From Judge William S. Stickman IV's opinion in Doe v. Northern Regional Police Dep't of Allegheny County (W.D. Pa.):
Plaintiff Jane Doe … [sued] to address purported violations of her constitutional rights arising from an incident with a male student, A.M., during the school day at Pine-Richland High School. She contends that due to the "shoddy, unprofessional, and inadequate investigation" undertaken by Defendants, A.M. was never prosecuted….
During the school day of January 7, 2019, Plaintiff, a "Latinx female," who was born in Guatemala and identifies as "Mayan/Native (Central) American," and "is of Hispanic origin," contends that she was "secluded" "in a school restroom where, ignoring her pleas to stop and physical resistance, [A.M.] restrained her, vaginally raped her with his penis, finger and tongue, forced her to perform oral sex, and attempted to anally rape her." She reported the incident to Pine-Richland High School personnel, law enforcement, and medical personnel that day.
{Before her parents arrived, Plaintiff began to provide school officials with a handwritten statement. When her parents arrived, she was directed to stop writing. Therefore, Plaintiff's statement was "unfinished" and "incomplete." According to Plaintiff, it "did not include the multiple additional forced penetration offenses that occurred, the multiple acts of indecent assault and sexual assault that occurred, or [her] attempts to escape." Her statement, which only described two of the five acts of forcible penetration committed against her, was given to Detective Rick by school personnel.} {That evening, Plaintiff gave a statement to medical personnel at the hospital. Three months later, she gave another statement in connection with a Sexual Violence Protection Order she obtained against A.M.} As to her report to law enforcement, Plaintiff gave a videorecorded statement to Detective Rick, a white male, at the Northern Regional Police Department in the presence of her mother.
On March 7, 2019, Detective Rick notified Plaintiff's mother that the Allegheny County District Attorney's Office decided not to prosecute A.M. During a telephone meeting with the prosecutor the next day, Plaintiff "told [the prosecutor] about the many offenses A.M. had committed," and the prosecutor "chastised [Plaintiff], stating 'you are changing your story!"' Plaintiff faults Detective Rick for conducting an "incomplete and inadequate investigation." She alleges that Detective Rick "committed multiple deliberate, premeditated acts to prevent the Allegheny County District Attorney from reviewing [her] complete statement, and instead provided substantially altered versions of her statement that he knew did not represent true, complete narrative […]." She takes issue with her "unfinished" and "incomplete" January 7, 2019 handwritten statement that was provided to school personnel becoming "an essential part of the criminal investigation materials presented to the Allegheny County District Attorney's office."
She faults Detective Rick for conveying to the prosecutor that she had a boyfriend at the time of the assault with "the implication being that [Plaintiff] would make a false claim of rape to explain an event of consensual sex with someone other than her boyfriend." She also faults Detective Rick for never having her January 7, 2019 interview transcribed and giving a transcript to the prosecutor. Furthermore, Plaintiff contends that Detective Rick failed to provide accurate information to the prosecutor, and that in his Incident Report he altered and/or omitted portions of her statement. {Plaintiff asserts that Detective Rick omitted from the narrative elements the elements of forcible compulsion, her attempts to escape, and that anal penetration was attempted. She contends that Detective Rick failed to characterize the violent nature of the incident and to note the difference in size, strength, and power between her and A.M. Additionally, she maintains that Detective Rick "mischaracterized" her family's refusal to surrender her cellphone.} According to Plaintiff, Detective Rick deliberately misidentified her as "Caucasian/Non-Hispanic," in his Incident Report.
Plaintiff asserts that Detective Rick's conduct weakened a case for prosecuting A.M., cast the encounter between her and A.M. as consensual, and created a credibility bias towards her. She posits that Detective Rick's "actions were motivated in part by his desire to protect the reputation" of the Pine-Richland School District as well as the reputation of A.M., who was a member of the high school football team.
As to the Northern Regional Police Department of Allegheny County, Plaintiff contends that it had a long-standing custom and policy of granting discretion to detectives conducting investigations of potential sex crimes. She further contends that it abdicated its responsibility to train, monitor and supervise detectives to ensure that their actions did not violate the rights of sex crime victims, comported with "best practices" free from bias, were free from prejudice (or favor for a potential defendant), and that decisions to recommend prosecution were based on evidence and free from outside influence….
The court concluded, however, that plaintiff's allegations, even if factually correct, wouldn't be legally actionable. First, as to the Equal Protection Clause:
Plaintiff claims that Detective Rick's alleged racial bias against her clouded his investigation. There is a distinction between the right to force the prosecution of a case and the right of access to judicial procedures, like a criminal investigation, to redress an alleged wrong. It is certainly true that police officers cannot discriminate on the basis of an alleged victim's race. The "selective withdrawal of police protection, as when the Southern states during the Reconstruction era refused to give police protection to their black citizens, is the prototypical denial of equal protection." Thus, a claim that police services were administered in a discriminatory manner and denied a victim protection is a viable equal protection claim.
