Opinion
CV 22-02200 PHX DWL (CDB)
06-12-2023
Diamond Warren, in her capacity as guardian and next friend, and in her capacity as Special Administrator of the Estate by guardian K.T.W. estate of Akeem Terrell, Robert Yates, Plaintiffs, v. Paul Penzone, et al., Defendants.
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
TO THE HONORABLE DOMINIC W. LANZA:
Before the Court is the “County Officer” Defendants' Motion for Restraining Order and Their Motion for Judicial Notice. (ECF No. 56).
The County Officer Defendants are Defendants Bulldis, Moses, and Perez.
I. Background
The decedent, Akeem Terrell, was charged with trespassing and taken into custody by City of Phoenix police officers on January 1, 2021, and transported to the Maricopa County Intake, Transfer, and Release Jail. Mr. Terrell was an African American with a history of mental illness. After Mr. Terrell was searched, and no weapons found on Mr. Terrell, he was placed in an “isolation cell.” Mr. Terrell's hands were cuffed behind his back, and he was pushed to the ground and then forced onto his stomach; his legs were then bent back into a “hogtie” position. Multiple officers use bodily force and their body weight on Mr. Terrell's back to force him into this position, and after several minutes Mr. Terrell stopped moving. The officers left the cell after Mr. Terrell stopped moving, leaving him handcuffed and face-down on the floor of the cell. After exiting the cell, at least two officers looked through the window on the cell door and observed Mr. Terrell was no longer moving. Approximately six minutes after Mr. Terrell was left alone in the cell, handcuffed behind his back and in a prone position, officers returned to the cell, moved Mr. Terrell onto his side, determined he had no pulse, and summoned medical care. The officers then rolled Mr. Terrell onto his back and moved the handcuffs to handcuff Mr. Terrell with his hands in front of him. The officers then began performing CPR. When medical care arrived Mr. Terrell was transported to a hospital where he was pronounced dead.
Plaintiffs allege causes of action pursuant to 42 U.S.C. § 1983 for excessive force; failure to protect and deliberate indifference to obvious medical needs; loss of familial society and companionship; and Monell claims against the City of Phoenix and against Penzone and Maricopa County for violation of Mr. Terrell's Fourth and Fourteenth Amendment rights. A case management order issued April 13, 2023, requires discovery be completed by April 12, 2024, and dispositive motions are due no later than January 31, 2025. (ECF No. 46).
II. Dispute
The County Officer Defendants seek a restraining order prohibiting the parties and their counsel
...from making or participating in making extrajudicial statements, comments, or communications to the media, or making or participating in making extrajudicial statements, comments, or communications in posts or other content on publicly accessible Internet websites or social media platforms/accounts ., other than quoting or referring without comment to public records, which a reasonable person would expect to be disseminated by means of public communication, relating to any of the following subjects: (1) evidence regarding the alleged occurrences/incidents at issue in this case; (2) the character, credibility, or criminal records of a party, witness or prospective witness; (3) the performance or results of any examination or tests or the refusal or failure of a party to submit to such; (4) an opinion as to the merits of the claims or defenses of a party except as required by law or administrative rules; or (5) any other matter reasonably
likely to interfere with a fair trial of this case, until such time that the trial stage of this case is finally adjudicated.
(ECF No. 56 at 1-2). Defendants ask the Court to consider and take judicial notice of Plaintiff Warren's and Plaintiffs' counsel's (Mr. Showalter's) “extrajudicial statements” in weighing the merits of their motion for a restraining order. (ECF No. 56 at 2-3).
In the Arizona Republic article published January 4, 2023, Plaintiff Warren, the mother of Mr. Terrell's daughter and a Michigan 911 operator, is quoted as saying “she hopes the officers will be trained to prevent a tragedy like this from happening to another family. ” She said Mr. Terrell was the kind of person “who made everyone laugh, and his loss has been devastating,” and she is also quoted as saying: “'Let's not be so quick to take everyone to jail when they're having a mental health episode ... It shouldn't have been this way.'” Defendants also refer to social media posts by Benjamin Crump, whose office is in Florida and who is no longer counsel of record. Mr. Crump was terminated as counsel of record for noncompliance with admission procedures on January 18, 2023, prior to any Defendant appearing in this matter.
