United States District Court, D. Arizona
A. Bowman United States Magistrate Judge.
before the court is the defendants' motion, filed on
September 24, 2019, to assert the law enforcement
investigatory privilege and stay all discovery. (Doc. 23)
this date, only two defendants remain in the case - Detective
Sean Garand and Sergeant Dain Salisbury. See (Doc.
1); (Doc. 38) Both men are employed by the Tucson Police
Department (TPD). (Doc. 1) The plaintiffs are in the
residential real estate business. (Doc. 1, pp. 4-5)
plaintiffs in this action claim their constitutional rights
were violated when the defendants sought and executed search
warrants in connection with an arson investigation into the
destruction of the Forgeus Apartments on June 8, 2017. (Doc.
1) The plaintiffs bring this action pursuant to 42 U.S.C. s
1983. (Doc. 1, p. 4) The defendants apparently believe that
the plaintiffs may be responsible for the fire that destroyed
these apartments, which were owned and managed by the
plaintiffs at the time of the fire. (Doc. 1) The
investigation into that fire is ongoing. In the pending
motion, the defendants move to assert the law enforcement
investigatory privilege for the arson investigation police
files. (Doc. 23) They further move that the court stay all
discovery pending the court's resolution of their motion
for partial summary judgment on the issue of qualified
immunity. Id. The motion will be granted in part.
law enforcement investigatory privilege is based on the harm
to law enforcement efforts which might arise from public
disclosure of investigatory files.” Conan v. City
of Fontana, 2017 WL 2874623, at *4 (C.D. Cal. 2017).
“The party claiming the privilege has the burden to
establish its existence.” Id. “In order
to assert the law enforcement investigatory privilege,
certain elements must be met: (1) a formal claim of privilege
by the head of the department with control over the requested
information; (2) the assertion of the privilege must be based
on personal consideration by that official; and (3) the
information for which the privilege is claimed must be
specified with an explanation as to why it falls within the
scope of the privilege.” Id.
case, the defendants support their motion with a declaration
from Tucson Police Chief Chris Magnus. (Doc. 23-8, pp. 2-8)
Chief Magnus is the “head of the department with
control over the requested information.” (Doc. 23-8, p.
4) He asserts the privilege “based on personal
consideration” and explains that discovery of the
documents would “undermine the integrity of the open
criminal investigation.” Id., pp. 3-4 The
defendants further provide a “Bates numbered listing of
all redactions and/or withheld documents along with the
reason each was redacted or withheld.” (Doc. 23-8, p.
4); (Doc. 23-9, pp. 6-15) (Doc. 23-10, pp. 1-27); (Doc.
23-11, pp. 1-38); (Doc. 23-12, pp. 1-38); (Doc. 23-13, pp.
1-38) Chief Magnus explains more specifically that some
documents describe “precisely how a crime under
investigation was accomplished.” (Doc. 23-8, pp. 4-8)
Other documents describe the officer's observations, or
their decision to gather evidence, or their analysis of the
evidence gathered. Id. Still others disclose the
identities of witnesses or the specific information given by
those witnesses. Id. The defendants argue that
disclosure of these documents would undermine the
effectiveness of Tucson Police Department's ability to
investigate crimes by discouraging witness from coming
forward and disclosing to potential suspects the information
that the department has already gathered. Id.
court finds that the defendants have made a sufficient
threshold showing to invoke the privilege. Application of the
privilege will “prevent disclosure of law enforcement
techniques and procedures,  preserve the confidentiality of
sources,  protect witness and law enforcement personnel, 
safeguard the privacy of individuals involved in an
investigation, and otherwise  prevent interference with
[the] investigation.” In re Dep't of
Investigation of City of New York, 856 F.2d 481, 484 (2d
Cir. 1988). The court finds that the privilege is
particularly applicable here where the Tucson Police
Department (TPD) has an ongoing criminal investigation and
the plaintiffs are the target of that investigation.
plaintiffs argue that before the privilege is allowed, the
proponent must explain why a “carefully crafted
protective order” could not be fashioned that would
substantially reduce the risk of harm. (Doc. 25, pp. 8-9) The
court finds that a protective order would not suffice here
because of the unique circumstances present in this case. A
protective order is useful when the parties agree to disclose
information to each other but seek to limit disclosure to
third parties. Here, the TPD seeks to limit disclosure not
only to third parties but also to the plaintiffs because they
are the target of the ongoing investigation. A protective
order will not suffice to reduce the risk of harm described
by Chief Magnus and the defendants.
plaintiffs further argue that Chief Magnus's affidavit
fails to include “a projection of how much harm would
be done to the threatened interests if disclosure were
made.” (Doc. 25, pp. 8-9) The court finds that the
affidavit adequately addresses this point. Law enforcement
techniques and procedures would be disclosed, witnesses would
lose their confidentiality, and the investigation would be
compromised. The court finds that discovery into TPD's
criminal investigatory file should be stayed.
defendants further move that all discovery be stayed until
the court resolves their motion for partial summary judgment
on the issue of qualified immunity citing Harlow v.
Fitzgerald, 457 U.S. 800, 816-19 (1982) and Ashcroft
v. Iqbal, 556 U.S. 662, 685-86 (2009). This motion has
yet to be filed. The court therefore considers the
defendants' motion to stay all discovery premature.
ORDERED that the defendants' motion, filed on September
24, 2019, to assert the law enforcement investigatory
privilege and stay all discovery is GRANTED in PART. (Doc.
23) Discovery of the TPD arson investigation files for the
Forgeus Apartments ...