Opinion
4:21-cv-00053-RGE-SHL
2022-03-31
Cierra DUNN, Makenzie Moler, Jaquan Patton, Michael Klingenberg, Verchon Debrossard, Trentae Fugate, Cameron Lard, Sophia Jacobsen, Jivonte Johnson, Jayvione Lewis, Joshua Petefish, Tyler Robinson McCuddin, Emma Timberlake, Harrison Woods, and Tony Young, Plaintiffs, v. John DOES 1-20, Trudy Paulson, Tyler Moffatt, Jacob Hedlund, Kyle Gruver, Nicholas Valentine, Deb Vanvelzen, Jeremy Sprague, Clark Allen, Ernesto Escobar Hernandez, Chad Nicolino, Jeffrey George, Bradley Youngblut, Jake Forrester, Kirk Bagby, Dana Wingert, City of Des Moines, Iowa, Brian Buck, Brandon Holtan, Chris Hardy, Brendan Egan, Jeremy Betts, Tyler Palmer, Jared Underwood, David Chiodo, Mark Wessels, Timothy Coughennower, Ben McCarthy, Thomas Garcia, Daniel Dempsy, Brad Hook, Scott Newman, Nick Smith, Adam Herman, Todd Wilshushen, Ken Callahan, Jacob Lovell, Bryan Bach, Ryan Armstrong, Polk County Iowa, City of West Des Moines, and City of Altoona, Defendants.
Gina Messamer, Brandon John Brown, Jessica Donels, Brown & Bergmann, L.L.P., Des Moines, IA, for Plaintiffs Cierra Dunn, Verchon Debrossard, Michael Klingenberg, Trentae Fugate, Cameron Lard, Sophia Jacobsen, Jivonte Johnson, Makenzie Moler, Jaquan Patton, Joshua Petefish, Emma Timberlake, Harrison Woods, Tony Young. Gina Messamer, Brandon John Brown, Brown & Bergmann, L.L.P., Des Moines, IA, for Plaintiff Jayvione Lewis. John O. Haraldson, Des Moines City Attorney, Des Moines, IA, for Defendant John Does. John O. Haraldson, Des Moines City Attorney, Des Moines, IA, Gregory R. Brown, Duncan Green PC, Des Moines, IA, for Defendants Brandon Holtan, Chris Hardy, Brendan Egan, Jeremy Betts, David Chiodo, Timothy Coughennower, Benjamin McCarthy, Adam Herman, Todd Wilshushen, Ryan Armstrong, Jacob Hedlund, Kyle Gruver, Nicholas Valentine, Clark Allen, Ernesto Escobar Hernandez, Chad Nicolino, Jeffrey George, Bradley Youngblut, Kirk Bagby, Dana Wingert, City of Des Moines, Iowa. Michael C. Richards, Katherine Elizabeth Anderegg, Dentons Davis Brown PC, Des Moines, IA, for Defendants Tyler Palmer, Tyler Moffatt, Jake Forrester, City of West Des Moines, City of Altoona. Meghan L. Gavin, Julie Jean Bussanmas, Polk County Attorney, Des Moines, IA, for Defendants Nick Smith, Ken Callahan, Polk County Iowa.
Gina Messamer, Brandon John Brown, Jessica Donels, Brown & Bergmann, L.L.P., Des Moines, IA, for Plaintiffs Cierra Dunn, Verchon Debrossard, Michael Klingenberg, Trentae Fugate, Cameron Lard, Sophia Jacobsen, Jivonte Johnson, Makenzie Moler, Jaquan Patton, Joshua Petefish, Emma Timberlake, Harrison Woods, Tony Young.
Gina Messamer, Brandon John Brown, Brown & Bergmann, L.L.P., Des Moines, IA, for Plaintiff Jayvione Lewis.
John O. Haraldson, Des Moines City Attorney, Des Moines, IA, for Defendant John Does.
John O. Haraldson, Des Moines City Attorney, Des Moines, IA, Gregory R. Brown, Duncan Green PC, Des Moines, IA, for Defendants Brandon Holtan, Chris Hardy, Brendan Egan, Jeremy Betts, David Chiodo, Timothy Coughennower, Benjamin McCarthy, Adam Herman, Todd Wilshushen, Ryan Armstrong, Jacob Hedlund, Kyle Gruver, Nicholas Valentine, Clark Allen, Ernesto Escobar Hernandez, Chad Nicolino, Jeffrey George, Bradley Youngblut, Kirk Bagby, Dana Wingert, City of Des Moines, Iowa.
