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Several Indianapolis Metropolitan Police Department documents related to the death of Herman Whitfield III can be withheld until the criminal cases against two officers involved in his death are resolved, a federal judge has ruled. But other documents not related to the criminal cases must be produced.
Indiana Southern District Court Magistrate Judge Mark Dinsmore issued the order Monday in The Estate of Herman Whitfield, III v. The City of Indianapolis, et al., 1:22-cv-01246.
The case stems from the death of Whitfield, who died in April 2022 after being tased and restrained by IMPD officers while in their custody. Whitfield’s parents had called police to the family home because Whitfield was experiencing a “mental health crisis.”
A year later, a Marion County grand jury indicted officers Adam Ahmad and Steven Sanchez on several felonies related to Whitfield’s death, including involuntary manslaughter and reckless homicide.
Ahmad and Sanchez moved to stay the federal case pending the resolution of the criminal cases, but the federal court declined. However, it did stay all written discovery directed to Sanchez and Ahmad, as well as their depositions.
At issue in Monday’s order was a motion to compel discovery filed by Whitfield’s estate.
On June 28, when the motion was filed, the city was withholding numerous documents on the grounds that they were protected by the law enforcement investigatory and deliberative process privileges, Dinsmore wrote. The city also had instructed two witnesses — Deputy Chief Kendale Adams and Deputy Chief Catherine Cummings — not to answer certain questions during depositions based on the same privilege assertions.
“However, as Plaintiff notes in its motion, on that date ‘counsel for Defendant City communicated to Plaintiff’s undersigned counsel that the City intends to produce in the next several weeks much of the discovery previously withheld, but will likely continue to withhold other discovery covered by this motion,’” Dinsmore wrote. He added in a footnote, “Given this communication, it would have been prudent for Plaintiff to wait to file the instant motion until after the City’s production, so that the actual dispute between the parties would have been more clearly defined when the motion was filed.”
According to Dinsmore, by the time the city filed its response on July 26, it had committed to making a supplemental document production and withdrawing its privilege claims as to many of the documents at issue. The reason for that change of position, he said, was the fact that the criminal and internal affairs investigations were largely complete.
In its response brief, the city said it was withholding only a “handful” of documents, which it described generally as “Internal Affairs materials related to Officers Ahmad and Sanchez, text communications with Officers Ahmad and Sanchez, case interview notes, and Blue Team materials,” and which it argued “fit squarely within the law enforcement investigatory and deliberative process privileges or Officer Ahmad’s and Officer Sanchez’s Fifth Amendment rights.”
The court ordered the city to provide all the withheld documents for an in camera review, and the city produced 16 such documents.
Following its review, the court denied the motion to compel as to the following documents:
- The audio recording of Ahmad’s statement.
- The transcript of Ahmad’s statement.
- The audio recording of Sanchez’s statement.
- The transcript of Sanchez’s statement.
- Notes taken during Ahmad’s statement.
- Notes taken during Sanchez’s interview.
- Additional documents relating to Sanchez’s statement.
Those documents, Dinsmore wrote, do not have to be produced after the discovery stay is lifted. Also, the portions of additional documents that contain summaries of Ahmad and Sanchez’s statements may be redacted.
As for the remaining documents — which include additional officer interviews and other law enforcement notes — “The City asserts the law enforcement investigatory privilege, the deliberative process privilege, and ‘5th Amendment’ as to each of these documents,” Dinsmore wrote.
But “(t)he City may not assert the Fifth Amendment rights of Sanchez and Ahmad on their behalf,” he continued, “and given that none of the remaining documents involve compelled statements made by them … the officers also could not assert those rights at to those documents.”
Turning next to the law enforcement investigatory privilege, Dinsmore pointed out that the only potential non-IMPD witnesses of which the court is aware are Whitfield’s parents and the medical personnel who were on the scene.
“These are not the type of witnesses whose identities need protecting or who would be likely to refuse to provide information because that information might be discoverable; indeed, the City’s claim that these witnesses ‘could then be intimidated and/or threatened by various members of the community for providing evidence in a case where the allegations involve police officers engaging in criminal activity,’ is quite perplexing,” he wrote.
Finally, the city submitted a declaration from Deputy Chief Cummings, the department head over internal affairs, in support of its assertion of the deliberative process privilege.
Dinsmore wrote that Cummings does not “specifically identify and describe the documents” in question, but instead speaks only of “any IA materials” generally.
“Here, the reasons given by Deputy Chief Cummings relate to the effect of disclosure on the pending criminal proceedings,” he wrote. “She does not set forth any reason related to the ability of the IMPD to deliberate and make decisions.”
The magistrate judge ordered that the documents for which he granted the motion to compel must be produced within seven days of the Oct. 30 order.
The criminal cases against Sanchez and Ahmad are pending in Marion Superior Court, with Sanchez’s jury trial scheduled to start Jan. 24, 2024, and Ahmed’s trial scheduled to begin Jan. 23, 2024.
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