UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOSEPH SIDNEY JOHNSON, Plaintiff, v. Civil Action No. 17-883 (CKK) DISTRICT OF COLUMBIA, et al., Defendants.

ASHTON WILKINS, Plaintiff, v. Civil Action No. 17-884 (CKK) DISTRICT OF COLUMBIA, et al., Defendants.

MEMORANDUM OPINION AND ORDER (August 13, 2018)

During discovery in these cases consolidated for that purpose, Plaintiffs Joseph Johnson

and Ashton Wilkins have attempted to subpoena portions of certain documents belonging to the

U.S. Attorney’s Office for the District of Columbia (“USAO”), which is not a party to these

actions. USAO opposes the disclosure of this information. Defendants, the District of Columbia

and five Metropolitan Police Department (“MPD”) officers, 1 have not taken a position. Upon

consideration of Plaintiffs’ and USAO’s letter briefing, the relevant legal authorities, and the

record as a whole, the Court DENIES Plaintiffs’ request for this disclosure.

1 The defendant officers are Owais Akhtar, Amina Coffey, Francis Martello, Cameron Reynolds, and A. Willis, Jr. 1 I. BACKGROUND

The Court shall briefly summarize the allegations in the respective First Amended

Complaints that are pertinent to Plaintiffs’ request. On March 8, 2016, Plaintiffs were among a

group of people gathered recreationally in the Gallery Place area of Washington, DC. See 1st Am.

Compl. ¶ 9, Johnson v. District of Columbia, No. 17-cv-883 (D.D.C.), ECF No. 13 (“Johnson

FAC”); 1st Am. Compl. ¶ 10, Wilkins v. District of Columbia, No. 17-cv-884 (D.D.C.), ECF No.

11 (“Wilkins FAC”). A “dispute” between two of the people resulted in MPD intervention. 2

Johnson FAC ¶¶ 11, 12; Wilkins FAC ¶¶ 12, 13. The respective First Amended Complaints are

somewhat ambiguous as to the precise sequence of the following events, but the Court records

them as best it can decipher. The MPD officers allegedly “savagely hit and sprayed with pepper

spray or mace or some other substance” each of the Plaintiffs. Johnson FAC ¶ 13; Wilkins FAC ¶

14. When Plaintiffs objected to the way MPD officers were “manhandling and assaulting” others

in the group, MPD officers allegedly attacked Plaintiffs, which appears to be an attack subsequent

to the initial attack described above. Johnson FAC ¶¶ 15, 16, 57, 58; Wilkins FAC ¶¶ 16, 18-20,

65, 66. At some point during the incident, each Plaintiff was arrested on the charge of assaulting

a police officer (“APO”). See Johnson FAC ¶ 27; Wilkins FAC ¶ 34.

One of the officers, Defendant Owais Akhtar, allegedly “swore out under oath a false

statement” that, inter alia, Plaintiff Johnson had pushed and punched another of the officers, and

that Plaintiff Wilkins had swung at and “assumed a fighting stance” towards one or more of the

officers. Johnson FAC ¶ 22; Wilkins FAC ¶ 26. USAO brought APO charges against each Plaintiff

2 The police reports—the second page of the Cobalt data form in each case—include a description of the events by one of two officers who were allegedly called to the scene by the MPD officers who initially responded. Because this case is not in the summary judgment posture, however, the Court shall draw for its description only upon the allegations in the First Amended Complaints. 2 in separate criminal cases in D.C. Superior Court, but eventually dismissed both cases. Plaintiffs

later brought their respective civil suits against the District of Columbia and five MPD officers

under

and the common law, alleging assault, false arrest, malicious prosecution,

municipal liability, and various constitutional violations. The municipal liability claims in each

case were later voluntarily dismissed.

During discovery, Plaintiffs submitted a subpoena to USAO to obtain certain materials

prepared in conjunction with the criminal charges against them. After negotiation narrowed the

scope of the subpoena and resulted in some production, Plaintiffs indicated, in an e-mail agreed

upon with Defendants and USAO, that Plaintiffs were unable to prevail as to 1) USAO’s “papering

notes from the prosecution of the underlying criminal case[s],” and 2) “documents or information

as to why the charges were ultimately voluntarily dismissed by the USAO.” The Court instructed

USAO and Plaintiffs to submit successive letter briefs regarding arguments that they had outlined

in the initial e-mail. Min. Order of May 7, 2018. Each brief was to include 1-2 cases regarding

each of the two issues.

The Court then instructed USAO to file a reply letter brief addressing

certain of the topics raised in prior briefing. Min. Order of May 17, 2018. Ultimately, the Court

accepted USAO’s offer to submit the documents at issue ex parte and under seal for the Court’s in

camera review. 1st Min. Order of June 4, 2018; see also Min. Orders of June 13, 2018, and June

19, 2018.

Having reviewed the parties’ letter briefing, as well as the documents submitted ex parte,

the issues raised are ripe for the Court’s decision.

