United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3806

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Abu Bakr Ladd, *

*

Appellant, *

*

v. *

*

James Martin, U.S. Attorney; Scott *

McKelvey, U.S. Attorney; Joseph *

Mokwa, U.S. Attorney; Michael *

Nicholson, U.S. Attorney; Robert *

Ogilvie, U.S. Attorney, *

*

Defendants, *

* Appeal from the United States

Jeffrey Pickering, Detective, * District Court for the 

* Eastern District of Missouri.

Appellee, *

* [UNPUBLISHED]

Michael Ramos, U.S. Attorney; Ronnie *

Robinson, U.S. Attorney; Carlos Ross, *

U.S. Attorney; Francis G. Slay, U.S. *

Attorney; St. Louis Board of *

Commissioners, U.S. Attorney; *

Clifford States, U.S. Attorney; John *

Ware, U.S. Attorney, *

*

Defendants. *

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Submitted: July 7, 2009

Filed: August 3, 2009

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Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.

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PER CURIAM.

In this 42 U.S.C. § 1983 action, Abu Ladd appeals the denial of his motion to

compel and the grant of summary judgment in favor of Jeffrey Pickering. Upon

careful review of the record and the parties’ arguments on appeal, we reverse the grant

of summary judgment, we reverse in part the denial of the motion to compel, and we

remand to the district court to conduct in camera proceedings. 

The privilege against disclosing the identity of a confidential informant (CI) is

based on public interest in effective law enforcement, but that interest must be

balanced by the requirement of fundamental fairness. U.S. v. Lapsley, 263 F.3d 839,

842 (8th Cir. 2001); Roviaro v. United States, 353 U.S. 53, 59-60 (1957). Where the

disclosure of a CI's identity, or of the contents of the CI's communication "is essential

to the fair determination of a cause, the privilege must give way." Roviaro, 353 U.S.

at 60-61. In a civil case, the determination of whether a CI's identity is "essential" is

a question of law, and must be determined by balancing the plaintiff's need for the

information with the defendant's interest in non-disclosure. Id. at 62. An in camera

review is the appropriate means for the district court to determine whether the CI's

identity and communications are essential to Ladd's claim, while protecting the state's

interest in avoiding unnecessary disclosure of the CI's identity. Westcott v. Crinklaw,

68 F.3d 1073, 1078-79 (8th Cir. 1995).

On remand, we instruct the district court to order Pickering to produce for in

camera review documentary evidence, if available, of (1) the identity of the

confidential informant and (2) any alleged conversations between the informant and

Pickering concerning Ladd. The district court is instructed to examine the documents

to determine whether the CI's identity and the content of the CI's communications are

essential to Ladd's § 1983 claim against Pickering and the police department. We
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affirm the denial of the motion to compel in all other respects, but we vacate the grant

of summary judgment in light of our remand. Cf. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250 n.5, 255 (1986) (noting that summary judgment should be denied

where nonmoving party has not had opportunity to discover information essential to

his opposition; in ruling on summary judgment motion, all justifiable inferences are

to be drawn in favor of nonmoving party).

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