Perez v. City of Fresno

• Decision Date: 11 February 2021
• Docket Number: CASE NO. 1:18-CV-0127 AWI EPG
• Citation: 519 F.Supp.3d 718
• Court: U.S. District Court — Eastern District of California
• Parties: Anthony PEREZ, et al., Plaintiffs v. CITY OF FRESNO, et al., Defendants

519 F.Supp.3d 718

Anthony PEREZ, et al., Plaintiffs

v.CITY OF FRESNO, et al., Defendants

CASE NO. 1:18-CV-0127 AWI EPG

United States District Court, E.D. California.

Signed February 11, 2021

John Cornell Taylor, Taylor & Ring LLP, Neil Gehlawat, Tayler & Ring, Manhattan Beach, CA, Marni Folinsky, Alderlaw, P.C., Los Angeles, CA, for Plaintiff Anthony Perez.

John Cornell Taylor, Taylor & Ring LLP, Neil Gehlawat, Tayler & Ring, Manhattan Beach, CA, for Plaintiffs Cecilia Perez, Terralee Perez, Joseph Perez, Jr., Michelle Perez.

John Cornell Taylor, Taylor & Ring LLP, Neil Gehlawat, Tayler & Ring, Manhattan Beach, CA, Thomas Carter Seabaugh, The Law Office of Thomas C. Seabaugh, Los Angeles, CA, for Plaintiff Xavier Perez.

Lynn L. Carpenter, Mildred K. O'Linn, Manning & Kass Ellrod Ramirez Trester LLP, Los Angeles, CA, for Defendants City of Fresno, James Rossetti, Sean Calvert, Chris Martinez.

James D. Weakley, Weakley & Arendt, APC, Ashley N. Reyes, Weakley & Arendt, a Professional Corporation, Fresno, CA, for Defendants County of Fresno, Braithan Stoltenberg, Robert McEwen, Karlson Manasan, Jimmy Robnett.

Aaron J. Weissman, R. J. Ryan Law, APC, Glendale, CA, for Defendants American Ambulance, Morgan Anderson.

ORDER ON DEFENDANTS’ MOTION FOR RECONSIDERATION AND ORDER FOR ADDITIONAL BRIEFING

Anthony W. Ishii, SENIOR DISTRICT JUDGE

This case stems from a fatal encounter between decedent Joseph Perez and members of the City of Fresno Police Department, the County of Fresno Sheriff's Department, and American Ambulance. Currently before the Court is Defendants’ American Ambulance ("AA") and AA paramedic Morgan Anderson ("Anderson")’s (collectively "AA Defendants") request for reconsideration of a ruling by the Magistrate Judge that removed a "confidential" designation of bodycam video footage that had been produced by the City of Fresno.

RECONSIDERATION FRAMEWORK

A district court may refer pretrial issues to a magistrate judge to either hear and decide or issue findings and recommendations. See 28 U.S.C. § 636(b)(1) ; Khrapunov v. Prosyankin, 931 F.3d 922, 930-31 (9th Cir. 2019) ; Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1414 (9th Cir. 1991). If a party objects to a non-dispositive pretrial ruling by a magistrate judge, the district court will review or reconsider the ruling under the "clearly erroneous or contrary to law" standard. 28 U.S.C. § 626(b)(1)(A) ; Fed. R. Civ. P. 72(a) ; Khrapunov, 931 F.3d at 931 ; Grimes v. City of San Francisco, 951 F.2d 236, 240-41 (9th Cir. 1991). A magistrate judge's factual findings or discretionary decisions are "clearly erroneous" when the district court is left with the definite and firm conviction that a mistake has been committed. Security Farms v. International Bhd. of Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997) ; Avalos v. Foster Poultry Farms, 798 F.Supp.2d 1156, 1160 (E.D. Cal. 2011). This standard is significantly deferential. Security Farms, 124 F.3d at 1014 ; Avalos, 798 F.Supp.2d at 1160. The district court "may not simply substitute its judgment for that of the deciding court." Grimes, 951 F.2d at 241 ; Avalos, 798 F.Supp.2d at 1160. The "contrary to law" standard allows independent, plenary review of purely legal determinations by the magistrate judge. See PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010) ; Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992) ; Avalos, 798 F.Supp.2d at 1160 ; Jadwin v. County of Kern, 767 F.Supp.2d 1069, 1110-11 (E.D. Cal. 2011). "An order is contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure." Calderon v. Experian Info. Solutions, Inc., 290 F.R.D. 508, 511 (D. Idaho 2013) ; Jadwin, 767 F.Supp.2d at 1111.

