Briggs v. Yi et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOSHUA D. BRIGGS,
Plaintiff,
v.
OREAN YI, in his personal capacity;
and MUNICIPALITY OF
ANCHORAGE,
Defendants.
Case No. 3:22-cv-00265-SLG
ORDER RE PENDING MOTIONS
This order addresses each of the four motions pending before the Court.
The primary motion is Plaintiff Joshua Briggs’ Motion and Memorandum in Support
for Preliminary Injunction at Docket 8. 	Defendants Orean Yi and the Municipality
of Anchorage responded in opposition to the preliminary injunction motion at
Docket 23, to which Mr. Briggs replied at Docket 26.
Defendants have also filed a Motion for Partial Summary Judgment at
Docket 24. Mr. Briggs responded to that motion at Docket 28, requesting that the
Court defer consideration of the motion pursuant to Rule 56(d) of the Federal Rules
of Civil Procedure until after close of discovery. Defendants filed a reply at Docket
34.
Mr. Briggs has filed two additional motions that are ripe for decision. 	First,
he filed a Motion for Leave to File Amended Complaint at Docket 30, to which
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Defendants responded in opposition at Docket 33, and Mr. Briggs replied at Docket
35. Second, Mr. Briggs filed a Motion to Deem Confidentiality Waived or Require
Defendants 	to 	Provide 	a 	Privilege 	Log 	at 	Docket 	31, 	to 	which 	Defendants
responded in opposition at Docket 36, and Mr. Briggs replied at Docket 37.
Mr. 	Briggs 	requested 	oral 	argument 	with 	respect 	to 	his 	Motion 	and
Memorandum in Support for Preliminary Injunction at Docket 8, but oral argument
is not necessary to the Court’s determination. 	Oral argument was not requested
with respect to any of the other pending motions and it is not necessary to the
Court’s determination.
BACKGROUND
Mr. Briggs alleges violations of his constitutional rights arising under the
First, Fourth, and Fourteenth Amendments to the United States Constitution.1 His
claims arise from his arrest on July 12, 2022, for Disorderly Conduct pursuant to
Anchorage Municipal Code (“AMC”) 08.30.120(A)(2) and Harassment pursuant to
AMC 08.10.110(A)(1).2
According to Mr. Briggs’ unverified complaint, on the day in question, he
entered a Holiday Stationstore to purchase a few items and got in line to pay for
them behind Officer Orean Yi, who was on duty and in uniform. 	Mr. Briggs said,
“Hey look, it’s a pig.” 	Officer Yi turned and assumed a “defensive posture.” 	Mr.
1 Docket 1 at 1.
2 Docket 1 at 3, ¶ 7, 6, ¶ 20.
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Briggs repeated, “What, you’re a pig.” 	Mr. Briggs claims that he “could smell
alcohol on Yi’s breath” and asked whether Officer Yi was drunk, saying that “he
would contact Yi’s superior to have him sobriety tested.” 	Officer Yi then arrested
and handcuffed Mr. Briggs, searched the contents of his wallet without his consent,
and put him in the back of a patrol car for more than an hour.3 	The complaint
alleges that Mr. Briggs was arrested in retaliation for criticizing a police officer,
which 	he 	claims 	is 	constitutionally 	protected 	speech.4 	In 	his 	motion 	for 	a
preliminary injunction, Mr. Briggs explains that the Harassment charge was
dismissed for lack of probable cause on September 13, 2022. He also states that
he filed a motion contesting probable cause for his Disorderly Conduct charge and
that charge was dismissed on December 5, 2022.5
Based on these allegations, Mr. Briggs brings this action against Officer Yi
in his personal capacity and the Municipality of Anchorage.6 	The complaint
contains the following counts: (1) First Amendment retaliation; (2) false arrest; (3)
unreasonable search and seizure; (4) municipal liability for failure to train and
