Rhooms v. City of New York et al
ORDER granting (42) Motion to Unseal Grand Jury Minutes in case 1:11-cv-05910-PKC-RER; granting (23) Motion to Unseal Grand Jury Minutes in case 1:13-cv-05006-PKC-RER. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 9/4/2014. (Reyes, Ramon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
11–CV–5910 (PKC) (RER)
CITY OF NEW YORK, et al.,
13-CV-5006 (PKC) (RER)
MICHAEL ENRIGHT, et al.,
RAMON E. REYES, JR., U.S.M.J.:
These are consolidated actions for false arrest and malicious prosecution pursuant to 42
U.S.C. § 1983. (11-CV-5910 Dkt. No. 1; 13–CV–5006 Dkt. No. 1). Before the Court is plaintiff
Shane Rhoom’s (“Plaintiff” or “Rhooms”) motion to unseal certain portions of the grand jury
minutes of the underlying criminal case. (Dkt. No. 42).1 Defendants and non-party Kings
County District Attorney’s Office (“KCDA”) oppose the motion. (Dkt. Nos. 50, 50-2). This
issue has been discussed at length at least two conferences, and the parties have submitted legal
briefs and affidavits in support of their respective positions. Familiarity with the facts of the case
For the sake of brevity I will refer to the filings in 11-CV-5910.
and the parties’ respective arguments is assumed. For the reasons which follow, the motion is
In evaluating applications to unseal grand jury minutes, federal courts have required that
a plaintiff demonstrate a “particularized need” for the unsealing. Douglas Oil v. Petrol Stops
Northwest, 441 U.S. 211, 230 (1979); Myers v. Phillips, No. 04 CV 4365(ERK)(RML), 2007
WL 2276388, *2 (E.D.N.Y. Aug. 7, 2007); Frederick v. New York City, No. 11 Civ. 469(JPO),
2012 WL 4947806, at *7 (S.D.N.Y. Oct. 11, 2012). To demonstrate a particularized need, the
plaintiff must show “that (a) the material sought is needed to avoid a possible injustice, (b) the
need for disclosure is greater than the need for secrecy, and (c) the request is structured to cover
only material so needed.” Cullen v. Margiotta, 811 F.2d 698,715 (2d Cir. 1987). Rhooms has
met his burden.
First, given the nature of his claims and the record he has submitted to this Court,
Rhooms has shown a need for the requested materials to avoid a possible injustice. Rhooms
seeks the minutes to establish misconduct before the grand jury and thereby rebut the
presumption of probable cause for arrest created by the indictment, to impeach the credibility of
Relying on Harewood v. Braithwaite, No. 09-CV-2874 (PKC)(RML), 2013 WL
3863905 (E.D.N.Y. July 23, 2013), KCDA argues that Rhooms must first have sought the instant
relief from the state court that supervised the grand jury proceeding. (Dkt. No. 50-1 at 3-4.)
While it is true that comity and past practice may counsel toward the state court resolving such
matters in the first instance, that does not mean such a course of action is efficient, let alone
required. This Court retains the power, indeed the obligation, to order the disclosure of the grand
jury minutes if warranted, regardless of the decision of the state court. Moreover, this Court is in
a better position to assess the need for disclosure given its involvement in these proceedings for
the past two years. This Court can also take into account policy concerns of the state, which are
not much different, if different at all, than the policy concerns behind the secrecy of federal grand
jury proceedings. Notably, this Court recently met as a group with our colleagues from the state
bench of Kings County where this very issue was discussed. Overwhelmingly, if not
unanimously, the state bench expressed its agreement that this Court first address such motions.
the defendant officers, and to refresh their recollections. These reasons are sufficient to establish
a particularized need for disclosure. Vasquez v. City of New York, No. 10 Civ. 6277(JMF), 2013
WL 2449181, *1 (S.D.N.Y. June 6, 2013) (minutes unsealed where plaintiff argued police
engaged in witness tampering); Waterman v. City of New York, No. 96 Civ. 1471(AGS)(RLE),
1998 WL 23219, *2 (S.D.N.Y. Jan. 13, 1998) (recognizing that impeachment can be sufficient to
establish particularized need). Further, Rhooms has demonstrated that he cannot obtain the
relevant information without unsealing of the minutes as the officers testified at deposition that
they cannot remember the specifics of their grand jury testimony, or if they even testified.
Frederick, 2012 WL 4947806, at *9 (plaintiff alleging wrongful prosecution demonstrates need
for grand jury minutes “where witnesses [cannot] accurately recall their testimony”).
Rhooms has also demonstrated that the need for disclosure is greater than the need for
continued secrecy. For sure, the important policy of grand jury secrecy weighs heavily against
any request to unseal grand jury records. Id. at *12 (citing Rehberg v. Paulk, 132 S.Ct. 1497,
1509 (2012)). But where the underlying trial never occurred and the target of the grand jury
investigation is suing for false arrest and malicious prosecution, the only policy concern
motivating secrecy is “a desire to ‘[t]o encourage free and untrammeled disclosures by persons
who have information with respect to the commission of crimes.’” Id. at *13 (quoting United
States v. Procter & Gamble Co., 356 U.S. 677, 682 n. 6 (1958)). This interest standing alone is
almost never sufficient to overcome the need to avoid a possible injustice, especially where the
disclosure sought is of testimony of law enforcement officers. It cannot seriously be argued that
law enforcement officers would shy away from giving truthful testimony to a grand jury just
because their prior grand jury testimony had been disclosed in a civil rights case. E.g., Palmer v.
Estate of Stuart, No. 02 Civ. 4076, 2004 WL 2429806, *5 (S.D.N.Y. Nov. 1, 2004) (“interest in
secrecy is at its lowest given that testifying before grand juries is part of their regular job duties
as public servants.”); Bartels v. Dale, 532 F. Supp. 973, 976 (S.D.N.Y. 1982) (“A Government
agent is not likely to be inhibited by a subsequent disclosure in the sense that a businessman,
victim of extortion or racketeering who testifies to a grand jury might be.).
Finally, Rhooms request is structured to cover only the material he needs – the grand jury
testimony of the defendant officers – rather than the entire grand jury minutes.
I have carefully considered defendants’ arguments against disclosure, and find them to be
unconvincing. In these circumstances, I also find in camera review prior to disclosure to be
unwarranted, and only a cause of undue delay.
Accordingly, the grand jury testimony of the defendant officers is unsealed. Defendants
are to make arrangements with KCDA to have the minutes produced to Rhooms’ counsel within
ten business days of the date of this Order.
Dated: September 4, 2014
Brooklyn, New York
Ramon E. Reyes, Jr.
Ramon E. Reyes, Jr.
United States Magistrate Judge
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