Defendants provide and judicial notice is taken of the following:
[1] Plaintiffs' counsel Jesse Showalter's Extrajudicial Statements Published by Arizona Republic/Azcentral.com (Written News Report), 01/04/23: The reporter states, “Attorney Jesse Showalter, representing Terrell's family, said the [Jail video of the alleged incident is] the most grotesque he's ever seen after many years of working on cases involving deaths in police custody.” Showalter is quoted, “The officers in the jail appear to be completely untrained on dealing with mentally ill people and the dangers of positional asphyxia.” “He said Terrell's death is similar to other cases in the Valley where the victim dies by asphyxiation during a police encounter. .. The 2020 Minneapolis police killing of George Floyd occurred under similar circumstances.” Showalter is further quoted, “When you restrain someone with handcuffs, and they are face down, it interferes with their body's ability to breathe. Officers should be trained that if you leave people prone and in handcuffs they are at risk for asphyxiation.” The reporter states, “Showalter said the response was delayed and insufficient.” Showalter is additionally quoted, “The murder happened when they left him face down, helpless, with his hands behind his back in the cell. If they had gotten him medical attention at that point, he could have lived.
The term “grotesque” is not a direct quote, i.e., Showalter did not use the word “grotesque” in his comment, but instead the reporter characterizes Showalter's statement using this word.
(ECF No. 56 at 3-4, providing a link to the article Jimmy Jenkins, Man died in Maricopa County jail after law enforcement used excessive force, family alleges, Ariz. Republic, January 4, 2023).
[2] Plaintiffs' counsel Jesse Showalter's Extrajudicial Statements Published by Television Channel 3 (Video/News Broadcast; Written News Report) on 01/04/23: The video/news broadcast shows an image of Jesse Showalter, and quotes Showalter, “At midnight, when the ball dropped, he [Mr. Terrell] started behaving bizarrely, saying weird things.” The reporter states, “But Jesse Showalter of the law firm Robbins and Curtin says this lawsuit is about what happened when Terrell was in custody at Maricopa County Lower Buckeye Jail.” Showalter is quoted, “It's horrific. Anyone I think who watches that video looks at it and says how can this be happening, how can these officers be doing this, it's so clear that Akeem is in medical distress, that he needs help, that what the officers are doing is hurting him and they leave him handcuffed face down alone on the floor of the cell and they back out closing the door behind them and it's obvious what's going to happen.” Showalter is further quoted, “If anybody else not wearing a badge did what happens in that video, you would expect criminal charges.” Showalter additionally is quoted, “It's about holding them accountable, holding them responsible, and bringing this ultimately to a jury.” See Ex. B, C, D to Ex. 1, ¶¶ 5-7;
The link provided by Defendants goes to a video and brief news story:
...The family of Akeem Terrell is suing the Maricopa County Sheriff's Office and the Phoenix Police Department. According to the documents, Terrell, who suffered from schizophrenia, was arrested on New Year's Day in 2021 after behaving bizarrely at a party and wouldn't leave. He was 6'2” and 433 pounds, so because of his size, officers handcuffed his arms behind his back with two sets of handcuffs linked together. Officers admitted Terrell was mentally ill. The lawsuit says he engaged in passive resistance by going limp and not moving.
After about three minutes, law enforcement leaves the cell, with Terrell motionless on the ground. It took about six minutes for MCSO to check on Terrell, according to the video. They performed CPR in the jail cell, and he was taken to the hospital, where he died. An autopsy confirmed that among the factors that killed him was positional asphyxia. “If anyone else who was not wearing a badge did what happens in that video, you would expect criminal charges,” Showalter said.David Baker & David Caltabiano, Lawsuit claims excessive force in Phoenix man's incustody death, 3TV/CBS 5, Jan. 4, 2023.
[3] Plaintiffs' counsel Jesse Showalter's Extrajudicial Statements Published by Television Channel 12 (Video/News Broadcast) on 01/04/23: The reporter refers to Plaintiffs' attorneys telling the reporter that “the City of Phoenix and Maricopa County haven't even wrapped up their own investigations to determine if those officers violated any policies.” The reporter shows an excerpt from the Jail video of the alleged incident then refers to Jesse Showalter as stating, “It's one of the most disturbing scenes” Showalter “ever has seen.” The video/news broadcast then shows an image of Jesse Showalter, and quotes Showalter, “You have them pressing the life out of him for a total of three minutes and then abandoning him when he becomes non-responsive.” Also further quoting Showalter, “He [Terrell] reacted by becoming paranoid, talking about people were trying to kill him.” See Ex. E to Ex. 1, ¶¶ 8 . . . Ben Crump re-published these Showalter extrajudicial statements on Crump's Facebook, Instagram, and Instagram social media platforms/accounts. . . .
In the January 4, 2023 news story on Channel 12 Mr. Showalter states: “The medical examiner's report listed prone physical restraint with compression among the causes of death.” The Baker and Caltabiano news story published January 4, 2023, cited supra at note 4, states: “An autopsy confirmed that among the factors that killed him was positional asphyxia.”
