Arbelaez v. City of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

SEBASTIAN ARBELAEZ, et al., :

:

Plaintiffs, :

: 17-CV-6543 (JMF)

-v- :

: OPINION AND ORDER

CITY OF NEW YORK, et al., :

:

Defendants. :

:

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JESSE M. FURMAN, United States District Judge:

In this action, brought pursuant to 42 U.S.C. § 1983 and New York law, Luz Arbelaez

and three of her children — Sebastian, Deborah, and Pablo Arbelaez1 — bring claims against the

City of New York, several officers from the New York City Police Department (“NYPD”), and

an unidentified confidential informant (the “CI”) for injuries sustained when NYPD officers

executed a search warrant in Luz’s apartment. See ECF No. 46 (“Amended Compl.”). In this

Opinion, the Court addresses two questions that are collateral to the merits of Plaintiffs’ claims:

whether Plaintiffs are entitled to discover the CI’s identity for purposes of serving him or her

with the summons and Amended Complaint; and, if not, whether Plaintiffs may nevertheless

depose the CI under conditions designed to protect his or her identity. For the reasons that

follow, the Court concludes Plaintiffs are not entitled to discovery of the CI’s identity, but may

depose the CI under conditions designed to protect his or her identity from disclosure.

1 Because Plaintiffs all share the same last name, the Court follows the Amended

Complaint and, for clarity’s sake, refers to each Plaintiff by his or her first name.

BACKGROUND

Luz Arbelaez lives in a three-bedroom apartment on Webster Avenue in the Bronx.

Amended Compl. ¶ 23. During the period relevant to this case, three of her children — Plaintiffs

Sebastian, Deborah, and Pablo — lived there as well. Id. ¶ 26. Plaintiffs allege that they were

mistreated by certain NYPD officers in retaliation for, among other things, speaking out against

what they believed to be police misconduct in their neighborhood. Amended Compl. ¶¶ 40-87.

Most relevant for present purposes, they allege that one of the officers — Detective Doris Lopez,

a defendant here — conspired with the CI to obtain a warrant to search Luz’s home on the false

premise that the CI had purchased crack cocaine in that apartment. Id. ¶¶ 88-98. On May 29,

2015, NYPD officers raided Luz’s apartment pursuant to that search warrant, handcuffed all four

Plaintiffs, destroyed property, strip-searched Sebastian and Pablo, and eventually took Luz,

Sebastian, and Pablo into custody. Id. ¶¶ 99-206. Luz, Sebastian, and Pablo were initially

charged with state drug offenses based on Detective Lopez’s claim that they had been found in

possession of cocaine and a scale — a claim that Plaintiffs allege was false. Id. ¶¶ 207-08. Luz

was released after several hours; Sebastian and Pablo were arraigned and released after

approximately twenty hours. Id. ¶¶ 212-14. About a year and a half after the search, all charges

against all Plaintiffs were dismissed. Id. ¶¶ 221-23. In the meantime, two men who lived in the

apartment directly above Luz and her children were charged with a variety of drug and other

criminal offenses; they later pleaded guilty. Id. ¶¶ 215-19.

Plaintiffs brought this action in 2017 against the City and three NYPD officers seeking

damages for violations of their federal and state constitutional rights, as well as several common-

law torts. ECF No. 1. In 2018, Plaintiffs filed an Amended Complaint adding the CI as a

defendant along with a Section 1983 claim for conspiracy to violate their federal rights.

Amended Compl. ¶¶ 230-34. Plaintiffs sought leave to serve the Amended Complaint on the CI

by delivery to the New York City Law Department. ECF No. 72. In response, Defendants

protested that (1) the Law Department did not represent the CI; (2) they were not aware of any

authority permitting a confidential informant to be sued in an action such as this one or any

examples of confidential informants being sued; and (3) in any event, they did not believe any

claims against the CI would survive a motion to dismiss. See ECF No. 73. On July 12, 2018,

then-District Judge Richard J. Sullivan — to whom this case was then assigned — “made a sua

sponte motion to dismiss” the claims against the CI, and invited Plaintiffs to submit a letter

“informing the Court as to whether and how they wish to respond to the Court’s motion.” ECF

Minute Entry of July 12, 2018 (“Sua Sponte Order”). At Plaintiffs’ request, Judge Sullivan then

held that motion in abeyance pending discovery with respect to the other Defendants. ECF

No. 80.

