Swann v. City of Richmond, CIV.A. 3:06CV069.

462 F.Supp.2d 709

Dwayne SWANN, Plaintiff, v. CITY OF RICHMOND, et al., Defendants.

No. CIV.A. 3:06CV069.

United States District Court, E.D. Virginia, Richmond Division.

November 17, 2006.

COPYRIGHT MATERIAL OMITTED

Steven D. Benjamin, Betty Layne Des Fortes, Richmond, Joshua David Wolson, Covington & Burling, Washington, DC, for Dwayne Swann, Plaintiff.

David John Freedman, William Joe Hoppe, Office of the City Attorney, David John Freedman, William Joe Hoppe, David P. Corrigan, Harman Claytor Corrigan & Wellman, David John Freedman, Office of the City Attorney, Robert S. Reverski, Jr., Charles Franklin Midkiff, Midkiff Muncie & Ross PC, Richmond, VA, for The City of Richmond, Virginia, James Earl Wilson, Kevin Paul Hathaway, Michael Sean Mocello, Defendants.

MEMORANDUM OPINION

WILLIAMS, Senior District Judge.

This matter is before the Court on the defendants's motion to compel plaintiff to answer deposition questions. The Court has reviewed the defendants's motion and memoranda and the plaintiffs response. Moreover, a hearing was held on November 8, 2006, at which time both sides presented their positions orally. For the reasons state herein, the defendants's motion to compel plaintiff to answer deposition questions will be denied.

This case arises out of the February 4, 2004 shooting of the plaintiff by the three Richmond police officer defendants in this case. Plaintiff is suing the defendants for monetary damages as a result of the injuries he sustained from that shooting. The liability of the individual defendants turns on whether they acted reasonably when they shot the plaintiff, who was sitting, unarmed, in the backseat of a car at the time.

On August 3, 2006, the plaintiff was deposed. During that deposition, the plaintiff asserted his Fifth Amendment right not to testify against himself in response to a number of questions about his alleged drug use prior to the February 4, 2004 shooting. The defendants contend in their motion that the "[p]laintiff repeatedly refused to answer (1) questions concerning his actions, and (2) concerning his involvement with drugs on the date of the occurrence and their effect on him." Defs.'s Mot. Compel ¶ 6. After reviewing the relevant portions of the plaintiffs deposition transcript, however, the Court can only find instances where the plaintiff refused to answer questions of the latter kind: those concerning his involvement with drugs. Either way, however, the defendants contend that plaintiffs assertion of his Fifth Amendment right in response to these questions was improper and warrants either dismissal of the case or a series of jury instructions allowing an adverse presumption as to each item of testimony. The Court disagrees.

The Supreme Court noted in Griffin v. California that a court may not impose a sanction on a litigant that would make an assertion of his Fifth Amendment privilege "costly." Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The Supreme Court has gone on to suggest, moreover, that a court cannot compel a party in a civil action "to answer deposition questions ... over a valid assertion of his Fifth Amendment right, absent a duly authorized assurance of immunity at the time." Pillsbury Co. v. Conboy, 459 U.S. 248, 256-57, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983). This makes sense because if a party in a civil case were forced, to answer deposition questions in a manner that might expose him to criminal liability, he would essentially be forced to choose between asserting his Fifth Amendment privilege and dropping his lawsuit, or continuing with his lawsuit and exposing himself to criminal liability. This is precisely the type of "cost" associated with assertion of a Fifth Amendment privilege that the Supreme Court has condemned. See Pillsbury, 459 U.S. at 256-57, 103 S.Ct. 608, Griffin, 380 U.S. at 614, 85 S.Ct. MS. As the D.C. Circuit noted in Black Panther Party v. Smith;

Requiring a plaintiff to choose between proceeding with his lawsuit and claiming the privilege clearly imposes a substantial cost. This cost cannot be justified on the sole ground that the plaintiff chose to initiate the suit and thus can be characterized as a voluntary litigant. Again, an individual "voluntarily" becomes a plaintiff only because he believes the courts provide the best means of protecting his rights. Indeed ... an automatic waiver rule raises serious due process questions; the plaintiff is in effect deprived of his day in court.

Black Panther Party v. Smith, 661 F.2d 1243, 1271 (D.C.Cir.1981) (footnote omitted).

