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Gregg P. Leslie, Gregg.Leslie@asu.edu, Bar # 035040*

Tayler Brown, tbrown45@asu.edu**

First Amendment Clinic, Public Interest Law Firm

Arizona State University Sandra Day O’Connor College of Law

111 E. Taylor St., Mail Code 8820

Phoenix, AZ 85004

Telephone: (804) 727-7398

* Certified supervising attorney pursuant to L.R. Civ. 83.4(e)

** Certified limited practice student pursuant to L.R. Civ. 83.4(e)

Attorneys for Intervenor The Associated Press

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA

Mussalina Muhaymin et al., 

Plaintiffs, 

v. 

City of Phoenix et al., 

Defendants. 

No. CV-17-0465-PHX-DLR

MOTION TO INTERVENE BY 

THE ASSOCIATED PRESS 

FOR THE LIMITED PURPOSE OF 

CHALLENGING SEALING OF 

RECORDS, AND MOTION TO 

UNSEAL RECORDS

ORAL ARGUMENT REQUESTED

The Associated Press (“AP”) respectfully moves to intervene for the limited 

purpose of protecting the public’s First Amendment and common law rights of access to 

judicial documents. AP is a global news agency whose members include approximately 

1,500 daily newspapers and 25,000 broadcast news outlets throughout the United States, 

reaching a subscriber base that includes newspapers, broadcast stations, news networks,

and online information distributors in 116 countries.
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This motion is a challenge to the widespread sealing prevalent in this case, which 

ignores both this Court’s rules on sealing documents and the long-established Ninth 

Circuit precedent regarding the presumptive openness of court documents.

Specifically, AP seeks to unseal a large number of sealed documents, which can 

be combined into several “buckets” for consideration, as described below. Importantly, 

the filings related to the Defendant’s Motion for Summary Judgment, ECF Nos. 273, 274, 

291, 292, 298, 332, 352, including the Order Granting in Part and Denying in Part the 

Motion for Summary Judgment, ECF No. 352, are of the greatest interest to Intervenor.

While the Ninth Circuit has been clear that even discovery documents attached to nontrivial motions are presumptively open, see Ctr. for Auto Safety v. Chrysler Group, LLC, 

809 F.3d 1092, 1099 (9th Cir. 2016), this Court – while this case was handled by another 

judge who has since recused herself – has taken the highly unusual step of sealing the 

briefing and Order on a dispositive motion, without choosing the more narrowly tailored 

solution of simply redacting any sensitive information.

The public and the press have a presumed right of access to court proceedings and 

documents under the First Amendment. Oregonian Publ’g Co. v. U.S. Dist. Ct., 920 F.2d 

1462, 1465 (9th Cir. 1990) (citing Press–Enterprise Co. v. Superior Ct., 464 U.S. 501, 

510 (1984) (“Press–Enterprise I”)); see also Phoenix Newspapers, Inc. v. U.S. Dist. 

Court, 156 F.3d 940, 949 (9th Cir. 1998). The Ninth Circuit has also specifically found a 

“strong presumption of public access” to exhibits attached to motions “more than 

tangentially related to the merits of a case.” Ctr. for Auto Safety, 809 F.3d at 1099, 1101;

see also Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). 
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The motions and exhibits sealed in this case relate to matters of great public concern, 

including allegations of police misconduct resulting in death. 

In the present case, the Court must recognize two important failures: First, there 

has been a failure by the Court to engage in procedures necessary to seal court records –

public notice and hearing – that protect the public’s constitutional and common law rights 

of access to such records. Phoenix Newspapers, 156 F.3d at 949. Second, the Court has 

made no on-the-record findings that demonstrate closure is necessary to protect a 

compelling interest, that closure is necessary to avoid harm to that interest, and that there 

are no alternatives to closure. Id.; Oregonian Publ’g Co., 920 F. 3d at 1466. It is critical 

to this matter to acknowledge that the “compelling reason” standard for sealing a court 

record is significantly higher than the simple “good cause shown” standard that justifies a 

protective order for unfiled discovery documents. See Kamakana, 447 F.3d at 1180.

Therefore, AP respectfully requests that its Motion to Intervene be granted, that all 

filed documents and exhibits related to the Motion for Summary Judgment be promptly

unsealed, and that a plan be put in place to unseal the remaining sealed documents. In the 

alternative, any continued sealing of the documents or exhibits must be supported on the 

record through specific findings of fact as to what compelling interests outweigh the 

public’s interest in access. Phoenix Newspapers, 156 F.3d at 949.