Shortly thereafter, Judge Sullivan separately held that “the law enforcement privilege

applies to all documents and portions of documents that tend to reveal the identity of” the CI and

that “Plaintiffs [had] failed to successfully rebut the presumption against lifting the privilege.”

ECF No. 81 (“Privilege Order”), at 7. On October 29, 2018, following Judge Sullivan’s

elevation to the Court of Appeals, this case was reassigned to the undersigned. Thereafter, the

Court set deadlines for the completion of discovery and for Plaintiffs to seek leave either to

amend their complaint to add the CI as a defendant or, in the alternative, to reopen discovery for

the limited purpose of deposing the CI. See ECF No. 126. Instead of seeking leave to amend

their complaint, Plaintiffs now move for reconsideration of Judge Sullivan’s “motion” dismissing

the CI as a defendant in their operative Amended Complaint and seek disclosure of the CI’s

identity for the purpose of serving that Amended Complaint on him or her and then taking his or

her deposition. See ECF No. 138 (“Pls.’ Mem.”). In the alternative, Plaintiffs seek leave to

depose the CI under conditions that would protect any information that could be used to identify

the CI. Id. at 25-26; ECF No. 153 (“Reply”), at 10-11.

THE INFORMER’S PRIVILEGE

The “law enforcement privilege” attaches to — and often protects from disclosure —

“information pertaining to law enforcement techniques and procedures, information that would

undermine the confidentiality of sources, information that would endanger witness and law

enforcement personnel, information that would undermine the privacy of individuals involved in

an investigation, or information that would seriously impair the ability of a law enforcement

agency to conduct future investigations.” In re The City of New York, 607 F.3d 923, 944 (2d Cir.

2010) (citations and internal quotation marks omitted). “[T]he party asserting the law

enforcement privilege bears the burden of showing that the privilege indeed applies . . . .” In re

the City of New York, 607 F.3d at 948. Where the privilege does apply, there is a “strong

presumption” against lifting it. Id. “To rebut that strong presumption, the party seeking

disclosure bears the burden of showing (1) that the suit is non-frivolous and brought in good

faith, (2) that the information sought is [not] available through other discovery or from other

sources, and (3) that the party has a compelling need for the privileged information.” Id.

(citations and internal quotation marks omitted). Even then, a court “must . . . weigh the public

interest in nondisclosure against the need of the litigant for access to the privileged information

before ultimately deciding whether disclosure is required.” Id.

One species of the law enforcement privilege, the “informer’s privilege,” describes “the

Government’s privilege to withhold from disclosure the identity of persons who furnish

information of violations of law to officers charged with enforcement of that law.” Roviaro v.

United States, 353 U.S. 53, 59 (1957). “The purpose of the privilege is the furtherance and

protection of the public interest in effective law enforcement. The privilege recognizes the

obligation of citizens to communicate their knowledge of the commission of crimes to law-

enforcement officials and, by preserving their anonymity, encourages them to perform that

obligation.” Id. Although there is some “authority for the proposition that the strength of the

privilege is greater in civil litigation than in criminal . . . the privilege is not absolute in either.”

In re United States, 565 F.2d 19, 22 (2d Cir. 1977). “The scope of the privilege is limited by its

underlying purpose.” Roviaro, 353 U.S. at 60. It is thus “cabined by three limitations. First, it

protects only the identity of the informant — not the content of the informant’s communications.

Second, the privilege has no application when the informer’s identity is disclosed to those who

would have cause to resent the communication. Third, it is a qualified privilege that must yield

to fairness when the information sought is relevant and helpful to the defense.” U.S. Commodity

Futures Trading Comm’n v. Parnon Energy Inc., No. 11-CV-3543 (WHP), 2014 WL 2116147,

at *3 (S.D.N.Y. May 14, 2014) (citations and internal quotation marks omitted).

DISCUSSION

Significantly, Plaintiffs do not challenge — and the Court sees no basis to revisit —

Judge Sullivan’s holding that the CI’s identity and any information that would tend to reveal it

are protected by the informer’s privilege. Instead, the question here is whether Plaintiffs can

now demonstrate a sufficiently “compelling need” to overcome the privilege. Plaintiffs

principal, if not sole, argument on that score is that the CI’s presence in the case is “essential to a

fair determination of [their] conspiracy claim.” Pls.’ Mem. 18. According to Plaintiffs, if the CI

is not named as a defendant, their “conspiracy claim will fail as a matter of law under the

intracorporate conspiracy doctrine,” id. at 19, “which provides that officers, agents and

employees of a single corporate entity,” such as the NYPD, “are legally incapable of conspiring

together,” Dowd v. DeMarco, 314 F. Supp. 3d 576, 587 (S.D.N.Y. 2018) (internal quotation

marks omitted). Plaintiffs argue, in other words, that the CI is “a necessary party who is crucial

to [their] being able to establish an unlawful conspiracy.” Pls.’ Mem. 19.

