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United States District Court, N.D. Illinois

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 forth are not relevant to still photograph arrays and need not be included. However, the defendants can tender other and separate interrogatories to cover these matters.

  Initially, Plaintiff's offered the following process: Defendants would assemble photographs of all male police officers on duty in the relevant districts> at the relevant times, both sides would come together and shuffle the photographs, the photographs would be shown one at a time to Plaintiff's who would have the right to examine photographs more than once and to compare photographs side by side, the parties would then separate, and Plaintiff's' counsel would notify Defendant as to whether identifications had been made and whom had been identified.

  Defendants, however, want greater precautions than those included in Plaintiff's' proposal. The Defendants insist that (A) an experienced law enforcement officer presides over the identification process, (B) defense counsel be present when Plaintiff's view the photographs, (C) the array include filler photographs of officers who were not assigned to the districts> at the time in question, (D) identifications be made and stated during the identification process, (E) Plaintiff's state their degree of certainty for each identification, and (F) the identification procedures be done according to the procedural requirements of Illinois and Federal law.*fn4 Page 6

  A. Defendants' Request For an Experienced Law Enforcement Expert to Preside Over the Identification Process

  One of Defendants' primary requests is that a law enforcement agent, experienced in identification procedures, manage whatever process this court allows. Since few lawyers (especially those who specialize in civil practice) are experienced in managing photographic lineup procedures, I believe a neutral expert would be beneficial to this process. A suitable officer would be one who has the requisite expertise in identification procedures and who is not employed by the City.

  The reason for having an experienced person administer the identification is demonstrated by Plaintiff's' suggestion that the photographs be shuffled and viewed one at a time. Studies have demonstrated that the order and sequence in which a witness views the photographs can affect the reliability of his or her identification. Random shuffling could result in suggestive photographic arrays in which certain officers might stand out Moreover, it has been shown that sequential showings can increase errors in identification especially in cross-racial identifications with multiple perpetrators whose appearances may have changed over time.*fn5 Thus, it is apparent Page 7 that the order and manner of showing photographs can be handled in a variety of ways and is best managed by someone whose judgment is informed by experience.

  B. Defendants' Request that Defense Counsel be Present When Plaintiff's View the Photographs

  Defendants insist that defense counsel be present at all times when photographs are shown to Plaintiff's. Originally, Plaintiff's had agreed to this but have since changed their minds. Instead of defense counsel, Plaintiff's now suggest the use of an independent witness, presumably one selected by agreement.*fn6 This "concession" on Plaintiff's' part is likely one born out of tactical necessity. If the reliability of identification procedures is questioned, absent an independent witness, Plaintiff's' lawyers would have to testify about the fairness and accuracy of the procedures. In other words, defense counsel in that situation may be entitled to call Plaintiff's' attorneys as witnesses in the midst of trial. Accordingly, I think Plaintiff's" willingness to have an independent witness stems from their understandable desire to avoid this dilemma.

  C. Defendants' Request for Inclusion of Filler Photographs in the Array

  Plaintiff's strongly object to the Defendants' request for filler photographs to be placed in the array. Plaintiff's claim there is no need for fillers because the Plaintiff's' attorneys have no suspect in mind and are unable and unwilling to suggest to their clients who ought to be picked. Page 8 On the other hand, Defendants argue that fillers are necessary to keep particular officers from standing out. To avoid such a problem with suggestiveness, I find it is necessary for the array of photographs to include a number of officers with the same general characteristics. For example, if Plaintiff's describe an officer as light skinned, overweight, and Hispanic and there is only one such officer of that description in the array, then fillers must be used to supplement the array with other officers who have similar physical characteristics.

  D. Defendants' Request That Any Identifications Be Made and Stated During the Identification Process

  Plaintiff's are now opposed to disclosing whether identifications were made during the identification process. Presumably, Plaintiff's want to guard against any wrongful identification, such as an officer who has a cast iron alibi for the time and place in question. In simple terms, Plaintiff's' counsel wants to use the attorney-client privilege to conceal from the Defendants that their client made a statement, deliberately or by mistake, that may be materially untrue. This is, of course, a permissible use of the privilege, and it is not my place to comment on its social utility. See Generally Radiant Burners, Inc. v. American Gas Asso., 320 F.2d 314, 319 (7th Cir. 1963).

  There is no question that Plaintiff's have the right to discuss their identification with counsel in a privileged setting. However, this identification procedure is not such a setting. For a communication to be protected under the attorney-client privilege, it must be made in confidence. Id. Any statements made in the presence of a third party, such as the independent witness who will attend the photographic lineups, are not confidential and are not protected. In order to maintain the privilege, Plaintiff's would have to refrain from comment during the actual Page 9 identification procedure itself and reveal their identifications only after reaching a confidential setting.