II. DISCUSSION

At the threshold, the Court observes that letter briefing crystallized the precise documents

and portions thereof that remain at issue: 1) the typed factual portion of the “screener sheet” in

3 each case that was prepared by the Assistant United States Attorney (“AUSA”) who initially

decided to prosecute rather than “no paper” these cases; 2) the typed factual portion of the

“papering form” in each case that another AUSA subsequently prepared; and 3) the handwritten

portion of the case jacket in each case that recorded the decision to dismiss the cases as well as the

rationale. The relevant handwritten entry on the case jacket consists of five lines of text. These

portions of the respective documents are the same in each case. 3

Plaintiffs seek these materials to be able to support their claim that Defendant Akhtar

fabricated allegations to support the APO charges against Plaintiffs. Relatedly, Plaintiffs claim

that he omitted from his representations to USAO the aspects of purported police misconduct that

are alleged in the First Amended Complaints. Plaintiffs also indicate that they may use whatever

material they can obtain to impeach Defendant Akhtar’s testimony at trial.

The Court has reviewed the factual portions of the screener sheets and the papering forms,

as well as the handwritten entries on the case jackets. 4 If criminal proceedings had continued, and

the prosecution had called one or more of the MPD officers to testify, none of the material

contained in these three portions of documents would be subject to disclosure under the Jencks

Act, as presently embodied in Federal Rule of Criminal Procedure 26.2. There is no indication, in

particular, that any information therein is a witness “statement,” consisting of a “substantially

3 USAO’s submission to the Court indicates that a screener sheet and a papering form from a third criminal case, in which the defendant is not among Plaintiffs in these consolidated suits, also are among the documents sought by Plaintiffs. The Court’s in camera review confirms that the factual portions of these documents in the third case are the same as those in the criminal cases against Plaintiffs Johnson and Wilkins. USAO indicates that the case jacket in this third case has been temporarily misplaced but also contains the same note as the case jackets pertaining to Plaintiffs’ criminal cases. 4 The Court observes here that the factual portions of the screener sheets and papering forms summarize the allegations against Plaintiffs that formed the alleged basis for their arrests on APO charges. 4 verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in

any recording or any transcription of a recording.” Fed. R. Crim. P. 26.2(f)(2). Moreover, the

AUSAs did not express any opinion as to the credibility of the officers involved in the incident.

Plaintiffs have, or should have access to, witnesses of the incident, footage from cameras

at the scene, MPD’s police reports, and associated use of force incident report(s) (“UFIRs”). It is

these kinds of sources that USAO would have relied upon, and did rely upon, in reaching its

determination whether to go forward and prosecute the cases. 5 It is also not disputed that the cases

were “nolle prossed” by USAO. Evidence of USAO’s decisionmaking process in “nolle prossing”

the cases would not be admissible at trial, including because the jury in the first instance can be

provided with the same evidence that USAO considered and would make their own determination

based on that evidence.

As for legal authority, the Court finds that the factual portions of the screener sheets and

papering forms are protected from disclosure by the attorney work product doctrine. AUSAs

prepared these materials while they were actively in anticipation of litigation, namely the

prosecution of pending charges against Plaintiffs. See Fed. R. Civ. P. 26(b)(3)(A). Furthermore,

because of the availability of the sources on which the AUSAs relied, Plaintiffs would likely be

unable to make a sufficient showing of need and corresponding unavailability of alternatives to

overcome attorney work product protection. See

(exception to attorney work product protection

where, inter alia, “the party shows that it has substantial need for the materials to prepare its case

and cannot, without undue hardship, obtain their substantial equivalent by other means”). These

materials reflect the AUSAs’ investigation at the respective stages in the process and ultimately

5 The jury presumably would hear from live witnesses that were not available to USAO, such as Plaintiffs. 5 state the AUSAs’ mental impressions and conclusions as to the events that transpired. See Fed. R.

Civ. P. 26(b)(3)(B) (“If the court orders discovery of those materials, it must protect against

disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney

or other representative concerning the litigation.”). Plaintiffs are not entitled to disclosure of the

factual portions of the screener sheets or papering forms.

The handwritten entries on the case jackets do not qualify for the deliberative process

privilege, because they are not pre-decisional. See, e.g., Nat’l Sec. Archive v. CIA,

(D.C. Cir. 2014) (setting forth requirements for privilege, including that the communication

at issue occur “before any final agency decision on the relevant matter”). To its credit, USAO

admits in its letter briefing that the decisions to dismiss the cases were reached before the

handwritten entries were made. For that reason, the privilege does not apply. However, as already

noted, these entries relating to the AUSA decisionmaking process would not be admissible at trial

through the testimony of whichever AUSA wrote them. Accordingly, Plaintiffs are not entitled to

disclosure of these materials either. See also Chang v. United States,

(D.D.C. 2007) (finding that “principles” of absolute immunity for prosecutorial discretion

foreclose deposition topics concerning District of Columbia’s decision whether to prosecute in

prior criminal cases).

At trial, Plaintiffs would be permitted to present witnesses to the incident, police reports,

camera footage, and associated UFIR(s), which would enable the jury to decide on its own the

merits of Plaintiffs’ claims against Defendants.

III. CONCLUSION

For all of the foregoing reasons, the Court DENIES Plaintiffs’ request for USAO to

disclose the 1) factual portion of the screener sheets, 2) the factual portion of the papering forms,

6 and 3) the handwritten entry on the case jackets.

SO ORDERED.

Dated: August 13, 2018

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

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