[5] Plaintiffs' counsel Ben Crump's Extrajudicial Statements Published on Instagram, 01/06/23: Ben Crump states, “Akeem Terrell had a history of mental illness, and instead of compassion and treatment, officers showed him indifference and negligence. As he was taken into the station, he said, “Y'all trying to kill me,” and just as we saw in that video, it turns out they would. Just like George Floyd, Akeem was put in a prone position, face down, which has been proven to be dangerous and all-too-often deadly. While Akeem's death occurred before the convictions of the responsible for George Floyd's death for similar actions, it is clear that due to the lack of accountability, more change needs to occur in law enforcement communities. These officers must answer to their negligence and excessive force that obviously contributed to Terrell losing his life. Terrell's life mattered, and he deserved better in his time of crisis.” See Ex. F to Ex. 1; see also https://www.instagram.com/p/CnFIAS0rDut/?hl=en.
(ECF No. 56 at 5) (The Instagram post is in the format of a press release, i.e., it is on Mr. Crump's letterhead, and the quoted passages are in turn italicized quotes under the heading “Attorney Crump issued the following statement”).
[6] Plaintiffs' counsel Jesse Showalter's Extrajudicial Statements Published by Arizona Republic (Written News Report), 01/07/23: The reporter states,
“Attorney Jesse Showalter, representing Terrell's family, said the [videos of the alleged incident] are the most grotesque he's ever seen after many years of working on cases involving deaths in police custody.” Showalter is quoted, “The officers in the jail appear to be completely untrained on dealing with mentally ill people and the dangers of positional asphyxia.” “He said Terrell's death is similar to other cases in the Valley where the victim dies by asphyxiation during a police encounter. ... The 2020 Minneapolis police killing of George Floyd occurred under similar circumstances.” Showalter is further quoted, “When you restrain someone with handcuffs, and they are face down, it interferes with their body's ability to breathe. Officers should be trained that if you leave people prone and in handcuffs they are at risk for asphyxiation.” The reporter states, “Showalter said the response was delayed and insufficient.” Showalter is additionally quoted, “The murder happened when they left him face down, helpless, with his hands behind his back in the cell. If they had gotten him medical attention at that point, he could have lived.” See Ex. G to Ex. 1.
(ECF No. 56 at 5-6. See also ECF No. 56-2 at 36 (Jimmy Jenkins, Family alleges excessive force, indifference over man's death at county jail, Ariz. Republic, Jan. 8, 2023, at ¶ 6). The story published January 7, 2023, is identical to the story published January 3, 2023, under a different headline).
[7] Plaintiffs' counsel Jesse Showalter's and Ben Crump's Extrajudicial Statements Published by Atlantablackstar.com, 01/23/23: The reporter states, “Jesse Showalter, an attorney representing the family, said a partygoer called the police because of Terrell's behavior.” The reporter further states, “Civil rights attorney Ben Crump is representing the family.He suggested law enforcement officers acted with indifference towards Terrell.” Crump is quoted, “Akeem Terrell had a history of mental illness, and instead of compassion and treatment, officers showed him indifference and negligence.” Crump is additionally quoted, “These officers must answer for their negligence and excessive force that obviously contributed to Terrell losing his life.” Showalter is quoted, “When you restrain someone with handcuffs, and they are face down, it interferes with their body's ability to breathe.” Showalter is further quoted, “The murder happened when they left him face down. If they had gotten him medical attention he could have lived.” Crump is further quoted, “Just like George Floyd, Akeem was put in a prone position, face down, which has been proven to be dangerous and all-too-often deadly.” See Ex. H to Ex. 1..
https://atlantablackstar. com/2023/01/23/my-brother-didnt-deserve-this-family-of-mentally-ill-man-who-died-in-deputies-custody-say-better-training-could-have-saved-his-life [quoting Mr. Terrell's sister, who is not a party to this action].
As noted supra at n.2, Mr. Crump was terminated as counsel of record in this matter on January 18, 2023, before the Atlanta Black Star post. (See Minute Entry dated January 18, 2023).