supervise; 	(5) 	punitive 	damages; 	and 	(6) 	Anchorage 	Municipal 	Code
3 Docket 1 at 3–5, ¶¶ 7–17.
4 Docket 1 at 10–11, ¶¶ 41–47.
5 Docket 8 at 4.
6 Docket 1 at 1, 3 at ¶¶ 2–3.
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08.30.120(A)(2) is unconstitutional. 7 Mr. Briggs seeks damages from Officer Yi in
his personal capacity and the Municipality of Anchorage, an injunction against
enforcement of AMC 08.30.120(A)(2), attorneys fees and costs, and punitive
damages.8
Defendants’ statement of facts differs in several respects from the recitation
of facts in Mr. Briggs’ complaint and motion for a preliminary injunction. According
to Defendants, “it was Mr. Briggs’ conduct, and not the content of his speech, that
resulted in charges being brought.”9 Specifically, Mr. Briggs “raised his voice” and
“continued to yell and create loud noise disturbing other customers by acting
disorderly.”10 	And according to Defendants, while Mr. Briggs did move the state
court to dismiss the Disorderly Conduct charge for failure to show probable cause,
that court ruled from the bench that there was probable cause. 	Defendants
maintain that the state court later dismissed the Disorderly Conduct charge for the
convenience of the prosecutor and not for lack of probable cause.11
Mr. Briggs’s motion for a preliminary injunction seeks an order that would
enjoin Defendants “from taking action to prevent him from exercising his first
7 Docket 1 at 10–18, ¶¶ 41–83.
8 Docket 1 at 19.
9 Docket 23 at 2 (quoting Docket 23-1 at 2, ¶ 5).
10 Docket 23 at 2 (quoting Docket 8 at 8 and Docket 8-1 at 5–6).
11 Docket 23 at 3–4, 4 n.1.
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amendment rights or retaliating against him for doing so.” 	He also requests that
Defendants “be preliminarily enjoined from enforcing AMC 08.30.120(A)(2) in any
manner.”12
JURISDICTION
Mr. Briggs brought this suit pursuant to 42 U.S.C. §§ 1983 and 1985 seeking
redress for alleged violations of his federal constitutional rights guaranteed by the
First, Fourth, and Fourteenth Amendments. 	The Court has jurisdiction over this
matter pursuant to 28 U.S.C. §§ 1331 and 1343.13
LEGAL STANDARD
In Winter v. Natural Resources Defense Council, Inc., the United States
Supreme 	Court 	held 	that 	plaintiffs seeking preliminary 	injunctive 	relief 	must
establish that (1) they are likely to succeed on the merits; (2) they are likely to
suffer irreparable harm in the absence of preliminary relief; (3) the balance of
equities tips in their favor; and (4) a preliminary injunction is in the public interest.14
The 	Supreme 	Court 	in 	Winter 	characterized 	“injunctive 	relief 	as 	an
extraordinary remedy that may only be awarded upon a clear showing that the
12 Docket 8 at 1.
13 According to the complaint, this action is also brought pursuant to 42 U.S.C. § 1988, which
provides for attorney’s fees in proceedings to enforce sections 1983 and 1985. Section 1988,
however, does not provide a cause of action.
14 555 U.S. 7, 20 (2008).
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plaintiff is entitled to such relief.” 15 	Thus, a plaintiff “must demonstrate that in the
absence of a preliminary injunction, ‘the [plaintiff] is likely to suffer irreparable harm
before a decision on the merits can be rendered.’”16 	“Speculative injury does not
constitute 	irreparable 	injury 	. 	. 	. 	. 	[A] 	plaintiff 	must 	demonstrate 	immediate
threatened injury as a prerequisite to preliminary injunctive relief.”17 	Moreover,
“[t]here must be a ‘sufficient causal connection’ between the alleged irreparable
harm and the activity to be enjoined,” such as a “showing that ‘the requested
injunction would forestall’ the irreparable harm.”18
Following 	Winter, 	the 	Ninth 	Circuit 	addressed 	the 	first 	element—the
likelihood of success on the merits—and held that its “serious questions” approach
to preliminary injunctions was still valid “when applied as a part of the four-element
Winter test.” 19 	Accordingly, if a plaintiff shows “that there are ‘serious questions
going to the merits’—a lesser showing than likelihood of success on the merits—
then a preliminary injunction may still issue if the ‘balance of hardships tips sharply
15 Id. (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)).
16 Id. (quoting 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
2948.1 (2d ed. 1995)).
