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.

DEFENDANT DISTRICT OF COLUMBIA’S MOTION TO RECONSIDER

The District of Columbia defendants move to reconsider the orders requiring the identification of Metropolitan Police Department undercover officers who “infiltrated” plaintiffs’ organizations and in support thereof state as follows:
The law enforcement privilege is applicable to protecting the identity of undercover police officers engaged in an on-going intelligence operation.
There is no compelling need to disclose the identities of the undercover officers and harm -- the potential threat to the officers’ safety and the effective termination of an on-going investigation -- will result from disclosure.
These grounds are more fully set forth in the attached memorandum of points and authorities.
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 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
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.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT DISTRICT OF COLUMBIA’S MOTION TO RECONSIDER

I. Introduction
Plaintiffs moved to compel a variety of discovery responses from the District of Columbia, all of which were addressed in the Court’s Memorandum Opinion and Order dated August 30, 2002. The Court ordered the District of Columbia defendants to disclose the identities of those undercover officers who “infiltrated” plaintiffs’ organizations and referred the matter to Magistrate Judge Kay to “explore how the information can be disclosed in such a manner as to provide maximum confidentiality to the Defendants.” Order at 6.
Magistrate Judge Kay held a hearing on this issue on December 12, 2002 and issued a Memorandum Order dated April 4, 2003. Therein, Magistrate Judge Kay found that the Court, in its August 30, 2002 Memorandum Opinion and Order, ruled that the law enforcement privilege was not applicable to the narrow issue of identifying undercover officers who “infiltrated” plaintiffs’ organizations. While recognizing that the District had raised valid interests against revealing the identities of the undercover officers, the Magistrate Judge concluded that the issue of disclosure had already been decided and that only the method of disclosure that best preserved defendants’ confidentiality was to be determined. The Court further acknowledge that it could not craft a disclosure procedure that would entirely protect the defendants’ confidentiality and rejected defendants’ proposal to disclose the date and location of meetings attended by undercover officers at which there were more than fifteen people. While the District contended that this proposal balanced their concerns with plaintiffs’ interests, the Magistrate Judge found that this Court had already determined that no balancing was required. Therefore, Magistrate Judge Kay ordered the District of Columbia to provide to the plaintiffs the alias(es) of the undercover officers and an opportunity to view, but not duplicate, a photograph of the officer(s).
These defendants move to reconsider these orders because the law enforcement privilege is applicable and, on balance, weighs in favor of protecting the identity of undercover officers engaged in an on-going intelligence operation.
Argument

The law enforcement privilege is applicable to protecting the identity of undercover officers engaged in an on-going intelligence operation.

As noted above, Magistrate Judge Kay concluded that this Court had found that the law enforcement privilege was inapplicable to the narrow issue of identifying undercover officers who “infiltrated” plaintiffs’ organizations. Finding the information “clearly relevant” and that the plaintiffs had little chance of discovering the identities from alternative sources, this Court, in its August 30, 2002 Memorandum Opinion and Order, ordered the identities disclosed, albeit in a manner designed to provide defendants’ maximum confidentiality.
The law enforcement privilege is rooted in the need to minimize disclosures that might impair the necessary functioning of an executive branch department and based on the understanding that many law enforcement operations cannot be effective if conducted in full view. Black v. Sheraton Corporation of America, 564 F.2d 531, 542 (D.C. Cir. 1977). The purpose of the privilege is to protect the confidentiality of sources as well as law enforcement techniques and strategies. Black, supra, 564 F.2d at 545, 546; Kay v. Pick, 711 A.2d 1251, 1256 (D.C. App. 1998) (emphasis added).
The law enforcement privilege is clearly applicable to protecting the identity of the source of undercover investigations – the involved undercover officer(s). An undercover investigation cannot be effective if conducted in full view and identifying the undercover officer would, as Magistrate Judge Kay acknowledges, effectively terminate an 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. and to gather critical related intelligence would be impaired if the identity of uncover officers was disclosed. See the July 30, 2002 Declaration of Alfred J. Broadbent, filed with the Opposition to Plaintiffs’ Motion to Compel Discovery Production from the District of Columbia (“Declaration”). Thus, the law enforcement privilege is applicable and necessary to protecting the identity of a law enforcement source, as well as the related techniques and strategies that would, necessarily, be ascertained if the undercover officer’s identity was disclosed.
Given the applicability of the privilege (and the fact that it was properly asserted by Chief Broadbent), the burden shifts to the plaintiffs to demonstrate a compelling need for disclosure and the lack of harm that would result from disclosure. Black, supra, 564 F.2d at 545; Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C. Cir. 1984); Kay, supra, 711 A.2d at 1256; Collins v. Shearson/American Express, Inc., 112 F.R.D. 227, 228 (D.D.C. 1986). The court must then balance the public interest in non-disclosure against the stated need. The Court “must look beyond the issue whether the documents sought are simply relevant. If that were the only test, the rules of privilege would be relatively meaningless. “ Collins, supra, 112 F.R.D. at 230. Plaintiffs must demonstrate a compelling need for the information. In Re: United Telecommunications, Inc. Securities Litigation, 799 F. Supp. 1206, 1208, 1209 (D.D.C. 1992).