Describing the video of Mr. Terrell's detention, the Atlanta Black Star article states: Upon arrival at the jail, Terrell asks officers, “Am I going to the mental hospital?” An officer replied, “Maybe.” Terrell then repeats, “I didn't do anything wrong.” Four Phoenix police officers each held one of Terrell's limbs to carry him into the jail for booking and processing. Maricopa County Sheriff's deputies greeted them as Terrell continued to yell and make incoherent comments regarding his whereabouts. Deputies then force a combative Terrell into an isolation cell. At least five deputies position themselves on top of a prone Terrell, who is lying on his stomach as his handcuffs are being adjusted behind his back. Terrell's head was pressed against the concrete wall and floor during the struggle. “What I do, why are my hands so tight?” Terrell continued to yell amid intermittent utterances of other people's names. After several minutes, Terrell was subdued, and deputies filed out of the jail cell. “When you restrain someone with handcuffs, and they are face down, it interferes with their body's ability to breathe,” Showalter told AZ Central. The lawsuit claims Terrell was in “medical distress, and in obvious need of immediate medical care.” It goes on to say, “placing handcuffed people in a prone position creates an immediate risk of death or serious bodily injury...This position is known to cause positional asphyxia.” Asphyxia occurs when the body doesn't get enough oxygen, resulting in a person passing out and eventually death if not reversed. Surveillance video shows Terrell lying motionless for six minutes, face down on the concrete. Eventually, a deputy checks on Terrell and calls for assistance. Surveillance captures deputies performing CPR and using an automatic external defibrillator to no avail. Roughly 40 minutes after being placed in the isolation cell, paramedics transport Terrell to a hospital, where he was pronounced dead. Terrell's death is linked to heart failure. His autopsy listed his cause of death as “cardiac dysrhythmia in setting of arteriosclerotic cardiovascular disease, extreme morbid obesity, acute/chronic psychosis, physical exertion and prone physical restraint with torso compression.” The autopsy says Terrell's injury stems from “law enforcement restraint in setting of acute psychosis and significant natural disease.” His manner of death is deemed “undetermined.”
[8] Plaintiffs' counsel Ben Crump's Extrajudicial Statements Published on Twitter, 04/14/23: Ben Crump states, “We STILL need justice for Akeem Terrell! Like Irvo Otieno and Gershun Freeman, Akeem was suffering a mental health crisis and was killed by police! Maricopa County Jail officers
used unreasonable force to restrain the 31-yo. They left him ALONE in an isolation cell for 6 MINUTES before initiating medical care. Sadly it was too late. Keep Akeem's name alive and demand JUSTICE!” See Ex. I to Ex. 1 ...
(ECF No. 56 at 7). Mr. Crump's April 14, 2023, tweet is in total as quoted above and includes a link to the Arizona Republic story of January 4, 2023.
[9] Plaintiffs' counsel Jesse Showalter's Extrajudicial Statements Published by Channel 15 (Written News Report), 04/18/23: The reporter quotes Jesse Showalter, “an attorney now suing on behalf of Terrell's family, as stating “There was no reason for him to die. He should not have died. He came into the jail alive, and what these officers did left him dead.” Showalter is further quoted, “Nowhere in the body camera do you hear any warnings, or any commands given to Akeem, before they begin pulling his legs out from under him.” Showalter is additionally quoted, “There's no single person who seems to be driving the investigation [of the alleged incident]. It makes no sense, What I don't understand is when you have a complex case like that, when you have personnel from two different law enforcement agencies that cause a death, why not bring the Department of Public Safety or some other independent agency to look at this and find out what happened?” See Ex. J to Ex. 1, ¶ 16..see also https://www.abc15.com/news/local-news/investigations/video-shows-lead-up-up-to-akeem-terrells-death-gaps-in-the-investigation
The article states:
ABC15 reviewed body camera video and jail surveillance video as well as police reports, interview transcripts, and medical records. Experts said the public record raises serious questions about the training and culture for front-line officers inside both agencies. Just as concerning: A joint decision made in the jail parking lot by Phoenix police and MCSO to split the homicide investigation with an agreement not to interview each other's officers. “There are so many aspects of this situation that beg, or scream, to be examined,” said Dr. Keith Taylor, a former New York Police Department executive who spent years overseeing jails and now teaches at the John Jay College of Criminal Justice. He continued: “I think it's important to provide the scrutiny you are providing to this case. It may be the tip of the iceberg.”David Biscobing, Expert discusses moments that led up to Akeem Terrell's death and the ‘investigation' after MCSO and Phoenix police agreed to ‘split' investigation, ABC15 Ariz., Apr. 18, 2023.
[10] Plaintiffs' counsel Jesse Showalter's and Ben Crump's Extrajudicial Statements Published by Channel 15 (Video/News Broadcast), 04/18/23: The reporter shows an image of Jesse Showalter, who is quoted, “What these officers did, left him dead.” Showalter is further quoted, “It makes no sense.” Showalter is further quoted, “He should not have died. He came into the jail alive, and what these officers did left him dead.” The reporter identifies Showalter as Plaintiffs' counsel and states that “we sat down with Showalter to go through what happened.” Showalter is quoted regarding the Jail video, “There's three officers around Akeem's legs, who are forcing his feet back towards his butt. They are doing it with such force that they are pressing the Maricopa County personnel into the wall, and they are pressing Akeem's neck and head into the wall.” Showalter is quoted, “Nowhere in the body camera do you hear any commands or any warnings being given to Akeem before they begin pulling his legs out from under him.” And Showalter is quoted, “Police officers know that leaving people prone is a death sentence.” Showalter also is quoted, “Police have known since the 1990s that placing people prone when they are restrained can result in death.” Showalter is furthered quoted, “That's what they should have done, the recovery position.” Showalter is quoted, “These are agencies that are responsible for protecting thousands or millions of Arizona citizens.” See Ex. K to Ex. 1. https://www.youtube.com/watch?v=fiflPZL8qo4
Mr. Showalter's statement is in response to recordings of interviews with officers in which they state that Mr. Akeem did not respond to requests, instructions, or commands to “get down on his knees.”
