United States District Court, S.D. California
S.R. NEHAD, an individual, K.R. NEHAD, an individual, ESTATE OF FRIDOON RAWSHAN NEHAD, an entity, Plaintiffs,
v.
NEAL N. BROWDER, an individual, and DOES 1 through 10, inclusive, Defendants.
ORDER DETERMINING JOINT MOTION FOR DETERMINATION OF
DISCOVERY DISPUTE NO. 3 (DKT. NOS. 102, 104)
Hon.
Nita L. Stormes United States Magistrate Judge.
Before
the Court is the parties’ Joint Motion for
Determination of Discovery Dispute No. 3. (Dkt. Nos. 102,
104.) Plaintiffs move to compel responses and production to
22 requests that seek documents pertaining to a second
shooting incident involving Officer Browder
(“Browder”). Defendants oppose Plaintiffs’
requests based on relevance. For the reasons explained below,
the Court DENIES Plaintiffs’ requests to compel
responses and production.
I.
Background
The
parties and the Court are familiar with the background of
this case, and so the Court only briefly recounts pertinent
background information here. On April 30, 2015, Browder
fatally shot Fridoon Nehad. Browder was subsequently placed
back on active patrol duty.
On
February 20, 2016, Browder conducted a sweep of an apartment
during a routine probation search and compliance check. (Dkt.
No. 102-1 at ¶ 2.) During that sweep, he came upon a
dark room. (Id. at ¶ 3.) When he tried to
activate the light attachment connected to his firearm, he
unintentionally discharged one round from his firearm.
(Id. at ¶ 4.) According to a news article
submitted by Plaintiffs about the incident, the bullet hit
the right side of a baby’s crib, which was empty. (Dkt.
No. 102-3 at 3.) Browder’s unintentional discharge of
his firearm did not result in any physical injury.
(Id.)
Plaintiffs
propounded 22 discovery requests seeking documents and
information pertaining to the February 20, 2016 incident,
including incident reports, performance reviews, disciplinary
actions and investigation reports. (Dkt. No. 102 at 3.)
Defendants object to Plaintiffs’ requests on grounds of
relevance.
II.
Discussion
Plaintiffs
contend information about the February 20, 2016 incident is
relevant to their Monell and supervisory liability
claims. They contend this information will help determine
whether the SDPD changed or improved its policies and
practices regarding investigations of shootings and
discipline. (Dkt. No. 102 at 3, 5-8.) In support, Plaintiffs
point to excerpts from Chief Zimmerman’s recent
deposition testimony, wherein she stated Browder was taken
off patrol duties following the February 20, 2016 incident,
and one of the reasons Zimmerman decided to take him off
patrol was because Browder had now been involved in two
separate instances where he discharged his
weapon.[1] (Dkt. No. 104 at 3-4.)
Defendants
contend information about Browder’s unintentional
discharge of his firearm is irrelevant to Plaintiffs’
Monell and supervisory liability claims. (Dkt. No.
102 at 10.) Browder’s unintentional discharge of his
firearm did not involve the use of force (i.e., the
“amount of effort required by police to compel
compliance by an unwilling subject”) and did not
involve the use of deadly force. (Id., citing
Internat’l Assoc. of Chiefs of Police, Police Use of
Force in America (Va. 2011). Defendants assert that
during this incident, Browder did not encounter a suspect,
did not intend to fire his gun, did not attempt to compel
compliance from an unwilling suspect, and the incident did
not involve any type of constitutional deprivation.
Defendants further contend that as a result, the incident was
not investigated as an incident involving the use of force.
(Id. at 10-11.) Defendants further argue that
Zimmerman’s deposition testimony does not change this
irrelevant information into relevant and discoverable
information. (Dkt. No. 104 at 5-6.)
“Unless
otherwise limited by court order, the scope of discovery is
as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the
action, the amount in controversy, the parties’
relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to
be discoverable.” Fed.R.Civ.P. 26(b)(1).
Having
considered the parties’ arguments and authorities, the
Court concludes information about the February 20, 2016
incident does not fall within the scope of permitted
discovery because it is not relevant to Plaintiffs’
claims. In their Monell claim, Plaintiffs allege the
“SDPD’s investigation of Fridoon’s shooting
was grossly inadequate, ” and that the “SDPD has
a de facto policy, custom and practice of not
properly investigating its officers’ uses of
force.” They contend that this “custom, policy
and practice of deficient use of force investigations is
entrenched in the SDPD” and that it “created an
environment in which police officers … act with
impunity and where using excessive force is commonplace and
encouraged.” (Dkt. No. 20 at ¶¶ 79, 80.)
While a
party who alleges a Monell claim may discover
evidence of a policy or custom based on multiple incidents,
requests for such discovery should not be overbroad and
instead should be appropriately tailored to the allegations
of the Monell claims. (See Order, Dkt. No.
83 at 14-16 (citing, inter alia, Lawson v. City of
Seattle, 2014 U.S. Dist. LEXIS 55883, *46 (W.D. Wash.
Apr. 21, 2014), quoting Nadell v. Las Vegas Metro. Police
Dep’t, 268 F.3d 924, 929 (9th Cir. 2001), and
narrowing Plaintiffs’ requests to seek information
about officer-involved shootings that resulted in physical
injury or death so that the discovery is tailored to
Plaintiffs’ claims that the use of force investigation
procedures are inadequate).
Here,
Plaintiffs’ Monell claims are based on
allegations that the SDPD’s policies, customs and
practices of investigating use of force and excessive force
is inadequate. (Dkt. No. 20 at ¶¶ 79, 80.) Evidence
of shootings that involved use of force and resulted in
physical injury or death may bear on Plaintiffs’
Monell claims. But information about an
officer’s accidental discharge of his weapon in a
setting that did not involve the use of force is too
attenuated from Plaintiffs’ claims. Plaintiffs do not
allege that the SDPD conducts inadequate investigations into
incidents where an officer accidentally discharges his weapon
and where no use of force was involved. (Dkt. No. 20.) As
such, the information Plaintiffs seek about the February 20,
2016 incident is not relevant to their claims, is not
proportional to the needs of the case, and would not add to
the inquiry in resolving the issues raised by
Plaintiffs’ claims. Fed.R.Civ.P. 26(b)(1).
Information
about Browder’s unintentional discharge of his firearm
also is not relevant to Plaintiffs’ supervisory
liability claims. In support of their supervisory liability
claim, Plaintiffs allege that “Zimmerman knew that the
SDPD’s force investigation procedure was deficient, a
whitewash designed to exonerate the officers, ” that
“[t]he force investigation process is still a sham,
designed to attack the victim, exonerate the officers and
cover-up the truth.” They allege that these
unconstitutional investigations “encouraged officers to
violate the law, leading to unjustified shootings like
Fridoon’s” and as a result “more people
have been injured and killed by unlawful police action,
including Fridoon.” (Id. at ¶¶ 86,
87, 90.) Discovery about Browder’s unintentional
discharge of his firearm would not shed light on or otherwise
support Plaintiffs’ supervisory liability claims. The
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