In re N.Y.C. Policing During Summer 2020 Demonstrations

In Re New York City Policing During Summer 2020 Demonstrations

No. 20 Civ. 8924 (CM) (GWG)

United States District Court, S.D. New York

January 24, 2022

OPINION & ORDER

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

The plaintiffs in these consolidated cases allege that the City of New York (“the City”), the New York City Police Department (“NYPD”), and certain individuals employed by the City violated the plaintiffs' constitutional rights during protests held beginning in May 2020. Plaintiff People of the State of New York, represented by the New York State Office of the Attorney General (“OAG”), named Dr. Edward R. Maguire as an expert witness. In response, the City has moved to disqualify Dr Maguire.^[1] For the reasons that follow, the City's motion is granted.

I. BACKGROUND

A. The OCC Report

On May 25, 2020, a Minneapolis Police Department officer murdered George Floyd, an individual who had been placed under arrest. See OCC Report at 1, 18. Nationwide protests followed, including in New York City, where “the volume and geographic spread of [the demonstrations] were unprecedented.” Id. at 1-2. Some protests “involved intense verbal and physical conflict between protesters and police. Scores of protesters and police suffered injuries, with many requiring hospital treatment.” Id. at 1.

On June 20, 2020, New York City Mayor Bill de Blasio issued Executive Order No. 58, which required the Commissioner of the New York City Department of Investigation (“DOI”) and the New York City Law Department Office of Corporation Counsel (“OCC”) to conduct reviews of the NYPD's response to these protests. See Executive Order No. 58 § 1(a). DOI was tasked with conducting “a review and evaluation of the NYPD's planning and response to the protests” and making “factual findings about relevant events during the protests after conducting an objective review of statements from NYPD officers and the public as well as any other evidence in the City's possession.” Id. § 1(c). OCC was to conduct “a separate analysis . . . of factors that may have impacted the events at protests.” Id. (the “OCC Review”). OCC's role was not to “reach[] specific factual determinations” but to “understand[] events, look[] at the circumstances around those events, and develop[] recommendations going forward.” OCC Report at 6.

In December 2020, OCC issued its 53-page report, entitled “Corporation Counsel Report Pursuant to Executive Order 58 (June 20, 2020) Directing an Analysis of Factors Impacting the George Floyd Protests in New York City.” The OCC Report concluded that the COVID-19 pandemic, the nature and context of the protests, as well as shortcomings with NYPD's officer training and preparation for mass demonstrations “contributed to the intensity of the protests.” Id. at 1-2, 9-46. The OCC Report offered ten policy recommendations to improve “Department Readiness, ” “Officer Preparedness, ” and “Interagency Coordination.” Id. at 50-53.

B. OCC's Retention of Dr. Maguire

To prepare the OCC Report, OCC used a special team of Assistant Corporation Counsels (the “Review Team”) - walled off from OCC attorneys litigating protest-related matters - to review a “broad range of materials.” Id. at 1. The team spoke with NYPD officers and reviewed a multitude of sources, including NYPD documents. See id. OCC also “engaged and consulted with third-party subject matter experts of national standing to provide input in four distinct areas: (a) policing protests; (b) management of high-impact events from the perspective of senior managers; (c) crisis response from the perspective of officers; and (d) organizational behavior.” Id. at 1, 8-9; see also Mackie Decl. ¶ 7. There were only two individual experts consulted, one of whom was Dr. Maguire. See OCC Report at 8; Mackie Decl. ¶ 7. Dr. Maguire's background was described in the Report as follows:

Edward Maguire is a professor of criminology and criminal justice at Arizona State University, where he also serves as director of the Public Safety Innovation Lab and associate director of the Center for Violence Prevention and Community Safety. Dr. Maguire's research focuses primarily on policing and violence. His recent research has focused on police response to protests, procedural justice and legitimacy, gangs and gang violence, officer safety and wellness, the effectiveness of violent crime control initiatives, and the influence of the COVID-19 pandemic on police practices. He has written or edited seven books and more than 90 journal articles and book chapters on various themes related to policing, violence, and crowds. Based on a national study of protest policing practices in the U.S., Dr. Maguire has co-authored a guidebook for police on handling protests entitled “Policing Protests: Lessons from the Occupy Movement, Ferguson & Beyond: A Guide for Police”. He has also lectured and provided training on protest policing issues to law enforcement audiences in the U.S. and abroad. Dr. Maguire currently serves as chair of the research advisory board for the Police Executive Research Forum.

