Replies

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

INTERNATIONAL ACTION CENTER, et al.,

Plaintiffs
Case No. 01CV00072 (GK)

UNITED STATES OF AMERICA, et al.,

Defendants.

REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT DISTRICT OF COLUMBIA’S MOTION TO RECONSIDER

Defendants filed their motion to reconsider to address an important area of law, and a matter of extreme importance to the Metropolitan Police Department specifically, and to law enforcement generally, not to delay or otherwise obstruct these proceedings. Moreover, the motion was timely filed and does raise new legal and factual issues.

The District of Columbia did not include this issue in the motion to reconsider filed subsequent to the Court’s August 30, 2002, Order because they believed it was possible that Magistrate Judge Kay would develop a method for disclosure that would alleviate their legal and factual concerns. Contrary to plaintiffs’ claims, the District of Columbia did propose a method for identifying undercover officers, albeit not by name or face, that they believed was consistent with this Court’s August 30, 2002 Order – to identify the undercover officers by disclosing the meetings they attended where more than fifteen people were present. This proposal sought to balance defendants’ safety concerns and their need to protect the viability of an on-going investigation with plaintiffs stated need to be able to determine whether currently unidentified and unplead “disruptive conduct” can be linked to the District defendants. However, that proposal was not accepted by Magistrate Judge Kay as explained in his Memorandum Order dated April 4, 2003.

After review of Magistrate Judge Kay’s Order, the District of Columbia timely filed their Motion to Reconsider. Defendants complied and cooperated with the process established in this Court’s August 30, 2002 Order and timely moved to reconsider once that process concluded and defendants were ordered to provide plaintiffs an opportunity to view photographs of defendant’s undercover officers.

Furthermore, there are new factual and legal issues that are raised in the current motion to reconsider. While Chief Broadbent did assert in his earlier Declaration that disclosure of the identities of undercover officers would impact negatively on the Department’s intelligence gathering capability, his testimony before Judge Kay, for the first time, revealed that disclosure would effectively terminate an on-going intelligence operation.

Moreover, although plaintiffs contend that the “August 30, 2002 opinion clearly conducted a balancing evaluation” and found that the balance of interests favored disclosure of the identities of those undercover officers who infiltrated plaintiffs’ organizations, Magistrate Judge Kay’s Memorandum Order concluded to the contrary. Therein, Judge Kay writes, “[H]owever, Judge Kessler concluded that with respect to the `very narrow issue of the identifications of those undercover officers who infiltrated Plaintiffs’ organizations,’ the balancing required for evaluating a claim of law enforcement privilege was not applicable and that information must be disclosed by the District of Columbia.” Memorandum Order at 1. In their motion to reconsider, the District of Columbia asserts that the law enforcement privilege is applicable, and that, on balance, the privilege protects against disclosure.

While conceding that the law enforcement privilege is applicable, plaintiffs have failed to identify a compelling need for disclosure, let alone that no harm would result from disclosure, both of which are required by law. Black v. Sheraton Corporation of America, 564 F.2d 531, 545 (D.C. Cir. 1977); Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C. Cir. 1984). While plaintiffs claim they cannot link other “disruptive conduct” to undercover officers whose identity is not revealed, they have consistently failed to identify what this “disruptive conduct” was, let alone specify any illegal or otherwise actionable conduct, whether or not they suspect it was committed by an undercover officer. Rather in the face of a well recognized and properly asserted privilege, and in the absence of any specified illegal conduct, plaintiffs seek the identity of undercover officers to determine whether any misconduct occurred.

Instead of demonstrating a compelling need, plaintiffs’ opposition attacks the harm defendants contend may result from disclosure. Plaintiffs dismiss the threat of harm to the officer’s safety because defendants cannot identify officers who have been harmed or threatened. While fortunately no officer has been harmed, the threat of harm still exists, particularly for an officer who has been in a long term undercover assignment.

