities disclosed

The potential harm to individuals who provided IPD with information in having their identities disclosed "cannot be understated." Tuite, 181 F.R.D. at 179. This is particularly true in this case, considering that it involves police officers who could be subjected to criminal indictments. Whether the witnesses' fears are well founded or not, some members of the community may feel intimidated, or even threatened by providing evidence that may implicate a police officer in engaging in criminal activity. This may also negatively impact the DOJ's investigation. The Court finds this perception real, and weighs this factor in favor of non-disclosure.

c) the degree to which governmental [**18] self-evaluation and consequent program improvement will be chilled by disclosure

Plaintiff makes the bald assertion that disclosure of the contested information will not "chill government self-evaluation and improvement." [Pl.'s Br., p. 9]. However, as Defendants correctly note, "revealing law enforcement investigatory tactics through the disclosure of [the contested information] would compromise the effectiveness of IPD law enforcement." [Defs.' Br., p. 12]. If IPD were compelled to release information about its law enforcement techniques, it may compromise its ability to build upon previous successful investigatory methods, or revise or eliminate the ones that fail. The release of IPD's investigatory techniques is akin to a team providing its opponent with its play book. Again, this could compromise the public's safety.

d) whether the information sought is factual data or evaluative summary

Plaintiff sought to depose Sgt. Prater, and also intends to depose the individual Defendants. Plaintiff's discovery requests also encompass files and notes containing information relating to IPD's investigation into Cole's death. The Court finds this information evaluative rather [**19] than factual. For instance, any testimony sought from IPD personnel involved in the Cole investigation is clearly evaluative, and falls squarely within the investigatory privilege. The same is true with any documentation generated by individuals involved in and related to the investigation.

Other than the individual Defendants, Defendants do not object to Plaintiff deposing witnesses not involved in the investigation. In fact, Plaintiff has already deposed Branscumb, a fact witness who drove the IPD paddy wagon on the night in question. Nor do they object to Plaintiff deposing other fact witnesses such as the coroner who performed the autopsy, or the doctor who reviewed the results of the autopsy. [Defs.' Br., pp. 9-10]. See, e.g., In re Adler, Coleman, Clearing Corp., 1999 WL 1747410, *3 (S.D.N.Y. 1999) ("Neither the investigatory privilege nor the attorney work product doctrine ordinarily precludes discovery of factual or statistical information, as opposed to mental impressions or opinions ...."); Ross v. Bolton, 106 F.R.D. 22, 24 (S.D.N.Y. 1985) (factual or statistical information not protected by investigatory privilege).

[*447] To the extent Plaintiff [**20] seeks testimony or information evaluative rather than factual in nature, this factor also weighs in favor of Defendants.

e) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question

Plaintiff, who brought this action individually and as the executor of her late son's estate, is not a potential criminal defendant in this action. Neither is a criminal proceeding pending or likely to result from Plaintiff's involvement in this case. This factor weighs in favor of the Plaintiff.

f) whether the investigation has been completed

The parties informed the Court at oral argument that the DOJ's investigation, while proceeding slowly, is on-going. For instance, on February 5, 2003, Indianapolis mayor Bart Peterson sent a letter to U.S. Attorney General John Ashcroft inquiring into the status of the investigation. In part, this letter stated:





... as the one-year anniversary of Mr. Cole's death approaches, patience has worn thin .. Unfortunately, neither I nor any member of my administration has received an update in more than six months ... Justice that is [**21] perceived to be untimely undermines our county's faith in our system and democracy. I respectfully request a prompt resolution of this case.





[Pl.'s Ex. 5]. In addition, the DOJ's investigators came to Indianapolis in May 2003 and indicated to the parties that an investigation was being conducted, but declined to provide a timetable regarding its conclusions. Therefore, the evidence before the Court reveals that the DOJ's investigation remains open. This factor weighs in favor of the Defendants.

g) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation

Counsel for Defendants informed the Court at oral argument that IPD has placed the individual Defendants on "administrative duty," but no formal disciplinary action has yet been taken by the department. However, the culmination of the DOJ's investigation may result in criminal indictments against one or more of the Defendants. In addition, the findings of the DOJ's investigation may result in IPD taking disciplinary action against the individual Defendants, including suspension or termination. Thus, this factor weighs in favor of the Defendants.

h) whether the Plaintiff's [**22] suit is nonfrivolous and brought in good faith

This case involves the untimely death of a man in police custody. The circumstances surrounding Cole's death are vigorously debated, and at this stage seemingly give rise to differing conclusions. Indeed, the length of the on-going DOJ investigation at least suggests that the circumstances surrounding Cole's death merit close scrutiny. Moreover, Defendants acknowledge that this case is not frivolous, or that it was brought in bad faith. This factor weighs in favor of the Plaintiff.

