Sparks Police Protective Association v. City of Sparks et al

Filing 10

ORDER denying Plaintiff's ECF No. 4 Motion for TRO. Signed by Judge Miranda M. Du on 12/21/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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SPARKS POLICE PROTECTIVE
ASSOCIATION,
Plaintiff,
v.

Case No. 3:16-cv-00681-MMD-WGC
ORDER
(Mot. For Temporary Restraining Order –
ECF No. 4)

CITY OF SPARKS and BRIAN ALLEN in
his capacity as Chief of Police.,
Defendants.

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Plaintiff Sparks Police Protective Association (“SPPA”) filed a motion for temporary

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restraining order (“Motion”) to prevent Defendants from requiring one of its members, a

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Sparks Police Department (“SPD”) Officer, to notify prosecutors about the results of an

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Internal Affairs investigation (“the Investigation”). (ECF No. 4.) The Court granted SPPA’s

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request for a shortened briefing schedule. (ECF No. 5.) The Court has reviewed

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Defendants’ responses (ECF Nos. 7, 8.) and determined that a reply is not warranted.

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The Officer, who SPPA calls Officer Doe, was investigated by Internal Affairs after

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an incident involving Officer Doe returning a broken coffee maker to a retailer while on

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duty. The Investigation resulted in a report (“Report”) which concluded that Officer Doe

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had violated department policies, specifically including policies entitled “Neglect of Duty”

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and “Promotion of Integrity.” (ECF No. 4-1; ECF No. 7 at 2.) Defendant Brian Allen, Chief

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of the SPD, asked the City of Sparks’ Attorney’s Office (“City Attorney”) for a legal opinion

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regarding the Brady-Giglio implications of the Investigation and Report. (ECF No. 4-1.)

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The City Attorney concluded that Officer Doe and the SPD would be required to notify a

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prosecuting agency about the Investigation and Report every time Officer Doe acts as a

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witness. (Id.) On May 16, 2016, Chief Allen sent a letter to Officer Doe informing him of

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the City Attorney’s opinion and instructing Officer Doe to notify prosecuting agencies of

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the violations. Chief Allen also informed Officer Doe that he had already notified the Sparks

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City Attorney’s Office, the Washoe County District Attorney’s Office, and the U.S.

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Attorney’s Office of the potential Brady-Giglio issues. (Id.)

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SPPA argues that no procedure exists through which to challenge the order in the

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May 16 letter, and therefore Officer Doe has been deprived of the due process guaranteed

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to him under the Nevada and United States Constitutions. SPPA contends that the

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requirement to disclose the policy violations is “a definite threat to Officer Doe’s career

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which amounts to an unlawful taking of his property by a government agency.” (ECF No.

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4 at 11.) This is because according to SPPA, being labelled a “Brady cop” — presumably

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a police officer who must report misconduct on his or her record — is bad for his career.

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(ECF No. 1 at 14.)

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In response, Defendants argue that they are bound by Brady v. Maryland, 373 U.S.

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83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) and Ninth Circuit law applying

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those cases. (ECF No. 7 at 4-5.) Any reputational injury that Officer Doe may suffer,

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Defendants argue, is speculative. (Id. at 6.) Furthermore, even assuming Officer Doe

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suffers harm to his reputation, that does not amount to any recognized property interest

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that would trigger procedural due process concerns. (Id.) Defendants also point out that

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granting SPPA its requested relief means denying due process to the criminal defendants

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against whom he testifies, essentially kicking the constitutional can down the road. (Id. at

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9.)

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“An injunction is a matter of equitable discretion and is an extraordinary remedy

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that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”

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Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (internal quotation marks

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omitted).

