Thomas v. Nassau County Police Dept. et al
Filing
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Electronic ORDER denying 49 Motion to Compel; denying 52 Motion to Compel; denying 53 Motion for Hearing. All denials are made without prejudice at this time for the reasons set forth in the attached opinion. Defendants are to provide furthe r submission by April 8, 2016. Plaintiff is granted until May 13, 2016 to complete discovery and the first step in disposition motion practice must be taken by May 23, 2016. Defendant is directed to serve a copy of this order and the attached memorandum on plaintiff and to file proof of service via ECF. So Ordered by Magistrate Judge Anne Y. Shields on 3/21/2016. (Berson, Alison)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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STEVEN B. THOMAS,
Plaintiff,
MEMORANDUM & ORDER
CV 12-4343 (JMA) (AYS)
-againstNASSAU COUNTY POLICE DEPT.,
JOHN WELLENREUTHER,
Defendants.
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ANNE Y. SHIELDS, United States Magistrate Judge:
This is an action commenced pursuant to 42 U.S.C. §1983 alleging violation of Plaintiff’s
Eighth and Fourteenth Amendment rights. Defendants are Nassau County (the “County”) and
Nassau County Police Officer John Wellenreuther (“Wellenreuther” collectively “Defendants”).
Plaintiff’s complaint arises out of the events that led to his arrest after a robbery witnessed and
stated to have been thwarted by Wellenreuther. Plaintiff claims that Wellenreuther, who was in
plain clothes and off duty at the time of the robbery, shot at Plaintiff for no apparent reason.
Defendants state that Wellenreuther shot at Plaintiff only after Plaintiff refused a command to
stop, and attempted to flee the scene of the robbery. While Plaintiff was ultimately convicted of
robbery, this action challenges the constitutionality of the use of force in connection with
Plaintiff’s arrest. Presently before the Court is plaintiff’s motion to compel further responses to
discovery. For the reasons set forth below, the motion is denied at this time with leave to submit
additional information with respect to a particular claim of privilege.
DISCUSSION
I.
Background
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The action arises out of incidents accompanying plaintiff’s arrest following a 2011
robbery of a gas station. Briefly stated, Defendant Wellenreuther was present at the site of the
robbery, but was, at the time, off duty. Wellenreuther intervened in the robbery by first
commanding that Plaintiff stop. Wellenreuther states that instead of stopping, Plaintiff pointed a
gun. Thereafter, Welleneuther fired two separate rounds from his service weapon. Plaintiff fled
and a chase ensured which culminated in Plaintiff’s arrest. Following his arrest, Plaintiff was
transferred to Nassau University Medical Center where he was treated for a gunshot wound. He
was later convicted of Robbery in the Second Degree and Third Degree Criminal Possession of a
Weapon. Plaintiff thereafter commenced this action challenging Defendants’ actions.
II.
The Motions to Compel
The parties have engaged in discovery, including the taking of Plaintiff’s deposition and
Defendants’ service of particular responses to Plaintiff’s requests for documents. See DE [40]
(noting Defendants’ responses to Plaintiff’s written discovery) and DE [55] (noting the taking of
Plaintiff’s deposition). Presently before the court are Plaintiffs’ motions to compel Defendants to
provide more definitive responses to discovery demands. See Docket Entries (“DE”) [49], [52].
Plaintiff also seeks a hearing in connection with the motions. DE [53].
Plaintiff’s motions argue that Defendants’ discovery responses are incomplete, deceitful
and not properly verified. DE [49] and [52]. Defendants state that they have provided adequate
responses that comply with the verification requirement of the Federal Rules of Civil Procedure.
DE [55]. As to the adequacy of their responses, Defendants note that they have produced certain
Nassau County Police Department policies and procedures regarding responsibilities of police
officers while on and off duty, justification for discharge of firearms while on and off duty and
use of deadly force. They have further produced information regarding the incident at the gas
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station. Thus, Defendants have produced transcripts of radio and dispatcher calls made in the
course of the robbery and pursuit at issue, police officers’ memorandum book entries, sworn
statements from the two victim gas station employees setting forth the details of the robbery,
additional sworn statements from other witnesses, and the Police Department’s official Arrest
Report, Crime Report and Case Report which contain detailed narratives of the robbery, pursuit
and arrest of the plaintiff. DE [55].