17 Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988) (emphasis
omitted) (first citing Goldie’s Bookstore, Inc. v. Superior Ct. of State of Cal., 739 F.2d 466, 472
(9th Cir. 1984); and then citing L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d
1197, 1201 (9th Cir. 1980)).
18 Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803, 819 (9th Cir. 2018) (quoting
Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 981–82 (9th Cir. 2011)).
19 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011).
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in the plaintiff’s favor.’”20 “Serious questions are ‘substantial, difficult, and doubtful,
as to make them a fair ground for litigation and thus for more deliberative
investigation.’”21 They “need not promise a certainty of success, nor even present
a probability of success, but must involve a ‘fair chance on the merits.’”22 	All four
Winter elements must still be satisfied under this approach,23 but analyses of the
last 	two 	elements—balance 	of 	the 	equities 	and 	consideration 	of 	the 	public
interest—merge when the government is the opposing party.24
Injunctive 	relief 	is 	an 	equitable 	remedy, 	and 	“[t]he 	essence 	of 	equity
jurisdiction is the power of the court to fashion a remedy depending upon the
necessities of the particular case.”25
“Courts asked to issue preliminary injunctions based on First Amendment
grounds face an inherent tension: the moving party bears the burden of showing
20 Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (emphasis in original)
(quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)).
21 Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991) (quoting Republic of the Philippines
v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)); see also Fyock v. City of Sunnyvale, 25 F.
Supp. 3d 1267, 1273 (N.D. Cal. 2014) (“‘Serious questions’ refers to questions ‘which cannot be
resolved one way or the other at the hearing on the injunction and as to which the court
perceives a need to preserve the status quo . . . .’” (quoting Gilder, 936 F.2d at 422)).
22 Gilder, 936 F.2d at 422 (quoting Marcos, 862 F.2d at 1362).
23 All. for the Wild Rockies, 632 F.3d at 1135 (“Of course, plaintiffs must also satisfy the other
Winter factors.”); see also, e.g., Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris,
729 F.3d 937, 944 (9th Cir. 2013) (describing standard for preliminary injunction).
24 Nken v. Holder, 556 U.S. 418, 435 (2009).
25 Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1022 (9th Cir. 2009) (quoting United States v.
Odessa Union Warehouse Co-op, 833 F.2d 172, 175 (9th Cir. 1987)).
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likely success on the merits . . . and yet within that merits determination the
government 	bears 	the 	burden 	of 	justifying 	its 	speech-restrictive 	law.”26
Accordingly, “in the First Amendment context, the moving party bears the initial
burden of making a colorable claim that its First Amendment rights have been
infringed, or are threatened with infringement, at which point the burden shifts to
the government to justify the restriction.”27
DISCUSSION
I. 	Standing to Seek a Preliminary Injunction
Under Article III of the Constitution, “[t]he jurisdiction of the federal courts is
limited to ‘cases’ and ‘controversies.’”28 	Federal courts enforce this jurisdictional
limitation through the doctrine of standing.29 	A plaintiff bears the burden of
demonstrating the “irreducible constitutional minimum of standing,” which consists
of three elements.30 A plaintiff must show (1) an injury in fact, meaning an “invasion
of a legally protected interest that is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical”; (2) causation; and (3) redressability,
26 Cal. Chamber of Com. v. Council for Educ. & Rsch. on Toxics, 29 F.4th 468, 477 (9th Cir.
2022) (alteration in original) (quoting Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th
Cir. 2011), overruled on other grounds by Bd. of Trs. of Glazing Health & Welfare Tr. v.