OCC Report at 8; see also Maguire Decl. ¶¶ 2-14; Maguire CV. Dr. Maguire describes himself as “the preeminent expert on the intersection between protest policing, crowd psychology, and intergroup communication in the United States” and states that he is “unaware of any other expert in the United States with analogous experience.” Maguire Decl. ¶¶ 13-14.

Dr. Maguire signed a non-disclosure agreement (“NDA”) with OCC that required Dr. Maguire to “keep all Confidential Information strictly confidential and not disclose it to any person, except as required for [Dr. Maguire] to work on the [OCC Review] and only to individuals employed by [Dr. Maguire] who need to know the information in order to work on the [OCC Review] on behalf of [Dr. Maguire].” NDA at 1; see also Maguire Decl. ¶¶ 15-17. The NDA defined “Confidential Information” as “all information acquired by [Dr. Maguire] as a result of [his] employment with [OCC] including documents and deliverables produced by [Dr. Maguire] in connection with said employment, ” except for information “previously known by [Dr. Maguire] without a duty to keep such information confidential, ” “generally available to the public, ” or “independently developed by [Dr. Maguire] prior to his . . . engagement with [OCC].” NDA at 1. C. Dr. Maguire's Role with OCC

Although the NDA does not describe Dr. Maguire's role with OCC, the parties have submitted evidence on the matter. First, the OCC Report itself explains that the third-party experts retained by OCC “provided their experienced assessments of NYPD's policies and practices”; “advised the review team on issues including crowd psychology, best practices in policing protests, and behavioral science as they related to policing and protests”; “contributed to the content of [the OCC Report]”; and “vetted and endorsed all of the recommendations in [the OCC Report].” OCC Report at 9. The OCC Report states that Dr. Maguire “advised” on the creation of a “strategic checklist” “for planning and responding to” future “First Amendment events.” Id. at 9, 46-50. The checklist, which appears as the final section of the report, covers numerous protest-related matters, from “gather[ing] intelligence about the nature of the event” and “develop[ing] a clear plan for responding to acts of property damage or violence” to “ensur[ing] that officers' emotional health and wellness needs are being met” and coordinating “between the NYPD and the relevant District Attorney's office, ” the Law Department, and City Hall. Id. at 47-50.

An uncontroverted declaration from Assistant Corporation Counsel Gavin Mackie, a member of the Review Team, explains that:

From the beginning of the analysis, Maguire participated in discussions regarding the scope of the review and the strategies the Review Team would pursue. He helped shape document requests and other inter-agency communications. He assisted in developing framing questions and had access to and participated in the Review Team's internal deliberations and conversations at every step of the analysis.

Id. ¶ 12. Mackie further notes that Dr. Maguire “reviewed and provided extensive feedback on drafts of the Corporation Counsel Report.” Id. ¶ 14. Mackie explains that the Review Team evaluated numerous materials, ranging from news reports to confidential documents from NYPD and other City agencies. See Mackie Decl. ¶ 6; OCC Report at 7. The Review Team wrote memoranda summarizing their “thoughts and impressions” regarding these materials, and “as part of the process of developing policy recommendations, ” gave the memoranda to Dr. Maguire, who “provided feedback” to the Review Team. Id. ¶ 13. Finally, Mackie notes that Dr. Maguire “had access to and provided feedback on the work product of other independent consultants.” Id.

Dr. Maguire's description of his role in the OCC Review is cursory but ultimately does not contradict Mackie's description. Dr. Maguire confirms that he “drafted [the] strategic checklist that was included in the final report.” Maguire Decl. ¶ 18. While he concedes that he “participated in team meetings[, ] and reviewed drafts of the [OCC] Report, ” he also claims that he “do[es] not recall the particulars of their substance.” Id. ¶ 19. Dr. Maguire states that he did not retain “any documents or files” from his work on the OCC Review and did not “participate in any discussions with [OCC] regarding future litigation or any related strategy.” Id. ¶¶ 20-21.

D. OAG's Retention of Dr. Maguire

Beginning in early 2021, OAG sought to “retain an expert or multiple experts with the experience and knowledge to testify about the significant issues” in this case. Marquez Decl. ¶ 2. In particular, “OAG...