This Motion is supported by the following memorandum. 
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MEMORANDUM OF POINTS AND AUTHORITIES

Introduction and Background

Jacques Billeaud, a reporter for AP, has been reporting on and monitoring the 

litigation arising from Mr. Muhaymin’s death since December 19, 2017. In all, AP has 

published eight stories, including two written by Billeaud, on Muhaymin’s death from 

January 5, 2017, to August 7, 2021. Phoenix police had released some information on the 

encounter to reporters, including some body camera footage.

Beginning in late 2020, Billeaud began noticing that documents related to a 

summary judgment motion in this case were sealed. Billeaud asked the court clerk’s 

office for dial-in access to the May 4, 2021, summary judgment hearing, but he learned 

that the court sealed the hearing. On August 31, 2021, Billeaud discovered that the Order 

on the Motion for Summary Judgment was sealed. 

Given that not all of the video from Muhaymin’s fatal encounter with police has 

been publicly released, AP is interested in learning what the summary judgment order 

says about the unreleased footage. AP is also interested in hearing the court’s conclusions 

on the physical evidence and actions of both Muhaymin and the officers who were at the 

scene.

A large number of documents and exhibits have been filed under seal, without 

meeting the substantive and procedural requirements for sealing. The Court, in sealing 

these documents after finding “good cause appearing,” relied heavily upon the language 

of the Court’s Protective Order, ECF No. 72, which provides for the sealing of 

documents with “good cause shown.” However, a much more substantial standard of a 
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“compelling interest” or “compelling reason” is required before court documents can be 

sealed, as discussed below.

The parties’ actions in sealing the records may well have complied with the 

procedure for sealing under L.R. Civ. 5.6. But that rule also requires a “clear statement of 

the facts and legal authority justifying the filing of the document under seal,” L.R. Civ. 

5.6(b), and the repeated requests for and orders granting sealing do not address the 

substantive law governing the common law and constitutional right of access to court 

documents.

Description of Requested Relief

AP therefore requests that this Court unseal the following groups of documents

with appropriate redactions for any compelling interests that would overcome the 

presumptive right of access. These requests for unsealing are arranged by priority, 

acknowledging the work involved in reviewing all of the sealed filings in this case:

1. Motion for Summary Judgment Briefing, Hearing, and Decision: These 

documents include Defendants’ Motion for Summary Judgment, ECF No. 273, 

Defendants’ Separate Statement of Facts in Support of Motion for Summary 

Judgment, ECF No. 274, Plaintiff’s Opposition, ECF No. 291, Plaintiff’s 

Statement of Disputed Facts & Statement of Facts in Support of Opposition, 

ECF No. 292, Defendants’ Reply, ECF No. 298, the Court’s Minute Entry for 

Hearing, ECF No. 332, and the Court’s Opinion Granting in Part & Denying in 

Part Defendants’ Motion for Summary Judgment, ECF No. 352. These 

documents also include the transcript of the Court’s hearing on the Motion for 
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Summary Judgment. The Court sealed all filings related to summary judgment 

for “good cause appearing,” and stated that sealing “will be reconsidered after 

hearing from counsel at oral argument on the motion for summary judgment.” 

Order Granting Motion & Sealing, ECF No. 287; see also Minute Order, ECF 

No. 324 (“[T]he Motion Hearing presently set on the public docket for May 4, 

2021 shall be sealed and closed to the public because the pleadings are 

sealed.”). These documents are the highest priority and should require few 

redactions.

2. Motions for Sanctions Briefing, Supporting Materials, Hearing, and Decision: 

These documents include Defendants’ Expedited Motion for Protective Order 

& Motion for Sanctions (and all attached exhibits), ECF No. 237, and 

Defendants’ Reply in Support (and all attached exhibits), ECF No. 251, as well 

as the Court’s Order Setting Oral Argument, ECF No. 263, the Court’s Minute 

Entry for Hearing, ECF No. 265, and the Court’s Order Granting in Part and 

Denying in Part Defendants’ Expedited Motion for Protective Order and 

Motion for Sanctions, ECF No. 271. These documents also include the 

transcript of the Court’s hearing on the Expedited Motion for Protective Order 

& Motion for Sanctions, as well as Defendants’ Subsequent Notice and Motion 

for Sanctions (and all attached exhibits), ECF Nos. 330, 335. The Court sealed 

these filings for “good cause appearing.” Orders Granting Motions & Sealing, 

ECF Nos. 238, 290, 334. These documents are also a high priority.
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3. Supporting Materials for Motion for Summary Judgment: These documents 

include the electronic and non-electronic exhibits filed by the Defendants in 

support of their motion for summary judgment as well as the electronic and 

non-electronic exhibits field by the Plaintiff in opposition. See Defendants’