However, Plaintiff has failed to plead a plausible basis for a claim of alleged discriminatory failure to adequately investigate her complaint against A.M. based on her ethnicity or race. She had to set forth a plausible case-specific account of intentional discrimination but merely pled the elements of an equal protection claim clothed in threadbare allegations of supporting fact[:]
Detective Rick deliberately misidentified Ms. Doe as "Caucasian/Non-Hispanic" because people of color are known to be more at risk for rape and it might reflect negatively on him if such an accusation were not followed up with criminal charges, which itself might invite a review to determine if a more thorough investigation should have been done. Ms. Doe was born in Guatemala; her race is Mayan/Native (Central) American and she is of Hispanic origin. Detective Rick never asked Ms. Doe's parents about her race or ethnicity, but from her appearance alone, with her dark skin and features, Ms. Doe clearly is not Caucasian. This apparent error could not have been the result of negligence or incompetence, particularly considering that Detective Rick clearly identified JROTC instructor Michael Gasparetto as "Hispanic" in his Incident Report and clearly identified the race and ethnicity of most other individuals mentioned in the report. Bias against Ms. Doe's ethnicity or race appears to be the only motive for Detective Rick's decision….
Defendants intentionally treated Ms. Doe differently from other victims of rape and sexual assault with respect to the investigation of the crimes committed against her, and there was no rational basis for the difference in treatment…. Defendants intentionally and irrationally singled Ms. Doe out for dissimilar treatment…. Defendants' official acts in connection with the investigation of the rape and sexual assault committed against Ms. Doe were motivated by improper considerations and an illegitimate animus toward Ms. Doe…. Defendants deliberately sought to deprive Ms. Doe of the equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution for reasons of a personal nature unrelated to their official duties…. There was no rational basis for the manner in which defendants investigated Ms. Doe's rape and sexual assault, and the decisions they made during the course of the investigation…. Defendants' selective adverse treatment of Ms. Doe was based on her race and other arbitrary factors…. During the investigation, defendants selected particular courses of action in part because of their adverse effects, specifically, that A.M. would not be prosecuted and that Ms. Doe would suffer the emotional distress and related damages alleged above….
All Plaintiff pled are vague and speculative "facts," and legal conclusions as to discrimination. It is not enough to merely plead accusations. A certain degree of factual specificity is required to support Plaintiff's claims. Plaintiff must plead enough details about the subject matter of her case to present a story that holds together and that supports her accusations with a basis in plausible, articulable facts.
Proof of discriminatory intent or purpose is required to demonstrate an ethnicity or race based violation of the equal protection clause. Thus, Plaintiff had to demonstrate discriminatory intent in her Amended Complaint but it is bereft of facts regarding exactly how Plaintiff was targeted or intentionally treated differently during the police investigation than other sexual assault victims on account of her ethnicity or race. She has identified no comparative cases and has failed to come forth with any specific facts as to how the alleged inadequacies in the investigation were based on her ethnicity or race. There is no indication that Defendants ever stated that they would not adequately investigate Plaintiff's allegations because they thought she was undeserving of equal law enforcement protection due to her ethnicity or race. No facts set forth in the Amended Complaint raise an inference that Defendants' investigatory decisions were motivated by discriminatory animus.
Law enforcement decisions are highly discretionary and oftentimes require an officer to assess multiple variables…. "[I]t is no proper to challenge what in its nature is a subjective, individualized decision that it was subjective and individualized." Plaintiff's equal protection claim amounts to nothing more than a generic claim that Detective Rick's investigation was inadequate and, therefore, it must have been motivated by some unalleged personal animus toward her "ethnicity or race." Plaintiff does not have to prove her case in her complaint, but she cannot baldly plead that Detective Rick's allegedly faulty investigation was based on ethnicity or race and offer no concrete basis—beyond her own race—to reach that conclusion….
The court likewise rejected plaintiff's due process claim:
The due process clause is primarily concerned with preventing government from abusing its power or employing it as an instrument of oppression. It is not generally used to impose affirmative obligations on government actors to provide aid to citizens or to provide citizens with a constitutionally guaranteed right to receive these services. Because the due process clause does not guarantee a right to government aid, it does not generally provide a cause of action when that aid is rendered inadequately. While government officials may be legally required to investigate and prosecute crimes, the duty is performed for the benefit of the public generally and is not owed to any one member of the public individually.
Here, it is unclear what government action Plaintiff is alleging shocks the conscience to the point of being an actionable substantive due process claim. All she has pled is that: "Defendants' actions were an egregious, outrageous, and arbitrary assertion of government authority that shocked the conscience and violated Ms. Doe's right to substantive due process." She contends in response to Defendants' motion "that defendants' actions in conducting a rape and sexual assault investigation based on bias and prejudice 'shock the conscience,' regardless of whether a rape and sexual assault investigation free from bias and prejudice would or would not have resulted in prosecution of A.M." Plaintiff's conclusory assertions are devoid of any factual development and she fails to identify the basis for a substantive due process claim.
As noted in the previous section, Plaintiff has come forth with no specific facts as to Defendants' "bias and prejudice." Without such facts, her allegations of negligence as to the police investigation—e.g., failing to follow up on additional leads, improperly identifying Plaintiff as "Caucasian/Non-Hispanic" on the Incident Report, not having Plaintiff's videorecorded interview transcribed—do not violate due process. There is simply no constitutional right to have an investigation by police conducted as one wishes.