  Defendants would have me order Plaintiff's to make prompt identifications without allowing time for private discussion. The heart of Plaintiff's' objection to Defendants' request is that prompt, unprivileged identification is not necessary to insure fairness. To make this point, Plaintiff's emphasize the differences between civil and criminal procedures citing elements in civil procedure, absent in the criminal process, that offset the risk of erroneous identification.*fn7 Plaintiff's point out that Defendants will have the right to depose the Plaintiff's on the issue of identification, ask Plaintiff's to make a second identification, and investigate the circumstances of the identification.

  The Defendants are unlikely be able to employ these safeguards to the extent Plaintiff's suggest. The practical effect of a deposition is somewhat overstated. If the initial identification is made only in the presence of Plaintiff's' lawyers and their staff, then what occurred is privileged and is not subject to inquiry by Defendants. If privilege applies, and Plaintiff's think it will, then Defendants would not be able to "probe Plaintiff's In excruciating detail" or even investigate the circumstances of the identification process. The difference between civil and criminal case safeguards is not so great. In a criminal case, a motion to suppress the identification can be filed before trial and the officers conducting the photographic array as well Page 10 as the witnesses could be questioned extensively. United States v. Galati, 230 F.3d 254, 259 (7th Cir. 2000). Absent waiver of privilege, the Defendants here will be in a far worse position to challenge the identification's reliability than a similarly situated criminal defendant. Thus, I will require that Plaintiff's make any identifications they are able to make during the administration of the identification process.

  Although the Plaintiff's do not argue directly that forcing their clients to make an on-the-spot identification violates the attorney-client privilege, it is an argument that hangs on the periphery of this area and is one I should address.

  Plaintiff's' counsel might like to invoke privilege because they are uncertain as to what their clients might say or do and would prefer not to reveal any such actions or statements without time to substantiate them. Certainly, a misidentification, i.e. picking a filler photograph, or a weak identification could damage not only that particular Plaintiff's credibility but could also damage the case as a whole. However, in other similar settings, privilege cannot be invoked to protect a client from answering difficult and dangerous questions. For example, if a client is asked a possibly damaging question during a deposition, his lawyer may not, on the basis of privilege, interrupt the proceedings before the question is answered. Absent a proper objection, the lawyer must live with the answers given by his client. Furthermore, if a plaintiff, who is being deposed, was asked to look at and identify a person shown in a photograph, he or she would have to answer that question then and there. In that situation, plaintiff's attorney would have no absolute right to insist that he and his client review the photograph in private before the client gave an answer. Page 11

  E. Defendants' Request that Plaintiff's State Their Degree of Certainty for Each Identification

  Plaintiff's' objection to providing a level of confidence in the identification is much the same as their objection to prompt disclosure. Like prompt identification, Plaintiff's' levels of confidence bears on the reliability of the identification and should be made known to Defendants.

  F. Defendants' Request that the Criminal Procedures Required Under Illinois and Federal Law Be Followed

  Finally, I turn to Defendants' request that state and federal procedures set forth in the United States Department of Justice Guidelines and Illinois law at 725 ILCS 5/I07A are used to govern the procedures employed in the identification process. Plaintiff's object on the grounds that these are criminal procedures and are not binding here.*fn8 The procedures given in the Department of Justice publication "Eyewitness Evidence" offers rules to avoid suggestiveness in the array*fn9 and to govern witness instructions.*fn10 The Illinois statute also provides useful Page 12 guidelines for administrations of photographic arrays.*fn11 Both the federal and state findings on identification procedures are informed by experience and are relevant here. I will leave their exact application to the independent law enforcement expert appointed to manage this process.

 V. The Order

  I will order production of the photographs on the condition that the examination of the photographic array be conducted under the supervision of an independent, neutral person trained in the proper methods of eyewitness identification — the presiding officer. Composition of the array shall be determined by the presiding officer who will hear the suggestions and objections, if any, of Plaintiff's' and Defendants' counsel. The manner of examination shall be determined by the presiding officer. Upon viewing of the array, each Plaintiff shall announce whether he is able to make an identification and shall be asked to state his level of confidence in that identification. Procedural decisions made by the presiding officer may be presented to the court for review. Selection of the presiding officer will be made by the court if the parties are unable to agree. Refusal of a plaintiff to make an identification during the identification procedure shall be construed in all future proceedings to be an inability to make an identification. Refusal to state a level of confidence in an identification shall be admissible to impeach an identification. Recordation of the procedure is urged upon the parties. Recordation of the statements of Plaintiff's at the procedure is required. Electronic recordation is permissible. Page 13

  The Plaintiff's, of course, need not accept these conditions. I do not require that the Plaintiff's make identifications from a photographic array before proceeding with the case. The Plaintiff's are free to abandon their request for the City's photographs. In my view it would, however, be best for both Plaintiff's and Defendant if identifications are made in a fairly conducted identification procedure.

  Plaintiff's' Motion to Compel Photographs is GRANTED to the extent consistent with this opinion.

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