Exhibits to Statement of Facts in Support of Motion for Summary Judgment, 

ECF No. 275; Defendants’ Notice re: Filing Sealed Non-Electronic Exhibits, 

ECF No. 282; Plaintiffs’ Index of Exhibits & Exhibits A through AA, ECF No. 

292-1–28; Plaintiff’s Motion for Leave to File Non-Electronic Exhibit, ECF 

No. 293. The Court sealed all filings related to summary judgment for “good 

cause appearing,” and stated that sealing “will be reconsidered after hearing 

from counsel at oral argument on the motion for summary judgment.” Order 

Granting Motion & Sealing 1, ECF No. 287. These documents will take more 

time to evaluate by the parties, court, and Intervenor.

4. All Other Improperly Sealed Filings:

a) Witness Admissibility Materials: These documents include the parties’ 

various motions to exclude expert and opinion testimony of Dr. Bennet 

Omalu, Defendants’ Motion to Exclude, ECF Nos. 303, 313; Plaintiff’s 

Response, ECF No. 319; Defendants’ Reply, ECF No. 336, 346, Greg 

Meyer, Plaintiff’s Motion to Exclude, ECF Nos. 307, 315; Defendants’ 

Response, ECF Nos. 323, 327; Plaintiff’s Reply, ECF No. 337, Dr. 

Gary Vilke, Plaintiff’s Motion to Exclude, ECF Nos. 308, 316; 

Defendants’ Response, ECF Nos. 322, 328; Plaintiff’s Reply, ECF No. 
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338, and Dr. Binh Ly, Plaintiff’s Motion to Exclude, ECF Nos. 306, 

314, 317; Defendants’ Response, ECF Nos. 321, 326; Plaintiff’s Reply,

ECF No. 339. The Court sealed these filings for “good cause 

appearing.” Orders Granting Motions & Sealing, ECF Nos. 312, 325, 

345.

b) Proposed Second Amended Complaint and Supporting Materials: These 

documents include Plaintiff’s Motion for Leave to File Second 

Amended Complaint & Supporting Documents (and all attached 

exhibits), ECF No. 192, Defendants’ Response (and all attached 

exhibits), ECF No. 197, and Plaintiff’s Reply, ECF Nos. 199, 211. The 

Court sealed these filings “[b]ased on part problems in this case with 

violation of the protective order,” and stated that “[t]he pleadings will 

be unsealed at a later date.” Order Denying Plaintiff’s Motion for Leave 

to File Second Amended Complaint 4, ECF No. 301; see also Minute 

Entry, ECF No. 193.

c) Plaintiff’s Demand Letters: These documents include three letters from 

Plaintiff’s counsel filed by Defendants as exhibits to their Memorandum 

and Supplement to Memorandum re: Confidential Designation of 

Deposition Transcripts and Videotapes. See Exhibits A & B to 

Memorandum re: Confidential Designation of City Defendants' 

Deposition Transcripts and Videotapes, ECF Nos. 116, 155; Exhibit A 

to Defendants' Supplement to Memorandum re: Confidential 
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Designation of Deposition Transcripts and Videotapes and Expedited 

Motion for Protective Order and Order to Cease/Desist and Remove 

Public Postings, ECF Nos. 181, 186. The Court sealed these filings for 

“good cause appearing.” Orders Granting Motions & Sealing, ECF Nos. 

154, 185.

d) Materials Related to Decedent’s Minor Child: These documents include 

a notice of deposition and state court documents regarding the 

appointment of a legal representative for decedent’s minor child. See

Notice of Deposition of A.M., ECF No. 99; Exhibits A & B to Petition

to Appoint Legal Representative and Motion to Stay, ECF Nos. 135, 

157; Exhibit A to Notice re: Pending Stipulation Motion for 

Appointment of Statutory Representative of Minor, ECF Nos. 160, 162;

Exhibit A to Notice of Order Appointing Statutory Representative for 

Minor, ECF Nos. 167, 169; Exhibit A to Notice of Pending Stipulated 

Motion for Production, ECF Nos. 231, 235. The Court sealed these 

filings for “good cause appearing.” Orders Granting Motions & Sealing, 

ECF Nos. 156, 161, 168, 234, 300.

