Gonzalez-Chavez v. City of Bakersfield et al

Filing 31

ORDER AFTER IN CAMERA REVIEW, signed by Magistrate Judge Jennifer L. Thurston on 5/20/2014. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MIGUEL A. GONZALEZ-CHAVEZ,

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Plaintiff,

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v.
CITY OF BAKERSFIELD, et al.,

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Defendants.

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1: 12-CV-02053-AWI - JLT
ORDER AFTER IN CAMERA REVIEW

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I.

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Background
The complaint alleges that on December 4, 2011, at 3:15 a.m., Bakersfield Police Officers,

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Messick and Barthelemes confronted Plaintiff who was sitting in a friend’s car in a WalMart parking

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lot. (Doc. 1 at 4) The complaint alleges the officers forcibly removed Plaintiff from the vehicle, “hit

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him with weapons and/or punches about his arms, legs, face and body, and [they] tase[d] him

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without cause, provocation or justification.” Id. at 4-5. Plaintiff claims he suffered injuries

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including a fractured knee. Id. at 5. Based upon these allegations, Plaintiff brings claims under 42

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U.S.C. § 1983 against the officers for the use of excessive force and for Monell liability against the

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entity.

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During an informal telephonic conference re: discovery dispute held on May 14, 2014, the

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Court was informed about a brewing discovery dispute related, in part, to the refusal of the

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Defendants to produce documents related to discipline suffered by Messick for the use of excessive
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force. (Doc. 28) Counsel agreed that the Court would conduct an in camera review of any such

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documents and then decide whether production of the documents would be ordered. The specific

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document request made to Defendants’ Fed. R. Civ. P. 30(b)(6) witness reads,
Discipline received by Defendant Officer Christopher Messick for BPD use of force
policy violation while employed by BPD.

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Defendants objected to this category as follows:

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Objection. This area of inquiry is vague, ambiguous, overbroad, burdensome, and not
reasonably calculated to lead to the discovery of admissible evidence. Further, this
category seeks information protected from disclosure pursuant to the law enforcement
privilege, official information privilege, and executive privilege. In addition, this
request further seeks to invade privacy rights of responding party and third parties.
Further objection is made on the grounds that this request seeks to invade the officers'
right to privacy as guaranteed by Article I, Section I of the California Constitution
and the First and Fourth Amendments of the United States Constitution, and also
California Code of Civil Procedure sections 823.7 and 832.8( e), and Government
Code sections 6254 (c)and(t).
Therefore, no person most knowledgeable will be produced.1

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On May 19, 2014, the Court conducted the in camera review. The record now at issue

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describes an incident, which occurred on April 22, 2012, in which Officer Messick was found to

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have used force that was not authorized by the Use of Force policy maintained by the Bakersfield

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Police Department. In the incident, Messick kicked a subject in the face despite that other officers

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had him under control and despite that the subject had “deescalated.” Messick explained that he felt

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the subject may still have been armed and he perceived him to be an active threat to the officers

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attempting to place him in restraints. Messick explained that he felt the “distraction blow” was

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needed to gain the subject’s compliance with orders to produce his hand, which the subject was

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holding underneath his body. As a result of an investigation into the incident, Messick suffered

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discipline.

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II.

Discovery of the discipline record

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First, Plaintiff may obtain discovery regarding any matter that is (1) “not privileged” and (2)

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“relevant to the subject matter involved in the pending action.” Fed.R.Civ.P. 26(b)(1). The scope of

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discovery is quite broad and relevant evidence includes any evidence which “bears on, or that

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Because the parties agreed the Court would conduct the review and order production of those documents that are
relevant and substantially similar to the alleged facts, the Court makes no comment as to whether the objections would
have been well-taken had the agreement not been reached at the telephonic conference.

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reasonably could lead to other matters that could bear on, any issue that is or may be in the case.”