I) whether the information sought is available through other discovery or from other sources

Plaintiff claims that the information sought "rests solely in the possession of law enforcement," and that there is "no other matter, means, or source by and from which Plaintiff can obtain the discovery." [Pl.'s Br., p. 11]. In response, Defendants contend that Plaintiff can obtain the information sought by deposing police officers other than Defendants involved in the apprehension of Cole on the night in question. [Defs.' Br., p. 9]. The Court disagrees with this broad prohibition. See Alexander v. F.B.I., 186 F.R.D. 154 (D.D.C. 1999) [**23] ("across-the-board claims of law enforcement privilege supported only by conclusory statements will not suffice"). Most notably, Plaintiff is entitled to depose the named Defendants. The critical question becomes when these depositions can take place, considering that indictments of some or all of [*448] the named Defendants may flow from the DOJ's on-going investigation.

However, as to information accumulated through IPD's investigation, this information is protected by the investigatory privilege. Notwithstanding, Plaintiff may obtain any factual, non-privileged information by deposing any witnesses or police officers (other than the named Defendants) at the scene, the coroner, the doctor who reviewed the coroner's findings, or any other fact witness.

Evidence presented at oral argument reveals that despite Defendants' assertion of privileges, Plaintiff's discovery efforts continue. Early in this litigation, Plaintiff deposed IPD Officer Branscumb, who drove the paddy wagon occupied by Cole. Most recently, Plaintiff also deposed IPD Officers Mark Fagen and Jayson Campbell, who were dispatched when Cole fled police and were at the scene of Cole's arrest. Plaintiff's counsel also informed [**24] the Court he has interviewed several civilian witnesses present at the scene of Cole's apprehension and arrest. In addition, Plaintiff's counsel informed the Court he intends to serve a request to conduct an inspection of Cole's car currently in the custody of IPD. See, e.g., Friedman v. Bache Halsey Stuart Shields, Inc., 238 U.S. App. D.C. 190, 738 F.2d 1336, 1341 (D.C. Cir. 1984) (whether information is available from other sources is a factor in determining degree of litigant's need to obtain it).

As a result, the Court finds this factor favors Defendants.

j) the importance of the information sought to the Plaintiff's case

The Court concludes that Plaintiff does not need to discover the findings of IPD's investigation in order to prove her case. A wealth of information can be obtained through deposition of fact witnesses such as officers at the scene (other than the named Defendants), any witnesses not in law enforcement, and the coroner and doctor involved in Cole's postmortem medical exam. As previously noted, this discovery is on-going. While the challenged information Plaintiff seeks no doubt could have some value to Plaintiff's case, the Court cannot say that this value is [**25] so significant as to require disclosure. Nevertheless, this element favors the Plaintiff.

2. Weighing the Frankenhauser Factors

In balancing Plaintiff's need for discovery and the public's interest in preventing disclosure, the Court finds that the majority of the information compiled by IPD in the Cole homicide investigation is protected by the investigatory privilege. Notably, release of the information protected by the privilege would have a chilling effect on witnesses coming forward to assist law enforcement in criminal investigations. Witnesses may even feel intimidated by providing evidence involving alleged criminal activity by a police officer. These document also encompass some of IPD's law enforcement techniques. As demonstrated by Plaintiff's discovery efforts to date, significant amounts of information sought can be obtained from independent sources such as depositions from fact witnesses like Officers Branscumb, Fagen, and Campbell.

The oral argument held on June 24 further undermined Plaintiff's attempt to rebut Defendants' assertion of a privilege. As noted previously, counsel failed to address the Frankenhauser factors, and when prompted by the Court [**26] to do so, Plaintiff's counsel broadly asserted that all of the Frankenhauser factors supported disclosure. This sweeping conclusory statement undermines Plaintiff's arguments that the law enforcement investigatory privilege does not apply.