Chambers, 941 F.3d 1195 (9th Cir. 2019)).
27 Thalheimer, 645 F.3d at 1116.
28 Wash. Env’t Council v. Bellon, 732 F.3d 1131, 1138 (9th Cir. 2013) (quoting U.S. Const. art. III,
§ 2).
29 See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340–42 (2006).
30 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
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meaning that “the injury will likely be redressed by a favorable decision.”31 	The
plaintiff “must demonstrate standing separately for each form of relief sought.” 32
“First 	Amendment 	challenges 	‘present 	unique 	standing 	considerations’
because of the ‘chilling effect of sweeping restrictions’ on speech.”33 	These
considerations “tilt[] dramatically toward a finding of standing.”34 	“‘[T]he Supreme
Court has dispensed with rigid standing requirements’ for First Amendment
protected speech claims and has instead endorsed a ‘hold your tongue and
challenge now’ approach.”35
Yet even in the First Amendment context, a plaintiff seeking prospective
injunctive relief must demonstrate a credible threat of adverse state action.36
Courts within the Ninth Circuit examine three factors to determine whether a
credible threat of enforcement exists: “We consider (1) whether the plaintiff has a
‘concrete plan’ to violate the law, (2) whether the enforcement authorities have
31 Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013) (citing Lujan, 504 U.S. at 560–61).
32 Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).
33 Italian Colors Restaurant v. Becerra, 878 F.3d 1165, 1171 (9th Cir. 2018) (quoting Ariz. Right
to Life Pol. Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003)).
34 Lopez v. Candaele, 630 F.3d 775, 781 (9th Cir. 2010) (alteration in original) (quoting LSO, Ltd.
v. Stroh, 205 F.3d 1146, 1155 (9th Cir. 2000)).
35 Tingley v. Ferguson, 47 F.4th 1055, 1067 (9th Cir. 2022) (quoting Cal. Pro-Life Council, Inc. v.
Getman, 328 F.3d 1088, 1094 (9th Cir. 2003)).
36 Italian Colors Restaurant, 878 F.3d at 1171 (first citing Lopez, 630 F.3d at 786; and then citing
LSO, 205 F.3d at 1155).
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‘communicated a specific warning or threat to initiate proceedings,’ and (3) whether
there is a ‘history of past prosecution or enforcement.’”37
A party seeking injunctive relief “must proffer evidence sufficient to establish
a likelihood of irreparable harm.”38 This evidence must “go[] beyond the unverified
allegations of the pleadings and motion papers.”39 	For example, the Ninth Circuit
held—in a case much like this one—that a plaintiff who had been charged with a
violation of state law had standing to seek injunctive relief on First Amendment
grounds, 	even 	though 	her 	charges 	were 	eventually 	dropped, 	because 	she
provided testimony that she would continue to engage in expressive activity if not
for her fear of adverse state action.40 	An unverified complaint, however, is not
evidence that can support a motion for a preliminary injunction. 41
37 Tingley, 47 F.4th at 1067 (quoting Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d
1134, 1139 (9th Cir. 2000) (en banc)).
38 Herb Reed Enters., LLC v. Fla. Ent. Mgmt., Inc., 736 F.3d 1239, 1251 (9th Cir. 2013); see also
Perlot v. Green, 609 F. Supp. 3d 1106, 1116 (D. Idaho 2022) (“A preliminary injunction may only
be awarded ‘upon a clear showing’ of evidence that supports each relevant preliminary
injunction factor. ‘This “clear showing” requires factual support beyond the allegations of the
complaint . . . .’” (citations omitted)).
39 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2949 (3d ed.
2020). C.f. Fed. R. Civ. P. 65(b) (allowing issuance of temporary restraining order without notice
only where “specific facts in the affidavit or a verified complaint clearly show that immediate and
irreparable injury, loss, or damage will result to the movant before the adverse party can be
heard in opposition”).
