Brown v. Miller

Background

Alice Brown alleges that Crescent City Police Officer Ethan Miller made a racially motivated traffic stop at 3:36 a.m. on January 1, 2018. Fact discovery closed on February 25, 2021. The magistrate judge addressed four discovery disputes.

1. Questions about social-media jokes

During Miller’s deposition, defense counsel instructed him not to answer questions about whether he had posted jokes on social media about Black people, Muslim people, immigrants, or gay people. The defense later cited privacy and lack of relevance.

The court explained that social-media content generally is not privileged or protected by a right of privacy. It also distinguished deposition questions from requests for production of social-media posts. Because a witness answers deposition questions from memory, the usual limits on document searches—such as specific platforms and time periods—do not apply in the same way.

The court found questions about jokes concerning Black people relevant as possible circumstantial evidence of racial bias. The court acknowledged that a racist joke would not by itself prove that Miller made a particular traffic stop for a racially motivated reason, but held that Brown was allowed to investigate such evidence and that the fact-finder could decide how persuasive it was. The court ordered that Brown could ask Miller about jokes he may have posted about Black people, including reasonable follow-up questions about the jokes and whether and when Miller deleted them. The court ordered that this deposition occur within 30 days.

The court did not allow the questions about jokes concerning Muslim people, immigrants, or gay people. It stated that Brown alleged racial profiling based on her being Black, but did not allege that she was a member of those other groups or that Miller acted against her because of animus toward them. The court therefore found those questions not relevant to the pleaded allegations.

2. Participation in protests

Defense counsel also instructed Miller not to answer questions about whether he had participated in a counter-protest to a Black Lives Matter protest or in a Blue Lives Matter protest. After further consideration, the court found these questions relevant enough to permit them.

The court reasoned that the meaning of participation in such protests could vary. For example, it stated that peaceful participation in a Blue Lives Matter protest supporting police would not likely show racist beliefs, while participation in a violent counter-protest involving prominent swastikas might provide circumstantial evidence of racial animus. The court held that depositions may be exploratory and allowed Brown to ask about Miller’s participation in any Black Lives Matter counter-protest or Blue Lives Matter protest, along with reasonable follow-up questions about the nature of the protests and Miller’s participation.

Miller argued that the questions infringed his First Amendment rights of political association. The court found that argument unpersuasive because the questions concerned participation in public protests rather than private political associations. The court described the protests as public activities that are often reported or photographed.

3. Preservation of social-media posts

Brown requested an order requiring Miller to take affirmative steps to preserve his social-media posts. The court noted that fact discovery had closed, the deadline to move to compel had passed, and Brown had not moved to compel production of the posts. Miller said Brown had not requested the posts in discovery, and the opinion states that Brown did not dispute this.

The court questioned why it should issue a preservation order after fact discovery had closed and stated: “Accordingly, the Court takes no action on it.”

4. Video of the traffic stop

The provided opinion text includes the heading “Video of the Traffic Stop,” but does not include the discussion of that dispute. The text then states that the court took no action on it. The reason for that disposition and the specific request concerning the video are therefore unclear from the provided text.

Disposition and effect

This was a discovery order, not a decision on whether Miller actually made a racially motivated traffic stop. The court permitted specified deposition questions about possible racial animus, did not permit the questions about jokes concerning Muslim people, immigrants, or gay people, and took no action on the social-media-preservation request and the video dispute.