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The Court may issue a temporary restraining order (“TRO”) pursuant to Federal

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Rule of Civil Procedure 65. The standard for issuing a TRO is “substantially identical” to

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the standard for issuing a preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush

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& Co., 240 F. 3d 832, 839 n.7 (9th Cir. 2001). Thus, in order to obtain a TRO, a plaintiff

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must show: (1) likelihood of success on the merits; (2) likelihood of irreparable harm in the

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absence of preliminary relief; (3) that the balance of equities tips in her favor; and (4) that

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an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20

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(2008). Alternatively, an injunction may issue under the “sliding scale” approach if there

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are serious questions going to the merits and the balance of hardships tips sharply in

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plaintiff’s favor, so long as plaintiff still shows a likelihood of irreparable injury and that an

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injunction is in the public interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,

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1134–35 (9th Cir. 2011). “Serious questions are those which cannot be resolved one way

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or the other at the hearing on the injunction.” Bernhardt v. Los Angeles Cnty., 339 F.3d

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920, 926–27 (9th Cir. 2003) (internal quotation marks omitted) (citing Republic of the

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Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)). They “need not promise a

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certainty of success, nor even present a probability of success, but must involve a ‘fair

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chance of success on the merits.’” Marcos, F.2d at 1362.

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In applying the factors required under Winter, 555 U.S. at 20, and Alliance for the

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Wild Rockies, 632 F.3d at 1134-35, and in deciding whether to issue TRO, the Court finds

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and concludes as follows.

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1.

SPPA has not shown either a likelihood of success on the merits or a

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combination of serious questions on the merits and a clear balance of hardships in its

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favor. SPPA is correct that courts have recognized both liberty and property interests in

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pursuing one’s chosen profession. See, e.g., Schware v. Bd. of Bar Exam. of State of

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N.M., 353 U.S. 232, 238, (1957). However, SPPA does not allege that Officer Doe was

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terminated from his position as a police officer or denied the ability to become a police

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officer at all. Nor is SPPA challenging the procedures underlying conclusions from the

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Investigation and Report (at least, not in the case currently before this Court). Rather,

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SPPA alleges that following Chief Allen’s order, which is based on the City Attorney’s

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opinion, may affect Officer Doe’s career prospects. SPPA has not provided, nor can the

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Court find, any case law standing for the proposition that an obligation to disclose one’s

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disciplinary record, rather than the procedures creating the disciplinary record in the first

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place, implicate a protected interest that triggers procedural due process rights. At best,

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SPPA’s argument is novel. However, as discussed below, even if the Court found that it

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raised important unresolved legal questions, the balance of hardships weighs against

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SPPA and Officer Doe.
2.

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SPPA has not demonstrated an immediate threat of irreparable harm if the

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status quo is not maintained. Chief Allen’s letter was sent to Officer Doe in May of 2016.

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The letter indicates that Chief Allen has already notified local prosecutorial agencies about

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potential Brady and Giglio issues related to Officer Doe’s disciplinary record. (ECF No. 4-

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1.) Furthermore, Defendants suggest that Officer Doe has been subpoenaed to testify in

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12 other occasions since Chief Allen ordered him to disclose the results of the Report.

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(ECF No. 8 at 3; ECF No. 8-1 ¶2.) Even setting aside Defendants’ allegation about Officer

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Doe’s repeated court appearances, the record indicates that local prosecutorial agencies

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are already aware of the information SPPA seeks to protect. In addition, almost 7 months

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passed between the letter and SPPA’s Motion, rendering any claims of immediate harm

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stemming from the letter suspect.
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The potential harm to Defendants if a TRO is issued is substantial and

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outweighs the potential harm to SPPA and Officer Doe. As Defendants correctly argue,

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SPPA’s Motion asks the Court to withhold potential Brady material from criminal

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defendants — itself a constitutional violation — and will create potential rippling adverse

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effects on the prosecution of these criminal cases, including obtaining guilty verdicts that

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may be subsequently reversed on appeal. Granting the TRO would force Defendants into

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the dilemma of choosing between knowingly violating criminal defendants’ rights or

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refusing to cooperate with prosecutions and protecting Officer’s Doe’s reputation pending

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///

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resolution of this case on the merits. In sum, a balance of the equities tips against SPPA

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and Officer Doe.

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The public interest is served by allowing the SPD and any prosecutorial

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agencies with whom they partner to comply with the requirements of Brady and Giglio.

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Therefore, SPPA’s TRO request would not serve the public interest.

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Accordingly, Plaintiffs’ Motion for a Temporary Restraining Order (ECF No. 4) is
denied.
DATED THIS 21st day of December 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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