Myers v. Koopman

Filing 211

ORDER denying 171 Plaintiff's Motion to Lift the Order of Protection as to Confidential Informants. The Clerk of the Court is directed to maintain under Restriction Level 2 those documents found at dockets # 189 and # 194 until further order of the Court, by Magistrate Judge Michael E. Hegarty on 05/21/2012.(wjcsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02802-REB-MEH
JEREMY C. MYERS,
Plaintiff,
v.
BRIAN KOOPMAN, in his individual capacity,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Plaintiff’s Motion to Lift the Order of Protection as to Confidential
Informants [filed March 28, 2012; docket #171]. The matter has been referred to this Court for
disposition [docket #184]. The motion is fully briefed, the Court has reviewed information in
camera, and the Court finds that oral argument will not assist in the adjudication of the motion. For
the reasons that follow, Plaintiff’s motion is denied.
I.

Background
The Plaintiff instituted this action on December 1, 2009, but filed an Amended Complaint

on March 2, 2011 following Judge Blackburn’s order resolving various motions for summary
judgment filed by the present and former Defendants. See dockets ##126, 127. The case arises
from an incident that occurred on Plaintiff’s property in Loveland, Colorado, on September 6, 2007.
Amended Complaint, docket #127 at 1. According to Plaintiff, who brings this action pursuant to
42 U.S.C. § 1983, the Defendant obtained an invalid search warrant, and unlawfully and maliciously
prosecuted Plaintiff when Defendant attempted to “rid the community of a large-scale

methamphetamine production facility.” See id.
On April 13, 2010, this Court entered an order granting in part and denying in part the
Defendants’ request for a protective order to prohibit from disclosure the identities of two
confidential informants who allegedly provided information to the Defendant in support of the
search warrant at issue in this case. Specifically, this Court ordered:
In their initial disclosures, Defendants shall redact or withhold only that information
which would reveal the identities of the confidential informants who supplied
information on which the challenged search was conducted, but shall disclose all
other relevant information in accordance with Fed. R. Civ. P. 26(a). In addition,
Defendants shall prepare and provide a privilege log for all redacted information
based upon asserted privileges. Following a ruling denying (in whole or in part) the
motions to dismiss, the Court will entertain a motion seeking disclosure of the
confidential information.
Docket #54 at 6.
In the present motion, Plaintiff argues that release of the confidential informants’ identities
is essential for the following reasons: (1) he alleges in the Amended Complaint that no such
confidential informants actually exist; (2) he seeks ancillary information about the informants that
is necessary to test their credibility and that of the Defendant; (3) he intends to depose the
informants and will need to serve subpoenas upon them; and (4) he intends to subpoena the
informants for trial testimony as well. Moreover, Plaintiff claims that the dispositive motions have
been resolved and Defendant’s only stated reason for the protective order was to protect the
informants from retaliation, which has no basis in fact.
Defendant counters that the confidential informants, in fact, wish to keep their identities
confidential for fear of retaliation, even though the “informer’s privilege” does not require a showing
that retaliation is likely. Defendant asserts that a dispositive motion is pending (its motion for
judgment on the pleadings) which may dispose of the matter entirely and render disclosure of the
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informants’ identities moot. Further, Defendant claims that Plaintiff fails to articulate why
Defendant’s sworn discovery responses concerning the existence of the informants is insufficient
and why he needs to depose or call the informants to testify at trial. Defendant contends that
Plaintiff does not need the informants’ identities to challenge the existence of probable cause, since
it is not the informants’ credibility that is at stake, but rather whether the fact that they gave certain
information to the Defendant which, considered together with his own investigation and
observations, constituted probable cause.
Plaintiff replies that discovery is a truth finding process, which would be thwarted if a party
were to accept an opponent’s discovery responses without the ability to test their accuracy. Thus,
the Plaintiff contends that, without the release of the informants’ identities, he would be unable to
prove or disprove the informants’ existence, which is a material issue of fact in this case. Further,
Plaintiff argues that false or misleading statements in an affidavit supporting a search warrant will
be excluded when determining probable cause, so evidence of any such statements is relevant.
Moreover, Plaintiff states that, in Colorado, issues of an informant’s reliability and basis of
knowledge are relevant considerations for determining whether probable cause exists.
Upon review of the parties’ briefs, the Court determined that it was necessary to order
Defendants to provide information in camera concerning the confidential informants. Defendants
complied with the order by identifying the informants and the information the informants provided
both before and after the execution of the search warrant, which is the subject of this action. With
such information, the Court determined it necessary to, and did, interview the confidential
informants in camera.
II.