There is no compelling need to disclose the identities of the undercover officers and harm -- the potential threat to the officers’ safety and the effective termination of an on-going investigation -- will result from disclosure.

While not all of the illustrative factors cited in Frankenhauser are relevant to this situation, a review of those that are reveals that on balance the public interest in non-disclosure outweighs plaintiffs stated need for the undercover officers’ identity.
In their motion to compel discovery, plaintiffs described their reason for seeking the identities of undercover officers who “infiltrated” their organization. They allege that one undercover officer who they were able to identify on their own disrupted a meeting by allegedly “suggesting that activists place bombs on bridges and call in bomb threats.” Plaintiffs contend that they lack information as to who else may have been an undercover officer and cannot “necessarily link any other disruptive conduct to such unidentified persons.” Therefore, they posed discovery seeking the identity of undercover officers who “infiltrated” their organization. Motion at 15 – 16. However, plaintiffs have never specifically described any other “disruptive” or illegal conduct that occurred at their meetings that they suspect may be attributable to an undercover officer. Rather, in the absence of any specified illegal conduct, plaintiffs seek the identity of undercover officers in order to determine whether such misconduct may have occurred. Plaintiffs’ speculation that the identification of undercover officers may allow them to determine whether additional alleged misconduct occurred fails to demonstrate a compelling need for disclosure, let alone that no harm would result.
Conversely, in his Declaration Chief Broadbent describes how disclosure of the undercover officers’ identities will impair and thwart the Department’s ability to prepare for and provide security at demonstrations and jeopardize and/or chill the Department’s intelligence gathering capability. The Chief indicates that “[D]isclosing the Department’s intelligence reports, Intelligence Operational Plan or the identity of any undercover officers that may have been conducting an investigation …, would undermine significantly the Department’s ability to plan for and provide security at mass demonstrations. Disclosure would create a huge void in the Department’s intelligence gathering capability, threaten undercover officer’s physical safety and expose citizens, visitors, and demonstrators themselves to increased risk of violence, physical injury, and property damage. Disclosing such information could forewarn suspects and suspect groups, providing them with sensitive law enforcement information, including possible strategies, procedures and directions for confidential investigations. Broadbent Declaration at 2 and 3.

In his Declaration, Chief Broadbent opined that “[The Metropolitan Police Department’s intelligence gathering methods, including the use of undercover investigations, have been integral to the Department's succes’ in minimizing property damage, violence and physical injuries at mass demonstrations. Declaration at 7. As indicated in his testimony before Magistrate Judge Kay and as recognized in the April 4, 2003 Memorandum Order, identification will effectively terminate an on-going investigation and eliminate a source of intelligence that is used to make decisions related to ensuring the safety of citizens and the general public. Memorandum Order at 3 and 6. The termination of this source of information will hamper the Department’s intelligence gathering capability both now and into the future. It will also chill the Department’s ability to recruit undercover officers, who enter such assignments with the understanding and belief that their identity will not be disclosed by the Department. Furthermore, identifying the undercover officers will necessarily identify, at least to some degree, the methods and strategies they employed to gather intelligence and other investigative information.
The public interest in non-disclosure is particularly high in this instance “because many of the individuals and groups that protested at the Inauguration regularly engage in demonstration activity and could counter intelligence gathering methods and security preparations, if known. … Furthermore, the violence encountered during demonstrations in other countries and cities -- Seattle, Quebec, Prague, Genoa and Australia -- coupled with the current concerns about domestic terrorism, underscores the need to maintain confidentiality. Declaration at 13.

Conclusion

The law enforcement privilege is applicable to protect the source of an undercover operation – the undercover officer – and on balance the public interest in non-disclosure outweighs plaintiffs stated need for the identities of the undercover officers. For these reasons, the Court should reconsider and 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
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.

ORDER
Upon consideration of the Defendant District of Columbia’s Motion to Reconsider, the memorandum of points and authorities filed in support thereof and in opposition thereto and the entire record herein, it is by the Court, this
___________ day of ______________________, 2003
ORDERED: That defendants’ above-referenced motion be and hereby is granted and it is;
FURTHER ORDERED: That the Memorandum Order dated April 4, 2003 and those portions of the Order of August 30, 2002 that require the identification of undercover officers who infiltrated plaintiffs’ organizations be and hereby are vacated.

_______________________________________
UNITED STATES DISTRICT JUDGE

Copies to:

Richard S. Love
Martha J. Mullen
Office of the Corporation Counsel
Senior Counsel, Equity Division
441 Fourth Street, N.W., Sixth Floor South
Washington, D.C. 20001

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