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February 19, 2004.

SHANI DAVIS, et al., Plaintiff's,
CITY OF CHICAGO, et. al., Defendants

The opinion of the court was delivered by: JAMES ZAGEL, District Judge


I. Background

The present suit arises out of four allegedly unlawful, unrelated stops and searches conducted by Officer K. Meerbrey and Officers John Doe One through Four. Plaintiff's allege that these stops and searches violated their constitutional rights and are seeking declaratory, injunctive, and monetary relief from the officers involved, the then Superintendent of Police, and the City of Chicago. The searches included conducting pat downs, using flashlights to examine parts of the body covered by clothing, and searching the pockets and/or bags of detainees. During these stops and searches, no contraband was discovered.

  The Plaintiff's are alleged to be solid U.S. citizens, one young man was a member of the United States Olympic Team in speed skating, another is a CTA bus driver, a third is a film-maker, and the fourth is the Director of the High School Civil Liberties Project of the American Civil Liberties Union of Illinois. Although none of these qualifications is necessary (an unemployed non-citizen with a long criminal record is entitled to be free from unconstitutional stops and searches), they are stated here to show that unconstitutional police actions affect not only the criminal element but also upstanding citizens. I infer from the emphasis on the Page 2 "upstandingness" of the Plaintiff's and from the papers before me that this case has been designed to effect a change in police practices, particularly stops and searches. Most of the attorneys who appear for Plaintiff's are associated with an organization devoted to the protection of constitutional liberties. Furthermore, the incidents are all very similar and are alleged to have occurred over a substantial period of time, which is important if one wishes to challenge a general policy and practice.

 II. The Issue

  There is nothing legally wrong with test cases such as this one, yet the larger questions cannot be decided until the facts of the individual cases are proven. At this time, Plaintiff's' counsel seeks to discover the identity of the police officers who made the alleged stops. Plaintiff's have named one Defendant, Officer K. Meerbrey, but claim there might be as many as four others involved in the remaining three incidents.

  To make these identifications, Plaintiff's propose that they look at photographs of every officer who was on duty during the time and at the place of the complained of stops and searches. Defendants do not object to the production of such photographs but argue that, pursuant to the reliable identification doctrine applied in criminal cases, they are entitled to minimal safeguards against misidentification.*fn1 Plaintiff's, on the other hand, believe they are entitled to production of the photographs without restriction. Page 3

 III. The Authority of This Court

  Discovery is a right of each party that may be limited by courts, pursuant to Federal Rules of Civil Procedure 26-37, to prevent annoyance, embarrassment, oppression, undue burden, or expense. The presence of the opposing party and the court during the discovery process is the norm. For example, all interrogatories and documents are carefully reviewed by both parties (the requested material is prepared by one party and received by the other), all depositions are attended by both parties, and in the event of disputes, the parties may appeal to the court for assistance.

  Plaintiff's are requesting the examination of the City's photographs. The form of such an examination they argue is not within the control of this court. However, Federal Rule of Civil Procedure 34 explicitly states that production of tangible items, such as photographs, may, at the request of either parry, be compelled by the court. The Plaintiff's are confusing discovery, which must be done in accordance with the Federal Rules of Civil Procedure and under supervision of the court, with investigation, which attorneys are free to do on their own outside the realm of judicial procedures. Auriemma v. Montgomery, 860 F.2d 273, 278 (7th Cir. 1988). In this case, investigation would prove much more difficult than discovery as Plaintiff's are not likely to succeed in randomly identifying officers on the street or in getting information directly from officers themselves. It is probably because of these investigative difficulties that Plaintiff's are now (rightly) seeking the photographs through discovery, but they must remember that with discovery comes some degree of judicial control. Page 4

 IV. The Differences Between the Parties and Their Resolution

  Plaintiff's could argue that defendants in civil cases have no legally cognizable right to the protection of procedures designed to reduce the risk of misidentification as there seems to be almost a complete absence of law on this issue.*fn2 There are two likely reasons for this lack of legal precedent. First, eyewitness identification is rarely a material issue in civil cases. Second, In the vast majority of cases, plaintiff's counsel has no tactical reason to fight over the issue because he has a vested interest in identifying the proper tortfeasor. A weak or demonstratively wrongful identification would be welcomed by defense counsel and could destroy or at least discredit the plaintiff's case.

  So, Plaintiff's here do not challenge Defendants' right to a fair identification procedure. Instead, they challenge Defendants' proposed procedures as unnecessary.

  There is one defense request to which there is no substantive objection. Plaintiff's have agreed, to the best of their ability, to provide a physical description of the unknown officers before examining the photographs. Therefore, I order this to be done without the need for a formal interrogatory. The description shall include the Plaintiff's' recollections, if any, of physical characteristics including (a) permanent characteristics of height, age, race, scars, etc. and Page 5 (b) mutable characteristics of weight, hair color/style, and skin complexion.*fn3 Characteristics such as tone and timbre of voice, accents, manner of physical movement and so ...

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