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Ocie L. Brummell, Administratrix of the Estate of Malcolm Brummell v. City of Harrisburg

July 8, 2011

OCIE L. BRUMMELL, ADMINISTRATRIX OF THE ESTATE OF MALCOLM BRUMMELL, PLAINTIFF,
v.
CITY OF HARRISBURG, CHARLES KELLAR AND MARC MOULE, DEFENDANTS.



The opinion of the court was delivered by: Martin C. Carlson United States Magistrate Judge

Judge Conner Magistrate Judge Carlson

MEMORANDUM OPINION AND ORDER

I. Statement of Facts and of the Case

This is a civil rights case brought on behalf of the estate of Malcolm Brummell, an individual who was shot and killed on the early morning hours of September 23, 2007, by Marc Moule, who was then an off-duty Harrisburg Police officer. On September 21, 2009, Ocie Brummell, as the administratrix of Malcolm Brummell's estate, brought this action, naming Moule, along with the then chief of police for the Harrisburg Police Department, Charles Kellar, and the City of Harrisburg as defendants. With respect to Kellar and the City of Harrisburg, the plaintiff's complaint couches the liability of these defendants in the following terms:

25. The City of Harrisburg and the Bureau of Police, under the leadership of Defendant Kellar, have lacked, and continue to lack, sufficient safeguards to prevent police officers like Officer Moule from engaging in lethal behavior such as prematurely discharging a firearm without justification.

26.The City of Harrisburg and the Bureau of Police, under the leadership of Defendant Kellar, have lacked, and continue to lack, sufficient safeguards to prevent police officers like Officer Moule from profiling and targeting African Americans.

27. The City of Harrisburg and the Bureau of Police, under the leadership of Defendant Kellar, have failed to train adequately their police officers so as to minimize or prevent police officers like Officer Moule from engaging in lethal behavior such as prematurely discharging a firearm without justification.

28. The City of Harrisburg and the Bureau of Police have failed to train adequately their police officers so as to minimize or prevent police officers like Officer Moule from profiling and targeting African-Americans.

29. Such abjectly deficient training and supervision by Defendant Kellar and the Bureau of Police were evidenced by Defendant Moule's extremely tactically inadequate actions, including his failure to notify the police department immediately at the time he observed the events that gave rise to the instant suit and his failure to properly identify himself with a proper police badge, insignia or any other readily identifiable police gear when he approached the scene of the purported altercation on the night in question.

30. The City of Harrisburg and the Bureau of Police, through their lack of sufficient supervision, have created and fostered an environment that encourages behavior amongst its police officers that is consistent with the behavior described herein by Officer Moule. (Id.)

Thus, as to defendants Kellar and City of Harrisburg, the plaintiff's complaint is expressly premised on a failure to adequately train and supervise Officer Moule. Set against the backdrop of these allegations, the parties are now embroiled in a discovery dispute which we have been asked to resolve. This dispute relates to a request by the plaintiff to obtain discovery which may assist them in proving what they have alleged with respect to Kellar and the City of Harrisburg.

Specifically, in the course of discovery, the defendants have provided the plaintiff with the police department's Internal Affairs investigation report into the September 2007 fatal shooting of Brummell, and have also identified other internal investigations into excessive use of force complaints leveled against Harrisburg Police Officers during a 9-year period from 2000 through 2009. The defendants have provided a summary of these other reports to the plaintiff, but have declined to produce these other internal affairs reports in their entirety, citing executive and deliberative process privileges. Arguing that the reports may reveal systemic shortcomings in training or conduct by Harrisburg police, and contending that the reports may also provide grounds for a punitive damages claim in this case, matters which may be relevant to the plaintiff's claims against Kellar and the City of Harrisburg, the plaintiff seeks wholesale disclosure of these reports.

This discovery dispute was referred to the undersigned for resolution. Following a conference with counsel, we elected to conduct an in camera review of a selected sample of the reports to determine whether disclosure of the reports was necessary or proper. The defendants have provided us with a sample, consisting of five of the reports. Having conducted this in camera review, we will deny the motion to compel production of these reports, with one narrow exception which we discuss below.

II. Discussion

A. Standards of Review

Several basic guiding principles inform our resolution of the instant discovery dispute. At the outset, Rule 37 of the Federal Rules of Civil Procedure governs ...


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