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Lund v. City of Rockford

United States District Court, N.D. Illinois, Western Division

November 29, 2017

William Lund, Plaintiff,
City of Rockford, et al., Defendants.



         Like the Dead Collector in “Monty Python and the Holy Grail” whacking the Dead Body That Claims It Isn't, [1] this order hopefully puts the self-critical analysis privilege to rest in the context of Illinois law enforcement internal investigations. In fact, the self-critical analysis privilege has been moribund since the Supreme Court's decision in University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182 (1990).

         This Court refuses to recognize the self-critical analysis privilege. Even if this Court were to recognize that privilege, the Court finds that the privilege would not apply under the facts presented here.


         Allegations in Complaint

         Plaintiff's complaint contains the following allegations. A local business called Rockford Scanners maintains a website that blogs about, among other things, crime occurring in Rockford, Illinois. See (last visited Nov. 29, 2017). As of January 2016, millions had visited the website, which had over 100, 000 followers. Sometimes, Rockford Scanner contributors arrive at crime scenes before official first responders. According to the complaint, the goal is to post citizens' first-hand reports of their observations to inform the community. In theory, this would allow the community to better combat crime in Rockford.[2]

         The complaint relates to the following incident (“Incident”). On May 25, 2015, Plaintiff was a freelance contributor for Rockford Scanner. That night, while in the Midtown District, Plaintiff was on a motor powered bicycle when he witnessed what he thought was police activity. In the age of the ubiquitous cell phone, Plaintiff began recording the events. At that time, two officers approached him, told him to leave, and threatened him with arrest. Plaintiff claims that as he was leaving “he said goodbye to some of the officers.” He was then arrested despite committing no crime. Plaintiff claims he was charged with obstructing a peace officer, improper lane usage, operating an uninsured vehicle, and aggravated driving while license revoked. According to the complaint, two officers ordered that Plaintiff's cell phone be seized. But Plaintiff claimed he was arrested for merely recording and documenting the police activity occurring on a public street. Plaintiff also alleges that in retaliation the officers falsely informed media outlets that Plaintiff was arrested as part of a prostitution sting and provided his name and booking photo to the media. The Winnebago County State's Attorney's Office subsequently dismissed all charges against Plaintiff.

         As a result of the Incident, based on these allegations, Plaintiff filed an eleven-count complaint pursuant to 42 U.S.C. §1983, containing claims based upon, among other things, the First and Fourth Amendments. The complaint names the City of Rockford (“City”) and three officers as defendants (“Defendant officers”).

         Facts Relating to Discovery Dispute

         On March 31, 2016, Plaintiff filed a citizen complaint with the Rockford Police Department (“RPD”) because of the Incident. The citizen complaint was made under oath and penalty of perjury. Dkt. #22-1.

         Through a lieutenant, the RPD conducted what appears to be a thorough investigation of the Incident. The investigation resulted in a comprehensive eighty-eight-page report (“Report”). The Report was generated pursuant to RPD General Order 10.03. The General Order notes the dual purposes of internal investigations - to provide for discipline when officers violate policy as well as to clear officers when the complaint is unwarranted. Dkt. #32, p. 3 (“Investigations will be performed in a manner that will assure the community of prompt corrective action when Department members conduct themselves improperly and to protect the Rockford Police Department and its' [sic] members from unwarranted criticism pursuant to the discharge of their official duties.”). The General Order makes no reference to any recommendations regarding discipline if a complaint is sustained. The investigation merely requires a determination of findings, stating whether the complaint is classified as “sustained, ” “not sustained, ” “exonerated, ” or “unfounded.” Dkt. #32, p. 12.

         The Report also sheds more light on the Incident. At the time of the Incident, the RPD was conducting a prostitution sting. During this operation, two female officers were feigning to be prostitutes and approached individuals to determine if they would exchange money for sexual relations. Plaintiff rode his motorized bicycle to the area, and was recording some of the interactions with his cell phone, including photographing at least one of the female officers. The Report contains an allegation that at least one of the officers on the scene believed that Plaintiff was notifying potential “johns”[3] of the sting. One of the Defendant officers approached Plaintiff and told him that he needed to move from the area because Plaintiff was impeding an investigation. (This officer obviously knew Plaintiff because he referred to Plaintiff by his first name when ordering him to leave the area.) Plaintiff asked how far he needed to move. Eventually, Plaintiff was told he needed to be six blocks away. As he was leaving on his motorized bicycle, Plaintiff yelled “Good night, officers!” The officers believed that by doing so Plaintiff was informing potential “johns” that the two females were, in fact, police officers. Plaintiff was then stopped, arrested and had his cell phone seized.

         After the Report was completed, on June 17, 2016, Plaintiff received a letter from RPD Chief of Police Dan O'Shea indicating that some of Plaintiff's complaints against the Defendant officers were sustained. Critically, the letter contains the following paragraph:

The Office of Professional Standards performed an investigation into your allegations against these officers. I have reviewed the investigative report, all documentation related to this event, and I wish to inform you the evidence supported your allegations against Sergeant Eddie Torrance, Officer Timothy Campbell and Officer Sean Welsh [Defendant officers].

Dkt. #22-2.

         According to the City, these types of letters are sent to complainants, informing them of the outcomes of the investigations. Dkt. #29-1, p. 2; Dkt. #32, p. 11. It is undisputed that the Defendant officers were disciplined as a result of the Incident.