(ECF No. 56 at 7-8).
[11] Plaintiffs' counsel Jesse Showalter's and Ben Crump's Extrajudicial Statements Published by Channel 15 (Video/News Broadcast), 04/20/23: The reporter shows an image of Jesse Showalter, identified as Plaintiffs' counsel, and quotes Showalter, “So there is no single person deemed to be driving the investigation, and it makes no sense.” Showalter is further quoted, “What I don't understand where you have a complex case like, where you have personnel from two different law enforcement agencies who caused a death, why not bring in the Department of Public Safety, or some other independent agency to look at this and determine what happened.” Showalter is additionally quoted, “I think that is the obvious conclusion. Neither of these police agencies seem to be in a good position to investigate itself, and the fact that they reached this agreement that neither of them would investigate the other is really concerning.” See Ex. L. to Ex. 1, ¶ 18; see also https://www.youtube.com/watch?v=qUb9fcudGNE
Mr. Crump does not appear in this video nor is he quoted in the report. The focus of this news report is alleged malfeasance or appearance of impropriety in the way investigations into in-custody deaths, including Mr. Terrell's, were handled. The report includes footage of a MCSO sergeant involved in the incident being interviewed by another MCSO employee, and the sergeant comments that he is “confused” about why he is being interviewed: “I do have a question, what's the crime here?” “It's not the first ... It's my fourth time where I've had my guys do CPR on somebody. But we, never involved this. We've never done this. I never got interviewed by anybody.”
[12] Plaintiffs' counsel Jesse Showalter's Undisclosed Extrajudicial Statements to an Unidentified “Investigative Journalist” on 01/10/23, Doc. 50 filed on 04/14/23: On April 14, 2023, Plaintiffs filed their “Notice to the Court RE: Extrajudicial Statement” (Doc. 50), stating that, on January 10, 2023, Jesse Showalter made extrajudicial statements “related to the incustody death of Akeem Terrell and the video documenting his death” to an unidentified “investigative journalist.” Plaintiffs did not inform the Court what was the specific content of Showalter's extrajudicial statements.
(ECF No. 56 at 8-9).
Mr. Showalter's notice at ECF No. 50 states:
On January 10, 2023, undersigned counsel Jesse Showalter was interviewed by an investigative journalist regarding multiple issues of public concern related to the in-custody death of Akeem Terrell and the video documenting his death.
Undersigned counsel learned this week that portions of the January interview might be printed or broadcast on a local news station or news-affiliated website between April 17 and April 21. Undersigned counsel has no control over how, whether, or when any portions of the interview will be broadcast.
At all times, undersigned counsel comported with ER 3.6 and LRCiv 83.8 as well as relevant case law.
It appears the “investigative journalist” mentioned by Defendants was David Biscobing, who was the investigative reporter producing the stories at supra [9], [10], and [11].
Defendants contend a restraining order is necessary to ensure the County Officer Defendants receive a fair trial before an impartial jury, citing Sheppard v. Maxwell, 384 U.S. 333, 361 (1966) (suggesting a narrowly-drawn partial restraining order may be the preferred response when lawyers appear likely to divulge “inaccurate information, rumors, and accusations” in a high-profile case), Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071-72 (1991) (involving the sanctioning of a criminal defense attorney who made extrajudicial statements; the Supreme Court held that the attorney's speech could be circumscribed under a test requiring a “substantial likelihood” of “material prejudice” to the underlying court proceeding), Nebraska Press Association v. Stuart, 427 U.S. 539, 601 n.27 (1976), and Levine v. United States District Court for the Central District of California, 764 F.2d 590, 595 (9th Cir. 1985). (ECF No. 56 at 9-10). Defendants note some extrajudicial statements are prohibited by Rule 83.8 of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona and Arizona Supreme Court Ethical Rule 3.6.
Defendants also cite the unpublished decision in Merritt v. Arizona, 2020 WL 5576740 at *1-3 (D. Ariz. Sept. 17, 2020) (granting a restraining order against the plaintiffs' counsel in a wrongful arrest matter, based upon counsel's extrajudicial statements which were “widely disseminated” in a national television interview; in the interview counsel made statements regarding the lack of evidence supporting the plaintiff's arrest, and the statements were made when a trial was “approaching” (i.e., four months prior to the potential trial date)).