40 Porter v. Martinez, No. 21-55149, __F.4th__, 2023 WL 2820332, at *4 (9th Cir. Apr. 7, 2023).
41 See Perez v. Ryan, No. CV 19-05602-PHX-MTL (JFM), 2020 WL 995569, at *6 (D. Ariz. Mar.
2, 2020) (“As an initial matter, Plaintiff has failed to present any evidence to support his claim for
preliminary injunctive relief. Plaintiff’s unverified Complaint is not evidence.” (internal citations
omitted)); Vardanyan v. Moroyan, No. C12-05645 HRL, 2013 WL 12091111, at *1 (N.D. Cal. May
1, 2013) (“[Plaintiff] has not supported his motion for TRO with any declarations. He relies
almost exclusively upon the allegations of his unverified complaint . . . . None of the other
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Here, Mr. Briggs has not filed a verified complaint or any supporting affidavit
to demonstrate that he has a credible threat of adverse state action. The unverified
complaint does not even appear to allege that Mr. Briggs intends to continue to
call a police officer whom he encounters in a public setting a “pig.”42 	The sole
declaration filed with the motion contains counsel’s transcription of a witness
interview.43 	In his brief on the motion, counsel for Mr. Briggs asserts that
“Defendants’ conduct in this case has only strengthened Briggs’s belief that police
officers are pigs, and he should not [be] dissuaded by the threat of arrest and
prosecution from exercising his rights and expressing this belief.” 44 But there is no
evidence in the record to support this claim.45 The Court concludes that Mr. Briggs
documents appended to his motion have been properly authenticated. . . . On the record
presented, the court finds that [plaintiff] has not made a sufficient showing on any of the Winter
elements.”); Shaterian v. Wells Fargo Bank, No. C-11-920 SC, 2011 WL 2314151, at *4 (N.D.
Cal. June 10, 2011) (“[A] plaintiff may not support a motion for a preliminary injunction by merely
pointing to his complaint and the facts alleged therein.”); U.S.A. Express Cab, LLC v. City of San
Jose, No. C-07-06171 RMW, 2007 WL 4612926, at *6 (N.D. Cal. Dec. 31, 2007) (“Arguments in
briefing and allegations in unverified complaints cannot serve as the basis for injunctive relief.”).
See also Sampson v. Murray, 415 U.S. 61, 89 (1974) (holding that allegations in unverified
complaint did not afford basis for finding of irreparable injury for purpose of preliminary
injunctive relief).
42 See generally Docket 1.
43 See generally Docket 8-1.
44 Docket 26 at 10.
45 As Mr. Briggs’s counsel noted in his reply when characterizing Defendants’ briefing as
“worthless,” “attorney statements are not evidence of any sort [and] a party cannot manufacture
a genuine issue of material fact merely by making assertions in its legal memoranda.” Docket
26 at 4 (citing S.A. Empressa De Viacao Aerea Rio Grandense (Varig Airlines) v. Walter Kidde &
Co., 690 F.2d 1235, 1238 (9th Cir. 1982).
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has not demonstrated that he has standing for purposes of seeking a preliminary
injunction to enjoin enforcement of AMC 08.30.120(A)(2).46
II. 	Summary Judgment
Defendants seek partial summary judgment on Count VI of the Complaint,
which asserts that AMC 8.30.120(A)(2) is unconstitutional.47 	In response, Mr.
Briggs asks that the Court defer consideration pursuant to Rule 56(d) of the
Federal Rules of Civil Procedure until after the close of discovery.48
The party requesting a Rule 56(d) continuance must show: “(1) it has set
forth in affidavit form the specific facts it hopes to elicit from further discovery; (2)
the facts sought exist; and (3) the sought-after facts are essential to oppose
summary judgment.”49 	The Ninth Circuit has held that “[f]ailure to comply with
46 To be clear, the fact that Mr. Briggs does not have standing to seek a preliminary injunction
does not mean that he does not have standing to seek damages. See, e.g., City of Los Angeles
v. Lyons, 461 U.S. 95, 105 (1983) (“That Lyons may have been illegally choked by the police . . .
while presumably affording Lyons standing to claim damages against the individual officers and
perhaps against the City, does nothing to establish a real and immediate threat [for purposes of
seeking injunctive relief.]”). Defendants contend that Mr. Briggs has not shown that he has
suffered an injury in fact because the criminal charges underlying his claim were dismissed.
