United States v. Kingsbury

325 F. Supp. 3d 158
Court of Appeals for the D.C. Circuit·Decided September 4, 2018·No. Criminal Case No. 18-109 (JDB)·Published·Cited by 5 cases

Opinion

JOHN D. BATES, United States District Judge *159In United States v. Johnson, 314 F.Supp.3d 248 (D.D.C. 2018), this Court rejected a motion for a protective order governing body-worn camera materials that was materially indistinguishable from [14] the government's motion for a protective order governing the body-worn camera footage at issue in this case and substantially similar to [15] the government's motion for a protective order governing certain police personnel data. Largely for the reasons given in Johnson-which are summarized briefly below-the Court will grant the government's motions for protective orders but will enter orders that are consistent with Johnson.

In Johnson, the Court explained that the government had failed to meet its burden of showing good cause for several of the restrictions it sought to place on the defendant's ability to use and disclose body-worn camera footage. See Fed. R. Crim. 16(d). These restrictions included: (1) a provision shifting the burden of redacting sensitive information from the body-worn camera footage from the government to defense counsel, see id. at 252-55 ; and (2) provisions preventing defense counsel from (a) using the footage in other cases, see id. at 255-56, (b) showing the footage to her colleagues in the Federal Public Defender's office, see id. at 256-57, and (c) retaining the footage following an acquittal or the dismissal of charges against the defendant, see id. at 257. However, the Court found that the government had shown good cause "for prohibiting Johnson from disclosing the footage to the public at large," and therefore said that it would "direct defense counsel not to disclose even the redacted footage to persons outside the Federal Public Defender's office who are unrelated either to Johnson's case or to some other judicial proceeding in which the Federal Public Defender's Office acts as counsel." Id. at 257.1

Following the issuance of its opinion in Johnson, the Court directed the parties in this case to confer and jointly propose protective orders governing the body-worn camera footage and police personnel data at issue here. See July 27, 2018 Order [ECF No. 18]. Counsel were unable to reach an agreement as to either issue, however, so Kingsbury submitted oppositions to both of the government's motions. See Def.'s Opp'n to Proposed Protective Order for Body Worn Camera Materials ("Def.'s BWC Opp'n") [ECF No. 20]; Def.'s Opp'n to Proposed Protective Order for PPMS/CADRPTS Materials ("Def.'s PPMS/CADRPTS Opp'n") [ECF No. 21]. The Court will address each of the government's motions (and Kingsbury's oppositions thereto) in turn.

As to body-worn camera footage, Kingsbury's opposition asks to the Court to enter the protective order described in Johnson in all respects but one. Kingsbury argues that unlike in Johnson, where "the government represented that civilians were depicted on the [body-worn camera] videos at issue," here the government represents that "[only] one of the many videos produced to defense counsel depicts a civilian." Id. at 2. Kingsbury therefore asks to Court to impose the Johnson protective order only as to that video and to allow the remaining body-worn camera footage to be *160disclosed without any use or disclosure limitations. See id. 2

Kingsbury's request for the protective order described in Johnson will be granted, but its request to limit the scope of that order will be denied. Kingsbury is correct that here, unlike in Johnson, the government has not specifically averred that the body-worn camera footage at issue depicts civilian witnesses. But the privacy of civilians was only one of several reasons given in Johnson for prohibiting the distribution of body-worn camera footage to the public at large. See Johnson, 314 F.Supp.3d at 257. The Court also relied on the government's representations that "as a general matter, body-worn camera footage is likely to contain sensitive information in which witnesses and others depicted on the footage"-who, in all likelihood, would include police officers-"have a legitimate privacy interest." Johnson, 314 F.Supp.3d at 257 ; see Gov't's BWC Mot. at 2-4 (repeating those representations here). The need to protect the privacy of noncivilian witnesses (i.e., the police) weighs equally here as it did in Johnson.

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United States v. Kingsbury, 325 F. Supp. 3d 158 (D.C. Cir. 2018).

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