Discussion

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Rule 26(b) provides that “[p]arties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense . . . .” Such information must be relevant but “need
not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery
of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Here, the question before the Court is whether
the informants’ identities are “privileged.”
In federal courts, federal common law governs the existence of privilege, unless state law
supplies the rule of decision as to an element of the claim or defense. Fed. R. Evid. 501. Because
this case involves claims brought pursuant to 42 U.S.C. § 1983, “federal law provides the governing
substantive law.” Everitt v. Brezzel, 750 F. Supp. 1063, 1066 (D. Colo. 1990). Thus, the federal
common law of privilege governs in this matter. See Fed. R. Evid. 501 committee note (“In
nondiversity jurisdiction civil cases, federal privilege law will generally apply.”).
First, Defendants continue to assert that the “official information” privilege precludes
disclosure of the confidential informants’ identities. (Docket #177 at 1 (citing Everett, 750 F. Supp.
1063).)

In Everitt, the court described the federal “official information” privilege as “the

government’s privilege to prevent the disclosure of information whose disclosure would be contrary
to the public interest.” 750 F. Supp. at 1066 (quoting Frankenhauser v. Rizzo, 59 F.R.D. 339, 342
(E.D. Pa. 1973)). But see Crawford v. Dominic, 469 F. Supp. 260, 264 n. 3 (E.D. Pa. 1979)
(recognizing Frankenhauser relied on Fed. R. Evid. 509 which has since been repealed and
declining to follow Frankenhauser’s implication of a blanket rule exempting supervisory
evaluations).
However, the Defendants primarily argue that the confidential informants’ identities are
protected by the “informer’s privilege.” (Docket #177 at 2-4.) According to the Tenth Circuit, the

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informer’s privilege provides that “the state is normally entitled to refuse to disclose the identity of
a person who has furnished information relating to an investigation of a possible violation of law.”
In re Matter of Search of 1638 E. 2nd Street, Tulsa, 993 F.2d 773, 774 (10th Cir. 1993) (quoting
Hoffman v. Reali, 973 F.2d 980, 987 (1st Cir. 1992)). The privilege is applicable in both criminal
and civil cases. Id. (finding that a criminal suspect, who sought the identities of confidential
informants likely to bring civil actions against them, was prevented from discovering the
confidential information).
Neither privilege is absolute; “if the party seeking disclosure makes a proper showing of
need, the privilege will give way.” Id. However, the informer’s privilege in civil cases is arguably
“stronger” because the constitutional guarantees assured to criminal defendants are not applicable.
See Search of 1638 E. 2nd Street, 993 F.2d at 775.
Here, the Court finds that the circumstances under which the protective order was originally
entered in this case protecting from disclosure the identities of the confidential informants are not
much different than the current circumstances. At that time, motions were pending that could
dispose of the case and a motion for judgment on the pleadings is pending today. Likewise,
previously, the informants expressed their fears concerning retaliation, and the informants continue
to express such concerns today. Thus, it is imperative that the Plaintiff make a proper showing of
need sufficient to overcome the privilege.
“A [criminal] defendant seeking to force disclosure of an informant’s identity has the burden
to show the informant’s testimony is relevant or essential to the fair determination of defendant’s
case. In determining whether to require disclosure, a court must balance the public interest in
protecting the flow of information against the individual’s right to prepare his defense.” United

