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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 10 11 12 13 14 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. 15 16 Plaintiff Sparks Police Protective Association (“SPPA”) filed a motion for temporary 17 restraining order (“Motion”) to prevent Defendants from requiring one of its members, a 18 Sparks Police Department (“SPD”) Officer, to notify prosecutors about the results of an 19 Internal Affairs investigation (“the Investigation”). (ECF No. 4.) The Court granted SPPA’s 20 request for a shortened briefing schedule. (ECF No. 5.) The Court has reviewed 21 Defendants’ responses (ECF Nos. 7, 8.) and determined that a reply is not warranted. 22 The Officer, who SPPA calls Officer Doe, was investigated by Internal Affairs after 23 an incident involving Officer Doe returning a broken coffee maker to a retailer while on 24 duty. The Investigation resulted in a report (“Report”) which concluded that Officer Doe 25 had violated department policies, specifically including policies entitled “Neglect of Duty” 26 and “Promotion of Integrity.” (ECF No. 4-1; ECF No. 7 at 2.) Defendant Brian Allen, Chief 27 of the SPD, asked the City of Sparks’ Attorney’s Office (“City Attorney”) for a legal opinion 28 regarding the Brady-Giglio implications of the Investigation and Report. (ECF No. 4-1.) 1 The City Attorney concluded that Officer Doe and the SPD would be required to notify a 2 prosecuting agency about the Investigation and Report every time Officer Doe acts as a 3 witness. (Id.) On May 16, 2016, Chief Allen sent a letter to Officer Doe informing him of 4 the City Attorney’s opinion and instructing Officer Doe to notify prosecuting agencies of 5 the violations. Chief Allen also informed Officer Doe that he had already notified the Sparks 6 City Attorney’s Office, the Washoe County District Attorney’s Office, and the U.S. 7 Attorney’s Office of the potential Brady-Giglio issues. (Id.) 8 SPPA argues that no procedure exists through which to challenge the order in the 9 May 16 letter, and therefore Officer Doe has been deprived of the due process guaranteed 10 to him under the Nevada and United States Constitutions. SPPA contends that the 11 requirement to disclose the policy violations is “a definite threat to Officer Doe’s career 12 which amounts to an unlawful taking of his property by a government agency.” (ECF No. 13 4 at 11.) This is because according to SPPA, being labelled a “Brady cop” — presumably 14 a police officer who must report misconduct on his or her record — is bad for his career. 15 (ECF No. 1 at 14.) 16 In response, Defendants argue that they are bound by Brady v. Maryland, 373 U.S. 17 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) and Ninth Circuit law applying 18 those cases. (ECF No. 7 at 4-5.) Any reputational injury that Officer Doe may suffer, 19 Defendants argue, is speculative. (Id. at 6.) Furthermore, even assuming Officer Doe 20 suffers harm to his reputation, that does not amount to any recognized property interest 21 that would trigger procedural due process concerns. (Id.) Defendants also point out that 22 granting SPPA its requested relief means denying due process to the criminal defendants 23 against whom he testifies, essentially kicking the constitutional can down the road. (Id. at 24 9.) 25 “An injunction is a matter of equitable discretion and is an extraordinary remedy 26 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” 27 Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (internal quotation marks 28 omitted). 2 1 The Court may issue a temporary restraining order (“TRO”) pursuant to Federal 2 Rule of Civil Procedure 65. The standard for issuing a TRO is “substantially identical” to 3 the standard for issuing a preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush 4 & Co., 240 F. 3d 832, 839 n.7 (9th Cir. 2001). Thus, in order to obtain a TRO, a plaintiff 5 must show: (1) likelihood of success on the merits; (2) likelihood of irreparable harm in the 6 absence of preliminary relief; (3) that the balance of equities tips in her favor; and (4) that 7 an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 8 (2008). Alternatively, an injunction may issue under the “sliding scale” approach if there 9 are serious questions going to the merits and the balance of hardships tips sharply in 10 plaintiff’s favor, so long as plaintiff still shows a likelihood of irreparable injury and that an 11 injunction is in the public interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 12 1134–35 (9th Cir. 2011). “Serious questions are those which cannot be resolved one way 13 or the other at the hearing on the injunction.” Bernhardt v. Los Angeles Cnty., 339 F.3d 14 920, 926–27 (9th Cir. 2003) (internal quotation marks omitted) (citing Republic of the 15 Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)). They “need not promise a 16 certainty of success, nor even present a probability of success, but must involve a ‘fair 17 chance of success on the merits.’” Marcos, F.2d at 1362. 