Leola Smith v. Cathy Lanier
726 F.3d 166
D.C. Cir.2013Background
- On July 13, 2007 MPD Officer Thomas Ellingsworth submitted an affidavit stating a confidential informant (CI) made a controlled buy of crack cocaine at Leola Smith’s residence; a warrant issued and a search on July 14 found no drugs.
- Smith sued MPD officials alleging Ellingsworth lied in the affidavit about the controlled buy and thus violated the Fourth Amendment.
- Defendants invoked the informer’s privilege; the district court issued a protective order and accepted ex parte, in camera affidavits from MPD officers about the CI and searches for records.
- Discovery revealed MPD unit and working files relating to the CI were missing; plaintiffs argued the missing records raised a genuine dispute whether the CI or the buy ever existed.
- The record nonetheless included a photocopy of a heat-seal bag indicating seizure of a “white paper containing white rock” from Smith’s address on July 11, 2007; the district court found no genuine factual dispute and granted summary judgment for defendants on Smith’s false-affidavit claim.
- Smith appealed, challenging only the district court’s grant of summary judgment on the allegation that Ellingsworth lied about the controlled buy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether missing CI records create a genuine dispute that Ellingsworth lied in his affidavit about a controlled buy | Smith: Missing MPD records create an inference that the CI or buy never existed and thus raise a material factual dispute | Defendants: Other record evidence (e.g., heat-seal bag) corroborates the buy; ex parte submissions (and other evidence) confirm CI existence | Court: No genuine dispute; corroborating documentary evidence (heat-seal bag) defeats inference from missing records; summary judgment affirmed |
| Whether the district court improperly relied on ex parte, in camera evidence to decide summary judgment | Smith: Court may not resolve merits based on ex parte, in camera submissions | Defendants: Summary judgment can be affirmed on the public record without ex parte material | Court: Declined to decide propriety of ex parte reliance because summary judgment is supportable on the public record; affirmed on that basis |
Key Cases Cited
- Roviaro v. United States, 353 U.S. 53 (informer's privilege permits nondisclosure of informant identity)
- Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986) (courts ordinarily should not dispose of merits solely on ex parte, in camera submissions)
- Carney v. American University, 151 F.3d 1090 (D.C. Cir. 1998) (appellate court may affirm on any record-supported basis)
- Jones v. Bernanke, 557 F.3d 670 (D.C. Cir. 2009) (summary judgment standard of review)
- Ostrzenski v. Columbia Hosp. for Women Foundation, Inc., 158 F.3d 1289 (D.C. Cir. 1998) (bare allegation of fabrication does not create genuine issue as to document authenticity)
- Stevenson v. Linens of the Week, 688 F.2d 93 (D.C. Cir. 1982) (absence of an entry in business records can be probative of non-occurrence)