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Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Indeed, courts have rejected that

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internal investigations into police conduct should be automatically shielded. Kelly v. City of San

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Jose, 114 F.R.D. 653, 663-668 (N.D. Cal. 1987); Soto v. City of Concord, 162 F.R.D. 603, 612-613;

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King v. Conde, 121 F.R.D. 180, 195-196 (E.D.N.Y.1988).
Second, the Court concludes that the records sought may be relevant for many reasons

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(Mediate v. City of San Diego, 2014 WL 1669977 at *3 (S.D. Cal. Apr. 28, 2014); Fed. R. Evid.

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404(b)(2)) and may also lead to admissible evidence. In so finding, the Court is aware that the event

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documented in the disciplinary record occurred four months after the incident at issue in the

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complaint. Though this fact could impact the admissibility of the evidence, this conclusion does not

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necessarily follow.
Third, though the facts alleged in the complaint are not exactly the same as those set forth in

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the disciplinary report, they are close enough to provide more than minimal probative value. For

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example, in both instances there are claims that Messick used force on a compliant subject.

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Likewise, though there is no assertion that Messick used a taser in the latter event, in both there are

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claims that he used physical blows. While the Court is not convinced that this evidence could be

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admitted at trial, the events are similar enough for purposes of disclosure during discovery.
Finally, the Court must weigh the need for maintaining the confidentiality of the record

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against the need of the Plaintiff to conduct full discovery.2 In doing so, the Court is mindful that

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there is no other avenue for Plaintiff to discover this information and that it could be significant to

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his case. Likewise, the Court does not find that disclosure here would have any measureable impact

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on future investigations (Bernat v. City of California City, 2010 WL 4008361 at *3 (E.D. Cal. Oct.

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12, 2010)) and, to the contrary, would heighten confidence in the investigatory process. Kelly, 114

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F.R.D. at 667. Finally, courts have found that the privacy interests police officers have in their

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personnel files do not necessarily outweigh a civil rights plaintiff need for the documents. Martinez

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Notably, California Penal Code section 832.7 and California Evidence Code sections 1043 and 1045 do not envision
that peace officer records will not be disclosed in discovery. To the contrary, these sections simply set forth the
procedures by which the records may be disclosed.

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v. City of Stockton, 132 F.R.D. 677, 683 (E.D.Cal.1990); Hampton v. City of San Diego, 147 F.R.D.

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227, 230 (S.D.Cal.1993).
Considering these factors leads the Court to conclude that disclosure should occur. Kelly,

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114 F.R.D. at 661. (“In the context of civil rights suits against police departments, this balancing

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approach should be ‘moderately pre-weighted in favor of disclosure.’”) However, the Court will not

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disregard the privacy interests of all involved. Thus, the Court will require the report to be redacted

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to delete the personal identifiers of the subject and any witnesses to the event. Moreover, the parties

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are required to keep the document confidential and it may be used in this litigation only. The

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document may be viewed only by counsel, their experts and Defendant Messick and counsel are

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required to seek a sealing order pursuant to Local Rule 141 in the event that any party wishes it to be

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filed. Moreover, at the conclusion of this litigation, Plaintiff’s counsel is required to return all copies

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of the document or to certify to Defendants’ counsel that all copies have been destroyed.

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ORDER

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Based upon the foregoing, the Court ORDERS:

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1.

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be produced to Plaintiff’s counsel within five court days, in the redacted form set forth above;
2.

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The document at issue here and which was a subject of the in camera review, SHALL

All counsel SHALL keep the document confidential and may share it only with their

pertinent experts and Defendant Messick;

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3.

The document may be used only in this litigation and any subsequent appeal;

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4.

In the event that either side desires the record to be filed, that party SHALL seek a

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sealing order pursuant to Local Rule 141 and this motion must be denied before it may be filed on

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the public docket;

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At the conclusion of this litigation, including any subsequent appeals, Plaintiff’s

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counsel SHALL return all copies of the report or SHALL certify to counsel for Defendants that the

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copies have been destroyed.

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IT IS SO ORDERED.
Dated:

May 20, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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