Plaintiffs are wrong. “To prove a § 1983 conspiracy, a plaintiff must show: (1) an

agreement between two or more state actors or between a state actor and a private entity; (2) to

act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that

goal causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). Critically,

however, the law does not require that a plaintiff sue all members of a conspiracy in order to

maintain a suit against any of them. See, e.g., Lesavoy v. Lane, 304 F. Supp. 2d 520, 537

(S.D.N.Y. 2004), aff’d in part and vacated in part on other grounds sub nom. Lesavoy v.

Gattullo-Wilson, 170 F. App’x 721 (2d Cir. 2006); see also, e.g., U.S. Indus., Inc. v. Touche Ross

& Co., 854 F.2d 1223, 1251 (10th Cir. 1988) (“It is axiomatic that since coconspirators are

jointly and severally liable for all damages caused by a conspiracy, a private plaintiff need not

sue all the conspirators, but may choose to proceed against any one or more of them.” (internal

quotation marks omitted)). Indeed, holding conspirators individually liable for their co-

conspirators’ acts is the whole point of conspiracy law. Of course, without the CI’s participation

in the case, Plaintiffs may face problems of proof. But, as the Court will go on to discuss,

Plaintiffs’ needs in that regard are for evidence that may be known to the CI — that is, his or her

testimony — not for the CI’s identity, much less his or her presence as a party to this action.

Having failed to demonstrate any need, let alone a “compelling need,” for the CI’s identity,

Plaintiffs’ motion for reconsideration is denied to the extent that they seek that information.2

In the Court’s view, however, the informant’s privilege alone does not provide a basis to

dismiss the claims against the CI. Perhaps because of Judge Sullivan’s Sua Sponte Order, the

parties at times frame the question here as whether, in light of the informer’s privilege, Plaintiffs’

claims against the CI may proceed at all. See, e.g., Pls.’ Mem. 22 (arguing that the CI “should

remain a defendant in this action”); ECF No. 145 (“Defs.’ Mem.”), at 7 (arguing that the Court

should “disallow the CI from being named as a defendant in this lawsuit”). But, as its name

suggests, the informer’s privilege is an evidentiary privilege — not an immunity from suit or

liability. To be sure, if a plaintiff cannot and does not learn the identity of a confidential

informant, that plaintiff will presumably be unable to serve the confidential informant within the

time limits set by the Federal Rules of Civil Procedure, see Fed. R. Civ. P. 4(m), and the statute

of limitations on any claims against the confidential informant may run, see ECF No. 80

(explaining why, if Plaintiffs are not able to serve the CI in this action, the statute of limitations

will run with respect to claims against him or her). But the practical problems inherent in suing

an unknown defendant whose identity is protected from disclosure by an evidentiary privilege do

not provide a basis to reverse-engineer a novel substantive immunity from suit.3 Thus, the Court

2 As a fallback, Plaintiffs suggest that the CI’s actual identity could remain under seal, with

the case proceeding against him or her pseudonymously. Pls.’ Mem. 22-25. That suggestion

raises a host of legal and practical problems. See, e.g., Kirkland v. City of New York, No. 06-CV-

0331 (NG) (CLP), 2007 WL 1541367, at *11-12 (E.D.N.Y. May 25, 2007). Moreover, to the

extent that it would require or involve disclosure of the CI’s identity to Plaintiffs alone (so that

they could properly name the CI, serve him or her with the Amended Complaint, and so on), it

too would run afoul of the informant’s privilege.

3 For instance, if a plaintiff were able, through his or her own due diligence, to identify and

serve a confidential informant within the time limits set by the Federal Rules of Civil Procedure,

the informant’s privilege would presumably pose no obstacle to the plaintiff’s claims against the

confidential informant. To the extent that the court in Kirkland — which denied leave to amend

declines to dismiss the CI as a defendant on the basis of the informant’s privilege alone; instead,

it will order Plaintiffs to show cause why those claims should not be dismissed for failure to

serve the CI in a timely fashion. See Fed. R. Civ. P. 4(m). To the extent the Sua Sponte Order

did otherwise, Plaintiffs’ motion for reconsideration is granted.