Michael C. Richards, Katherine Elizabeth Anderegg, Dentons Davis Brown PC, Des Moines, IA, for Defendants Tyler Palmer, Tyler Moffatt, Jake Forrester, City of West Des Moines, City of Altoona.
Meghan L. Gavin, Julie Jean Bussanmas, Polk County Attorney, Des Moines, IA, for Defendants Nick Smith, Ken Callahan, Polk County Iowa.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Stephen H. Locher, UNITED STATES MAGISTRATE JUDGE
Plaintiffs seek disciplinary and interview records for 37 Des Moines Police Department officers. Defendant City of Des Moines (the "City") resists, arguing the records are protected from disclosure under Iowa Code § 80F.1(20) absent court order and that some of them are not discoverable under the governing standards in Fed. R. Civ. P. 26(b)(1). The Court rejects the City's interpretation of § 80F.1(20) as requiring a court order prior to production (although this Order would suffice anyway) but agrees that some of the records sought by Plaintiffs are not discoverable pursuant to Fed. R. Civ. P. 26(b)(1). The Court therefore GRANTS IN PART and DENIES IN PART Plaintiffs’ Motion to Compel.
Plaintiffs and the City refer to "37 officers" throughout their briefs and filings relating to the Motion to Compel. (E.g., ECF 101.) The Court, however, only counts 27 officers in the actual Requests for Production. (ECF 97-4, pp. 14–23). For consistency with the parties’ filings, the Court will use the number "37" in this Order.
I. BACKGROUND
This case arises out of protests and demonstrations that took place in Des Moines, Iowa, in the aftermath of George Floyd's death on May 25, 2020. (ECF 30, ¶¶ 63–85.) According to Plaintiffs’ Complaint, tension grew between protesters and police officers in Des Moines in the week following Floyd's death. (Id., ¶¶ 99–108, 139–44.) On May 30, 2022, protesters walked from the Polk County Courthouse to the Capitol Building and back to the downtown Court Avenue bar area. (Id., ¶¶ 65–85.)
Around 2:30 a.m. on May 31, the protest turned into "more of a party than a protest." (Id., ¶¶ 86–91.) A few minutes later, five to ten people broke into the Hy-Vee on Court Avenue, with several police officers arriving shortly after. (Id.) After the police arrived, both the people who had broken in and bystanders dispersed. (Id., ¶¶ 92–94.) As alleged by Plaintiffs, police began to canvas the area and arrest individuals without regard to who the actual vandals were. (¶ 95.) Plaintiffs allege that individuals in the surrounding area were arrested, beaten, and pepper sprayed without provocation. (Id., ¶¶ 92–107.) Over 40 people were arrested and charged with criminal mischief and rioting. (Id., ¶¶ 114–25.) Plaintiffs allege the officers knew there was not probable cause to charge the individuals with those crimes. (Id.) Plaintiffs further allege there was an unlawful policy to arrest individuals for being present at a scene like the one on May 31 without sufficient evidence that the arrestees had engaged in unlawful conduct. (Id., ¶¶ 131–35.)
Each Plaintiff was arrested on May 31 and criminally charged for failure to disperse, criminal mischief and/or participating in a riot. (Id., ¶¶ 150–418.) Each Plaintiff denied wrongdoing, and their cases all were subsequently dismissed. (Id.) Plaintiffs’ Complaint brings claims against their respective arresting/charging officers (known and unknown) for: 1) illegal seizure under 42 U.S.C. § 1983 (4th Amendment violation), 2) illegal seizure (violation of Iowa Constitution), 3) excessive force under § 1983 (4th Amendment violation), 4) civil rights violation under the Iowa Constitution, 5) deliberately indifferent policies, training, and supervision under § 1983 (violation of the 1st, 4th, 5th and 14th Amendments), 6) deliberately indifferent policies, training, and supervision (violation of Iowa Constitution), 7) malicious prosecution, 8) false arrest/imprisonment, 9) libel, 10) assault and battery, 11) negligence/recklessness, and 12) respondeat superior. The City is named as a defendant in Counts 5, 6, and 12.
A discovery dispute has arisen between Plaintiffs and the City regarding the discoverability of Office of Public Safety (OPS) information from the May 2020 protests and the disciplinary records of 37 officers. By the time of hearing on Plaintiffs’ Motion to Compel, the Parties had significantly narrowed the issues. The City concedes that OPS information related to the May 31 incidents and disciplinary personnel records relating to search and seizure complaints are relevant and discoverable. With respect to those categories of information, the City merely argues that an Order is required before they can release the records in light of confidentiality language in Iowa Code § 80F.1(20). For their part, Plaintiffs agree they do not need access to disciplinary records that revolve around traffic violations or purely administrative issues. The only apparent issue still in dispute is whether Plaintiffs are entitled to information from events post-dating May 31, 2020.
