Catch of the day from yesterday’s docket entries in Heebe-Ward-River Birch v USA was the Plaintiffs’ opposition brief filed after the evidentiary hearing. As noted in the Minute Entry for the hearing, the Government asked the Court to conduct an ex parte, in camera review of the sealed affidavit to the search warrant.
In their opposition, the Plaintiffs contend:
…the Government has not offered any legal support for its request that the search warrant application affidavit be considered by the Court while simultaneously withheld from Plaintiffs. The Government’s only justification is that disclosing it could compromise its ongoing investigation. The Government cannot have it both ways. If the Government wants to use this search warrant application affidavit as evidence in this civil case, then the affidavit must be disclosed absent some exception to the main rule that ex parte determinations on the merits are not permitted in civil cases. Eisenberg, 654 F.2d at 1112. Here, however, the Government has failed to provide any authority in support of its ex parte submission or even argue that there is an applicable exception.
A plain English reading of the Opposition suggests the Plaintiffs’ argument makes the Government’s case – particularly when the judge has the civil rights focus of Federal District Judge Ginger Berrigan. My not-a-lawyer guess is the sealed affidavit names the informant who tippped the Government to the “spoilage” of evidence taking place on the third floor of the River Birch office building – making the Plaintiffs’ Opposition a fishing expedition.
Time will tell. Meanwhile, things are clearly winding down. The docket entries also included a Notice of Removal of Exhibits with a list of exhibits attached.