Rule 83.8 provides:
(a) Prohibition of Extrajudicial Statements. A lawyer or law firm associated with a civil action shall not during its investigation or litigation make or participate in making an extrajudicial statement, other than a quotation from or reference to public records, which a reasonable person would expect to be disseminated by means of public communication, if there is a reasonable likelihood that such dissemination will interfere with a fair trial and which relates to:
(1) evidence regarding the occurrence or transaction involved;
(2) the character, credibility, or criminal record of a party, witness or prospective witness;
(3) the performance or results of any examination or tests or the refusal or failure of a party to submit to such;
(4) an opinion as to the merits of the claims or defenses of a party except as required by law or administrative rules; or
(5) any other matter reasonably likely to interfere with a fair trial of the action.
(b) Reference to Rule 57.2(f), Local Rules of Criminal Procedure. In a widely publicized or sensational case, the Court, on motion of either party or on its own motion, may issue a special order similar to that provided for by Rule 57.2(f), Local Rules of Criminal Procedure.
Ethical Rule 3.6 provides, in pertinent part:
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest.
Plaintiffs argue Defendants have not made “the showing necessary to obtain the extraordinary and unconstitutional relief that [Defendants] seek,” citing Sweet v. City of Mesa, 2021 WL 3130335, at *2 (D. Ariz. July 23, 2021), and alleging “[t]he real purpose of the County Officers' Motion is to engage in a hyperbolic attack on Plaintiffs' counsel that is clearly intended to silence Plaintiffs, gain strategic advantage, and distract from the government misconduct that permeates this case.” (ECF No. 69 at 2). Plaintiffs further contend their “counsel's extrajudicial statements are permitted by Arizona's Rules of Professional Conduct, this Court's ethical rules, and the United States Constitution,” citing Sweet and Muhaymin v. City of Phoenix, 2020 WL 3050572, at *3 (D. Ariz. June 5, 2020). Plaintiffs contend “there is absolutely no likelihood that any of counsel's extrajudicial statements about this case will materially prejudice any potential juror, let alone a substantial portion of the jury pool, for this district.” (ECF No. 69 at 3).
Plaintiffs assert that, after the Mr. Terrell's death, “misleading statements from an MCSO spokesperson” were provided to and published by the Arizona Republic; that Maricopa County and the City of Phoenix withheld public records “showing the actual facts surrounding” the death; and that after Plaintiffs filed the instant suit the news media covered the death of Akeem Terrell and the news media “reports” included statements made by counsel. (ECF No. 69 at 5-7). Plaintiffs allow the Arizona Republic's January 4, 2023, article containing statements by counsel was re-posted on Newspapers.com on January 7, 2023, and that the Atlanta Black Star (a web-only news organization) published an article on Mr. Terrell's death quoting counsel on January 23, 2023. (ECF No. 69 at 7). Plaintiffs note that, at the case management conference on April 12, 2023, Defendants indicated their intention of seeking a “gag order” and accordingly on April 14, 2023, Mr. Showalter notified the Court that he had been interviewed on January 10, 2023, and portions of that interview would be broadcast on a local ABC news program the week of April 17, 2023. (ECF No. 69 at 7). Plaintiffs further note that after Defendants filed the instant motion, Sheriff Penzone discussed the death on radio station KTAR, making extrajudicial statements and admissions. (ECF No. 69 at 7-8). In the interview Defendant Penzone states things should have been done differently and states “this was a tragedy that needs to be cleared up and never happen again.” (ECF No. 69-1 at 15-16). Penzone then implies the media has exploited the incident, stating: “But aggressive exploit--exploitive journalism doesn't make it more of a tragedy. It's just a tragedy.” (ECF No. 69-1 at 16). Penzone states he didn't see officers trying to harm Mr. Terrell, but avers any harm was the result of a “lack of action.” (ECF No. 69-1 at 18).
In their untimely (see LRCiv 7.2(d)) reply in support of their motion at ECF No. 56 Defendants assert that Plaintiffs' allegation that statements were “incomplete” and “misleading” “lacks foundation and is based solely upon Plaintiffs' own speculative and inadmissible opinions as to what was intended by the MCSO spokesperson.” (ECF No. 70 at 6 n.3).
Exhibit 4 to ECF No. 69 is a transcript of an interview, conducted April 25, 2023, and posted on the ABC15 Arizona website at https://www.abc15.com/news/local-news/investigations/maricopa-county-sheriff-paul-penzone-admits-officers-made-mistakes-in-jail-death. (See ECF No. 69-1 at 13-20).