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States v. Gordon, 173 F.3d 761, 767 (10th Cir. 1999) (citing Roviaro v. United States, 353 U.S. 53,
62 (1957)). In balancing these interests, the court considers the crime charged, the possible
defenses, and the significance of the informant’s testimony. Id. “Where it is clear that the informant
cannot aid the defense, the government’s interest in keeping secret [the informant’s] identity must
prevail over the defendant’s asserted right of disclosure.” United States v. Sinclair, 109 F.3d 1527,
1538 (10th Cir. 1997) (quoting United States v. Martinez, 979 F.2d 1424, 1429 (10th Cir.1992) (also
stating that “[t]o permit the trial court to make the required balancing test ... an in camera hearing
can be used to determine whether the informant’s testimony would lend aid to the defense.”)).
Again, the privilege applies in both criminal and civil matters, and is “arguably stronger [in
civil cases], because the constitutional guarantees assured to criminal defendants are not applicable.”
Matter of Search of 1638 E. 2nd Street, Tulsa, 993 F.2d at 775.
Plaintiff contends that he “needs” the informants’ identities not only to confirm that they
exist, but also to depose them concerning the information they provided to Defendant in support of
the challenged search warrant, which will be necessary for a “probable cause” analysis. Defendant
counters that the accuracy of the informants’ information supplied to Defendant is of no
consequence; rather, the question is whether such information, together with Defendant’s own
investigation and observations, constituted probable cause for the issuance of the search warrant.
Based upon all information provided concerning this matter, the Court finds that the
confidential information will not aid the Plaintiff in this case. First, as was revealed in the original
motion concerning the informants, only one of the informants provided information to Defendant
that was used in support of the search warrant; the information provided by the other informant came
after the fact. See docket #48, ¶¶ 1, 3. Thus, for purposes of Plaintiff’s argument concerning his

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need for the confidential informants’ identities to challenge “probable cause,” the Court considers
only the information provided by first informant.
A review of the “Affidavit for a No Knock Search Warrant” (docket #48-1) reveals that the
first informant’s role in the search of the property was limited. He/she provided Defendant
information concerning his/her knowledge of the Plaintiff and another possible participant in the
alleged crime, as well as his/her own observations of the property and the surrounding area. It is not
apparent that the informant participated in or witnessed the search itself. Rather, it appears that the
informant was merely a “tipster” who provided a lead for the police to investigate. See Gordon, 173
F.3d at 768 (citing United States v. Zamora,784 F.2d 1025, 1030 (10th Cir. 1986) (“if a confidential
informant was only a ‘tipster,’ and not an active participant in the criminal activity charged,
disclosure of the informant’s identity is not required.”)).
Further, Plaintiff asserts that he must have the opportunity to test the credibility of the
informants based upon a supposition that the informants may have provided false information to the
Defendant; however, such assertion is too attenuated to be persuasive. Id. (a court need “not require
disclosure of an informant’s identity based on ‘mere speculation’; the informant’s testimony must
be shown to be valuable to the defendant.”). Moreover, even if the informants had provided false
information, the Plaintiff need only submit rebuttal evidence to challenge its veracity. Here, the
Plaintiff does not argue that he has no method nor ability to present rebuttal evidence, or to
challenge any such alleged false information other than to depose the informant.
Nevertheless, to determine the scope of the informants’ roles, the Court ordered the
Defendant to identify the confidential informants and to provide the information they provided to
Detective Koopman to the Court in camera.

In addition, the Court conducted in camera

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examinations of the confidential informants. Based upon its in camera review and examinations,
and considering the information and arguments proffered by the parties, the Court finds not only that
the Plaintiff has failed to make the proper showing of need to overcome the informer’s privilege, but
also that the confidential information will not aid the Plaintiff in his case. See Sinclair, 109 F.3d at
1538 (“[w]here it is clear that the informant cannot aid the defense, the government’s interest in
keeping secret [the informant’s] identity must prevail over the defendant’s asserted right of
disclosure.”).
Thus, considering the strength of the privilege in this civil matter and the insufficient
showing made by the Plaintiff, the Court concludes there is no need to disclose the confidential
informants’ identities nor any information revealing their identities in this litigation. The protective
order originally entered on April 13, 2010 remains in effect and will govern the discovery in this
case insofar as the Defendant shall redact or withhold only that information which would reveal the
identities of the confidential informants, but shall disclose all other relevant non-privileged
information in accordance with Fed. R. Civ. P. 26(a). In addition, to the extent necessary, Defendant
shall prepare and provide a privilege log for all redacted information based upon asserted privileges.

III.

Conclusion
Accordingly, for the reasons stated above, it is hereby ORDERED that Plaintiff’s Motion

to Lift the Order of Protection as to Confidential Informants [filed March 28, 2012; docket #171]
is denied. The Clerk of the Court is directed to maintain under Restriction Level 2 those documents
found at dockets #189 and #194 until further order of the Court.

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Dated at Denver, Colorado, this 21st day of May, 2012.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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