Denver Policemen's Protective Ass'n v. Lichtenstein

• Decision Date: 18 September 1981
• Docket Number: No. 80-1313,80-1313
• Citation: 660 F.2d 432
• Parties: DENVER POLICEMEN'S PROTECTIVE ASSOCIATION, Larry Kier, Paul Lopez, Jesse Brezzel, Harry Mills, Paul Selander and Daniel Hendricks, Plaintiffs- Appellants, v. Alvin LICHTENSTEIN, a judge of the Second Judicial District Court; The District Court for the Second Judicial District, City and County of Denver, State of Colorado; and Michael Lee Cole, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 432

660 F.2d 432

DENVER POLICEMEN'S PROTECTIVE ASSOCIATION, Larry Kier, Paul Lopez, Jesse Brezzel, Harry Mills, Paul Selander and Daniel Hendricks, Plaintiffs- Appellants, v. Alvin LICHTENSTEIN, a judge of the Second Judicial District Court; The District Court for the Second Judicial District City and County of Denver, State of Colorado; and Michael Lee Cole, Defendants-Appellees.

No. 80-1313.

United States Court of Appeals, Tenth Circuit.

Sept. 18, 1981.

Jon L. Holm of Holm & Dill, Denver, Colo., for plaintiffs-appellants.

J. Stephen Phillips, First Asst. Atty. Gen., the State of Colo., Denver, Colo. (J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., and Mary J. Mullarkey, Sol. Gen., the State of Colo., Denver, Colo., with him on the brief), for defendants-appellees.

Before SETH, Chief Judge, BARRETT and SEYMOUR, Circuit Judges.

BARRETT, Circuit Judge.

This appeal is from the district court's dismissal of appellants' complaint for failure to state a claim upon which relief can be granted. The appellants are the Denver Policemen's Protective Association and individual officers of the Denver police force, hereinafter collectively referred to as the Association.

The alleged cause of action arose from an order compelling discovery of police investigative files issued by Judge Lichtenstein of the Second Judicial District Court in and for the City and County of Denver. This order was entered following a hearing on a pretrial motion filed in the case of People v. Cole, Criminal Action No. 79CR0664.

The defendant in that case, Michael Cole, who is an appellee here, was arrested for assaulting a police officer. In preparation of his defense, Mr. Cole filed a motion to compel discovery of personnel and staff inspection bureau (SIB) files of each police officer present at his arrest. His purpose in requesting the files was discovery of potentially exculpatory material.

Judge Lichtenstein granted Cole's motion with the understanding that the court would review the requested material in camera to ascertain if it included exculpatory material. The People sought a writ of mandamus in the Colorado Supreme Court to have Judge Lichtenstein's order vacated. The Colorado Supreme Court dismissed the petition without prejudice.

At a subsequent hearing on the motion, Judge Lichtenstein ordered Mr. Cole to issue a subpoena duces tecum to Police Chief Arthur Dill. The People, joined by the Association, filed a motion to quash the subpoena or for protective orders. At the hearing on this motion, Judge Lichtenstein indicated he had reviewed the requested files in camera. He found, after applying a balancing test, that Michael Cole was not entitled to the personnel files but that some of the material in the SIB files was exculpatory. He then ordered in camera inspection of the SIB filed by counsel for the parties. This order was stayed to allow the Association to petition the Colorado Supreme Court for rehearing on the writ of mandamus. The Colorado Supreme Court again denied the petition.

The Association then brought an action, from which the instant appeal has been taken, in the United States District Court for the District of Colorado based upon 42 U.S.C.A. § 1983. The Association sought a preliminary injunction and a permanent injunction against defense counsel's discovery of SIB files in the case of People v. Cole. It also sought a permanent injunction against future discovery orders for SIB files by Judge Lichtenstein and the District Court of the Second Judicial District. Defendants, Judge Lictenstein and Michael Cole, filed a motion to dismiss for lack of jurisdiction and failure to state a claim. The District Court conducted an evidentiary hearing on the plaintiffs' motion for preliminary injunction. Plaintiffs presented testimony of some five police personnel and certain documentary evidence. The defendants offered in evidence a copy of the Colorado Open Records statute. These matters were before the court and properly considered in relation to the defendants' motion to dismiss.