Plaintiff also fails to provide evidence that she has a substantial need for the information which may defeat Defendants' assertion of the privilege. As previously noted, much of the information Plaintiff seeks is evaluative rather than factual in nature, and is readily obtainable from another source.

Therefore, in reviewing Defendants' privilege log pertaining to their claims of investigatory privilege, the Court holds that:





(1) Plaintiff may not depose any IPD personnel who investigated the Cole [degree] . These individuals are clearly not fact witnesses, and could provide no meaningful information other than that pertaining to the investigation;



[*449] (2) Plaintiff may not discover any handwritten notes, reports, probable cause affidavits, e-mails, or other data generated from the Cole homicide investigation. [See Privilege Log Nos. 4-7, 10, 13-16, 17, & 19-29];



(3) Plaintiff may not discover the "Confidential request for [**27] subpoena duces tecum for phone records subpoenaed by Grand Jury to Ameritech/SBC" requested by Sgt. Prater [Privilege Log No. 18]. In the event Plaintiff discovered what the grand jury wanted to view concurrent with Sgt. Prater's testimony, it could reveal information the Court has deemed covered by the investigatory privilege; and



(4) Plaintiff may not discover the property room vouchers or disposition orders relating to the Cole investigation. These documents indicate the evidence collected by IPD in its investigation, and may provide information into IPD's investigation. [See Privilege Log Nos. 31-32].

On the other hand, Defendants have not met their burden to demonstrate the investigatory privilege applies to two documents. First, Defendants list in their privilege log an "anonymous letter to [IPD's] East District." [See Privilege Log No. 3]. From this description, it is unclear how this letter relates to the Cole investigation. Second, Defendants reference a "handwritten letter from 'Herb' to Mr. Allen," and a corresponding envelope. [See Privilege Log Nos. 8-9]. Again, the Court is unable to ascertain the identities of "Herb" or "Mr. Allen," let alone how they [**28] may relate to the Cole investigation. As a result, Defendants have not carried their burden in showing that these documents are protected by a privilege, and thus Plaintiff may discover these documents. See, e.g., Doe, 175 F.R.D. at 514-15, citing Kelly v. City of San Jose, 114 F.R.D. 653, 669 (N.D. Cal. 1987) (the government "must explain with particularity the reasons that each document or class of documents is privileged. Unless the government, through competent declarations, shows the court what law enforcement interests would be harmed, how disclosure under a protective order would cause the harm, and how much harm there would be, the court cannot conduct a meaningful balancing analysis."). In addition, as noted above, Defendants attempt to shield the "Entire Internal Affairs File" is unavailing because it is overbroad and does not specifically state what documents within this file they seek to protect. [See Privilege Log No. 32].

Accordingly, with regard to Defendants' claim of investigatory privilege, Defendants' motion for a protective order is GRANTED IN PART and DENIED IN PART.

C. Deliberative Process Privilege

The deliberative [**29] process privilege covers "documents reflecting advisory opinions, recommendations and deliberations comprising part of the process by which governmental decisions and policies are formulated." Anderson v. Cornejo, 2001 U.S. Dist. LEXIS 10312, 2001 WL 826878, *1-2 (N.D. Ill. 2001), quoting Department of Interior v. Klamath Water Users Protective Association, 532 U.S. 1, 9, 149 L. Ed. 2d 87, 121 S. Ct. 1060 (2001). The privilege protects communications that are part of the decision-making process of a governmental agency. In re Bank One Securities Litigation, First Chicago Shareholder Claims, 209 F.R.D. 418, 426 (N.D. III. 2002), citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-52, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975). For this privilege to apply, the document must be "pre-decisional" and "deliberative." Becker v. I.R.S., 34 F.3d 398, 403 (7th Cir. 1994).

In this case, Defendants contend the deliberative process privilege applies to protect the following information:





(1) Any interdepartmental communications regarding the death of Cole or investigation thereof. [Privilege Log Nos. 5-7, 13-15, & 20];



(2) The entire IPD Internal Affairs file. [Privilege Log Nos. 11, 12, & 32]; [**30]



(3) Any notes taken by the investigating detective or officials of the IPD. [Privilege Log Nos. 19, 21-25, & 29]; and



[*450] (4) E-mail messages regarding the investigation into Cole's death. [Privilege Log Nos. 26-28].





[Defs.' Br., p. 17]. n2



n2 With the exception of Privilege Log Nos. 11 & 12, Defendants claim all of these documents also fall under the law enforcement investigatory privilege.