II. LEGAL STANDARD
The Court has broad discretion to resolve discovery disputes. Haviland v. Cath. Health Initiatives-Iowa, Corp. , 692 F. Supp. 2d 1040, 1043 (S.D. Iowa 2010). Fed. R. Civ. P. 26 authorizes discovery of "any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." Fed. R. Civ. P. 26(b)(1). Evidence is relevant if it "has any tendency to make a fact more or less probable than it would be without the evidence." Fed. R. Evid. 401. Discovery is meant to be used as "a[n] investigatory tool ... to help litigants gain an understanding of the key persons, relationships, and evidence in a case." Sentis Grp., Inc. v. Shell Oil Co. , 763 F.3d 919, 926 (8th Cir. 2014).
To determine whether information is discoverable, courts consider "the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(1). Courts may limit discoverable evidence if the requested information is unreasonably cumulative, not relevant to a claim or defense in the case, or cheaper or easier to obtain from some other source. Id. 26(b)(2)(C). The party objecting to discovery carries the burden of proof. St. Paul Reinsurance Co. v. Commercial Fin. Corp. , 198 F.R.D. 508, 511 (N.D. Iowa 2000).
III. LEGAL ANALYSIS
A. The City Is Obligated to Produce Records Governed by Iowa Code § 80F.1(20) in Response to Valid Discovery Requests Even Without a Court Order.
In 2021, the Iowa Legislature amended Iowa Code § 80F.1, entitled the "Peace Officer, Public Safety, and Emergency Personnel Bill of Rights," by, inter alia , adding new subsection (20), which states:
The employing agency shall keep an officer's statement, recordings, or transcripts of any interviews or disciplinary proceedings, and any complaints made against an officer confidential unless otherwise provided by law or with the officer's written consent. Nothing in this section prohibits the release of an officer's statement, recordings, or transcripts of any interviews or disciplinary proceedings, and any complaints made against an officer to the officer or the officer's legal counsel upon the officer's request.
IOWA CODE ANN. § 80F.1(20) (West 2021); see also IA LEGIS 183 (2021), 2021 Ia. Legis. Serv. Ch. 183 (S.F. 342) (West). The City relies in part on Iowa Code § 80F.1(20) in objecting to Plaintiff's discovery requests. The City acknowledges that § 80F.1(20) does not create an absolute privilege against disclosure; however, according to the City, the statute requires a court order before disciplinary or interview records may be produced.
The Court agrees that Iowa Code § 80F.1(20) does not create an absolute privilege against disclosure but does not agree with the City's position that a court order is required before materials may be produced in discovery. If a party to a federal civil case makes a discovery request for materials governed by § 80F.1(20), and if the request satisfies the standards of Fed. R. Civ. P. 26(b)(1), the governmental entity in possession of the materials must produce them without waiting for a court order.
The Court reaches this conclusion based on the plain language of the statute. Section 80F.1(20) directs cities and other governmental entities to keep disciplinary records confidential "unless otherwise provided by law ..." When a party to a civil case makes a valid discovery request, the responding party is required by law to produce responsive documents and information. See Fed. R. Civ. P. 34(b)(2) (requiring responses to requests for production within 30 days). It follows that the responding party's obligation to disclose materials governed by § 80F.1(20) is "otherwise provided by law" even without a court order. See In re Grand Jury Investigation , No. 17-2587(BAH), 2017 WL 11140345 (D.D.C. Oct. 23, 2017) (holding that court order was not required for production of confidential records in response to subpoena because the statute allowed production if "otherwise provided by law").
To hold otherwise would add words to § 80F.1(20) that the Iowa Legislature chose not to use. There are many provisions of the Iowa Code requiring a court order before disclosure of confidential materials is permitted. See, e.g. , Iowa Code § 901.4 (presentence investigation reports are sealed and confidential "except upon court order"); id. § 804.29 (warrant application materials are confidential "[u]nless otherwise ordered by the court"); id. § 692A.122 (certain sex offender registration records "shall remain confidential, unless otherwise ordered by a court...."); id. § 99G.34 (certain lottery records "shall be kept confidential, unless otherwise ordered by a court ...."). Clearly, the Iowa Legislature knows how to require a court order prior to disclosure when it wants to do so. The fact it did not include the words "court order" in § 80F.1(20) is a telltale sign that it did not intend for a court order to be a prerequisite to production of disciplinary records in litigation. See In re Grand Jury Investigation , 2017 WL 11140345, at *4 ("[N]either statute purports on its face to require a court order ... [t]hus, real estate records are subject to production in accordance with a federal grand jury subpoena absent a court order ....").