Scholarly authority also supports the proposition that district courts should avoid compelling a party in a civil action to answer deposition questions in spite of an assertion of Fifth Amendment privilege. Wright and Miller, for instance, note that "[i]t is inconceivable that by exercising the constitutional right to bring or defend an action a person waives his or her constitutional right not to be a witness against himself or herself, and no case has so held." 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2018 (2d ed.1994). While Wright and Miller go on to note that there is some authority for imposing sanctions on such persons, they describe this authority as "scattered." Id. None of it, moreover, appears to be binding on this Court. Id.

That being said, there are certain limited exceptions to the principle described above, namely those cases where assertion of the Fifth Amendment privilege would thwart "discovery of issues at the heart of plaintiffs lawsuit." Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084, 1086 (5th Cir.1979). Indeed, courts have held that "... it is proper to dismiss the claim of a plaintiff who exercises his privilege against self-incrimination to refuse to answer questions related to the issues involved in the litigation which he has instituted." Mount Vernon Sav. and Loan v. Partridge Assocs., 679 F.Supp. 522, 529 (D.Md.1987). To permit otherwise would allow the party "to gain an unequal advantage against the party he has chosen to sue" and thus enable him "to use his Fifth Amendment shield as a sword." Wehling, 608 F.2d at 1087.

Considering the current state of the law, therefore, a balancing approach appears to be warranted in cases, like this one, where a party to a civil action asserts a Fifth Amendment privilege and refuses to answer deposition questions. See Serafino v. Hasbro, Inc., 82 F.3d 515, 518 (1st Cir.1996); Wehling, 608 F.2d at 1088; United States v. Irish People, Inc., 684 F.2d 928, 951-52 (D.C.Cir.1982). The Fifth Circuit adopted this approach in Wehling v. Columbia Broadcasting Sys., where it found "that a civil plaintiff has no absolute right to both his silence and his lawsuit. Neither, however, does the civil defendant have an absolute right to have the action dismissed anytime a plaintiff invokes his constitutional privilege." Id. at 1088. Instead, it found that "[w]hen plaintiffs silence is constitutionally guaranteed, dismissal is appropriate only where other, less burdensome, remedies would be an ineffective means of preventing unfairness to defendant." Id. The First Circuit adopted a similar approach, in Serafino v. Hasbro, Inc., where it noted that "while a trial court should strive to accommodate a party's Fifth Amendment interests ... it also must ensure that the opposing party is not unduly disadvantaged." Serafino, 82 F.3d at 518. It found that "the Fifth Amendment privilege should be upheld unless defendants have substantial need for particular information and there is no other less burdensome effective means of obtaining it." Id. (citing Black Panther Party v. Smith, 661 F.2d 1243, 1272 (D.C.Cir. 1981)). Thus, in considering the merits of the defendants's motion in this case, this Court weighed: (1) the validity of the plaintiffs assertion of his Fifth Amendment privilege, (2) the costs to the plaintiff associated with compelling him to answer the deposition questions at issue, (3) the extent to which upholding his assertion would thwart discovery of issues at the heart of plaintiff's lawsuit, and (4) whether and how easily the defendants could obtain the information sought from other sources. All four factors demonstrated that the defendants's motion to compel should be denied.

First, plaintiff undoubtedly has a valid Fifth Amendment privilege in the face of the questions at issue. He was asked, for instance, "[t]he night of the incident ... what time did you take the eight ball?" and "[w]hen was the last time, prior to the incident where you got shat, in terms of hours, minutes, and days, that you last took cocaine?" Swann Dep. 70:16-19, 77:23-25, August 3, 2006. Given that drug use is a felony under Virginia law, if plaintiff answered these questions, he would be testifying against his interests. Va.Code Ann. §§ 18.2-250, 54.1-3446 (2004).

Second, given that the plaintiff had not been granted immunity, the cost to the plaintiff associated with compelling him to answer the deposition questions at issue is high; he would be exposing himself to possible criminal prosecution. While the defendants contend that plaintiffs fear of prosecution is unfounded given that "plaintiff and his counsel were given a letter from the Richmond Commonwealth's Attorney, advising that there was no intent to prosecute plaintiff for any potential drug possession charges," this' does not suffice in protecting plaintiff from criminal liability such that his Fifth Amendment assertion would be unneeded or unjustified. Defs.'s Mot. Compel ¶ 5. Indeed, as the plaintiff recognizes in his reply brief, "[a]lthough Defendant may think a federal prosecution is unlikely, a valid assertion of the Fifth Amendment privilege requires only the `existence of a plausible possibility' that a person will be prosecuted." Pl.'s Opp'n to Defs.'s Mot. Compel 2 n. 1. (citing United States, Inc. v. Custer Battles, LLC, 415 F.Supp.2d 628,...