In Re The City Of New Yorkhacer Dinler

• Decision Date: 09 June 2010
• Docket Number: Docket No. 10-0237-op.
• Parties: In re THE CITY OF NEW YORKHacer Dinler, et al., Michael Schiller, et al., Deirdre Macnamara, et al., Plaintiffs-Respondentsv.The City of New York, Raymond Kelly, Commissioner of the New York City Police Department, et al., Defendants-Petitioners.
• Court: U.S. Court of Appeals — Second Circuit

607 F.3d 923

In re THE CITY OF NEW YORKHacer Dinler, et al., Michael Schiller, et al., Deirdre Macnamara, et al., Plaintiffs-Respondentsv.The City of New York, Raymond Kelly, Commissioner of the New York City Police Department, et al., Defendants-Petitioners.

Docket No. 10-0237-op.

United States Court of Appeals Second Circuit.

Argued: April 19, 2010.

Decided: June 9, 2010.

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Celeste L. Koeleveld, Executive Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel Tonya Jenerette, Peter G. Farrell, of counsel), Corporation Counsel of the City of New York, New York, NY, for Defendants-Petitioners.

Christopher Dunn, (Arthur Eisenberg and Mohammed Gangat, on the brief), New York Civil Liberties Union Foundation, New York, NY, for Plaintiffs-Respondents, Dinler, et al., and Schiller, et al.

Jonathan C. Moore, (Clare Norins, on the brief), Beldock Levin & Hoffman LLP, New York, NY, for Plaintiffs-Respondents MacNamara and putative class members.

Before: CABRANES, WESLEY, and LIVINGSTON, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

The question presented is whether we should issue a writ of mandamus to overturn an order of the United States District Court for the Southern District of New York (Richard J. Sullivan Judge ) granting a motion to compel the production of certain sensitive intelligence reports prepared by undercover officers of the New York City Police Department (“NYPD”). In answering that question, we are called upon to examine the circumstances in which the so-called “law enforcement privilege” must yield to the needs of a party seeking discovery in a civil action.

Plaintiffs-respondents (“plaintiffs” or “respondents”) are protesters and other persons who were arrested, detained, and fingerprinted after demonstrating at the 2004 Republican National Convention (“RNC”) in New York City. They brought the underlying suits under 42 U.S.C. § 1983 and state law claiming that their arrest and treatment at the hands of the NYPD violated the United States Constitution and New York law.

During pretrial discovery proceedings, plaintiffs brought a motion to compel the City to produce roughly 1800 pages of confidential reports created by undercover NYPD officers who were investigating potential security threats in the months before the RNC. (Using the NYPD's parlance, we refer to these 1800 pages of reports as the “Field Reports” or simply the “Reports.”) The City opposed the motion to compel by asserting, among other things, that the documents were protected from disclosure by the law enforcement privilege.

Magistrate Judge James C. Francis IV, assigned by the District Court to address all “[g]eneral [p]retrial” matters in the litigation,¹ granted plaintiffs' motion to compel. The City filed objections to that decision with Judge Sullivan see Fed.R.Civ.P. 72(a), and Judge Sullivan affirmed Magistrate Judge Francis's order in its entirety MacNamara v. City of N.Y., Nos. 04 Civ. 9216, 04 Civ. 7922, 04 Civ. 7921, 2009 WL 4789421 (S.D.N.Y. Dec.14, 2009). (For the remainder of this opinion, we will refer to the rulings of Magistrate Judge Francis and Judge Sullivan collectively as the rulings of the “District Court.”) The City then filed this petition for a writ of mandamus seeking relief from the order granting plaintiffs' motion to compel.

We hold that the City's petition presents an “exceptional circumstance [ ]” warranting the “extraordinary remedy” of a writ of mandamus. Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (internal quotation marks omitted). We reach that conclusion for the following reasons:

First, a writ of mandamus is the only “adequate means” for the City to seek review of the District Court's order and thereby prevent the irreparable harm that the City-and thus the public-would suffer from the disclosure of the Field Reports. See id. (internal quotation marks omitted). In particular, we reject the idea that the secrecy of the Field Reports can be protected by disclosing them on an “attorneys' eyes only” basis and filing them “under seal.” We have no trouble concluding, therefore, that an appeal after a final judgment is not an “adequate means” for the City to “attain the relief [it] desires.” Id. (internal quotation marks omitted).