Although no court in the district has expressly held that the deliberative process privilege applies to municipal governmental entity, Defendants argue that one exists. See, e.g., Government Suppliers Consolidating Services, Inc. v. Bayh, 133 F.R.D. 531, 534 (S.D. Ind. 1990) ("Although the privilege has been applied most often to members of the federal executive branch, it has come to be applied to the deliberations of state governmental actors as well."). n3 However, some courts, including one court in this circuit, have concluded that a deliberative process privilege has not been recognized [**31] by the federal common law for municipal agencies such as IPD. See Allen v. Chicago Transit Authority, 198 F.R.D. 495, 502 (N.D. Ill. 2001) ("we cannot find [the law] has established the existence of a federal common law deliberative process for municipal agencies."); Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 483-84 (2d Cir. 1999) (FOIA's deliberative process privilege applies to federal agencies only); Soto v. City of Concord, 162 F.R.D. 603, 612 (N.D. Cal. 1995) (court suggested that the deliberative process privilege is generally not applicable to documents relating to internal police investigations into allegations of police misconduct).



n3 In support of their position that the deliberative process privilege applies to municipal agencies, at oral argument Defendants relied on two cases from the Southern District of New York, Cruz v. Kennedy, 1998 U.S. Dist. LEXIS 15599, 1998 WL 689946 (S.D.N.Y. 1998), and Wahad v. F.B.I., 132 F.R.D. 17 (S.D.N.Y. 1990). However, Defendants' reliance on these two cases is flawed. A thorough reading of these cases simply does not support Defendants' contention.



[**32]

This Court need not definitively decide here whether a municipal agency such as IPD enjoys a deliberative process privilege. This is because in her brief and at oral argument, Plaintiff did not contest that this privilege was available. Plaintiff has thus waived any argument regarding the propriety of whether the Defendants may assert this privilege. Rather, Plaintiff contends that there has been no "deliberation" so as to allow the Defendants to avail themselves to this privilege. The record reflects otherwise. As counsel for the individual Defendants noted at oral argument, deliberation on behalf of IPD continues as exhibited by the department placing the officers involved in Cole's arrest on administrative duty. In addition, as the DOJ's investigation is pending, there is the possibility that criminal indictments could flow as a result of the DOJ's findings. Likewise, IPD could still issue further disciplinary action against the individual Defendants. Therefore, under these circumstances the Court finds that Defendants have successfully raised the deliberative process privilege.

Accordingly, Defendants' motion for a protective order asserting the deliberative process privilege [**33] is GRANTED. n4



n4 The Court has reviewed Magistrate Judge Shields' unpublished entry in Leaf v. Cottey, IP02-433 C M/S (S.D. Ind. Apr. 28, 2003) (declining to apply the law enforcement investigatory and deliberative process privileges). Leaf, however, is distinguishable from the case at bar. With regard to both the law enforcement investigatory privilege and the deliberative process privilege, Leaf held that defendants were not entitled to the privileges because the Sheriff's Department did not designate an agency representative to submit an affidavit asserting the privilege. Rather, defendants' attorney improperly asserted the privilege. Id. at pp. 2-5. In contrast, in the case at bar, Defendants' properly asserted the privilege through the affidavit of Deputy Chief Timothy Foley. [Defs.' Ex. A]. In addition, in Leaf, there was no on-going investigation into possible criminal wrongdoing of the individual Defendants.



D. Defendants' Motion to Stay

1. Standard

While the Court has the [**34] inherent power to stay its proceedings, the Constitution does not require a stay of civil proceedings pending the outcome of criminal proceedings. See Benevolence Intern. Foundation, Inc. v. Ashcroft, 200 F. Supp.2d 935, 938 (N.D. Ill. 2002), citing SEC v. Dresser Indus., Inc., 202 U.S. App. D.C. 345, 628 F.2d 1368, 1375 (D.C. Cir. 1980). However, a court may use its discretion to determine [*451] whether to stay civil proceedings when the "interests of justice" require such action. Smith v. Bravo, 2000 U.S. Dist. LEXIS 11437, 2000 WL 1051855, *4 (N.D. Ill. 2000), citing Afro-Lecon, Inc. v. U.S., 820 F.2d 1198, 1202 (D.C. Cir. 1987). See also Bruner Corp. v. Balogh, 819 F. Supp. 811, 813 (E.D. Wis. 1993), quoting Dresser Industries, 628 F.2d at 1375 ("Nevertheless, a court may decide in its discretion to stay civil proceedings, postpone civil discovery, or impose protective orders and conditions when the interests of justice seem [] to require such action ....") (internal citations quotations omitted). The ultimate question, therefore, is "whether the court should exercise its discretion in order to avoid placing the defendants in the position [**35] of having to choose between risking a loss in their civil cases by invoking their Fifth Amendment rights, or risking conviction in their criminal cases by waiving their Fifth Amendment rights and testifying in the civil proceedings." Cruz v. County of Dupage, 1997 U.S. Dist. LEXIS 9220, 1997 WL 370194, *1 (N.D. Ill. 1997).