18 In applying the factors required under Winter, 555 U.S. at 20, and Alliance for the 19 Wild Rockies, 632 F.3d at 1134-35, and in deciding whether to issue TRO, the Court finds 20 and concludes as follows. 21 1. SPPA has not shown either a likelihood of success on the merits or a 22 combination of serious questions on the merits and a clear balance of hardships in its 23 favor. SPPA is correct that courts have recognized both liberty and property interests in 24 pursuing one’s chosen profession. See, e.g., Schware v. Bd. of Bar Exam. of State of 25 N.M., 353 U.S. 232, 238, (1957). However, SPPA does not allege that Officer Doe was 26 terminated from his position as a police officer or denied the ability to become a police 27 officer at all. Nor is SPPA challenging the procedures underlying conclusions from the 28 Investigation and Report (at least, not in the case currently before this Court). Rather, 3 1 SPPA alleges that following Chief Allen’s order, which is based on the City Attorney’s 2 opinion, may affect Officer Doe’s career prospects. SPPA has not provided, nor can the 3 Court find, any case law standing for the proposition that an obligation to disclose one’s 4 disciplinary record, rather than the procedures creating the disciplinary record in the first 5 place, implicate a protected interest that triggers procedural due process rights. At best, 6 SPPA’s argument is novel. However, as discussed below, even if the Court found that it 7 raised important unresolved legal questions, the balance of hardships weighs against 8 SPPA and Officer Doe. 2. 9 SPPA has not demonstrated an immediate threat of irreparable harm if the 10 status quo is not maintained. Chief Allen’s letter was sent to Officer Doe in May of 2016. 11 The letter indicates that Chief Allen has already notified local prosecutorial agencies about 12 potential Brady and Giglio issues related to Officer Doe’s disciplinary record. (ECF No. 4- 13 1.) Furthermore, Defendants suggest that Officer Doe has been subpoenaed to testify in 14 12 other occasions since Chief Allen ordered him to disclose the results of the Report. 15 (ECF No. 8 at 3; ECF No. 8-1 ¶2.) Even setting aside Defendants’ allegation about Officer 16 Doe’s repeated court appearances, the record indicates that local prosecutorial agencies 17 are already aware of the information SPPA seeks to protect. In addition, almost 7 months 18 passed between the letter and SPPA’s Motion, rendering any claims of immediate harm 19 stemming from the letter suspect. 3. 20 The potential harm to Defendants if a TRO is issued is substantial and 21 outweighs the potential harm to SPPA and Officer Doe. As Defendants correctly argue, 22 SPPA’s Motion asks the Court to withhold potential Brady material from criminal 23 defendants — itself a constitutional violation — and will create potential rippling adverse 24 effects on the prosecution of these criminal cases, including obtaining guilty verdicts that 25 may be subsequently reversed on appeal. Granting the TRO would force Defendants into 26 the dilemma of choosing between knowingly violating criminal defendants’ rights or 27 refusing to cooperate with prosecutions and protecting Officer’s Doe’s reputation pending 28 /// 4 1 resolution of this case on the merits. In sum, a balance of the equities tips against SPPA 2 and Officer Doe. 3 4. The public interest is served by allowing the SPD and any prosecutorial 4 agencies with whom they partner to comply with the requirements of Brady and Giglio. 5 Therefore, SPPA’s TRO request would not serve the public interest. 6 7 8 Accordingly, Plaintiffs’ Motion for a Temporary Restraining Order (ECF No. 4) is denied. DATED THIS 21st day of December 2016. 9 10 11 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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