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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Mussalina Muhaymin, et al.,

Plaintiffs,

v. 

City of Phoenix, et al.,

Defendants.

No. CV-17-04565-PHX-SMB

ORDER 

Pending before the Court is Defendants’ Expedited Motion for Protective Order and 

Order to Cease/Desist and Remove Public Postings,1(Doc. 179, “Mot.”; Doc. 183, 

“Resp.”). Defendants argue that Plaintiff’s counsel, Mr. Faraj, violated the Court’s existing 

protective order, Arizona Rules of Professional Conduct, and Local Rule of Civil 

Procedure 83.8 by posting comments, materials, a video, and prejudicial arguments about 

the case online on two occasions. As a result, they request an “Order that deposition 

transcripts and videotapes remain confidential” pursuant to the Court’s existing protective 

order and an “Order prohibiting public commenting on [the online posts] and [o]rdering 

Plaintiff’s [c]ounsel to remove his posts immediately.” (Mot. at 5.) Because the Court finds 

no violation of any of the above things, the motion is denied in full.

I. BACKGROUND

Mr. Faraj concedes that he published the two posts in question on his Facebook. In 

the first, he compares the death of his client, Mr. Muhaymin, to George Floyd’s alleged 

1 The Court heard oral argument on June 2, 2020. (Doc. 187.)
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murder and provides a synopsis of what allegedly occurred in his client’s case. In the other, 

he wrote, inter alia, that no officers were fired or charged after his client’s death and that

he represents the daughter and sister in a wrongful death civil rights lawsuit. He also 

attached a heavily edited video of the alleged incident involving his client before his 

client’s death and noted that the City of Phoenix had already released a similar, albeit 

edited, version.

II. DISCUSSION

A. Alleged Violations

Defendants argue Mr. Faraj’s conduct violates the Court’s protective order, Arizona 

Rules of Professional Conduct 3.6 and 4.4, and Local Rule of Civil Procedure 83.8. The 

Court disagrees with Defendants, finding no violation.

i. Protective Order 

On May 8, 2019, the Court approved a stipulated protective order between the 

parties. (See Doc. 72.) After its issuance, Defendants averred that the “deposition 

transcripts and videotapes in dispute have been properly designated as Confidential by 

Phoenix Defendants in good faith and, are, therefore, subject to th[at] Order.” (Doc. 117 at 

2.) Once something is designated confidential, the Order requires that “[a]ny party may 

dispute the designation of Discovery Material as Confidential Information by providing the 

designating party with written notice of the objection to the designation.” (Doc. 72 ¶ 12.) 

In challenging the designation, “[t]he Challenging Party shall bear the burden of persuasion 

as to the propriety of the confidentiality designation.” (Id.) “The Challenging Party 

[cannot] make any disclosure pending informal resolution by the parties, while a motion to 

allow or to bar such disclosure is pending, or while any appeal or request for review or 

reconsideration pertaining to such a motion is pending.” (Id.) “If any Confidential 

Information is disclosed to any [unauthorized] person . . . , the party responsible for the 

disclosure shall, upon discovery of the disclosure, immediately inform the Producing Entity 

and/or Designating Party whose information is disclosed of all facts pertinent to the 

disclosure, including the name, address, and employer of the person to whom the disclosure 
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was made.” (Id. ¶ 18.)

Here, Mr. Faraj has established that he disclosed non-confidential information

exempt from the protective order because the portions of the video he posted came from 

the public video released by the City of Phoenix. During oral argument, Mr. Faraj explained 

how he created the video. After viewing both videos, the one released by the City of 

Phoenix and the other released by Mr. Faraj, the Court finds that Mr. Faraj’s video, 

although substantially edited, discloses only publicly available information (i.e. excerpts 

of the video released by the City of Phoenix). Therefore, there is no violation of the 

protective order. Notwithstanding this fact, however, and although not explicitly argued by 

Defendants, the Court is concerned with a statement by Mr. Faraj in his first post, which 

states that “[a]ll the officers involved admit that he did not attack any officer verbally or 

physically.” This information appears to arise out of information obtained from the 

depositions in this case, which would be subject to the protective order. However, since

the argument was not raised, the Court will not consider it and finds no violation has been 

shown.

ii. Arizona Rules of Professional Conduct

Defendants next argue that Mr. Faraj’s conduct violates Rule 42 of the Arizona 

Supreme Court, Arizona Rules of Professional Conduct, E.R. 3.6 and 4.4. Mr. Faraj, 

admitted pro hac vice to practice in this Court, does not dispute that these rules apply to 

him. Instead, he argues that he was only responding to correct misinformation released by 

Defendants.

Ethical Rule 3.6 of the Arizona Rule of Professional Conduct states that:

(a) A lawyer who is participating or has participated in the investigation or 

litigation of a matter shall not make an extrajudicial statement that the lawyer 

knows or reasonably should know will be disseminated by means of public 

communication and will have a substantial likelihood of materially 

prejudicing an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), a lawyer may state:
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(1) the claim, offense or defense involved and, except when prohibited 

by law, the identity of the persons involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

...

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a 

reasonable lawyer would believe is required to protect a client from the 

substantial undue prejudicial effect of recent publicity not initiated by the 

lawyer or the lawyer's client. A statement made pursuant to this paragraph 

shall be limited to such information as is necessary to mitigate the recent 

adverse publicity.