In deciding whether to stay civil proceedings where a similar criminal action is brought before the completion of the civil proceedings, a court may consider a variety of factors. They include: (1) the interest of the plaintiff in proceeding expeditiously with the litigation or any particular aspect of it, and the potential prejudice to the plaintiff of a delay; (2) the burden which any particular aspect of the proceedings may impose on the defendant; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in pending civil and criminal litigation. See Benevolence, 200 F. Supp.2d at 938, citing Nowaczyk v. Matingas, 146 F.R.D. 169, 174 (N.D. Ill. 1993). This involves the Court balancing the [**36] civil plaintiff's right to prepare the case promptly against the public interest in withholding full disclosure sought by the civil plaintiff. See Campbell v. Eastland, 307 F.2d 478, 490 (5th Cir. 1962).

2. Defendants Are Entitled to a Limited Stay of Discovery

Defendants state they are concerned about the effect a criminal proceeding may have on potential criminal indictments that may flow from a federal grand jury investigation. [Defs.' Br., p. 19]. Applying the five elements set forth in Benevolence, and balancing Plaintiff's right to prepare her case promptly against the public interest in withholding full disclosure, the Court finds that a limited stay of discovery is reasonable and appropriate.

As to Plaintiff's interest in proceeding expeditiously, Plaintiff does not demonstrate irreparable harm or prejudice if the Court grants a limited stay. As noted above, Plaintiff may continue to proceed with discovery, including additional depositions of fact witnesses not involved in the investigation into the Cole homicide. See, e.g., Cruz, 1997 U.S. Dist. LEXIS 9220, 1997 WL 370194, at *2, quoting Dresser Indus., 628 F.2d at 1376 ("If delay of the [**37] noncriminal proceeding would not seriously injure the public interest, a court may be justified in deferring it ... In some such cases, however, the courts may adequately protect the government and the private party by merely deferring civil discovery or entering an appropriate protective order.") (internal citations omitted).

Defendants' interests could be substantially harmed if a limited stay is not granted. For instance, utilizing the liberal rules of civil discovery, Plaintiff could obtain information that may substantially harm Defendants' interests if criminal indictments are handed down. If a limited stay is not granted, the Court finds that Defendants would be faced with an unnecessary dilemma: surrender their Fifth Amendment rights against self-incrimination, or not testify and risk the possibility of adverse inferences being taken from the assertion of these Fifth Amendment rights, or possibly even civil sanctions and/or the entry of a default judgment. A limited stay of discovery will eliminate this quandary. See, e.g., Cruz, 1997 U.S. Dist. LEXIS 9220, 1997 WL 370194, *1-2, quoting Dresser Indus., 628 F.2d at 1376 ("the strongest case for deferring civil proceedings [**38] until after completion of criminal proceedings is where a party under indictment for a serious offense is required to defend a civil or administrative action involving the same matter. The noncriminal proceeding, [*452] if not deferred, might undermine the party's Fifth Amendment privilege against self-incrimination ...") (internal citations omitted); Campbell, 307 F.2d at 487 ("administrative policy gives priority to the public interest in law enforcement. This seems so necessary and wise that a trial judge should give substantial weight to it in balancing the policy against the right of a civil litigant to a reasonably prompt determination of his civil claims and liabilities."); Nowaczyk v. Matingas, 146 F.R.D. 169, 174 (N.D. Ill. 1993) ("A stay of civil discovery is sometimes appropriate to protect competing interests arising from parallel civil and criminal proceedings involving the same subject matter").