Docket 23 at 6. But the fact that the criminal charges were dropped is insufficient to vitiate
standing. See, e.g., Ward v. Utah, 321 F.3d 1263 (10th Cir. 2003); McCormack v. Hiedeman,
694 F.3d 1004 (9th Cir. 2012).
47 Docket 24 at 1.
48 Docket 28 at 1–2.
49 Fam. Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir.
2008) (citing State of California ex rel. Cal. Dep’t of Toxic Substances Control v. Campbell, 138
F.3d 772, 779 (9th Cir. 1998)). Note that at the time that Family Home & Finance Center was
decided, Rule 56(d) was enumerated as 56(f) in the Federal Rules of Civil Procedure.
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these requirements ‘is a proper ground for denying discovery and proceeding to
summary judgment.’”50
Counsel for Mr. Briggs filed an affidavit with his Response to Motion for
Partial Summary Judgment in which he asserts that he has “been diligent in
pursuing this matter” and explaining that Defendants filed the motion for partial
summary judgment before discovery had begun.51 	Counsel has not identified,
however, any specific facts that he hopes to elicit from discovery that are essential
to oppose the partial summary judgment motion. 	To the contrary, counsel stated
in a previous filing that a “First Amendment facial challenge to a statute . . . is not
a fact dependent inquiry,” emphasizing that “[t]here is no factual inquiry that needs
to be undertaken” for purposes of Mr. Briggs’ facial challenge.52 	Indeed, Mr.
Briggs’ facial challenge to the constitutionality of AMC 	8.30.120(A)(2) is a pure
question of law and Mr. Briggs has not identified any discoverable facts that would
be relevant to resolving this question.53 For this reason, several district courts have
denied similar discovery requests, explaining that “a facial challenge to the text of
50 Id. (quoting Cal. Dep’t of Toxic Substances Control, 138 F.3d at 779).
51 Docket 28-1 at 1.
52 Docket 12 at 4.
53 See Doherty v. Wireless Broad. Sys. of Sacramento, Inc., 151 F.3d 1129, 1131 (9th Cir. 1998)
(recognizing that “[t]he district court concluded that Pacific did not need to undertake discovery
because the issue in this case involved a purely legal question”).
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a statute does not typically require discovery for resolution because the challenge
focuses on the language of the statute itself.”54
Because Mr. Briggs did not satisfy any of the three requirements necessary
to obtain a continuance pursuant to Rule 56(d), the motion is DENIED. Mr. Briggs
is directed to file a supplemental opposition to Defendants’ partial summary
judgment motion within 21 days of the date of entry of this order.
III. 	Motion for Leave to Amend Complaint
Mr. Briggs requests leave to amend his complaint pursuant to Rule 15 of the
Federal Rules of Civil Procedure to assert an additional count alleging that “[t]he
Municipality 	of 	Anchorage 	has 	a 	practice 	and 	custom 	of 	using 	AMC
08.30.120(A)(2) to violate the civil rights of the people in Anchorage.”55 Mr. Briggs
filed this motion to amend on March 1, 2023, in advance of the March 10, 2023,
deadline set for amendments to pleadings.56 Rule 15 provides that leave to amend
“shall be freely given when justice so requires.” 	Because Mr. Briggs’ motion is
timely and the Court is directed to freely give leave to amend, the motion is
GRANTED.57
54 Gen. Elec. Co. v. Johnson, 362 F. Supp. 2d 327, 337 (D.D.C. 2005); see also Shelby County
v. Holder, 270 F.R.D. 16, 19 (D.D.C. 2010) (“Because Shelby County brings only a facial
challenge to the [Voter Registration Act], discovery into that claim is unwarranted.”). Note that at
the time that these two cases were decided, Rule 56(d) was enumerated as 56(f) in the Federal
Rules of Civil Procedure.
