Le et al v. Urquart et al

Filing 259

MINUTE ORDER granting Defendant King Countys 249 Motion to Quash. Authorized by Judge Thomas S. Zilly.(MW)

Case 2:18-cv-00055-TSZ Document 259 Filed 02/04/21 Page 1 of 4

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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BAO XUYEN LE, as Personal
Representative of the Estate of Tommy Le;
HOIA “SUNNY” LE; and DIEU HO,

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Plaintiffs,

REVEREND DR. MARTIN LUTHER
KING, JR. COUNTY; and KING
COUNTY DEPUTY SHERIFF CESAR
MOLINA,

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MINUTE ORDER

Defendants.

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C18-55 TSZ

v.

The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:
(1)
Defendant King County’s motion, docket no. 249, to quash a notice of
deposition issued to King County Councilmember Girmay Zahilay, the Chair of the Law
and Justice Committee of the King County Council, is GRANTED. A subpoena must be
quashed if it requires the disclosure of privileged matter, unless the privilege has been
waived. Fed. R. Civ. P. 45(d)(3). Nothing in the record suggests that Councilmember
Zahilay has waived the testimonial privilege he enjoys with respect to his legislative
activities. See Dyas v. City of Fairhope, No. 08-232, 2009 WL 3151879 at *2 (S.D. Ala.
Sep. 24, 2009) (observing that testimonial privilege exists whenever legislative immunity
exists); see also Benisek v. Lamone, 241 F. Supp. 3d 566, 573 (D. Md. 2017) (indicating
that the doctrine of immunity shielding state, regional, and local officials from liability
for their legislative actions is a product of federal common law, rooted in principles of
comity and enjoying a history that predates the Constitution).

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The only question before the Court is whether the statements 1 about which
plaintiffs wish to depose Councilmember Zahilay were made in a “legislative” context.
In assessing whether an action is legislative, the Court must consider four factors:
(i) whether the action involves ad hoc decision making or the formulation of policy;
(ii) whether the action applies to a few individuals or to a larger segment of the public;
(iii) whether the action is formally legislative in character; and (iv) whether the action
bears all the hallmarks of traditional legislation. Kaahumanu v. County of Maui, 315
F.3d 1215, 1220 (9th Cir. 2003); Dyas, 2009 WL 3151879 at *2 (defining a legislative
act as involving policymaking rather than “mere administrative application of existing
policies”). Under this standard, the Court concludes Councilmember Zahilay’s
deposition is precluded by his testimonial privilege.
During the meeting at issue, which was conducted on September 2, 2020, the
Law and Justice Committee heard from inter alia 2 (i) Deborah Jacobs, then director of
King County’s Office of Law Enforcement Oversight (“OLEO”), (ii) Michael Gennaco,
founder of OIR Group, and co-author of a report commissioned by OLEO, which
evaluated the internal review conducted by the King County Sheriff’s Office (“KCSO”)
after the deputy-involved shooting of Tommy Le, and (iii) Mitzi Johanknecht, who was
not the King County Sheriff at the time of the shooting, but was elected before the
KCSO’s internal review occurred. A recording of the proceedings is available at
http://king.granicus.com/MediaPlayer.php?view_id=4&clip_id=8244, and the parties

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In their response to King County’s motion, plaintiffs assert that Councilmember Zahilay

13 “admitted that the Review Board report omitted and twisted critical facts of the shooting which
was ‘like a clear obstruction of justice.’” Plas.’ Resp. at 2 (docket no. 252). Plaintiffs have

14 mischaracterized Councilmember Zahilay’s remarks. What Councilmember Zahilay actually
said is as follows:

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Mr. Gennaco, throughout, you mentioned that throughout this review, throughout
this process, it seems like critical facts were either missing or changed, you know,
the status of what was in Tommy’s hands[, w]here Tommy was shot. These are
critical -- critical facts. It almost, you know, I don’t want to ascribe someone’s
intent, but it would be hard to misstate those facts without intention. What -- what
consequences are there for an investigator who misrepresents critical pieces of
information like this[? A]re there any mechanisms in place? Because this seems
like a clear obstruction of justice[.]”

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Compare Tr. (Sep. 2, 2020) at 30:15-31:1 (by Seattle Deposition Reporters, LLC), Ex. 1 to
20 Kinerk Decl. (docket no. 250) with Tr. (Sep. 2, 2020) at 27:13-23 (by Buell Realtime Reporting,
LLC), Ex. A to Arnold Decl. (docket no. 253-1).

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At the start of the session, all three plaintiffs, who are Tommy Le’s mother, father, and aunt,
addressed the Law and Justice Committee, mainly to express their grief.