III. Analysis
It is within the Court's discretion to issue a restraining order prohibiting parties and their counsel from communicating with the media when “excessive trial publicity” endangers the fairness of the judicial process. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984); Levine, 764 F.2d at 600-01. Cf. Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226 (6th Cir. 1996) (noting a District Court has discretion to issue a restraining order involving a restraint on speech).
A restraining order prohibiting counsel from speaking to the media about a pending civil matter is considered a “prior restraint” on free speech. Levine, 764 F.2d at 595. See also Nebraska Press, 427 U.S. at 559. “There is a heavy presumption against prior restraints on speech, and they are subject to the strict scrutiny standard of review.” In re Dan Farr Prods. v. United States Dist. Ct. for the S. Dist. of Cal., 874 F.3d 590, 593 n.2 (9th Cir. 2017). The speech of trial participants may be restricted under a less demanding standard than that required for restrictions imposed on the press. See Gentile, 501 U.S. at 1071; In re Dan Farr Prods., 874 F.3d at 593 n.3. In Gentile, involving the after-the-fact sanctioning of a criminal defense attorney for making pretrial extrajudicial statements, and addressing the constitutionality of the relevant State Bar of Nevada ethical rule, the Supreme Court
... held that the “clear and present danger” standard does not apply to statements made by lawyers participating in pending cases. Gentile, 501 U.S. at 1075. ... the Court concluded that lawyers involved in pending cases may be punished if their out-of-court statements pose merely a “substantial likelihood” of materially prejudicing the fairness of the proceeding. Id. The Court gave two principal reasons for adopting this lower threshold, one concerned with the identity of the speaker, the other with the timing of the speech. First, the Court noted, lawyers participating in pending cases have “special access to information through discovery and client communications.” Id. at 1074. As a result, their statements pose a heightened threat to the fair administration of justice, “since [they] are likely to be received as especially authoritative.” Id. .. Second, statements made during the pendency of a case are “likely to influence the actual outcome of the trial” or “prejudice the jury venire, even if an untainted panel can ultimately be found.” Gentile, 501 U.S. at 1075. The Court also noted that restricting the speech of lawyers while they are involved in pending cases does not prohibit speech altogether but “merely postpones the attorneys' comments until after trial.” Id. at 1076.Standing Comm. on Discipline of United States Dist. Ct. for Cent. Dist. of Cal. v. Yagman, 55 F.3d 1430, 1442-43 (9th Cir. 1995) (emphasis added).
The Levine court, concluding that a restraining order prohibiting counsel in a criminal matter from communicating with the media regarding the merits of the case, held a restraint was warranted only if the party seeking the restraint established “(1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest; (2) the order is narrowly drawn; and (3) less restrictive alternatives are not available.” Levine, 764 F.2d at 595 (internal citations omitted), quoted in Mizioch v. Montoya, 2011 WL 4900033, at *6 (D. Ariz. Oct. 14, 2011). Since Levine, the Ninth Circuit has explained that imposing a prior restraint on litigants is permissible “only if its absence would prevent securing twelve jurors who could, with proper judicial protection, render a verdict based only on the evidence admitted during trial.” In re Dan Farr Prods., 874 F.3d at 593. Whether there is a threat of material prejudice to the competing interest of a fair trial before unbiased jurors is a function of several factors, including the contents of the statements themselves, the nearness of the trial, the extent of the media coverage on the matter, and whether the material discussed is evidence which would otherwise be inadmissible. See Sweet, 2021 WL 3130335, at *3. The Ninth Circuit Court of Appeals has noted that it is the “rare” case which will warrant the Court issuing an order imposing a prior restraint on speech. In re Dan Farr Prods., 874 F.3d at 594.
In support of this test Sweet cites Murphy-Fauth v. BSNF Railway Company, 2018 WL 5312201, at *4 (D. Mont. Apr. 4, 2018) (“[T]he Court must consider the statements themselves, the timing of the statements, and whether they were published in the jury pool.”), Clifford v. Trump, 2018 WL 5273913, at *4 (C.D. Cal. July 31, 2018) (“It is far from clear that the publicity in this case would affect the outcome of a trial that may happen, if at all, months down the road.”), and Doe v. Rose, 2016 WL 9107137, at *3 (C.D. Cal. Sept. 30, 2016).