There are practical reasons why the Legislature would have chosen not to require a court order in § 80F.1(20). In a case like this one, where the City (correctly) concedes that at least some of the requested materials are relevant and discoverable under Fed. R. Civ. P. 26(b)(1), requiring a court order would add an unnecessary and purely technical burden on the parties and Court. Any such order would simply reiterate what Fed. R. Civ. P. 34(b) already says: a party in a civil case is required to respond to requests for production propounded by the other side. As the Court explained in In re Grand Jury Investigation , a confidentiality statute "should not be construed to require such a wasteful expenditure [of time and resources to obtain a court order] absent a clear textual indication to the contrary." 2017 WL 11140345, at *5.
Whether the disciplinary records are discoverable under the standards set forth in Fed. R. Civ. P. 26(b)(1) is, of course, a different question, and a responding party retains the ability to object on that basis (as the City did here). But there is nothing in the language of Iowa Code § 80F.1(20) making a court order a prerequisite to production.
B. Some of the Records Sought by Plaintiffs Must Be Produced.
At the hearing on Plaintiffs’ Motion to Compel, the parties agreed that disciplinary complaints against the 37 officers involving use of force issues are discoverable under Fed. R. Civ. P. 26(b)(1), while disciplinary complaints involving driving infractions or purely administrative issues are not discoverable. The Court therefore GRANTS IN PART and DENIES IN PART Plaintiffs’ Motion to Compel as it pertains to disciplinary records. The City must produce disciplinary records for the 37 officers except for records revolving around driving infractions or purely administrative issues.
Counsel for the City offered examples of an officer being disciplined for engaging in outside employment without receiving proper approval or not providing sufficient notice before taking time off for military service.
The parties further agreed at the hearing that interview reports regarding the events of May 31, 2020 are discoverable. The Court therefore GRANTS Plaintiffs’ Motion to Compel as it pertains to interview reports regarding events occurring on May 31, 2020. The City is obligated to produce not only reports from interviews with Des Moines Police Department officers, but also reports in the City's possession, custody, or control from interviews with officers from other police departments or law enforcement agencies.
The only apparent area of disagreement between the parties involves the discoverability of disciplinary records and other OPS information arising out of incidents that post-dated May 31, 2020. Plaintiffs contend that there are (or may be) complaints arising out of incidents occurring mere days after May 31, and that these events are close enough temporally to be relevant to Plaintiffs’ claims. The City, by contrast, argues that actions post-dating the events of May 31 have no possible relevance to whether the City had a pattern or practice of constitutional violations as of that date. See, e.g., Connick v. Thompson , 563 U.S. 51, 63 n.7, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) ("[C]ontemporaneous or subsequent conduct cannot establish a pattern of violations that would provide ‘notice to the cit[y] and the opportunity to conform to constitutional dictates.’ ") (quoting City of Canton, Ohio v. Harris , 489 U.S. 378, 395, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (O'Connor, J., concurring in part and dissenting in part)).
The Eastern District of Missouri addressed a nearly identical issue and held that post-event evidence is discoverable. See Whitt v. City of St. Louis , No. 4:18-cv-1294-RLW, 2020 WL 7122615, at *8–9 (E.D. Mo. Dec. 4, 2020). Whitt explained that ("the clear majority of case law ... supports the conclusion that subsequent incidents may be probative of what policies, practices, or accepted customs existed at the time of Plaintiff's arrest, which would be relevant to his Monell claims."). Id. at *9 ; see also, e.g., Salvato v. Miley , 790 F.3d 1286, 1297 (11th Cir. 2015) ("To be sure, post-event evidence can shed some light on what policies existed in the city on the date of an alleged deprivation of a constitutional right."). The Court finds Whitt persuasive and adopts its holding that information regarding subsequent similar incidents is discoverable because it may aid in showing that a policy or practice was in place at the time of the events in question. The Court therefore GRANTS Plaintiff's Motion to Compel as it pertains to disciplinary records and other materials that post-date May 31 but relate to protests arising out of George Floyd's death. The Court makes no determination as to whether these materials ultimately will be admissible at trial.
IV. CONCLUSION
For reasons set forth above, the Court GRANTS IN PART and DENIES IN PART Plaintiff's Motion to Compel.
IT IS SO ORDERED.