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1 have provided two slightly different versions of a written transcript, Ex. 1 to Kinerk Decl.
(docket no. 250) and Ex. A to Arnold Decl. (docket no. 253-1).
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OLEO is an agency within the legislative branch of King County. See King
3 County Code (“KCC”) 2.75.020. It was created in October 2006, but revamped in
May 2009 as a result of a collective bargaining agreement between King County and the
4 King County Police Officers Guild. See Ordinances 15611 and 16511 (available at
https://kingcounty.gov/council/clerk/search_archive.aspx); see also OLEO First Report
5 (2011) (available at https://www.kingcounty.gov/independent/law-enforcementoversight/reports.aspx). In April 2017, OLEO’s authority was expanded, and it may now
6 investigate complaints about the KCSO and conduct “systemic reviews” concerning the
KCSO’s “operations, training, policies, rules, procedures, practices or general orders.”
7 Ordinance 18500 at § 4 (codified at KCC 2.75.040(A)(2) & (E)).
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Mr. Gennaco’s September 2020 presentation to the Law and Justice Committee
summarized from “a 50,000 foot level” the systemic review he performed with respect to
the KCSO’s “Policy, Practice, and Review Mechanisms for Officer-Involved Shootings”
following Tommy Le’s death in June 2017. See Tr. at 13:20 (docket no. 250); see also
OIR Group Report, Ex. B to Arnold Decl. (docket no. 253-2). Sheriff Johanknecht
provided an abbreviated response to Mr. Gennaco’s findings, emphasizing that she and
her staff had had only “a handful of days” to digest his report. Id. at 38:19 & 39:18.
Councilmembers Zahilay and Rod Dembowski each asked questions of Mr. Gennaco and
Sheriff Johanknecht, and their inquiries appeared primarily aimed at understanding how
administrative reviews of officer-involved shootings should be conducted. See Tr. at
25:8-20, 26:11-27:2, 28:17-29:1, 30:14-31:1, 32:5-11, 34:18-35:7, 49:13-19, & 50:9-51:6
(docket no. 250). Indeed, at one point, Councilmember Zahilay expressed an opinion that
King County “should have an independent entity conducting administrative reviews,” and
OLEO “should be much stronger” and “able to conduct those reviews independently.”
Id. at 50:10-14. On this subject, he solicited the views of both Mr. Gennaco and Sheriff
Johanknecht. See id. at 25:11-20 & 51:2-6 & 18-22.
The Court concludes that, although the September 2020 briefing focused on the
systemic review of the KCSO’s conduct in the aftermath of Tommy Le’s shooting, the
purpose of the meeting was much broader, namely to consider whether the administrative
review process for officer-involved shootings needs modification, which might require a
strengthening of OLEO’s mandate from the King County Council. This activity is
quintessentially legislative. See Dyas, 2009 WL 3151879 at *6 (“Legitimate legislative
activity includes such things as preparing committee reports and participating in
committee investigations, hearings and proceedings”). To the extent that plaintiffs seek
to interrogate Councilmember Zahilay about the views he formed after reviewing
Mr. Gennaco’s report and considering the responses of Sheriffi Johanknecht, such inquiry
would have a chilling effect on legislative functioning, see id. at *7-10, while producing
nothing more than inadmissible lay opinions based entirely on hearsay.

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Councilmember Zahilay’s statements and/or questions posed during the Law and
Justice Committee meeting are matters of public record, available to plaintiffs without
deposing him. See Austin Lifecare, Inc. v. City of Austin, No. A-11-CA-875, 2012 WL
12850268 at *2 (W.D. Tex. Mar. 20, 2012) (quashing two notices of deposition,
indicating that the plaintiffs had “alternative methods for discovering the information
they seek, . . . such as records of public proceedings [and] public statements of council
members”). The Court, however, makes no ruling at this time concerning whether
Councilmember Zahilay’s statements and/or questions during the meeting at issue, the
related OIR Group Report (also described as the OLEO Report), or any testimony
regarding the OIR Group Report or OLEO itself will be admissible at trial.

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(2)
This case remains set for trial on April 19, 2021, with a Pretrial Conference
7 scheduled for April 9, 2021, at 10:00 a.m. The parties have agreed to engage in jury
selection remotely. See Minutes (docket no. 246). Within fourteen (14) days of the date
8 of this Minute Order, the parties shall file any objections, not to exceed five (5) pages in
length, to conducting the entire trial in a virtual manner via the ZoomGov.com platform.
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(3)
The Clerk is directed to send a copy of this Minute Order to all counsel of
record.
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Dated this 4th day of February, 2021.

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William M. McCool
Clerk

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s/Gail Glass
Deputy Clerk

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