Slain Man’s Family Entitled to Ex-Cop’s Disability Claim

(CN) – A federal judge in Wisconsin ordered a state agency to disclose the disability benefits application of the police officer who fatally shot an unarmed, homeless black man in a Milwaukee park.

On April 30, 2014, Dontre Hamilton was killed by former Milwaukee Police Officer Christopher Manney during a pat-down search and scuffle in a public park.

Even though Manney was fired within six months, no criminal or civil rights charges were brought against him on the federal or state law, according to the family's lawsuit against the state filed in April. The Department of Justice started a review of the Milwaukee Police Department in December 2015 following Hamilton’s death.

In the lawsuit, Hamilton's family says the Milwaukee investigators conducted "essentially the entire investigation," deciding who to interview and what to photograph, despite a law passed one week prior to Hamilton's death that requires two outside authorities to investigate officer-involved deaths.

Based on trauma from the incident, Manney applied for disability benefits with the city's Employees' Retirement System, or ERS, which manages employee claims for disability benefits, according to court records.

In response, Hamilton's family sought all documents related to the disability from Manney himself, but Manney claimed the documents were irrelevant and are in the ERS' possession.

In September, the family filed a subpoena for the documents, but the ERS objected two weeks later, saying that many of the documents could not be provided because it would violate confidentiality rules, the psychotherapist-patient privilege and a state law prohibiting record disclosures without consent.

Family members argued that Manney waived his claim to his psychotherapist-patient privilege by sharing his medical records with the ERS to get disability benefits.

Manney, in turn, cited Dellwood Farms Inc. v. Cargill Inc., a 1997 Seventh Circuit case finding that the government did not waive its investigatory privilege over tape recordings from a criminal investigation.

U.S. District Judge J. P. Stadtmueller ruled for the family Thursday, finding that Manney waived his claim to the psychotherapist-patient privilege.

The judge cited the Hamilton’s family’s interpretation of Jaffee v. Redmond, in which the U.S. Supreme Court equated the psychotherapist-patient privilege to others like attorney-client and spousal privileges.

"Dellwood Farms addresses a non-testimonial, judge-made privilege. This difference is buttressed by the absolute nature of the common-law testimonial privileges; Jaffee specifically rejected applying a balancing test to the invocation of the psychotherapist-patient privilege,” Stadtmueller wrote. “The law enforcement investigatory privilege, to the contrary, explicitly includes a balancing component.”

However, Judge Stadtmueller says he rests on the more analogous Burden-Meeks v. Welch decision, in which the Seventh Circuit ruled that knowingly disclosing attorney-client privileged information a third party amounts to a surrender of the privilege.

"Manney knowingly disclosed his healthcare information, including communications potentially protected by the psychotherapist-patient privilege, to a third-party, ERS. This surrendered the privilege and opened the door to the plaintiffs to obtain the disability claim file" the judge wrote, ordering the ERS to turn over the file in accordance with the subpoena.

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