United States District Court, D. Arizona
A. Bowman United States Magistrate Judge
before the court is the defendants' motion, filed on
November 7, 2019, to submit ex parte, in camera
evidence and argument in their anticipated dispositive
motions. (Doc. 47)
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) They bring this action pursuant to 42 U.S.C. § 1983.
(Doc. 1, p. 4) Among other things, the plaintiffs claim that
the search warrant 17SW1017, executed on June 9, 2017, was
procured without probable cause. (Doc. 1, pp. 15-16) The
defendants apparently believe that the plaintiffs may be
responsible for the fire that destroyed these apartments.
(Doc. 1) The investigation into that fire is ongoing.
December 13, 2019, this court granted the defendants'
motion to stay discovery of the arson investigation police
files pursuant to the law enforcement investigatory
privilege. (Doc. 74) Among the documents withheld from
discovery is the affidavit that the defendants used to
procure the search warrant 17SW1017, executed on June 9,
2017. (Doc. 47) This affidavit has been disclosed to the
plaintiffs only in redacted form.
pending motion, the defendants move for permission to submit
the unredacted affidavit ex parte and in
camera to this court. (Doc. 47) They then propose to
file dispositive motions challenging several of the
plaintiffs' claims arguing, among other things, that
there was probable cause to issue the warrant
executed on June 9, 2017. Id. They intend to file
part of their motions in open court but will submit ex
parte and in camera those arguments that rely
on the unredacted affidavit. Id. In other words, the
defendants want the court to entertain dispositive motions
based, in part, on a document the plaintiffs are not allowed
to see and arguments to which the plaintiffs cannot respond.
. . . are necessarily wary of one-sided process: democracy
implies respect for the elementary rights of men and must
therefore practice fairness; and fairness can rarely be
obtained by secret, one-sided determination of facts decisive
of rights.” Am.-Arab Anti-Discrimination Comm. v.
Reno, 70 F.3d 1045, 1069 (9th Cir. 1995).
“[T]he very foundation of the adversary process assumes
that use of undisclosed information will violate due process
because of the risk of error.” Id. “It
is therefore the firmly held main rule that a court may not
dispose of the merits of a case on the basis of ex parte,
in camera submissions.” Id.
past, courts have acknowledged exceptions to the main rule
“when the submissions involve compelling national
security concerns or the statute granting the cause of action
specifically provides for in camera resolution of
the dispute.” Vining v. Runyon, 99 F.3d 1056,
1057 (11th Cir. 1996). Neither of these exceptions
are present in the pending action. Accordingly, the court
finds that the “main rule” governs the pending
motion. See Am.-Arab Anti-Discrimination Comm., 70
F.3d at 1069. The court will not “dispose of the merits
of this case on the basis of ex parte, in camera
submissions.” Id. The pending motion will be
parties in this case dispute whether probable cause supported
the search warrant executed on June 9, 2017. The defendants
move that this court resolve the issue by employing an ex
parte, in camera procedure. They maintain this is proper
because criminal courts routinely do so when making probable
cause determinations. This argument, however, compares apples
criminal courts entertain motions to suppress evidence, they
sometimes make probable cause determinations based on ex
parte, in camera proceedings, but the purpose of these
proceedings is to determine what evidence will be admissible
at the trial. They are not deciding the merits of the case.
See United States v. Raddatz, 447 U.S. 667, 678, 100
S.Ct. 2406, 2413 (1980) (“[T]he interests underlying a
voluntariness hearing do not coincide with the criminal law
objective of determining guilt or innocence.”). Here,
the defendants want to use an ex parte, in camera
proceeding to determine the existence of probable cause and,
in turn, the merits of the plaintiffs' claims. The due
process concerns are different.
defendants further argue that an ex parte, in camera
proceeding “is even more permissible in the civil
context, where the parties have less stringent due process
rights than in the criminal context.” (Doc. 47, p. 12)
This argument is difficult to follow. The defendants seem to
be arguing that if ex parte, in camera proceedings
are permitted in the criminal context, then they must be
permissible in the civil context because due process
protections in the former context are more stringent than in
the later. This argument elides the fact that all criminal
procedures are not accorded the same level of due process
protection. The procedure at a criminal suppression hearing
does not require the same level of due process that is
afforded the defendant at his trial. U.S. v.
Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 2414 (1980).
“At a suppression hearing, the court may rely on
hearsay and other evidence, even though that evidence would
not be admissible at trial.” Id. The
identities of confidential informants may be withheld at the
suppression hearing, but they must be disclosed before trial
if they are “relevant and helpful to the
defense.” Id. In sum, “the process due
at a suppression hearing may be less demanding and elaborate
than the protections accorded the defendant at the trial
itself.” Id. This is because a criminal
suppression hearing is focused on determining what evidence
will be admissible at trial, not on the ultimate question of
guilt or innocence. See Id. at 677-679.
while the due process protections in the criminal context
generally exceed the protections afforded in the
civil context, one cannot say that the due process
protections afforded at a criminal suppression hearing also
exceed the level of due process required in the civil
context. And while ex parte, in camera procedures
may be employed in a criminal suppression hearing, that does
not mean that the same procedure would pass constitutional
muster when resolving a civil claim. See
Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1069
(9th Cir. 1995).
fact, the Ninth Circuit has already held to the contrary that
ex parte, in camera procedures are not permitted
when deciding the merits of a civil claim absent special
circumstances not present in this case.
Anti-Discrimination Comm. v. Reno, 70 F.3d 1045,
1069 (9th Cir. 1995); see also Lynn v. Regents
of Univ. of California, 656 F.2d 1337, 1346
(9th Cir. 1981); Abourezk v. Reagan, 785
F.2d 1043, 1061 (D.C. Cir. 1986), aff'd, 484
U.S. 1, 108 S.Ct. 252 (1987); Vining v. Runyon, 99
F.3d 1056, 1057 (11th Cir. 1996); but see
Meridian Int'l Logistics, Inc. v. United States, 939
F.2d 740, 745 (9th Cir. 1991) (District Court
could consider ex parte/in camera evidence when
determining whether agent “was . . . acting within the