Permitting certain discovery to proceed, such as depositions of the individual Defendants, would be an inefficient use of resources. For instance, counsel for the individual Defendants stated at oral argument that a Fifth Amendment objection would be [**39] forthcoming in the event these officers were compelled to appear for depositions in light of the DOJ's on-going criminal investigation. Further, the Court will not suffer an inconvenience if a limited stay is granted.

The public also has an important interest in a potential, untainted criminal prosecution that could arise from the Cole's death. Mayor Peterson's letter to Attorney General Ashcroft expressed this interest in noting Peterson's frustration on behalf of the Indianapolis community and his administration regarding the DOJ's unresolved and seemingly endless investigation. [Pl.'s Ex. 5].

In sum, weighing these competing interests, the Court finds that a limited stay is necessary to protect the Defendants' Fifth Amendments rights against self-incrimination should criminal indictments flow from the DOJ's pending criminal investigation. In light of this, the Court grants Defendants a limited stay of discovery. n5 The following areas of discovery shall be off limits for a period of 90 days from the issuance of this entry:





(1) Any statements Defendants provided to IPD's homicide branch. [Privilege Log No. 33];



(2) Audiotapes generated in the course of IPD's investigation; [**40]



(3) Any polygraph test results of the Defendants;



(4) Letter from Officer Morton Gallagher to Mayor Peterson. [Privilege Log No.1];



(5) Letter from Mayor Peterson to Officer Gallagher. [Privilege Log No. 2];



(6) Any depositions that seek the contents of the Defendants' statements; and



(7) Depositions of the Defendants.





n5 The Court finds that the 90-day period is reasonable and appropriate, considering that at the date of this entry the Department of Justice has not concluded its investigation or reached any findings. At the end of this 90-day stay, the Court will reassess whether the stay is still needed.



Accordingly, Defendants' motion for a limited stay of discovery is GRANTED. The parties shall appear by telephone for a status conference on September 25, 2003 at 1:30 p.m. to determine whether the DOJ has concluded its investigation and whether the temporary stay will be lifted.



III. Conclusion

Defendants' motion for a protective order is GRANTED IN PART and DENIED [**41] IN PART. The motion for a protective order is GRANTED to the extent that the following discovery is protected by the law enforcement investigatory and deliberative process privileges:





(1) Depositions of IPD personnel who investigated the Cole homicide;



(2) Any handwritten notes, reports, probable cause affidavits, e-mails, or other data generated from the Cole homicide investigation. [See Privilege Log Nos. 4-7, 10, 13-16, 17, & 19-29];



(3) The "Confidential request for subpoena duces tecum for phone records subpoenaed by Grand Jury to Ameritech/SBC" requested by Sgt. Prater [Privilege Log No. 18];



(4) IA No. 02-027 Transcript of Dr. John Pless, and John Lineham. [Privilege Log Nos. 11&12]; and



[*453] (5) The property room vouchers or disposition orders relating to the Cole investigation.





The motion for a protective order is DENIED in regard to the following documents:





(1) "Anonymous letter to [IPD's] East District." [See Privilege Log No. 3];



(2) "Handwritten letter from 'Herb' to Mr. Allen," and a corresponding envelope. [See Privilege Log Nos. 8-9]; and



(3) Unless specific documents are addressed in this entry, Defendants' [**42] attempt to protected the "Entire Internal Affairs File." [See Privilege Log No. 32].





Defendants shall produce these documents no later than July 11, 2003.

In addition, Defendants' motion for a limited stay of discovery is GRANTED. The following areas of discovery shall be off limits for a period of 90 days for the issuance of this entry:





(1) Any statements Defendants provided to IPD's homicide branch. [Privilege Log No. 33];



(2) Audiotapes generated in the course of IPD's investigation;



(3) Any polygraph test results of the Defendants;



(4) Letter from Officer Morton Gallagher to Mayor Peterson. [Privilege Log No. 1];



(5) Letter from Mayor Peterson to Officer Gallagher. [Privilege Log No. 2];



(6) Any depositions that seek the contents of the Defendants' statements; and



(7) Depositions of the Defendants.

The parties are ORDERED to appear by counsel for a telephonic status conference on September 25, 2003 at 1:30 p.m. to discuss further disposition of this case, including whether the limited stay of discovery will be lifted.

So ordered.

DATED this 27th day of June, 2003

Tim A. Baker

United States Magistrate Judge

Southern [**43] District of Indiana