Second, because we have never before addressed the circumstances in which the law enforcement privilege must yield to a party's need for discovery, this petition presents “novel and significant question[s] of law ... whose resolution will aid in the administration of justice.” In re S.E.C. ex rel. Glotzer, 374 F.3d 184, 187 (2d Cir.2004) (internal quotation marks omitted). We are therefore “satisfied,” in “the exercise of [our] discretion,” that “the writ is appropriate under the circumstances.” Cheney, 542 U.S. at 381, 124 S.Ct. 2576.

Third, we conclude that the City has a “clear and indisputable” right to the writ, id. (internal quotation marks omitted), because the District Court indisputably “abused its discretion” in making three distinct errors. Specifically, after determining that the law enforcement privilege applied, the District Court indisputably erred in failing to apply a “strong presumption against lifting the privilege.” Dellwood Farms v. Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir.1997). The District Court also indisputably erred in failing to require that plaintiffs show a “compelling need” for the Field Reports. Cf. Marriott Int'l Resorts, L.P. v. United States, 437 F.3d 1302, 1307 (Fed.Cir.2006). Finally, the District Court made a clearly erroneous assessment of the evidence when it found that plaintiffs' need for the Field Reports outweighed the public's interest in their secrecy. Each of these errors may, on its own, merit a writ of mandamus, but taken together, they easily establish that the City has a “clear and indisputable” right to the writ.

Accordingly, we grant the City's petition for a writ of mandamus; we vacate the December 10, 2009 order of the District Court; ² and we instruct the District Court to deny plaintiffs' motion to compel the production of the Field Reports.

BACKGROUND

In February 2003, Mayor Michael Bloomberg announced that the 2004 Republican National Convention would be held in New York City. Immediately thereafter, the NYPD began developing plans to maintain order and safety during the event. The NYPD was mindful of the City's status as a prime target of international terrorism, and the NYPD was keenly aware that a large political event could attract anarchist violence and unlawful civil disobedience.

To address those concerns, David Cohen, the NYPD's Deputy Commissioner of Intelligence (“Commissioner Cohen”), researched the security threat posed by violent protests at other large political events. Based on his analysis of the chaos and violence caused by recent protests in other metropolitan areas, including recent large-scale protests in Seattle and Miami, Commissioner Cohen concluded that even a small extremist element could trigger spiraling violence at large political demonstrations.³ App. to Pet. for Writ of Mandamus (hereinafter “App.”) 126-29 (Cohen Decl., June 6, 2007, Ex. A at 8-11). Accordingly, Commissioner Cohen and the NYPD's Intelligence Division recognized that the NYPD needed a strategy to avoid disorder and violence during the RNC.

Commissioner Cohen and the Intelligence Division began to form that strategy by researching potential extremist groups and their plans for disrupting the RNC. Much of the research consisted of combing through publicly available information on the Internet for plans to disrupt the RNC with violence or unlawful civil disobedience. The Intelligence Division compiled the results of that research into 600 pages of so-called “End User Reports.” Additionally, some members of the Intelligence Division went undercover and infiltrated various organizations to determine whether these organizations had devised plans to disrupt the RNC. The undercover officers prepared the Field Reports to memorialize what they had learned in various meetings and discussions with members of the infiltrated organizations.⁴

With the help of Commissioner Cohen's analysis and briefing regarding the threats outlined in the End User Reports, the NYPD's RNC Executive Committee-consisting of Police Commissioner Raymond Kelly and other high-ranking NYPD officials-formed a policing strategy for the RNC known as the Mass Arrest Processing Plan (“the Plan”). App. 266-67 (Def. Rule 72(a) Objections, Sept. 19, 2008, at 7-8). Of greatest importance here, the Plan instructed NYPD officers not to issue summonses but to arrest all RNC-related disorderly protestors.⁵ The Plan also required that all arrestees be fingerprinted to verify the identity of those in custody. Id.

There were 800,000 individuals who protested in New York City during the RNC. See Tr. of Oral Argument, Apr. 19, 2010, at 19. Plaintiffs were among the 1200 of those persons who were arrested and processed according to the Plan. Resp. at 6. Many plaintiffs were detained overnight, even though they were only charged with minor, noncriminal offenses, all of which were eventually dismissed.

In the fall of 2004, plaintiffs filed suit in the District Court under 42 U.S.C. § 1983 and state law alleging that the City and various NYPD officers (collectively “the City” or “defendants”) had violated plaintiffs' rights under the United States Constitution and New York law. They claimed, among other things, that NYPD officers had arrested them without cause, subjected them to unreasonably long periods of detention, and fingerprinted them without authorization.

In addition to the suits filed by plaintiffs, a number of other actions were brought in the District Court by RNC protestors. One such action asserts claims on behalf of a putative class of approximately 1200 people arrested at the RNC. Over forty...