After the murder of George Floyd in May 2020, there were nationwide protests against police brutality. One was on Boston Common after which four protesters filed a federal lawsuit against the City of Boston and three individual police officers. Pursuant to 42 U.SC. § 1983, the plaintiffs alleged that the officers used unreasonable and excessive force against them and violated their First Amendment rights. The lawsuit included a municipal liability claim against the city.
Following the protest, the Boston Police Department Peer Support Unit held a series of Critical Incident Stress Debriefings (CISDs) for officers. No records were made of what occurred at the debriefings.
The plaintiffs deposed a Lieutenant Detective who, along with his unit, participated in the CISDs. In his deposition, the Lt. Det. said he didn’t receive therapy from the person who led the debriefing, he didn’t know the person’s name or qualifications, and he only met the person once at the group session.
The Lt. Det. said topics of discussion included the “antipolice sentiment that was evident and the officers’ feelings.” When asked what was actually said during the CISDs, the Lt. Det.’s attorney directed him not to answer based on “a therapist privilege, a counsel privilege [and a] EAP [employee assistance program] privilege.”
Plaintiffs’ discovery motion
After the Lt. Det.’s initial deposition, plaintiffs filed a motion to compel the Lt. Det. to answer questions about officers’ communications during the CISDs. They argued the three defendant officers and other officers had given “startlingly consistent” statements of events at the protest — as if they’d gotten their stories straight to protect themselves from accountability for misconduct.
Plaintiffs asserted this story-straightening could be attributable to the debriefing sessions in which the Lt. Det. said the officers expressed a belief the protests were more broadly antipolice, rather than just against police brutality. Given that belief, the officers’ communications during the CISDs were relevant to an element plaintiffs had to prove in their claims against the officers — that their protected speech was a motivating factor in the officers’ unreasonable force.
To prove their claim against the city, plaintiffs had to show a practice within the PD of ensuring officers’ stories matched to protect against accountability for misconduct. Information relating to the debriefing sessions during which such communications may have occurred would be relevant to municipal liability.
Defendants’ response
The defendants asked for a protection order against having to disclose communications made during the CISDs, arguing they were privileged and confidential.
Court’s order
You can read the U.S. District Court of Massachusetts’ Order on Plaintiffs’ Motion to Compel, issued December 18, 2023. As context, in civil litigation Federal Rule of Civil Procedure 26(b) authorizes “discovery regarding any nonprivileged matter that is relevant to the party’s claim or defense …”
The court found the information the plaintiffs sought was relevant to their claims. It also found the defendants had failed in their struggle to define the precise nature of the privilege they claimed. While the defendants claimed the privilege was “much like the patient-psychotherapist privilege,” they made no such showing. According to the Director of the CIS Management Team, the sessions were “not therapy,” and the Lt. Det. had testified he received no therapy. A Massachusetts case cited by the defendants dealt with a social worker privilege, which didn’t apply to the case at hand.
The court was also not persuaded by the defendants’ arguments about the purported confidentiality of CISDs overriding Rule 26(b)’s broad discovery of any “nonprivileged” information. Accordingly, the court granted the plaintiffs’ motion to compel discovery of the officers’ communications during the CISDs.
The takeaway
I was unable to find an appeal by the defendants of the court’s order. It may be that the time for an appeal hasn’t lapsed, or it has been extended. Given this existing U.S. District Court order, however, police departments that use CISDs, or something similar, should consult with the government attorneys who handle civil litigation about their debriefings, any policies, procedures, or customs surrounding them, and whether officers are mandated to attend. Also, officers should be notified that their communications during such debriefings may be discoverable in civil litigation.