         The Report contains not only factual findings, but also conclusions as to whether the Defendant officers violated RPD policies. The City contends that “investigative reports prepared in conjunction with internal investigations of complaints of misconduct against police officers are . . . relied upon by the Chief of Police in determining whether allegations of misconduct against officers are sustained or not sustained.” Dkt. #29-1, p. 2. But, like the General Order requiring the Report, the Report itself contains no recommendations as to discipline; it is silent in this regard.

         The City produced to Plaintiff's counsel a redacted copy of the Report. The City redacted certain aspects of the Report, mostly the lieutenant's analysis and conclusions as to whether policy was violated. The City asserted the redacted portions are privileged under the self-critical analysis privilege.[4] The City and Defendant officers have not objected based on relevance. In fact, under Federal Rule of Civil Procedure 26, there is no doubt that the entire Report is relevant. Whether the Report or portions of it are admissible is not before this Court.

         Plaintiff filed a motion to compel (“Motion”) the production of the entire un-redacted Report. Dkt. #22. The City and Defendant officers responded and also provided the Court with an un-redacted copy of the Report to review in camera. Dkt. #24. Thereafter, the Court held a hearing on the Motion to focus on certain aspects of the dispute. Following the hearing, the parties filed supplemental briefs, with the City providing an affidavit in further support of its position. Dkt. #29, 32. The issue is now fully briefed and ripe for ruling.


         It is important to carefully articulate the issue in this case. The issue is whether the rationales and thought processes relating to the ultimate determination of whether RPD policy was violated, which are contained in a police department's office of professional standards internal investigative report, are protected by the self-critical analysis privilege. The City wisely does not assert the self-critical analysis privilege applies to the factual provisions of the Report or the ultimate conclusion as to whether the Defendant officers violated RPD policy.


         Legal Principles What Is The Self-Critical Analysis Privilege?

         The self-critical analysis privilege protects internal and confidential performance evaluations, internal investigations records, and other documents containing an organization's self-critical analyses. Dorato v. Smith, 163 F.Supp.3d 837, 891 (D. N.M. 2015). The rationale for the privilege is that disclosing these documents will deter or suppress socially useful investigations and evaluations or compliance with the law or with professional standards. Id. The concern is that absent this type of privilege individuals and organizations will not candidly evaluate their compliance with regulatory or legal requirements out of fear of creating evidence that may be used against them in the future. Craig v. Rite Aid Corp., No. 08 CV 2317, 2010 U.S. Dist. LEXIS 137773, *15 (M.D. Pa. Dec. 29, 2010).

         The Defendants Bear The Burden On This Motion To Compel.

         The burden issue in this case is straight-forward. The City is asserting a privilege that it claims protects portions of the Report from disclosure. When a party asserts an evidentiary privilege, the burden falls on that party. United States v. Hamilton, 19 F.3d 350, 354 (7th Cir. 1994) (marital privilege); see also Shaffer v. American Medical Association, 662 F.3d 439, 446 (7th Cir. 2011) (attorney-client privilege).

         Whether to recognize a privilege is a mixed question of law and fact. Adkins v. Christie, 488 F.3d 1324, 1327 (11th Cir. 2007); Virmani v. Novant Health, Inc., 259 F.3d 284, 286-87 (4th Cir. 2001); Carman v. McDonnell Douglas Corp., 114 F.3d 790, 793 n.2 (8th Cir. 1997). And driving the question of law is the general presumption against recognizing a privilege. Jenkins v. DeKalb County, 242 F.R.D. 652, 656 (N.D.Ga. 2007) (“there is a presumption against creating new privileges”). Privileges are distinctly exceptional and not lightly created because they are a derogation of the search for the truth. United States v. Nixon, 418 U.S. 683, 710 (1974); United States v. Bryan, 339 U.S. 323, 331 (1950). Indeed, at least two circuits require a “compelling” justification to recognize a privilege. Pearson v. Miller, 211 F.3d 57, 67 (3d Cir. 2000) (“only the most compelling candidates” are recognized); In re International Horizons, Inc., 689 F.2d 996, 1004 (11th Cir. 1982). A party “seeking judicial recognition of new evidentiary privileges must demonstrate with a high degree of clarity and certainty that the proposed privilege will effectively advance a public good.” In re Sealed Case, 148 F.3d 1073, 1076 (D.C. Cir. 1998). Alternatively, as one court more bluntly stated, “[f]ederal courts are loath to recognize new privileges.” Lalumera v. 2491 Corp., No. 12-929, 2012 U.S. Dist. LEXIS 121254, *3 (E.D. Pa. Aug. 12, 2012). None of this should be surprising. By their very nature, privileges conflict with the search for the truth. See United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997). And, after all, courts are in the business of searching for the truth.

         Federal Law Applies, But Illinois Law Is Not Ignored.

         As the City and Defendant officers correctly assert, because the rule of decision in this case is governed by federal law, Federal Rule of Evidence 501 requires this Court to apply federal common law. Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923, 926 (7th Cir. 2004). Rule 501 provides the following:

The common law - as interpreted by United States courts in the light of reason and experience - governs a claim of privilege unless any of the following provides otherwise:
• the United States Constitution;
• a federal statute; or
• rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies ...

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