Turiano v. City of Phx.

562 F.Supp.3d 261

Christopher TURIANO, Plaintiff,

v.CITY OF PHOENIX, et al., Defendants.

No. CV-21-01428-PHX-MTL

United States District Court, D. Arizona.

Signed February 4, 2022

Cassidy Layne Bacon, Eric Reginald Wilson, Michael Napier, Napier Coury & Baillie PC, Phoenix, AZ, for Plaintiff.

Stephen Barry Coleman, Pierce Coleman PLLC, Scottsdale, AZ, for Defendant City of Phoenix.

PRELIMINARY INJUNCTION

Michael T. Liburdi, United States District Judge

Pending before the Court is Plaintiff Christopher Turiano's Motion for Preliminary Injunction (Doc. 10). The Motion is fully briefed (Docs. 10, 16, 23, 26), and the Court held an evidentiary hearing on December 7, 2021 (Docs. 44, 52). After the hearing, the parties filed closing briefs. (Docs. 53, 54.) For the reasons that follow, the Court will grant the motion and issue an injunction.

I. INTRODUCTION

A. Factual Background

The Court makes the following factual findings based on Plaintiff's Complaint, the parties’ written submissions on Plaintiff's Motion for Preliminary Injunction, and the evidentiary hearing held on December 7, 2021.

This action involves an attempt by the Phoenix Police Department (the "Department") to access data located on Officer Christopher Turiano's personal cell phone pursuant to an internal investigation. Turiano is a 25-year veteran of the Phoenix Police Department who is currently assigned to the Department's Downtown Operations Unit ("DOU"). (Doc. 10 at 2; Doc. 52 at 105.) Until recently, Turiano also served in the Department's Tactical Response Unit ("TRU"), a specialty detail responsible for crowd control and intervention at large events and protests. (Doc. 10 at 2; Doc. 52 at 91, 105–06.) Turiano served in the TRU as a grenadier—an officer trained in the discharge of munitions. (Doc. 52 at 91–92, 106.)

On August 22, 2017, the TRU, including Turiano, was assigned to oversee ground operations at a large protest in downtown Phoenix. (Id. at 106.) Throughout the course of the evening, the protest devolved into violence, with various reports of protestors defying law enforcement instructions, damaging property, and throwing items in the direction of law enforcement. (Doc. 16 at 2.) After one protestor (later identified as Joshua Cobin) kicked a tear gas canister toward police, Turiano fired a 40mm OC direct impact round—a type of non-lethal munition—at him. (Doc. 52 at 106.) The round struck Cobin in the groin area. (Id. at 120.) The incident was captured on video and published by various local and national news media outlets. (Id. at 106–07.)

A year later, in September 2018, a group of protesters and two nonprofit groups filed a class action lawsuit against the City, Chief of Police Jeri Williams, and several members of the TRU, including Turiano, for excessive use of force in connection with the protest (the "Protest Lawsuit"). (Doc. 16 at 2–3; Doc. 52 at 108–09.) The Department and officers are being defended in the Protest Lawsuit by law firms Osborn Maledon and Manning & Kass, Ellrod, Ramirez, Trester, LLP. (Doc. 10 at 3.) During discovery in that case, attorneys from Osborn Maledon requested that the officer defendants, including Turiano, allow their personal cell phones to be imaged and searched for specific terms relating to the litigation.¹ (Doc. 10 at 3; Doc. 52 at 92, 109.) Upon voicing privacy concerns, the officers were assured that the data would remain confidential, would be downloaded and stored by a third-party vendor, would be used only for purposes of the Protest Lawsuit, and would be subject to a protective order. (Doc. 10 at 3; Doc. 52 at 93–94, 110–11.) Due to these assurances, the officers, including Turiano, agreed to have their phones imaged. (Doc. 10 at 3; Doc. 52 at 94.) Shortly thereafter, Turiano's cell phone was imaged by D4 LLC, a third-party, with whom the data remains stored. (Doc. 10 at 3.) The stored data is subject to the terms of a protective order in the Protest Lawsuit. (Id. )

In February 2021, a media report was released concerning the existence of a challenge coin that appeared to commemorate the events of August 22, 2017. (Doc. 16 at 3; Doc. 52 at 12.) On one side, the coin depicted a caricature of Cobin being hit in the groin by Turiano's munition, along with the words "Good Night Left Nut." (Doc. 16 at 3.) On the other side, the coin stated the date and location of the protest and the phrase "Make America Great Again One Nut at a Time." (Id. ) After the media report was released, the City retained law firm Ballard Spahr to conduct an independent investigation into the creation and circulation of the coin. (Doc. 52 at 174–76.) The City also asked Ballard Spahr to investigate any potential connection between the inscription on the challenge coin and the neo-Nazi slogan "Good Night Left Side." (Id. at 176.)