The District Court dismissed the case for failure to state a claim in light of the Colorado Supreme Court decision in Martinelli v. District Court in and for the City and County of Denver, 612 P.2d 1083 (Colo.1980) (hereinafter referred to as Martinelli ). The Martinelli decision was handed down in the interim of filing this suit and the District Court's dismissal order.

The Association contends that the District Court erred in dismissing its complaint in that Judge Lichtenstein's order compelling discovery, (1) violated the police officers' right to privacy in the SIB files, (2) violated a governmental-executive privilege in the files, and (3) denied the police officers equal protection in regard to their right to privacy and privilege against self-incrimination.

I.

To establish a cause of action under 42 U.S.C.A. § 1983, a party must show that the defendant acted under color of state law and, in so doing, deprived the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Parralt v. Taylor, --- U.S. ----, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Smart v. Villar, 547 F.2d 112 (10th Cir. 1976). Thus, in effect, we are asked to decide if the District Court was implicitly correct in finding that Judge Lichtenstein did not deprive the Association of its rights by ordering discovery of the SIB files. More specifically, the issue is whether or not police investigative files are subject to discovery and if so, under what circumstances.

The Association contends that the officers and citizens who make statements in the course of an investigation have a right to privacy in the SIB files. ¹ The Association defines this right to privacy as a right to confidentiality. It is, specifically, a right to prevent disclosure of personal matters. Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). The United States Supreme Court again identified this right in Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), wherein the Court said,

We may agree with appellant that, at least when government intervention is at stake, public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity. (Emphasis added).

Id. at 457, 97 S.Ct. at 2797.

While the SIB files at issue here may have some personal data in them, the documents subject to Judge Lichtenstein's order did not contain personal data. Those documents related simply to the officers' work as police officers. (Testimony of Captain Pennel, R., Vol. II, p. 45).

In Martinelli, the Colorado Supreme Court recognized that personal data which is not of a highly personal or sensitive nature may not fall within the zone of confidentiality. Martinelli at p. 1092.

In some circumstances the SIB files may contain personal data which could give rise to a right to confidentiality. However, the Association concedes that a right to confidentiality in the files is not absolute. The Association acknowledges the balancing test as set out in Martinelli. In applying this test the court must consider, (1) if the party asserting the right has a legitimate expectation of privacy, (2) if disclosure serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner. Martinelli at 1091.

The expectation of privacy is found in the fact that statements by officers taken in the course of investigation are made with the understanding that they are confidential and will not be used for other purposes. The Association attempts, however, to bolster the right to privacy with a Fifth Amendment privilege. The attempt must fail. The connection between the Fifth Amendment privilege against self-incrimination and the right to privacy was discounted in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).

Assuming that the police officers have a legitimate expectation of privacy, the right may be overridden by a compelling state interest. The compelling state interest involved here is ascertainment of the truth.

We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.

United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974).

Wood v. Breier, 54 F.R.D. 7 (E.D.Wis.1972), involved a § 1983 action by a citizen against police, wherein the court found that the police chief was not entitled to a protective order preventing discovery of police investigative files. The court said:

Thus, it is of special import that suits brought under this statute be resolved by a determination of the truth rather than by a determination that the truth shall remain hidden.

54 F.R.D. at p. 11.

Inasmuch as the instant case involves a "swearing match" between the accused and police officers, ascertainment of the truth is of particular importance.

Another compelling state interest in discovery of the SIB files is the defendant's right to exculpatory material. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) teaches us that discovery of exculpatory material is a compelling state interest and is, indeed, an integral part of the right to a...