Courts have repeatedly recognized that inadequate investigation is not sufficient to state a civil rights claim unless there is some other recognized constitutional right involved. Plaintiff has merely recast her equal protection claim as a substantive due process claim, which the Court will not countenance….
Here, by the way, is the core of my motion to unseal, which the court granted after the parties declined to oppose it:
There is a general right of access to court records
"[A] common law right of access attaches to judicial proceedings and records." In re Avandia Marketing, Sales Practices & Prods. Liab. Litig., 924 F.3d 662, 672 (3d Cir. 2019) (cleaned up).
The right of access "promotes public confidence in the judicial system by enhancing testimonial trustworthiness and the quality of justice dispensed by the court." Public observation facilitated by the right of access "diminishes possibilities for injustice, incompetence, perjury, and fraud." Moreover, "the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness."
Id. at 672 (cleaned up).
Whether the common law right of access applies to a particular document or record turns on whether that item is considered to be a judicial record. A judicial record is a document that has been filed with the court or otherwise somehow incorporated or integrated into a district court's adjudicatory proceedings. Once a document becomes a judicial record, a presumption of access attaches.
Id. (cleaned up).
A court order "is a quintessential judicial record." In re Application of Forbes Media LLC, No. 21-mc-52, 2022 WL 17369017, *4 (W.D. Pa. Dec. 2, 2022) (Hornak, J.).
As the D.C. Circuit explained, "[t]here is no doubt that … court orders themselves are judicial records," because "[c]ourt decisions are the 'quintessential business of the public's institutions' " and "the issuance of public opinions is core to the transparency of the court's decisionmaking process." Leopold v. United States, 964 F.3d 1121, 1128 (D.C. Cir. 2020) …; see also Hardy v. Equitable Life Assurance Soc'y, 697 F. App'x 723, 725 (2d Cir. 2017) ("There is a long tradition of public access to court orders … they are judicial documents.") (citations omitted); Bank of Am., 800 F.2d at 344 ("[T]he court's approval of a settlement or action on a motion are matters which the public has a right to know about and evaluate."); Lipocine, 2020 WL 4569473, at *3 (collecting cases and explaining that "the courts have made clear that the interest in ensuring that judicial records remain open to the public applies with special force to judicial opinions").
Id. "[I]t should go without saying that the judge's opinions and orders belong in the public domain." Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000). "We hope never to encounter another sealed opinion." Hicklin Engineering, LC v. Bartell, 439 F.3d 346, 349 (7th Cir. 2006).
This is true even for ordinary civil disputes. "It is desirable that the trial of [civil] causes should take place under the public eye," "not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed." Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1069 (3d Cir. 1984) (quoting Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.)). And that is even more true when the controversy is between a citizen and an important government-run institution.
In addition to this common-law right of access, "the public and the press have a First Amendment right of access to civil trials." In re Avandia Marketing, 924 F.3d at 673. "The First Amendment right of access requires a much higher showing than the common law right of access before a judicial proceeding can be sealed. Any restriction on the right of public access is evaluated under strict scrutiny." Id. (cleaned up).
The Third Circuit has not yet decided whether this First Amendment right of access also extends (as the common-law right of access does) to pretrial filings, id. at 679-80. But for reasons given in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006), and Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988), this Court should conclude that the First Amendment right of access applies to such filings, or at least to this Court's opinions (unless such a conclusion is rendered moot by this Court's concluding that the common-law right of access justifies unsealing the Sealed Memorandum Opinion in any event).
Even if some materials in the Sealed Memorandum Opinion must remain confidential, that should be accomplished through redaction rather than sealing
Because the Sealed Memorandum Opinion is entirely sealed, and appears not to be accompanied by a statement explaining why it is sealed, it is hard for movant to argue about whether the presumption of access has been rebutted.
Nonetheless, it seems unlikely that all aspects of this Court's legal reasoning, and all the potentially relevant facts on which the court relied, must be kept secret. Instead, any sufficiently strong interests (for instance, in the confidentiality of the minor plaintiff's identity) could likely be served through modest redactions rather than outright sealing. "Even in cases involving substantial countervailing privacy interests such as state secrets, trade secrets, and attorney-client privilege, courts have opted for redacting instead of sealing the order or opinion." Mitze v. Saul, 968 F.3d 689, 692 (7th Cir. 2020). See, e.g., Fair Laboratory Pracs. Assocs. v. Riedel, 666 F. App'x 209, 213 (3d Cir. 2016) ("On remand, the Court should also consider whether there is a less restrictive option to sealing the entire agreement that could protect privacy interests (such as redacting confidential information)."); In re Providence J. Co., Inc., 293 F.3d 1, 15 (1st Cir. 2002) ("[W]e think that the district court's refusal to consider redaction on a document-by-document basis is insupportable. Courts have an obligation to consider all reasonable alternatives to foreclosing the constitutional right of access. Redaction constitutes a time-tested means of minimizing any intrusion on that right.") (cleaned up.)
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