Fourhorn v. City & County of Denver

261 F.R.D. 564, 2009 U.S. Dist. LEXIS 94238
CourtDistrict Court, D. Colorado
DecidedSeptember 22, 2009
DocketCivil Action No. 08-cv-01693-MSK-KLM
StatusPublished

This text of 261 F.R.D. 564 (Fourhorn v. City & County of Denver) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fourhorn v. City & County of Denver, 261 F.R.D. 564, 2009 U.S. Dist. LEXIS 94238 (D. Colo. 2009).

Opinion

ORDER

KRISTEN L. MIX, United States Magistrate Judge.

This matter is before the Court on Defendants’ Motion to Preserve the Confidential Designation for Certain Documents Pur[566]*566suant to Protective Order [Docket No. 177; Filed May 22, 2009] and Defendants’ Second Motion to Preserve the Confidential Designation for Certain Documents Pursuant to Protective Order (collectively the “Motions”). Prior to resolution of the Motions, the parties agreed to an extended briefing schedule. Plaintiffs and Intervenor (hereinafter “Plaintiffs”) filed a combined Response in opposition to the Motions on August 17, 2009 [Docket No. 254], and Defendants filed a combined Reply on September 14, 2009 [Docket No. 240].1 The Motions have been fully briefed and are ripe for resolution.2

This case involves the alleged wrongful arrests of Plaintiffs based upon mistaken identity. Plaintiffs contend that alleged “recklessly sloppy police work” led to their arrests at different times for unrelated offenses and in each case, Defendants “were aware of facts that demonstrated that they were arresting or causing the arrest of the wrong person, but they deliberately ignored those facts.” Complaint [#221] at 5. Further, Plaintiffs contend that Defendant Denver was aware of the risks associated with mistaken identity arrests but failed to adopt policies to minimize those risks, or had policies in place which contributed to those risks. Id. at 63-77. Plaintiffs assert state law claims as well as federal constitutional claims pursuant to 42 U.S.C. § 1983, including that Defendant Denver’s current policies, or failure to enact preventative policies, directly led to the mistaken-identity arrests and caused the deprivation of constitutional rights.

IT IS HEREBY ORDERED that the Motions [##177 and 241] are GRANTED in part and DENIED in part for the reasons set forth below.

According to the Reply, the issues have narrowed and the remaining dispute now relates to three categories of documents produced by Defendants under a confidentiality label pursuant to the Protective Order entered in this matter [Docket No. 34; Filed October 1, 2008]. Plaintiffs dispute that the documents should receive a confidentiality designation. The first category of documents, referred to as Category A, pertains to documents and information created by Defendant Denver’s Internal Affairs Bureau (“IAB”) consisting of interview recordings, transcripts and other descriptive materials relating to the arrests of Plaintiffs.3 Reply [# 292] at 3-6. The second category of documents, referred to as Category C, pertains to complaints lodged by nonparties and corresponding IAB disciplinary actions not the subject of this litigation. Category C documents also include Denver District Attorney (“DA”) materials. Id. at 6-7. The third category of documents, referred to as Category D, pertains to Denver Sheriff Department jail policies. Id. at 7-8.4

In relation to Category A documents, Defendants argue that individuals involved in the investigation regarding Plaintiffs’ mistaken-identity arrests possess a valid privacy interest pursuant to a confidentiality provision of the Denver Revised Municipal Code (“DRMC”) § 42-30. Reply [#292] at 3-4. Defendants also argue that officer/witness participants in the IAB investigation are given an advisement that their comments will be kept confidential to the extent possible. Reply [#292] at 4-5. The ordinance and advisement have been interpreted by the Colorado Court of Appeals to provide individuals involved in the IAB process with an expectation of “limited confidentiality.” ACLU v. Whitman, 159 P.3d 707, 711-13 (Colo.Ct.App.2006). As such, Defendants “are merely asking the Court to recognize that their expecta[567]*567tion of limited confidentiality in the IAB statements justifies designating the documents as confidential.” Reply [#292] at 5.

Plaintiffs counter that despite any municipal ordinance to the contrary, they “fail to see how an investigation into ... Defendants’ alleged public misconduct in the performance of their public duties implicates their privacy interests. For officers who were potential witnesses to the Defendants’ alleged misconduct, we fail to see how their knowledge of any misconduct implicates their privacy interests.” Response [# 254] at 9. Moreover, Plaintiffs argue that the advisement given to officers/witnesses regarding confidentiality contains sufficient “exceptions that would give [participants] little assurance that [their] statement would remain confidential” indefinitely and “hardly establishes good cause under Rule 26(c).” Id. Plaintiffs argue that at least one Colorado state court has rejected the alleged confidential nature of documents created after the advisement is given because the advisement is limited and conditional and disclosure has not had a chilling effect on the cooperation of officers or the public in IAB investigations. See Nash v. Whitman, No. 05-cv4500, slip. op. at 8, 2005 WL 5168322 (Denver Dist. Ct. Dec. 7, 2005) (unpublished decision). Finally, Plaintiffs point out that similar documents have been disclosed without restriction pursuant to the Colorado Open Records Act and the Colorado Criminal Justice Act. Response [# 254] at 10.

In relation to Category C documents, Defendants argue that designating as confidential documents pertaining to unrelated, but similar IAB investigations “will not prejudice Plaintiffs but will: (i) protect persons who are not parties ... from having information about them made public; and (ii) avoid public dissemination of information about disciplinary matters, DA proceedings and processes, and other incidents where that information is not relevant to the issues in this case.” Reply [#292] at 6. Further, Defendants contend “[t]here is an expectation of privacy by law enforcement officers in IAB materials and the materials should be treated carefully in that light.” Id. at 12.

Plaintiffs counter that their argument in relation to Category A documents applies equally to the IAB complaints filed by non-parties and disciplinary actions related to those complaints. They argue that “Defendants have failed to establish the privacy interests of anyone involved in internal affairs investigations.” Response [# 254] at 16.

In relation to Category D documents, Defendants argue that Denver jail policies should be kept confidential “so as to avoid any breaches or attempted breaches of jail security and to keep everyone safe. Thus, the release of the jail policy would result in a clearly defined and serious injury to the Defendants and the public.” Reply [# 292] at 8. Further, they note that “[j]ail policies have previously been protected beyond confidential status, to the point of redaction.” Id.

Plaintiffs counter that while they do not take issue with certain jail policies or portions of jail policies receiving confidentiality status, “Defendants fail to explain how [the policies at issue] implicate the ‘safety and security’ of any jail.” Response [#254] at 17. The first policy relates to visitation of inmates. See id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
261 F.R.D. 564, 2009 U.S. Dist. LEXIS 94238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fourhorn-v-city-county-of-denver-cod-2009.