That leaves Plaintiffs’ final request: to depose the CI. See Pls.’ Mem. 25-26. Here, the

analysis changes somewhat because it is well established that the informer’s privilege “protects

only the identity of the informant — not the content of the informant’s communications.”

Parnon Energy Inc., 2014 WL 2116147, at *3. Defendants assert that “subjecting the CI to a

deposition would, of course, reveal his or her identity,” Defs.’ Mem. 11, and submit a declaration

from an NYPD Inspector to the same effect, see ECF No. 152-1. In the Court’s view, however,

such conclusory assertions are insufficient to carry Defendants’ burden of showing that the

informer’s privilege bars a deposition altogether. Instead, the Court is confident that, through

entry of a protective order, appropriate precautions could be taken to enable a deposition of the

CI without revealing his or her identity. See Fed. R. Civ. P. 26(c)(1); Galella v. Onassis, 487

F.2d 986, 997 (2d Cir. 1973) (explaining that a district court may issue a protective order

governing the “[c]ircumstances of a deposition,” the “grant and nature” of which is “singularly

within the discretion of the district court”). Such precautions might include, among other things,

(1) allowing the CI to testify in a location and manner that would protect his or her identity; (2)

limiting attendance at the deposition to counsel; (3) precluding any questions the answers to

which could reveal the CI’s identity; (4) conducting the deposition in the presence of the

designated Magistrate Judge, who could rule on objections contemporaneously; and (5) sealing

a complaint to bring claims against a confidential informant as “futile,” 2007 WL 1541367, at

*12 — suggested otherwise, the Court declines to follow its decision.

the transcript of the deposition. Cf., e.g., Edwards v. City of New York, No. 16-CV-9124 (PGG)

(KNF), 2018 WL 1229706 (S.D.N.Y. Mar. 1, 2018); 16-CV-9124, ECF No. 49 (Mar. 9, 2018)

(protective order); Banno v. City of New York, No. 06-CV-2270 (RJS) (S.D.N.Y.), ECF No. 67

(Feb. 11, 2009) (order permitting an undercover officer to appear for his or her deposition “in a

modest disguise consisting of a mustache and wig”). With such limitations and precautions in

place, a deposition of the CI would not run afoul of the informer’s privilege.

That is not the end of the matter, however, because — even though Defendants do not

directly raise the issue — deposing the CI would be appropriate only if it is “relevant to any

party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).

The CI’s testimony, however, is plainly relevant to the claims and defenses in this case because

Plaintiffs’ Section 1983 and state-law malicious prosecution claims require them to prove the

absence of probable cause to search Luz’s apartment. See Manganiello v. City of New York, 612

F.3d 149, 160-61 (2d Cir. 2010); see also Reply 5-6 (explaining how the CI’s testimony would

be relevant to the legality of the search); Amended Compl. ¶¶ 225-34, 241-43. “Plaintiffs cannot

even attempt to make the required . . . showing without learning through discovery what the

informant said to the affiant and what information the affiant relied on in requesting the search

warrant.” Ayala v. City of New York, No. 04-CV-1102 (DC), 2004 WL 2914085, at *2

(S.D.N.Y. Dec. 16, 2004) (Chin, J.). The question of proportionality is closer, if only because

the policies behind the informer’s privilege counsel in favor of denying leave to depose a

confidential informant where a plaintiff can obtain the relevant information through other means.

Here, however, discovery is otherwise over and, construing the evidence in the light most

favorable to Plaintiffs, notable gaps and inconsistencies in evidence remain. See Reply 5. Thus,

the Court concludes that a deposition of the CI would be proportional to the needs of the case.

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for reconsideration of Judge Sullivan’s order

dismissing the CI as a defendant is GRANTED in part and DENIED in part, and discovery is

reopened for the sole purpose of deposing the CI, subject to entry of a protective order with

limitations and precautions sufficient to protect the CI’s identity from disclosure.

The parties shall promptly confer and, within two weeks of the date of this Opinion

and Order, submit either (1) an agreed-upon proposed protective order or (2) competing

proposed orders and letter briefs in support of those proposed orders. Separately, within one

week of the date of this Opinion and Order, Plaintiffs shall show cause why their claims

against the CI should not be dismissed for failure to serve the summons and complaint within the

ninety days prescribed by Rule 4(m) of the Federal Rules of Civil Procedure.

The Clerk of Court is directed to terminate Docket No. 137.

SO ORDERED.

Dated: October 31, 2019

New York, New York JESSE M}FPORMAN

Uhited States District Judge

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