430 F.2d 1214 (5th Cir. 1970), 28590, Brown v. Thompson

Docket Nº:28590.
Citation:430 F.2d 1214
Party Name:Ollie Mae BROWN and Margaret Brown, Plaintiffs-Appellants, v. Allen C. THOMPSON et al., Defendants-Appellees.
Case Date:August 06, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1214

430 F.2d 1214 (5th Cir. 1970)

Ollie Mae BROWN and Margaret Brown, Plaintiffs-Appellants,

v.

Allen C. THOMPSON et al., Defendants-Appellees.

No. 28590.

United States Court of Appeals, Fifth Circuit.

Aug. 6, 1970

Armand Derfner, James A. Lewis, Jackson, Miss., Milton M. Carrow, New York City for plaintiffs-appellants.

A. F. Summer, Atty. Gen. of Mississippi, William A. Allain, Asst. Atty. Gen., John E. Stone, City Atty., Robert G. Nichols, Jr., Special Counsel, Thomas

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H. Watkins, Special Counsel, Jackson, Miss., for defendants-appellees.

Before JONES, WISDOM and COLEMAN, Circuit Judges.

JONES, Circuit Judge:

In Jackson, Mississippi, on May 11, 1967, during a demonstration, there was a confrontation between demonstrators and law enforcement officers. Shots were fired and Benjamin Brown was killed. His widow and mother, the appellants herein, brought an action for wrongful death under 42 U.S.C.A. § 1983, against the Mayor of Jackson, its Chief of Police, the State Commissioner of Public Safety, 'John Doe,' who 'is one or more officers of the Police Department' of Jackson, 'Richard Roe,' who 'is one or more officers of the Highway Patrol' of Mississippi, and Travelers Indemnity Company, the surety on the bonds of the Commissioner of Public Safety and 'Roe.' A claim was also asserted for wrongful death under the laws of Mississippi.

The complaint was filed May 10, 1968. The first count charged that the law enforcement officers were not properly trained and the defendants responsible for their training were liable for their wrongful act in shooting Brown. By Count Two the named defendants were charged with responsibility for the acts of their subordinates. Count Three charged liability under the State law for wrongful death, both statutory and common law. A claim for $100,000 compensatory damages and $100,000 punitive damages was made on each count. After answers were filed and the case was at issue and had been set for trial, a continuance was granted on application of the plaintiffs. Depositions were taken. By motions to produce and subpoenas duces tecum, the plaintiffs sought to obtain files and records of the Police and Highway Patrol. The defendants opposed the motion to produce and moved to quash the subpoena duces tecum. Both the motions to produce and the motions to quash were granted in part and denied in part. The district court required the production of some of the documents specified but declined to require the production of the files on the death of Benjamin Brown on the ground that the contents were privileged and that the files concerned parts of a homicide investigation which was then still open, the contents of which were highly confidential.

The case was again set for trial, this time for July 22, 1969. The plaintiffs moved for leave to dismiss without prejudice. The defendants objected. The plaintiffs asserted that they could not go to trial without the information contained in the files to which they had been denied access. The defendants filed a motion to dismiss with prejudice. In their motion it was recited that a continuance had previously been granted to permit the plaintiffs to develop evidence and that, as a result, depositions had been taken. It was also stated that the defendants had again prepared for trial and that since the plaintiffs announced that they could not proceed to trial, the cause should be dismissed with prejudice. The motion was granted. The cause was dismissed with prejudice. The plaintiffs have appealed.

The appellants concede that they would be unable to recover judgment without more evidence than that which they had been able to obtain. They had been denied access to the police report file on the investigation of the death of Brown. If access to the file was improperly denied it would follow that the judgment of dismissal with prejudice was error.

Government documents are the outstanding example of matter which is privileged and which is not subject to disclosure. 2B Barron & Holtzoff, Federal Practice and Procedure, p. 288, § 1003. It will expire upon the lapse of an unreasonable length of time. Whether there should be a disclosure is within the discretion of the trial court and, like other discretionary matters, the determination of the court should be made by a balancing of interests. The exercise of discretion, like other matters of discretion

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vested in trial courts, will be considered upon review for an abuse of discretion. It is the unusual and exceptional case where the determination of the trial court is set aside. Swanner v. United States, 5th Cir. 1969, 406 F.2d 716; Adams v. United States, 5th Cir. 1958, 260 F.2d 467, cert. den., 359 U.S. 934, 79 S.Ct. 649, 3 L.Ed.2d 635 (1959). The judges of the Court of Appeals might well feel that under like circumstances they would have exercised the judicial discretion in a manner different from that in which it was exercised by the trial court. But, this is not a basis for reversing the determination of the trial court. The test is whether there has been an abuse of that discretion and in this case we hold that there was no such abuse.

By Rule 41(b) of the Rules of Civil Procedure, it is provided:

'For failure of the plaintiff to prosecute or to comply with these rules or any order of court,...

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