Abu Ladd v. Jeffrey Pickering ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3806
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Abu Bakr Ladd, *
*
Appellant, *
*
v. *
*
James Martin, U.S. Attorney; Scott *
McKelvey, U.S. Attorney; Joseph *
Mokwa, U.S. Attorney; Michael *
Nicholson, U.S. Attorney; Robert *
Ogilvie, U.S. Attorney, *
*
Defendants, *
* Appeal from the United States
Jeffrey Pickering, Detective, * District Court for the
* Eastern District of Missouri.
Appellee, *
* [UNPUBLISHED]
Michael Ramos, U.S. Attorney; Ronnie *
Robinson, U.S. Attorney; Carlos Ross, *
U.S. Attorney; Francis G. Slay, U.S. *
Attorney; St. Louis Board of *
Commissioners, U.S. Attorney; *
Clifford States, U.S. Attorney; John *
Ware, U.S. Attorney, *
*
Defendants. *
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Submitted: July 7, 2009
Filed: August 3, 2009
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Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
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PER CURIAM.
In this 42 U.S.C. § 1983 action, Abu Ladd appeals the denial of his motion to
compel and the grant of summary judgment in favor of Jeffrey Pickering. Upon
careful review of the record and the parties’ arguments on appeal, we reverse the grant
of summary judgment, we reverse in part the denial of the motion to compel, and we
remand to the district court to conduct in camera proceedings.
The privilege against disclosing the identity of a confidential informant (CI) is
based on public interest in effective law enforcement, but that interest must be
balanced by the requirement of fundamental fairness. U.S. v. Lapsley, 263 F.3d 839,
842 (8th Cir. 2001); Roviaro v. United States, 353 U.S. 53, 59-60 (1957). Where the
disclosure of a CI's identity, or of the contents of the CI's communication "is essential
to the fair determination of a cause, the privilege must give way." Roviaro, 353 U.S.
at 60-61. In a civil case, the determination of whether a CI's identity is "essential" is
a question of law, and must be determined by balancing the plaintiff's need for the
information with the defendant's interest in non-disclosure. Id. at 62. An in camera
review is the appropriate means for the district court to determine whether the CI's
identity and communications are essential to Ladd's claim, while protecting the state's
interest in avoiding unnecessary disclosure of the CI's identity. Westcott v. Crinklaw,
68 F.3d 1073, 1078-79 (8th Cir. 1995).
On remand, we instruct the district court to order Pickering to produce for in
camera review documentary evidence, if available, of (1) the identity of the
confidential informant and (2) any alleged conversations between the informant and
Pickering concerning Ladd. The district court is instructed to examine the documents
to determine whether the CI's identity and the content of the CI's communications are
essential to Ladd's § 1983 claim against Pickering and the police department. We
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affirm the denial of the motion to compel in all other respects, but we vacate the grant
of summary judgment in light of our remand. Cf. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 n.5, 255 (1986) (noting that summary judgment should be denied
where nonmoving party has not had opportunity to discover information essential to
his opposition; in ruling on summary judgment motion, all justifiable inferences are
to be drawn in favor of nonmoving party).
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