55 Docket 30 at 1; Docket 30-1 at 19, ¶ 85.
56 Docket 25 at 7.
57 Defendants’ principal argument in opposition to this motion is that “[t]he proposed amendment
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IV. 	Motion to Deem Confidentiality Waived or Require Defendants to
Provide a Privilege Log
Mr. Briggs contends that the privilege log that Defendants produced as part
of its Initial Disclosures does not meet the minimum requirements of Federal Rule
of Civil Procedure 26(b)(5).58 Rule 26(b)(5) directs a party withholding information
that would otherwise be discoverable based on a claim that it is privileged to
“describe the nature of the documents, communications, or tangible things not
produced or disclosed—and do so in a manner that, without revealing information
itself privileged or protected, will enable other parties to assess the claim.” 	The
Ninth Circuit has explained that “a proper assertion of privilege must be more
specific than a generalized, boilerplate objection.” 59
The privilege log provides that Defendants will not produce an unredacted
version of Officer Yi’s arrest report because it contains an Alaska Public Safety
Information Network (“APSIN”) number.60 	Defendants’ contention that APSIN
numbers are privileged and cannot be produced during discovery in a civil case is
remediable by the plain text of Alaska Statute 12.62.180(d)(6), which provides that
is futile where Briggs is without standing to assert his claim.” Docket 33 at 2. This argument
may be raised in a motion to dismiss and the Court is not considering it for purposes of the
motion for leave to amend.
58 Docket 31 at 4.
59 Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Ct. for Dist. of Mont., 408 F.3d 1142, 1149 (9th
Cir. 2005).
60 Docket 31-1 at 3.
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“[i]nformation that is sealed under this section may be provided to another person
or agency only . . . for a use authorized by . . . court order.” 61 The Court will enter
an order that requires that production here.62
Defendants also maintain that they cannot produce unredacted versions of
Officer 	Glor’s 	reports 	because 	they 	contain 	“APSIN 	numbers, 	Personal
Identification 	Information, 	Social 	Security 	numbers, 	Alaska 	Driver’s 	License
numbers etc.”63 	As discussed above, Defendants’ concern regarding the APSIN
numbers is solved with a Court order. 	The remaining personal identification
information need not be provided at this time pending entry of a protective order.
Defendants assert that they withheld the audio files of the taped interviews
with 	witnesses 	because 	they 	contain 	confidential 	personal 	identification
information, 	such 	as 	social 	security 	numbers 	and 	Alaska 	driver’s 	license
numbers.64 	But it appears that at least one such interview has been provided to
Mr. Briggs.65 	Defendants do not explain why it would be impracticable to redact
61 Alaska Stat. § 12.62.180(d)(6) (1994).
62 In this regard, the Court observes that in his reply, Plaintiff maintains that he “did not ask
Defendants to provide any of the withheld documents or unredacted versions of the documents”’
rather, he stresses that he seeks only for the Court to order that a more detailed privilege log be
provided. Docket 37 at 2 (emphasis in original). But the Court will not order Defendants to
produce an additional privilege log that the Court finds unwarranted. Rather, the Court has
strived to resolve the parties’ discovery dispute in a way that would accord to both parties “the
just, speedy, and inexpensive determination” of this proceeding. See Rule 1, Federal Rules of
Civil Procedure.
63 Docket 31-1 at 3.
64 Docket 31-1 at 3.
65 See Docket 8-1 at 1–2 (explaining that Defendants provided to Mr. Briggs “an audio
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this information from the audio files. 	If it has not yet done so, Defendants shall
produce the requested audio files with appropriate redactions.