Under the “clear and present danger” or “serious and imminent threat” analysis, a restraining order prohibiting counsel from making statements regarding this matter to the media is not warranted at this time. Any trial in this matter is, at the soonest, more than two years in the future (dispositive motions are not due until January 31, 2025). Accordingly this case is distinguishable from Levine; the restraining order in Levine was “aimed expressly at publicity during, or immediately before, trial.” 764 F.2d at 598 (emphasis added). Furthermore, although there has been some publicity of this matter on state-wide media outlets, unlike Levine there is no “circus-like environment” currently surrounding this case. Compare id. (finding the lowert court's conclusion that publicity posed a serious and imminent threat to the administration of justice in a high-profile case was appropriate, as Levine was a criminal case involving a charge of espionage). Additionally, none of Mr. Showalter's statements divulge information which would not be admissible at trial or include information gleaned from discovery. Moreover, in the subject media reports Mr. Showalter did not issue an opinion as to the merits of the lawsuit, but rather addressed the allegations in the suit, Plaintiffs' intent in filing the suit, and the circumstances surrounding Mr. Terrell's death as shown by the accompanying video. Mr. Showalter offering what is clearly his personal opinion that the circumstances surrounding Mr. Terrell's death were “horrific” is not overly prejudicial given that Defendant Penzone allowed, in the radio interview cited supra, that Mr. Terrell's death “was a tragedy that needs to be vetted out and cleared up and never happen again.” (ECF No. 69-1 at 15-16). Additionally, the focus of the local ABC channel's later reports focused on the nature of the investigations into Mr. Terrell's death; in addition to Mr. Showalter's statements the news reports contained extensive statements by a well-known police procedures experts who is not a participant in the litigation of this matter.
With regard to whether any statements made by Mr. Showalter would, in effect, affect the Court's ability to seat an unbiased jury, Defendants do not opine or present any evidence as to how many individuals would be called as a jury pool in this matter, or how many potential jurors might have viewed the ABC or NBC news channels' stories, read Mr. Showalter's statements in the Arizona Republic, or seen any statements on the Atlanta Black Star website; accordingly, Defendants have not demonstrated that twelve unbiased jurors could not be found absent a restraining order. See In re Dan Farr Prods., 874 F.3d at 594; Hunt v. National Broad. Co., Inc., 872 F.2d 289, 295 (9th Cir. 1989) (holding that where the subject pre-trial broadcast would likely reach slightly more than 20 percent of all adults in the relevant area, “there remain[ed] an extremely large pool of untainted potential jurors from which to draw twelve”); Columbia Broad. Sys. v. United States Dist. Ct. for Cent. Dist. of Cal., 729 F.2d 1174, 1182 (9th Cir. 1984) (finding a pretrial broadcast of government surveillance tapes “extremely unlikely” to produce “community-wide prejudice” in a venue of twelve million people). Although the subject matter of the case could be considered inflammatory, the community from which a jury would be selected is large, populous, and encompasses one large metropolitan area; there are more than two million registered voters, i.e., potential jurors, in Maricopa County alone and the District of Arizona's Phoenix Division also encompasses Gila, La Paz, Pinal, and Yuma counties. See Hunt, 872 F.2d at 294-95 (finding the Court must examine the capacity of pretrial publicity “to inflame and prejudice the entire community” (emphasis added)).
The conclusion that a restraining order is not warranted at this time is supported by the opinion in Sweet v. City of Mesa. In Sweet, the court concluded that although the plaintiff's attorney's podcasts and social media posts directly addressed some issues in the case, the posts did not pose “a clear threat of prejudice.” 2021 WL 3130335, at *4. The court also found the timing of the statements did not support a finding of prejudice because, although the extrajudicial statements spanned a five-year period, no trial date was set and any trial was at least a year away; therefore, the court concluded, any threat posed by the extrajudicial statements was not imminent. Id.
Furthermore, the well-established doctrines on jury selection and the Court's inherent powers to manage a trial, such as voir dire and jury instructions, provide an alternative and less restrictive means of ensuring a fair trial than a prior restraint on speech. See In re Dan Farr Prods., 874 F.3d at 593, citing Nebraska Press, 427 U.S. at 564, and Hunt, 872 F.2d at 295-96. Additionally, as in Muhaymin v. City of Phoenix, 2020 WL 3050572, at *2-3 (D. Ariz. June 5, 2020), there is no clear indication that Mr. Showalter violated Local Rule of Civil Procedure 83.8.
However, the Court might remind counsel for both parties that they have a duty to refrain from attempting to gain leverage in this case by speaking to and through the media. Local Rule of Civil Procedure 83.8 prohibits a lawyer in a civil action from “making an extrajudicial statement, other than a quotation from or reference to public records ... if there is a reasonable likelihood that such dissemination will interfere with a fair trial ....” Similarly, Rule 3.6(a) of the Arizona Rules of Professional Conduct prohibits attorneys from making any “extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Although neither Local Rule of Civil Procedure 83.8 nor Rule 3.6 of the Arizona Rules of Professional Conduct create an absolute prohibition on all statements to the media, counsel for both parties might be cautioned to use professional discretion and limit any statements to what is explicitly authorized by the applicable rules.
Accordingly, IT IS RECOMMENDED that the motion for a restraining order at ECF No. 56 be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b)(2), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.