While Defendants have thus produced general procedures as well as and all documents
generated as a result of the 2011 incident which led to Plaintiff’s arrest, they have withheld
certain identified policies. Specifically, Defendants have withheld documents entitled: “Police
Operations,” POL 4200, Use of Force, and Department Procedures, OPS 12420, “use of Deadly
Force.” These documents are withheld pursuant to Defendants’ assertion of the Law
Enforcement Privilege,” as discussed and set forth in Schiller v. City of New York, 244 F.R.D.
273, (S.D.N.Y. 2007). DE [55]. Specifically, Defendants argue that the documents are being
withheld to prevent disclosure of law enforcement techniques and procedures. See In re Dep’t.
of Investigation of the City of New York, 856 F.2d 481, 484 (2d Cir. 1988).
In addition to the claim of privilege above, Defendants have refused to produce
Defendant Wellenreuther’s personal information such as his address, date of birth and social
security number. The information sought is stated to be both irrelevant to the claims herein and
protected by Section 50(a) of the New York Civil Rights Law. Defendants object to production
of Wellenreuther’s personnel file and work evaluations on the same statutory ground.
III.
Disposition of the Motions
A.
Law Enforcement Privilege: Standards
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The law enforcement privilege is a qualified common law privilege that protects the
confidentiality of information related to law enforcement activities. The privilege covers law
enforcement activities. Dinler v. City of New York, 607 F.3d 923, 941 (2d Cir. 2010). The
privilege protects against disclosure of, inter alia, “law enforcement techniques and procedures . .
. .” Id. at 944. The party asserting the privilege bears the burden of showing its application. See
Id. at 950. Application of the law enforcement privilege is determined pursuant to a burden
shifting framework. Adams v. City of New York, 993 F. Supp.3d 306, 313 (E.D.N.Y. 2014).
The party asserting the privilege must first “demonstrate that the documents contain information
that the law enforcement privilege is intended to protect.” Id. (citation omitted). Arguably
relevant here are those branches of the privilege protecting information that: (1) “pertain to law
enforcement techniques and procedures,” (2) “would endanger witness and law enforcement
personnel” and/or (3) “would seriously impair the ability of a law enforcement agency to conduct
future investigations.” Id.
As to the initial burden, assertion of the privilege must be supported by a clear showing
of harm if the information is disclosed. MacNamara, 249 F.R.D 70, 79 (S.D.N.Y. 2008).
Because the privilege protects not only particular information derived from police intelligence,
but also more general law enforcement techniques and procedures, it can be asserted on the
ground that production of the documents sought would seriously impair the ability to conduct
future investigations. MacNamara v. City of New York, 249 F.R.D. at 78.
If the party asserting the privilege makes this initial showing, the court determining
application of the privilege then balances “the public interest in nondisclosure against ‘the need
of a particular litigant for access to the privileged information.” Id. Factors favoring nondisclosure include “(1) the threat to police officers' safety, (2) the invasion of police officers'
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privacy, such as through disclosure of officers' personnel records, (3) the weakening of law
enforcement programs, and (4) the chilling of police internal investigative candor. MacNamara,
249 F.R.D. at 80 (quoting King v. Conde, 121 F.R.D. 180, 191-93 (E.D.N.Y. 1988). Factors
favoring disclosure include showing that (1) the lawsuit at issue is non-frivolous and brought in
good faith; (2) the information sought is not available through other discovery or from other
sources, and (3) a “compelling need” for the protected information. Id. Factors favoring nondisclosure include: (1) the threat to police officers' safety; (2) the invasion of police officers'
privacy, such as through disclosure of officers' personnel records; (3) the weakening of law
enforcement programs, and (4) the chilling of police internal investigative candor. King, 121
F.R.D. at 191-93.
B.
