Moore et al v. Ferguson Police Department et al

Filing 49

MEMORANDUM AND ORDER re: 38 MOTION for Protective Order filed by Defendant Brian Kaminski, Defendant Michael White, Defendant William Ballard, Defendant Matthew Bebe, Defendant Ferguson, Missouri, City of, Defendant Thomas Jackson motion is GRANTED. IT IS FURTHER ORDERED that the subpoenas directed to the Wentzville Police Department, Webster Groves Police Department, University City Police Department, Maryland Heights Police Department, Florissant Police Department, Eastern Missouri Police Academy, Cool Valley Police Department, and Professional Security Consultants are CANCELLED.. Signed by District Judge Stephen N. Limbaugh, Jr on 10/2/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TINA MOORE, individually and as
)
Personal Representative of the ESTATE OF )
JASON MOORE, et al.,
)
)
Plaintiffs,
)
)
vs.
)
)
CITY OF FERGUSON, MISSOURI, et al., )
)
Defendants.
)

No. 4:14-cv-1443 SNLJ
No. 4:14-cv-1447 SNLJ
CONSOLIDATED

MEMORANDUM and ORDER
Plaintiffs’ decedent, Jason Moore, died during an altercation with police in
Ferguson, Missouri. Plaintiffs are decedent’s relatives; they have filed this lawsuit
against the City of Ferguson, certain police officers, and other city officials. Plaintiffs
seek documents from eight third parties regarding defendant Brian Kaminski’s actual or
prospective employment or training, including any personnel records and all records
relating to training, employment, or denial of employment. The eight third parties are
Wentzville Police Department, Webster Groves Police Department, University City
Police Department, Professional Security Consultants, Maryland Heights Police
Department, Florissant Police Department, Eastern Missouri Police Academy, and Cool
Valley Police Department. Defendants have filed a motion for protective order (#38).
The matter has been fully briefed and is now ripe for disposition.
I.

Background
Plaintiffs allege that defendant Kaminski improperly used a TASER device against

plaintiffs’ decedent, Jason Moore. Plaintiffs’ complaint brings three counts against the
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defendants. Count I is for violation of decedent’s Fourth, Eighth, and Fourteenth
Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983 against
defendant Kaminski and three other defendant officers. Count II is for municipal liability
for violations of the Fourth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983
and claims that the Ferguson police department’s policies, customs, practices, and usages
caused the instant constitutional deprivations. Count III is for wrongful death against
defendant Kaminski and one other officer.
II.

Discussion
The parties are now in discovery. Defendant Kaminski applied for employment

with the five police departments served with subpoenas. He worked for the other three
entities receiving subponeas, Professional Security Consultants, Cool Valley Police
Department, and the Eastern Missouri Police Academy.1 Plaintiffs explained to defense
counsel that the documents requested from those eight entities might provide information
about the qualifications or competency of defendant Kaminski. In addition, plaintiffs
stated they were interested in any psychological testing that may have occurred, and they
state that training information is relevant to their claims against the City of Ferguson
regarding custom and policy and failure to adequately train its officers on use of force
and handling individuals such as Mr. Moore.
Defendants object to production of the documents directly to plaintiffs’ counsel
because many of the documents may touch upon private, personal, and sensitive
information (including defendant’s birth certificate, social security information, medical
information, residence address, and other information) that would violate defendant’s
1

Defendants’ motion states Kaminski worked for Professional Security Consultants (identified by its agent,
Paracorp Incorporated) and the Eastern Missouri Police Academy. Defendants’ reply memorandum states that
Kaminski worked for Professional Security Consultants and Cool Valley Police Department.

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right to privacy. Defendants further argue that any psychological testing results or related
documents are protected from disclosure under the psychotherapist privilege.
Furthermore, defendants contend that to the extent plaintiffs seek to show that defendant
Kaminski’s behavior and performance in job interviews explains his behavior during the
incident in question, that evidence is inadmissible under Federal Rule of Evidence 404.
Defendants also assert that plaintiffs have not made a claim for negligent hiring or
retention against the municipality, so the documents are irrelevant.
Plaintiffs report that only the Eastern Missouri Police Academy has responded
with documents, and all the documents have been furnished to defense counsel. All the
other records holders have either advised that there are no responsive records, or they
have not responded at all. Plaintiffs do not state which subpoena recipients have not
responded.
Plaintiffs agree that a police officer’s personnel file and any complaints made
against the officer can be confidential in nature and require a protective order. See
Donald v. Rast, 927 F.2d 391 (8th Cir. 1991). Plaintiffs deny however that the
production of the requested documents should be barred on the grounds that the
subpoenas are meant to harass, annoy, embarrass, or oppress. They contend that records
related to defendant Kaminski’s training and prior work experiences may show
background, skill, and training that he had as a law enforcement officer and whether he
adequately put this training and knowledge to use. Plaintiffs also disclaim that they seek
any records that that may be barred by the psychotherapist-patient privilege.
Defendants have produced defendant Kaminski’s personnel file and training
records pertaining to the Ferguson Police Department, subject to a protective order. The
Court agrees that documents related to defendant Kaminski’s training from entities other
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than the City are irrelevant, as they do not relate to the claim that Ferguson failed to
adequately train Kaminski. Thus any training records from the Eastern Missouri Police
Academy are not discoverable, and that subpoena will be cancelled. On the other hand,
the Court notes that defendants’ refusal to disclose Kaminski’s earlier experience and
training might preclude defendants themselves from introducing any such evidence at
trial, as well.
The subpoenas directed at police departments that did not employ defendant
Kaminski will be cancelled. The subpoenas directed at entities that did employ defendant
Kaminski are also cancelled because, as defendants point out, no claim for negligent
hiring or retention has been made. Thus nothing in those files are relevant to the claims
against Kaminski or the City, and they would not lead to the discovery of admissible
evidence.
Accordingly,
IT IS HEREBY ORDERED that defendants’ motion for protective order (#38) is
GRANTED.
IT IS FURTHER ORDERED that the subpoenas directed to the Wentzville
Police Department, Webster Groves Police Department, University City Police
Department, Maryland Heights Police Department, Florissant Police Department, Eastern
Missouri Police Academy, Cool Valley Police Department, and Professional Security
Consultants are CANCELLED.
Dated this 2nd day of October, 2015.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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