MAGISTRATE JUDGE'S ORDER

The City of Fresno designated bodycam video footage from one of its officers as "confidential" and then disclosed the video to all parties as part of the discovery process. The designation of the video as "confidential" was done pursuant to a joint stipulation by the parties and resulting order from the Magistrate Judge. The AA Defendants did not sign the stipulation because they were not yet parties to this case. Plaintiffs later requested that the "confidential" designation be removed. Although initially opposed to Plaintiffs’ request, the City and County of Fresno eventually dropped their objections. However, the AA Defendants continued to object to removing the "confidential" designation from the video. The dispute was resolved by the Magistrate Judge in a written order ("Discovery Order"). See Doc. No. 83.

The Discovery Order made a number of key findings. See id. First, the Discovery Order concluded that the AA Defendants did not own the video, and there was no aspect of the stipulated protective order between the parties that would permit a non-producing party to object when the producing party decides to withdraw a confidential designation. See id. at p.4. Therefore, the legal basis for the AA Defendants’ objection was unclear. See id. Nevertheless, because there is case authority that supports recognizing certain third parties’ privacy interests when considering public disclosure of evidence, the Discovery Order assumed without deciding that the AA Defendants were entitled to object. See id.

Second, the Discovery Order concluded that AA had failed to show particularized harm to itself, but that Anderson and two other AA employees did demonstrate particularized harm. See id. at p.6. Specifically, although Decedent's death had been covered by local media, releasing the video could draw additional public attention to the case and result in more definite and adverse views of the AA employees in the video. See id. The AA employees in the video could suffer embarrassment and have fewer future employment opportunities. See id.

Third, the Discovery Order balanced the so-called Glenmede factors¹ and found that the factors favored disclosure. Specifically, the Discovery Order found: (1) the three AA employees’ privacy interests were "not particularly strong" because their names and identifying information are not portrayed in the video, the incident occurred in public, the docket is public (including the complaint which names Anderson as a defendant and describes his conduct), and the employees were acting in support of public functions being carried out by police officers; (2) Plaintiffs’ stated purpose of bringing police violence issues to the attention of the public is a legitimate purpose; (3) while the employees will suffer some embarrassment, the embarrassment arises from a fuller understanding of the employees’ role in the incident; the basic facts of the case, as well as Anderson's name, are already in the public domain; (4) the video depicts the use of restrains that resulted in death during an encounter with police and ambulance personnel, which strongly relates to public health and safety; (5) there are no fairness and efficiency issues because all parties have access to the video; (6) although there are private entities involved, the fact that public officials are involved in the incident weighs in favor of disclosure; and (7) the video is important because it furthers policy discussions about law enforcement's use of restraints and involves AA, which is the only contracted ambulance service in Fresno County.

Fourth, neither the First Amendment nor the Supreme Court's analysis in Seattle Times Co. v. Rhinehart , 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) controlled the dispute. At issue is whether a video should remain under a protective order, not whether Plaintiffs have a First Amendment right to disseminate the video to the public.

Fifth, the California Public Records Act is not dispositive because the Glenmede factors determine the result of this case, and the AA did not argue that this state law independently prohibits disclosure.

Finally, redaction by blurring the AA employees faces from the video was not appropriate. Case law did not appear to approve redaction and the AA employees were active participants by virtue of an exclusive contract with the County. In light of these considerations and the Glenmede factors, blurring the faces was unwarranted.

AA DEFENDANTS’ MOTION

Defendants’ Argument

The AA Defendants argue that the Discovery Order is clearly erroneous and contrary to law. The AA Defendants argue inter alia that the Discovery Order ignored Seattle Times , which is case determinative. Seattle Times upheld restrictions on disseminating discovery information, despite public interest, and held that there was no First Amendment right to disseminate information disclosed during discovery.

The AA Defendants argue that significant harm that will result. The AA employees will bear a substantial risk of ridicule, scorn, and possibly worse. On a nationwide basis, individuals who are tangentially or directly involved in social issues face protest marches and acts of violence, such as the New Jersey federal judge's family who were shot. Further, release of the video would undoubtedly lead to a loss of future employment opportunity for all AA Defendants.

The AA Defendants argue that application of the Glenmede factors leads to the conclusion that the video should remain confidential: (1) the privacy interests for AA employees are strong because they are private individuals, some have identifying features like a tattoo, the video was on a police bodycam and it was not recording a public activity, there has been no finding that any AA Defendant acted under color of law, and reading about the events on the docket or a newspaper is a far cry from watching the video; (2) while there may be a legitimate purpose for releasing the video, it is completely overshadowed by the AA employees’ privacy rights; (3) there is a real danger that release of the video will lead to embarrassment and scorn; (4) while law enforcement's treatment of minorities is important, the AA Defendants are not law enforcement; (5) the video has been...