In a plaintiff’s lawsuit against a Portsmouth police officer involved in the shooting death of plaintiff’s decedent, a Norfolk U.S. District Court orders production of some materials subpoenaed from the Virginia State Police’s investigation into the shooting, and grants in part the VSP’s motion to quash.
The objections raised by VSP involved its claim of a governmental or law enforcement privilege as a result of an ongoing investigation into possible criminal charges.
Both parties rely on the 10 factors described in Frankenhauser v. Rizzo, 59 F.R.D.339 (E.D.Pa.1973). Though not explicitly adopted by the 4th Circuit, the Frankenhauser factors are widely followed in cases of governmental or investigative privilege. Like this case, Frankenhauser involved a claim arising out of an officer-involved shooting.
Subject to the previously entered protective order, the court makes the following findings and rulings on VSP’s motion to quash. The document that constitutes the VSP’s investigative summary, directed to the Portsmouth Commonwealth’s Attorney, will not be produced. Most of the factual material is available in other, separately categorized materials. The court also declines to order production of investigative materials produced by the Portsmouth Police Department. VSP is not ordered to produce documents that relate to the execution of a Facebook search warrant issued under seal by the Portsmouth Circuit Court. The information in the warrant represents investigative conclusions by the requesting officer.
Plaintiff also seeks evidence obtained from defendant’s Facebook page pursuant to the sealed search warrant issued in Portsmouth. The court declines to order production of this material which should be available to plaintiff by separate subpoena. The court also declines to order production of field notes from the Portsmouth investigator that includes – to a degree – his own subjective impressions and observations.
The motion to quash is granted as to these documents.
The following documents should be produced, including the four documents under the category “Crime Scene Examination,” which reflect objective analysis of the physical condition of the scene where the incident occurred. This material includes photographs, drawings and measurements, as well as video evidence of the location of items recovered from the scene. VSP also should produce lab reports from the postmortem testing and examination of decedent, and statements made by defendants during the investigation, a police department incident report relating to a prior arrest mentioned by defendant in his statement and a press inquiry shortly after the incident.
Respondent also must produce a report concerning the investigator’s review of video footage from security cameras near the scene, a search warrant and return for records related to the emergency medical treatment by those who responded to the incident, and a summary of information obtained from Immigrations & Custom Enforcement concerning decedent’s immigration status. These documents represent purely factual data.
Witness statements shall be produced, with the witnesses’ dates of birth and phone numbers redacted.
Additional material includes electronic evidence compiled and copied onto CDs and DVDs, which relate to recordings of the scene and events surrounding the night of the incident, including police radio communications and video surveillance footage from the night of the incident. All of this material is purely actual and was compiled by the investigator from contemporaneous recordings. Although some of the evidence may be graphic and potentially inflammatory, the concerns underlying the governmental privilege asserted generally do not apply to these purely factual compilations.
Johnson, Adm’r v. Rankin (Smith) No. 2:11cv415, Nov. 7, 2011; USDC at Norfolk, Va. VLW 011-3-610, 15 pp.