Anoush Burmayan v. Garfield Beach CVS, LLC., et al Case No. CV 23-01788-FMO (AGRx) United States District Court, C.D. California Filed February 27, 2024 Counsel Narine Mkrtchyan, Mkrtchyan Law, Toluca Lake, CA, for Plaintiff. Andrew Keith Haeffele, Daniel F Fears, Leilani Elizabeth Jones, Payne and Fears LLP, Irvine, CA, Marissa Ann Warren, LaFollette Johnson DeHaas Fesler and Ames, Santa Ana, CA, Merna Abdelmalak, LaFollette Johnson Dehaas Fesler and Ames, Santa Ana, CA, for Defendant. Rosenberg, Alicia G., United States Magistrate Judge Proceedings: ORDER RE: (1) PLAINTIFF'S MOTION TO ENFORCE DISCOVERY ORDER AND FOR SANCTIONS (Dkt. Nos. 60, 81); AND (2) PLAINTIFF'S REQUEST FOR ORDER (Dkt. No. 130) *1 In this civil rights case, Plaintiff moves for an order compelling the City of Glendale (“City”) to produce use-of-force reports with the identifying information for third parties (suspects, victims, or witnesses) unredacted. Procedural History Plaintiff filed a motion to enforce the Order dated August 28, 2023 against the City Defendants[1] (Dkt. No. 42) and for sanctions. (Dkt. No. 60.) The August 28, 2023 Order required the City to produce, for the individual defendant officers, use-of-force reports that did not involve the use of guns or other weapons. (Order at 5.) The City Defendants filed an opposition. (Dkt. No. 73.) Plaintiff filed a reply. (Dkt. No. 74.) The court heard oral argument on October 25, 2023 and permitted the parties to file supplemental briefs by October 30, 2023. (Dkt. No. 79.) Both parties filed supplemental briefs. (Dkt. Nos. 81-82.) The court issued an Order dated October 31, 2023 that required the City to produce the Blue Teams supervisor reports for the 13 use-of-force reports already produced by the City. The Order also permitted Plaintiff to request a discovery conference after production of the reports to address the issues of (a) production of any or all of the police reports for the 13 incidents without redaction of the third party names and identifying information; and (b) production of digital media for any or all of the police reports. (Dkt. No. 83.) Plaintiff subsequently requested a discovery conference and the court conducted a hearing. In response to the court's inquiry, defense counsel indicated he would provide additional information. (Order dated December 13, 2023, Dkt. No. 99.) On January 5, 2024, defense counsel filed a declaration advising that the police department reviews use-of-force incidents to determine whether an investigation is or is not warranted. The City would produce the use-of-force review findings to Plaintiff. (Dkt. No. 115.) On February 7, 2024, Plaintiff filed a motion for order and indicated the City's subsequent production similarly redacted the third parties' identifying information. (Dkt. No. 130.) Defendants filed a response. (Dkt. No. 131.) Plaintiff's counsel filed a declaration. (Dkt. Nos. 132, 134.) Discussion In the use-of-force reports, the City redacted the names and personal information of the suspects, who are not parties to this case. (COG277-COG460; see Dkt. No. 73 at 3-6.) To be clear, the use-of-force reports do not involve the incidents at issue in this case. Significantly, the use-of-force reports at issue were not the subject of a complaint or lawsuit against an individual defendant officer. Courts generally order production of citizen complaints against an officer without preserving anonymity “in the absence of special circumstances proved by law enforcement defendants.” Kelly v. San Jose, 114 F.R.D. 653, 666 (N.D. Cal. 1987). “It is not at all clear that people who feel aggrieved by actions of police officers would even think about the possibility that their complaints might be disclosed to another person who feels aggrieved by police officers. And if they did think about it they presumably would want their complaint to help someone who had suffered from a similar source.” Id.; see also Soto v. City of Concord, 162 F.R.D. 603, 621-22 (N.D. Cal. 1995) (finding citizen complainant's privacy interest does not outweigh need for disclosure of complaints made against defendant officers); Hampton v. City of San Diego, 147 F.R.D. 227, 229 (S.D. Cal. 1993) (ordering production of complaints and internal affairs histories of officer defendants). *2 In addition, the use-of-force reports at issue were not the subject of an investigation into the individual defendant officer's conduct. For the use-of-force reports produced in this case, no investigation was deemed warranted. (Exh. A to Mkrtchyan Decl., Dkt. No. 134.) When an investigation into a use-of-force incident is actually conducted, courts sometimes (but not always) order production with the suspect's name unredacted. For example, the court in Holloway v. Cty. of Orange, SACV 19-1514 DOC (DFMx) (C.D. Cal.), ordered production of complete use-of-force investigations for the individual deputy defendants. (Dkt. No. 8-1 at 4.) In two investigations, supervisors concluded that the deputy's reports were inconsistent with video of the incidents in question. The court permitted both incidents to be used at trial to challenge the deputy's credibility. (Id. at 11-12, 15, 18); see also Nazarian v. City of Beverly Hills, CV 19-4391 DSF (Ex) (attached as Dkt. No. 81-2 at 49-50).[2] Thus, Plaintiff's motion seeks the identifying information of third parties in the context of use-of-force reports that are not the subject of either complaint or department investigation. “ ‘Federal courts ordinarily recognize a constitutionally based right of privacy that can be raised in response to discovery requests.’ ” Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 657 (C.D. Cal. 2005) (citation omitted); see A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 191 (C.D. Cal. 2006). Resolution of a privacy objection requires a balancing of the need for the information sought against the privacy right asserted. Breed v. United States Dist. Ct., 542 F.2d 1114, 1116 (9th Cir. 1976) (denying writ but leaving open opportunity for petitioners to return to district court to assert privilege more specifically and possible in camera review); Keith H., 228 F.R.D. at 657 (citation omitted); Soto, 162 F.R.D. at 616; see also Boar, Inc. v. Cty. of Nye, 499 Fed. Appx. 713, 716 (9th Cir. 2012). Third party suspects have a privacy interest in law enforcement files. See Times Mirror Co. v. United States, 873 F.2d 1210, 1216 (9th Cir. 1989) (addressing third party suspect privacy interests in context of access to search warrant affidavits). “Persons who prove to be innocent are frequently the subjects of government investigations. Like a bill of particulars, a search warrant affidavit may supply only the barest details of the government's reasons for believing that an individual may be engaging in criminal activity. Nonetheless, the issuance of a warrant – even on this minimal information – may indicate to the public that government officials have reason to believe that persons named in the search warrant have engaged in criminal activity. Moreover, persons named in the warrant papers will have no forum in which to exonerate themselves if the warrant materials are made public before indictments are returned. Thus, possible injury to privacy interests is another factor weighing against public access to warrant materials during the pre-indictment stage of an investigation.” Id. at 1216; United States v. Wolfenbarger, 2019 U.S. Dist. LEXIS 115764, *28 (N.D. Cal. July 11, 2019); see also Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990) (in FOIA context, “ ‘mention of an individual's name in a law enforcement file will engender comment and speculation and carries a stigmatizing connotation’ ”) (citation omitted). *3 Thus, when a suspect has not filed a complaint against an officer, use-of-force reports have been produced in redacted form. For example, in Sernoffsky v. Novak, 2023 U.S. Dist. LEXIS 175902 (S.D. Cal. Sept. 29, 2023), the arrest reports contained three suspects' names, dates of birth, and addresses. Id. at *17. Although the court rejected application of the law enforcement investigatory privilege, the court acknowledged the “privacy considerations of the individuals arrested” and authorized redaction of their names and personal identifying information. Id. at *19, *21-*22. In Lien v. City of San Diego, 2021 U.S. Dist. LEXIS 200221 (S.D. Cal. Oct. 18, 2021), the City produced reports and redacted the suspects' names, identifying information, and prior arrests. The court denied a motion to compel the suspects' identities on several grounds, including the three suspects' rights to privacy. Id. at *5 n.5; Everyday Disc. v. State Farm Gen. Ins. Co., 2018 U.S. Dist. LEXIS 244192, *12 (C.D. Cal. Oct. 30, 2018) (permitting redaction of witness name and identifying information in police reports). Plaintiff argues that the use-of-force reports should nevertheless be produced in unredacted form because disclosure of the identity of third parties would enable her to investigate each incident and show, for purposes of her Monell claims, the City's deliberate indifference and failure to properly investigate under the relevant policies, POST procedures and Penal Code provisions. Plaintiff argues this evidence could be relevant under Fed. R. Evid. 404(b) and 608(b). Plaintiff has not shown a need for third party identifying information that outweighs third party privacy rights. For both the use-of-force reports and the review findings that no investigation was warranted, the only redactions were identifying information for third parties. Thus, to the extent Plaintiff argues that the City fails to conduct proper investigation of use-of-force incidents and fails to properly supervise, she has the underlying facts that were available to the reviewers and the basis for the findings that investigation is unwarranted. She is free to argue that the information warranted further investigation or supervision but the City failed to do so. She is also free to argue that the City should investigate further and get the suspects' side of the story (presumably within any applicable legal constraints such as Miranda and the right to remain silent). Plaintiff argues that she wants to conduct her own investigation and get the suspects' side of each incident, but she does not show the relevance of a private counsel's after-the-fact investigation to her Monell claims. A central issue for Monell claims is what was known or obvious to the governmental entity. See Connick v. Thompson, 563 U.S. 51, 61 (2011) (“ ‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.”) (citation omitted). Although Plaintiff cites Nehad v. Browder, 2016 U.S. Dist. LEXIS 62594 (S.D. Cal. May 10, 2016), that case does not support her position. The Monell claim in Nehad was based in large part on failure to investigate officer-involved shootings properly. The court in Nehad ordered production of investigation files for officer-involved shootings that resulted in physical injury or death for a period of three years, and did not require production of any other documents regarding officer-involved shootings. Id. at *27-*28. Even as to the investigation files, the court in Nehad permitted redaction of third party identifying information. Id. at *26.[3] *4 Accordingly, Plaintiff's motion to compel production of third party identifying information in the use-of-force reports is DENIED. (Dkt. Nos. 60, 81, 130.) Footnotes [1] The City Defendants refer to the City of Glendale, Officer Ross and Officer Armendariz. [2] Plaintiff's citation to Burke v. New York City Police Dep't, 115 F.R.D. 220, 225, 228-29 (S.D.N.Y. 1987), is unhelpful. To the extent relevant to this issue, the plaintiff detective in that case sought documents regarding an investigation into her partner, who submitted a release authorizing disclosure to the plaintiff. Id. at 226. The court permitted redaction of the identity of the other officer investigated, who had not given consent to disclosure, as well the identity of the confidential informant. Id. at 227. By contrast, the record in this case does not contain consents from any of the third party suspects. [3] It should be noted that the use-of-force incidents are generally far afield of Plaintiff's claims. The reports include, for example, a person with a knife fighting another person, domestic violence, or flight from police.