In the course of the investigation, Ballard Spahr investigators sought access to the officers’ cell phone data that was imaged in connection with the Protest Lawsuit. (Doc. 16-1 at 18–19.) The investigators believed the data provided the best opportunity to locate information regarding the creation and distribution of the challenge coin, since the data was "captured closer in time to the 2017 protest ... than any information that investigators ... had access to." (Id. at 29.) Accordingly, in March 2021, Ballard Spahr attorneys requested the officers’ consent to search the stored data. Each of the officers, including Turiano, declined. (Id. at 14.)

Ballard Spahr's investigation was ultimately inconclusive as to the circumstances surrounding the design, creation, and dissemination of the challenge coin. (Doc. 16 at 5; Doc. 16-1 at 33–34.) The firm did conclude, however, that the coin was likely created by someone outside the Department: "While it is likely that someone outside of [the Department] created the coin and its original image and phrasing, investigators were unable to rule out the idea that [Department] employees were involved in the creation." (Doc. 16-1 at 33.) The investigation was likewise inconclusive as to whether there was a connection between the challenge coin and neo-Nazi ideology. (Id. at 20 ("[I]nvestigators encountered no evidence that the people who possessed or distributed the coin made any connection between the phrase ‘Good Night Left Nut’ and hate speech.").) The final investigative report also indicated that the investigation may have been more fruitful had investigators been able access to the imaged cell phone data: "The officers’ refusal to allow access to [their imaged cell phone] data undoubtedly prevented investigators from accessing relevant documents." (Id. at 32.) This conclusion appears to have informed the City's subsequent actions.

In July 2021, after the Ballard Spahr investigation concluded, the Department's Professional Standards Bureau ("PSB") proceeded with its own investigation into the challenge coin.² (Doc. 52 at 17.) In connection with that investigation, on July 28, 2021, Officer Turiano was interviewed by Lieutenant Ryan Junas. (Doc. 10 at 4.) Lieutenant Lois Weiss, Deputy Human Resources Director Denise Overstreet, and Turiano's union representative, Officer Michael Thomas, were also present. (Id. ) In the interview, Turiano was asked to consent to a targeted search of his imaged cell phone data. Specifically, PSB asked for his consent to search the imaged data for the following terms: "challenge coin," "one nut at a time," "Cobin," and the word "night" within five words of "left." (Doc. 16 at 5.) Turiano again declined. (Doc. 52 at 135.)

Two weeks later, on August 11, 2021, Turiano was notified by Lieutenant Junas that he was being compelled to consent to a targeted search of his stored cell phone data. Lieutenant Junas informed Turiano that if he did not comply, he would be subject to discipline, "up to and including termination." (Doc. 10 at 4–5.) Turiano was then directed to report to PSB the next day, August 12, 2021. (Id. at 5.) He did so, accompanied by Officer Thomas. (Doc. 52 at 35.) On his arrival, Turiano was again informed by Lieutenant Junas that he was being compelled to consent to a search of the imaged data. (Id. at 211.) Turiano again refused. Officer Thomas then notified Lieutenant Junas that the Phoenix Law Enforcement Association ("PLEA") believed the Department's actions to be a violation of Turiano's Fourth Amendment rights. (Id. at 35–36, 70.) Lieutenant Junas did not respond to Officer Thomas's statement, and instead served Turiano with a Notice of Investigation ("NOI") that read: "On July 28, 2021, you refused to participate fully in an administrative investigation by failing to provide materials requested by investigators. More specifically, you refused to consent to allow investigators access to data previously obtained by the City from your personal device." (Id. at 31, 36–37, 70.)

The City seeks to discipline Officer Turiano on the grounds that he violated Personnel Rules 21b3 and 21b16. Rule 21b3 reads:

That the employee has violated any lawful or official regulation or order, or failed to obey any lawful and reasonable direction given him by his supervisor, when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in lower morale in the organization, or to result in loss, inconvenience, or injury to the City or the public.

(Doc. 10 at 5.) Rule 21b6 reads: "That the employee has failed to cooperate in an administrative investigation by refusing to attend scheduled meetings, refusing to answer questions to the best of his knowledge, or willful obstruction of the investigation." (Id. )

B. Procedural Background

Turiano filed a Complaint and Motion for Temporary Restraining Order and Preliminary Injunction on August 18, 2021. (Docs. 1, 2.) The Court held a hearing on the motion the day it was filed. (Docs. 6, 7). At the hearing, the City agreed to postpone its investigative and disciplinary proceedings pending resolution of Turiano's preliminary...