With respect to Officer Yi’s personnel files and internal affairs files that
Defendants withheld, the Court agrees with Mr. Briggs that he is entitled to some
of these files. For example, Officer Yi’s records of training, conduct, discipline, and
performance 	are 	relevant, 	with 	appropriate 	redaction 	of 	sensitive 	personal
information, such as Officer Yi’s social security number, driver’s license number,
beneficiary designations, and medical information.66 	The Court will not, however,
require the identification of Bates numbers in a privilege log. 	But the Court finds
that Defendants are required to provide considerably greater detail in the privilege
log to comply with Rule 26(b)(5). 	The provided reason for asserting privilege,
“personnel information,” is too vague to provide the “basis” for the claim of
privilege, as Rule 26(b)(5)(B) requires. 	Moreover, “personnel and internal affairs
files” does not adequately “describe the nature of the documents . . . not produced,”
as Rule 26(b)(5)(A)(ii) requires.
recording, in digital format, of interview of Dana Teeter by Anchorage Police Officer John Glor on
August 30, 2022”).
66 See, e.g., United States v. Henthorn, 931 F.2d 29, 30–31 (9th Cir. 1991) (holding that “the
district court erred in denying plaintiff’s discovery request for impeachment material contained in
the testifying officers’ personnel files” and remanding for in camera review of those files); Soto v.
City of Concord, 162 F.R.D. 603, 614–18 (N.D. Cal. 1995) (compelling discovery of police
officer’s personnel files, subject to a protective order, explaining that “district courts in the Ninth
Circuit have found that the privacy interests police officers have in their personnel files do not
outweigh the civil rights plaintiff’s need for the documents”); Dowell v. Griffin, 275 F.R.D. 613,
617 (S.D. Cal. 2011) (“Current case law suggests the privacy interests police officers have in
their personnel files do not outweigh plaintiff’s interests in civil rights cases.”).
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The Court will not deem privilege waived at this time.
In sum, within 14 days of the date of this order, Defendants shall:
(1) to the extent not yet produced, produce a redacted version of Officer Yi’s
arrest report, Officer Glor’s reports, and audio files, with redaction of sensitive
personal information, but no redaction of APSIN numbers, which are ordered to be
produced in this case; and
(2) with respect to Officer Yi’s personnel and internal affairs files, the Court
directs defendants to either: (a) provide considerably more detail in the privilege
log to “describe the nature of the documents, communications, or tangible things
not produced or disclosed—and [to] do so in a manner that, without revealing
information itself privileged or protected, will enable other parties to assess the
claim”67 and/or (b) file a motion for a protective order,68 which includes a proposed
protective order.69
CONCLUSION
In light of the foregoing, IT IS ORDERED that:
 	Mr. 	Briggs’ 	Motion 	and 	Memorandum 	in 	Support 	for 	Preliminary
Injunction at Docket 8 is DENIED for lack of standing.
67 Fed. R. Civ. P. 26(b)(5)(A)(ii).
68 It is standard practice to file a protective order for discovery of a police officer’s personnel and
internal affairs files and it is not clear to the Court why this has not been done in this case.
69 Local Civil Rule 7.1(b).
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 	With respect to Defendants’ Motion for Partial Summary Judgment at
Docket 24, the Court declines to defer consideration of this motion until
after the close of discovery and directs Mr. Briggs to file a supplemental
opposition within 21 days of the date of entry of this order.
 	Mr. Briggs’ Motion for Leave to File Amended Complaint at Docket 30 is
GRANTED. Mr. Briggs shall file a clean copy of the amended complaint
filed at Docket 30-1 within 7 days of the date of entry of this order.
 	Mr. 	Briggs’ 	Motion 	to 	Deem 	Confidentiality 	Waived 	or 	Require
Defendants to Provide a Privilege Log at Docket 31 is GRANTED in part
and DENIED in part as set forth above.
DATED this 12th day of April, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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