A.R.S. Sup. Ct. Rules, Rule 42, Ariz. R. Prof. Cond. E.R. 3.6

Mr. Faraj claims he did not violate Rule 3.6 because he was simply responding to 

an ABC News release on January 27, 2017. Although the rule requires that the response be 

to “recent publicity,” Mr. Faraj’s claimed “recent publicity” was released over three years 

ago. Moreover, Defendants have not since commented about the case either. At face value, 

this can hardly be characterized as recent. To that, Mr. Faraj argues his response is 

nevertheless appropriate because the post remains online, which Defendants do not dispute,

and still appears after a Google search for the “Muhammad.” Based on these circumstances, 

the Court finds no violation of E.R. 3.6 regarding pretrial publicity, however, Mr. Faraj 

should not feel impelled by this finding to further respond to a three-year-old release.

The other ethics rule provides, in relevant part, that “[i]n representing a client, a 

lawyer shall not use means that have no substantial purpose other than to embarrass, delay, 

or burden any other person.” Id. E.R. 4.4. Defendants have not shown that Mr. Faraj’s sole 

purpose in posting this information to his Facebook was to do such a thing.

2

iii. Local Rule of Civil Procedure 83.8

Defendants last argue that Mr. Faraj’s conduct violates Local Rule of Civil 

2 The timing of the posts is concerning because it is made right after the murder of George 

Floyd and in conjunction with a private letter to the City. In light of the language used in 

the letter, it could be construed as the City argued. Standing alone, the public is not aware 

of the context as a whole so the impact does not rise to the level of a violation. Continued 

postings may impact this ruling.
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Procedure 83.8. That rule provides:

(a) Prohibition of Extrajudicial Statements. A lawyer or law firm 

associated with a civil action shall not during its investigation or litigation 

make or participate in making an extrajudicial statement, other than a 

quotation from or reference to public records, which a reasonable person 

would expect to be disseminated by means of public communication, if there 

is a reasonable likelihood that such dissemination will interfere with a fair 

trial and which relates to:

(1) evidence regarding the occurrence or transaction 

involved;

(2) the character, credibility, or criminal record of a 

party, witness or prospective witness;

(3) the performance or results of any examination or 

tests or the refusal or failure of a party to submit to such;

(4) an opinion as to the merits of the claims or defenses 

of a party except as required by law or administrative 

rules; or

(5) any other matter reasonably likely to interfere with 

a fair trial of the action.

LRCiv 83.8(a)(1)-(5).

Mr. Faraj does not address this rule in his response. His statements are undoubtedly 

extrajudicial, a reasonable person would expect them to be disseminated by means of 

public communication based on his posting of them to Facebook,

3

and they relate to 

evidence regarding this case, the character of a party, and an opinion as to the merits of the 

claims. However, the principal inquiry here is whether there is a reasonable likelihood that 

the posts will interfere with a fair trial. The Court finds they will not for two reasons. First, 

they are on Facebook, which is not as easily accessible as a major news outlet. Second, the 

trial is not imminent because no trial date has been set, and it is unlikely that these posts 

have a reasonable likelihood of interfering with a trial likely a year away. Thus, the Court 

finds no violation of Local Rule 83.8.

B. Requested Relief

3 Mr. Faraj specifically asks people to share the post, thus asking for it to be disseminated 

further that just his Facebook page.
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With no violation found, the Court addresses whether it should issue the gag order 

requested by Defendants.

“The Court is empowered to issue a restraining order prohibiting trial participants 

from communicating with the media where ‘excessive trial publicity’ endangers the 

fairness of the judicial process.” Mizioch v. Montoya, No. CV10-01728-PHX-JAT, 2011 

WL 4900033, at *6 (D. Ariz. Oct. 14, 2011) (citing Levine v. United States District Court 

for the Central District of California, 764 F.2d 590, 600-601 (9th Cir. 1985)). The Supreme 

Court has said that the speech of trial participants can be restricted under a less demanding 

standard than that required to restrictions imposed on the press. See Gentile v. State Bar of 

Nevada, 501 U.S. 1030, 1071 (1991). The Ninth Circuit has recently reiterated that a lower 

standard applies to prior restraints of the speech of attorneys participating in a case. See,

e.g., In re Dan Farr Prods., 874 F. 3d 590, 593 n.3 (9th Cir. 2017). Other courts have noted 

that issuing restraints on lawyers still requires special protection when there has not been 

a determination that the speech is unprotected by the First Amendment. See Clifford v. 

Trump, Case No.: CV-18-02217-SJO (FFMx), 2018 WL 5273913, at *3-4 (C.D. Cal. July 

31, 2018); United States v. McGregor, 838 F.Supp.2d 1256, 1262 (M.D. Ala. 2012) (“Thus, 

a court should issue a gag order only if (1) the attorneys' speech presents a substantial 

likelihood of material prejudice to the proceedings; (2) the proposed protective order is 

narrowly tailored; (3) alternatives to the protective order would not be effective; and (4) 

the order would be effective in achieving the government's goal.”)

Because the Court finds no violations of any Court order or rule, it declines to issue 

an order that would act as a prior restraint. However, this does not mean that the Court 

would not do so if any counsel, whether for Plaintiffs or Defendants violated Court rules 

in the future. The Court expects all counsel to exercise caution and restraint in all future 

statements, if any.4

4 The Court need not address Mr. Faraj’s claims that he was engaging in political speech 

and issue advocacy because no order is issuing. Notwithstanding this, his arguments lack 

merit because nothing in his posts were directed at holding elected officials accountable or 

addressing policing procedure issues. Nonetheless, he could do either of these things 

without attempting to influence the outcome of this case or citing to non-public 

information.
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Accordingly,

IT IS ORDERED DENYING Defendants’ Expedited Motion for Protective Order 

and Order to Cease/Desist and Remove Public Postings, (Doc. 179).

Dated this 5th day of June, 2020.