Outlaw v. City Of New York

Background

Dashaun Outlaw alleges that on December 31, 2021, several New York City Police Department officers entered and searched his apartment, handcuffed him, and arrested and removed Christopher Jones. He brings claims under 42 U.S.C. § 1983 and New York State and City law, including claims for false arrest, illegal search and seizure, excessive force, and failure to intervene. The defendants include the City of New York and unidentified NYPD officers.

Outlaw sought information that would allow him to identify additional officers and amend his complaint. He took depositions of Detectives Alberto Torres and John Cutrona. The detectives had participated in the incident as members of the Regional Fugitive Task Force and had been deputized as Special Deputy U.S. Marshals.

The Touhy-approval issue

The Justice Department’s regulations under the federal Housekeeping Statute—commonly called Touhy regulations—govern when current or former federal employees, including officers serving on certain joint federal-state task forces, may disclose official information in proceedings where the United States is not a party. For oral testimony, the regulations require a request describing the testimony sought and its relevance. The regulations also require agency authorization or a decision by the Justice Department to share the information.

Outlaw had submitted a Touhy request for documents concerning the December 31, 2021 incident, but he did not submit a Touhy request for either deposition or obtain Justice Department authorization. He also did not notify the United States Marshals Service before taking the first deposition. He notified the Marshals Service before the second deposition but still did not obtain the required authorization.

Motion to strike

The United States Marshals Service, a non-party, moved to strike both deposition transcripts and the information derived from them. The court held that it had inherent authority to remove improper materials from the case docket. It concluded that the depositions were obtained in violation of the Justice Department’s Touhy regulations and that Outlaw’s counsel knew the regulations applied to the detectives.

The court granted the Marshals Service’s motion to strike. It struck the two deposition transcripts, the proposed amended complaint because its added components largely relied on information from the unauthorized depositions, and the related declarations to the extent they referred to that information. The court did not need to decide whether Federal Rule of Civil Procedure 12(f), which permits courts to strike certain improper matter from a pleading, independently applied to the exhibits.

Motion to amend

Outlaw moved for leave to file an amended complaint that would identify additional officers, add claims based on alleged failures to document, and seek declaratory and injunctive relief. The court denied, without prejudice, the motion for leave to amend.

The court held that the amendment was untimely under either potentially applicable standard. Under Rule 16(b), which governs modification of a court-set deadline, Outlaw had not shown the required good cause for filing the proposed amendment seven months after the extended deadline he had requested. Under Rule 15(a), which generally allows amendments when justice requires, the court found that the use of information obtained through improper means, along with undue delay and possibly bad faith, independently supported denial.

Disposition and next steps

The court directed that several listed exhibits and declarations be placed under seal. It also stayed further litigation for 30 days, until December 19, 2024, so Outlaw could urgently seek Justice Department approval after the fact for the depositions or portions of them. If approval were obtained, the court said it would entertain a motion for leave to amend allegations consistent with that authorization. The court stated that if approval were not obtained within the 30-day period, Outlaw should not expect the court to consider a renewed motion to amend. After the stay, the parties were directed to propose a schedule anticipating the close of fact discovery at the end of February 2025.