Further, plaintiffs assert that identity information should be disclosed even if such disclosure adversely impacts on-going operations because, they contend, those operations are illegal or unconstitutional.

Plaintiffs contend that the Metropolitan Police Department’s (“MPD”) intelligence gathering operation is illegal because it is based not on suspected or potential criminal activity but on the political affiliations and First Amendment conduct of plaintiffs. To the contrary, MPD’s operations are based on preventing the widespread destruction of property and violence that has occurred at numerous mass demonstrations that preceded the Presidential Inauguration. It is the destructive and criminal activity associated with some protests and protest groups that concern law enforcement, not the content of their expression.

Indeed, in Chief Broadbent’s July 30, 2002 Declaration he described the purpose for undercover investigations conducted in preparation for Inaugural events as seeking “to identify, monitor and report on persons and/or groups that may be planning to disrupt these events, threaten property or public safety, or otherwise violate the law.” Broadbent Declaration at Par. 1. Chief Broadbent further stated that: “[T]he Metropolitan Police Department’s intelligence gathering methods, including the use of undercover investigations, have been integral to the Department’s success in minimizing property damage, violence and physical injuries at mass demonstrations. In contrast, since November 1999, there has been violence, significant property damage and physical injuries at mass demonstrations throughout the world, including Seattle, Washington; Los Angeles, California; Prague, Czechoslovakia; Quebec, Canada; and Genoa, Italy.” Broadbent Declaration at Par. 7 and 8.

Judge Kay recognized MPD’s concern regarding on-going investigations as a “valid interest” and that disclosing the identities of undercover officers would effectively terminate their on-going investigation. Memorandum Order at 6. Law enforcement’s ability to prepare for and provide security at countless demonstrations that occur in Washington, D.C. will be impaired if the identity of undercover officers is disclosed and that harm is neither minimized nor overcome by plaintiffs’ conclusory allegations about the legality of defendants’ investigation. Moreover, such intelligence gathering activities have been recognized as lawful for many years. Hobson v. Wilson, 737 F.2d 1, 52-55 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985).

Plaintiffs have neither established a compelling need for the identity of undercover officers who “infiltrated” their organizations nor demonstrated that no harm will result from such disclosure and, on balance, the public interest in non-disclosure outweighs plaintiffs’ stated need for disclosure.

Conclusion

For all the reasons stated in this reply and in defendants’ motion to reconsider, the Court should vacate those orders requiring the identification of the undercover officers who “infiltrated” plaintiffs’ organizations.
Respectfully submitted,

ARABELLA W. TEAL
Interim Corporation Counsel, D.C.
JOHN C. GREENHAUGH
Senior Deputy Corporation Counsel
for Torts & Equity

_______________________________
ROBERT C. UTIGER [437130]
Deputy Corporation Counsel, Equity Division

________________________________
RICHARD S. LOVE [340455]
MARTHA J. MULLEN [419036]
Senior Counsel, Equity Division
441 4th St., N.W. 6th Floor S.
Washington, D.C. 20001
(202) 724-6635
Attorneys for Defendant

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Reply to Plaintiffs’ Opposition to Defendant District of Columbia’s Motion to Reconsider was sent by facsimile and mailed postage prepaid to:
Carl Messineo, Esquire
Mara Verheyden-Hilliard, Esquire
Zachary Wolfe, Esquire
Partnership for Civil Justice, Inc.
1901 Pennsylvania Avenue, N.W., Suite 607
Washington, D.C. 20006

Eric A. Kuwana, Esquire
PATTON BOGGS, L.L.P.
2550 M Street, N.W.
Washington, D.C. 20037

Mark Nebeker
Edith Shine
Assistant United States Attorney
Judiciary Center Building
555 Fourth Street, N.W., Room 10-439
Washington, D.C. 20530

on this _____ day of __________, 2003

______________________________
Richard S. Love
Senior Counsel