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Shannon Dorsett, Individually and As the Administratix of the Estate of v. County of Nassau

May 22, 2012

SHANNON DORSETT, INDIVIDUALLY AND AS THE ADMINISTRATIX OF THE ESTATE OF JO'ANNA BIRD,
PLAINTIFFS,
v.
COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT, OFFICE OF THE NASSAU COUNTY DISTRICT ATTORNEY, DETECTIVE ROBERT ARIOLA, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, POLICE OFFICERS AND/OR DETECTIVES JOHN AND JANE DOES 1 -- 10, DISTRICT ATTORNEY JOHN AND JANE DOES 1 -- 10, AND LEONARD VALDEZ CRUZ, DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

Presently before the Court is a motion to intervene by non-party the Police Benevolent Association of the Police Department of the County of Nassau, New York, Inc. ("PBA"), to enforce this Court's December 15, 2011 Confidentiality Order ("Confidentiality Order"). For the reasons set forth below, the PBA's motion to intervene is granted and the Court will hold a hearing for the purposes of determining whether Nassau County Legislature Presiding Officer Peter Schmitt is in contempt of the Court's Confidentiality Order and what sanctions, if any, are appropriate.

I. BACKGROUND

The Plaintiff Sharon Dorsett commenced the present action on March 19, 2010. This action arises from the March 2009 tragic death of the Plaintiff's daughter Jo'Anna Bird, a young mother, at the hands of Leonardo Valdez-Cruz, her former boyfriend and the father of her child. Valdez-Cruz was tried and convicted for the murder of Jo'Anna Bird and is currently serving his sentence. The Plaintiff brought a series of claims both individually and as the Administratrix of her daughter's estate, asserting, among other things, Section 1983 violations against the individual Nassau County Defendants, municipal liability against Nassau County pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), a Section 1983 conspiracy claim against Leonardo Valdez-Cruz and the Nassau County Defendants, as well as claims asserting wrongful death, negligence, and abuse of process.

The nature of this case has attracted the attention of several media organizations as well as the general public, particularly with respect to the contents of a major piece of discovery: Internal Affairs Unit Report 14-2009 ( the "IAU Report"), which documents the Nassau County Police Department's internal investigation into the death of Jo'Anna Bird. On January 14, 2011, United States Magistrate Judge A. Kathleen Tomlinson issued an extensive memorandum decision and order addressing a motion by the Nassau County Defendants for an injunction and/or protective order prohibiting the disclosure, dissemination, release or revelation of the contents of the IAU Report ("Protective Order"). Judge Tomlinson found that the Defendants established the limited baseline showing of "good cause" to warrant a protective order restricting access to the IAU Report to the parties in this litigation. (See generally Docket Entry No. 60.)

On July 22, 2011, the parties indicated to the Court that they had reached a settlement agreement and that a stipulation of discontinuance would be filed following payment of the settlement funds. However, on October 31, 2011, the Plaintiff filed a motion to convert the settlement agreement into a judgment because the Defendants did not pay the monies due under the settlement agreement. The Defendants contended that the agreement was conditional upon approval by the Nassau County Legislature ("Legislature"), and that the legislative process had yet to be completed.

At a hearing before this Court on December 15, 2011, the County represented to the Court that the delay was due to the desire of the members of the Legislature to see the IAU Report, in order to understand the basis for the significant settlement amount. In order to facilitate the settlement process and receive final approval or denial of payment by the Legislature, the Court entered a Confidentiality Order on December 15, 2011. The purpose of the Confidentiality Order was to permit members of the Legislature to have an opportunity to review the IAU Report so they could make an informed decision as to whether to approve the settlement. In particular, the Confidentiality Order stated that Notwithstanding the parameters of the protective order . . . the Confidential Material [including the IAU Report] may be disclosed, summarized, described, characterized or otherwise communicated or made available in whole or in part only to members of the currently-sitting Nassau County Legislature and their in-house counsel for the sole purpose of deliberating the issue of approval of the Settlement Agreement and Release. . . .

Any conversation, discussion, deliberation, communication regarding, or mention of, the Confidential Material shall be done in Executive Session and, under no circumstances shall same be communicated, disseminated, released, or disclosed to members of the public, the media or anyone other than duly-elected members of the Nassau County Legislature and their in-house counsel.

In the event of a breach or violation of any term or condition of this Order, the County Defendants shall have the right to seek enforcement of the terms hereof and the imposition of any other appropriate remedy including, but not limited to, sanctions and contempt. (Docket Entry No. 128) (emphases added).

The careful procedures for viewing the IAU Report, described in the Confidentiality Order, were meant to ensure that only those designated by the Order would be permitted to review its contents. This rationale was clear at the December 15, 2011 hearing before this Court, when Frederick Brewington, the Plaintiff's Counsel stated:

You know what's going to happen. I don't want to be a soothsayer, it's going to be clear. I want to say it clearly for the record once we start to put all these things in place to try and show it to certain people, people are going to get this information out. It's going to be partially right and partially wrong. There is going to be a literal flood gate of information going out to the public from the legislature. Because they should have had it from the very beginning and since now they are going to get it under this secretive cloud, there will be all this attempt to get this information, then there will be the blame game going on when aspects of this report goes out to the public from different sources right or wrong as to who did it.

(Draft Tr. Dec. 15, 2011, at 25-26.) In response to this statement by Plaintiff's Counsel, John Ciampoli, the Nassau County Attorney, stated on the record "I appreciate those concerns. I just think we need to take the step to see things like that don't continue to happen. That's where I ask the Court's assistance." (Id. at 26.)

However, according to the allegations contained in the present motion, those concerns were not unjustified. On February 7, 2012, in a videotaped Cablevision editorial, Nassau County Presiding Officer Peter Schmitt ("Schmitt") made several statements to an interviewer that the PBA alleges revealed contents of the IAU Report that were protected pursuant to the Court's Confidentiality Order. In part, the transcript of this editorial states:

Finally, Nassau legislators agreed to award $7.7 million to the family of Jo'Anna Bird, settling a lawsuit over the failure of police to protect the young mother who was brutally murdered despite her repeated pleas for help.

The case demonstrates a top to bottom failure of Nassau's police department.

So says Nassau Presiding Officer Peter Schmitt, telling News 12 he was disgusted by what he learned after reviewing an internal affairs investigation kept confidential by court order.

"There are 22 police officers in this county who were mentioned in that confidential internal affairs report who ought to be ashamed to look at themselves in the mirror every morning when they get up to shave, much less be wearing the badge," Schmitt said. "Orders of protection were ignored . . . mandatory arrests were called for and not performed, giving a cell phone to the prisoner when he was behind bars and allowing him to call the victim 35- 40 times, and on and on and on."

If so, this is incredible. Did officers actually enable Bird's killer to threaten her from behind bars? Should any, as Schmitt suggests, lose their badges? And what of those said to ...


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