Disposition of Claim of Privilege
As noted, Defendants state that they are withholding documents described as
“Department Policies, “Police operations,” “POL 4200, Use of Force, and Department
Procedures, OPS 12420, “Use of Deadly Force,” pursuant to the law enforcement privilege.
Other than simply asserting that the privilege applies, Defendants have not described why
application is appropriate. In light of the requirement that the party asserting the privilege make
a clear showing of harm if the information is disclosed, MacNamara, 249 F.R.D at 79, this Court
holds Defendants’ assertion of the privilege has not made a sufficient showing. In light of the
possibility that disclosure of the information would, indeed, lead to the harm asserted, especially
when considering the issue of whether such information is within the scope of discovery herein,
the court will not, at this time order production of the documents withheld. Instead, the Court
will grant Defendants an additional two weeks in which to properly supplement their claim of
privilege. Once that submission is made the Court will be in a position to undertake the proper
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balancing to determine whether the application applies. Accordingly, the Court directs
Defendants to supplement their claim of privilege with additional arguments and precedent,
including, if available, any other case in which the law enforcement privilege has been upheld
with respect to these specific documents. In addition, and in light of the fact that Defendants
have already produced certain policy and procedure documents as described above, Defendants’
submission shall include a discussion providing a meaningful distinction between those
documents already produced and the documents that it seeks to withhold on the basis of
privilege. Defendants’ submission shall be filed electronically on or before April 8, 2016.
B.
Section 50-a
New York Civil Rights Law §50-a provides (in pertinent part):
All personnel records used to evaluate performance toward continued employment
or promotion, under the control of any police agency or department of the state or any
political subdivision thereof including authorities or agencies maintaining police forces of
individuals defined as police officers in section 1.20 of the criminal procedure law and
such personnel records under the control of a sheriff's department or a department of
correction of individuals employed as correction officers and such personnel records
under the control of a paid fire department or force of individuals employed as
firefighters or firefighter/paramedics and such personnel records under the control of the
department of corrections and community supervision for individuals defined as peace
officers pursuant to subdivisions twenty-three and twenty-three-a of section 2.10 of the
criminal procedure law and such personnel records under the control of a probation
department for individuals defined as peace officers pursuant to subdivision twenty-four
of section 2.10 of the criminal procedure law shall be considered confidential and not
subject to inspection or review without the express written consent of such police
officer, firefighter, firefighter/paramedic, correction officer or peace officer within the
department of corrections and community supervision or probation department except as
may be mandated by lawful court order.
Wellenreuther is undisputedly a police officer in New York State. As such, his personnel records
are confidential, including his social security number, date of birth, address and performance
evaluations. It is therefore, appropriate that the Defendants withheld that information.
Notwithstanding this confidentiality, Defendants have provided Plaintiff with copies of all
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civilian complaints against Wellenreuther. This Court finds that such a production is a sufficient
response to Plaintiff’s demand.
C.
Additional Responses
With the exception of the documents discussed above, this Court has reviewed Plaintiff’s
demands and Defendants’ responses and finds that Defendant has provided sufficient responses
to Plaintiff’s demands that comply with the Federal Rules of Civil Procedure.
CONCLUSION
For the foregoing reasons this Court denies the motions to compel set forth as Docket
Entries [49], [52] and [53]. The denial of the motions is without prejudice to Defendants’
submission of the additional information referred to in this opinion on or before April 8,
2016. Upon such submission the Court will deem the motions renewed and rule upon
Defendants’ claim of privilege. Defendants’ failure to submit the information and argument
required herein will result in this Court ordering that the withheld documents be
produced.
As to the completion of discovery, to the extent Plaintiff seeks to depose any additional
witnesses, Plaintiff is granted until May 13, 2016, to do so. The first step in dispositive motion
practice must be taken by May 23, 2016.
Defendants shall serve a copy of this order on Plaintiff forthwith and file proof of such
service on the docket herein.
Dated: Central Islip, New York
March 21, 2016
/s/ Anne Y. Shields
ANNE Y. SHIELDS
United States Magistrate Judge
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