UPDATES & ANALYSIS

7.14

Federal court says grand jury may see records of investigation into Iowa State Patrol officer misconduct

by Rox Laird | July 14, 2020

The U.S. Court of Appeals for the Eighth Circuit affirmed a federal court order denying the Iowa Department of Public Safety’s motion to quash a grand jury subpoena for department records related to an investigation of an Iowa State Patrol officer for misconduct or use of excessive force.

The August 2019 subpoena ordered the Department of Public Safety to appear before the grand jury with documents, including records related to an investigation of an officer identified in public court records as John Doe related to an investigation of Doe for “misconduct, violations of ISP policy, use of force, and other legal/administrative violations.”

IDPS moved to quash portions of the subpoena, which Chief Judge John Jarvey of the Southern District of Iowa denied in a sealed order. IDPS appealed, and the Court of Appeals affirmed Jarvey’s order. The three-judge panel ruling handed down July 9 was written by Judge James Loken of Minneapolis and joined by Judges Morris S. Arnold of Little Rock, and Steven Grasz of Omaha. The Eighth Circuit, based in St. Louis, has jurisdiction in federal appeals in seven states, including Iowa.

“The Supreme Court has repeatedly recognized ‘the longstanding principle that the public has a right to every man’s evidence, except for those persons protected by a constitutional, common-law, or statutory privilege’,” the appeals court said, quoting the 1972 U.S. Supreme Court decision in Branzburg v. Hayes.

“In this case, IDPS has not asserted a common law or constitutional privilege of the executive branch of government . . . nor does IDPS rely on a federal, state, or local statutory privilege,” Loken wrote for the panel. “Rather, its motion to quash was based upon Rule 17(c)(2) of the Federal Rules of Criminal Procedure, which provides: ‘On motion made promptly, the court may quash or modify the subpoena [duces tecum] if compliance would be unreasonable or oppressive.’ ”

IDPS argued that the challenged portions of the subpoena are unreasonable because producing internal investigation materials would violate participating officers’ Fifth Amendment privilege against self-incrimination, and because confidentiality is essential to overcome the so-called “blue wall of silence” by assuring officers they can cooperate without being ostracized or prosecuted.

The court dismissed those arguments.

“We agree with the District Court that this interest, while important, does not control the issue in this case,” Judge Loken wrote. “As the District Court noted, the Fifth Amendment privilege applies only to self incrimination. Whether to discipline an officer for refusing to discuss another officer’s misconduct, the most effective way to take down the ‘blue wall,’ is an issue of state law and agency policy. Therefore, compliance with a federal grand jury subpoena will not ‘intrude gravely’ on IDPS’s ability to deal effectively with any ‘blue wall’ it encounters in conducting its internal investigations.”

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