ARGUMENT

I. The press has a right to intervene for the limited purpose of moving to unseal 

documents.

The press is routinely permitted to appear in criminal actions for the limited 

purpose of protecting the public’s constitutional and common law rights of access to 
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judicial proceedings and records. See Globe Newspaper Co. v. Superior Ct., 457 U.S. 

596, 589–99 (1982) (requesting access to preliminary hearings); Phoenix Newspapers, 

156 F.3d at 943 (requesting access to hearing transcripts).

The Ninth Circuit has also recognized “the press and other interested third parties 

retain their right to intervene and request that particular documents be unsealed.” United 

States v. Gurolla, 333 F.3d 944, 953 (9th Cir. 2003); see also United States v. Kaczysnki, 

154 F.3d 930, 931 (9th Cir. 1998) (noting appeal from “order granting in part the motion 

of intervenors-appellees,” which were media parties seeking access to records).

A court in this district has also acknowledged:

To the extent [precedent] cases imply, or even recognize, a right on the part of the 

press to intervene in a case, they can be read, collectively, to support a limited 

right that only attaches when court proceedings, and materials that are either filed 

or lodged with the court, are at issue.

United States v. Loughner, 807 F. Supp. 2d 828, 831–32 (D. Ariz. 2011). Courts in this 

district have granted orders permitting Motions to Intervene for the Limited Purpose of 

Moving to Unseal Documents several times in recent years. See Order, United States v. 

Kareem, No. CR-15-00707-1-PHX-SRB (D. Ariz. July 2, 2015), ECF No. 35; Minute 

Entry, United States v. Warren, No. CR-18-00223-001-TUC-RCC (D. Ariz. July 2, 

2019), ECF No. 295.

AP has a strong and abiding interest in reporting news to the general public and 

has previously published news information on the events in this case in particular, as 

described earlier. Given its interest in accessing judicial records for reporting important 

news stories, AP should be allowed to intervene for the limited purpose described above.
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II. The public and press have a right of access to the sealed documents.

A. The public and press have a right of access under the First 

Amendment, which is at its zenith when allegations of government 

misconduct and important matters of public concern are being kept 

secret.

The Ninth Circuit has long recognized that “the public and press have a first 

amendment right of access to pretrial documents in general.” Associated Press v. U.S.

Dist. Ct., 705 F.2d 1143, 1145 (9th Cir. 1983). The court also held that “[t]here is no 

reason to distinguish between pretrial proceedings and the documents filed in regard to 

them.” Id. at 1145. “Under the first amendment, the press and the public have a presumed 

right of access to court proceedings and documents. . . . This presumed right can be 

overcome only by an overriding right or interest based on findings that closure is 

essential to preserve higher values and is narrowly tailored to serve that interest.” 

Oregonian Publ’g. Co., 920 F.2d at 1465 (citations and quotation marks omitted). 

Sealing is appropriate only if “(1) closure serves a compelling interest; (2) there is a 

substantial probability that, in the absence of closure, this compelling interest would be 

harmed; and (3) there are no alternatives to closure that would adequately protect the 

compelling interest.” Id. at 1466; see also Phoenix Newspapers, 156 F.3d 940, 946

(recognizing a strong presumptive right to inspect judicial records and explaining that 

“[t]he value of openness lies in the fact that people not actually attending trials can have 

confidence that standards of fairness are being observed” (quoting Press Enterprise I, 

464 U.S. at 508)); Courthouse News Serv. v. Planet, 750 F.3d 776, 785 (9th Cir. 2014) 
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(finding that the right of access to documents is “inextricably intertwined” with First 

Amendment right of free speech).

The “alternatives to closure” include the ability to redact documents rather than 

seal them. This is contemplated by Fed. R. Civ. P. 49.1(d) regarding sealing: “The court 

may later unseal the filing or order the person who made the filing to file a redacted 

version for the public record.”

Furthermore, the decision to seal information related to police behavior makes the 

right of access even more relevant. The public interest in access is at its greatest when 

there are allegations of misbehavior, including judicial decisions to improperly seal 

documents. See Oregonian Publ’g Co., 920 F.2d at 1465 (explaining that “whether public 

access to the proceeding would serve as a curb on prosecutorial or judicial misconduct” is 

an important consideration); United States v. Smith, 123 F.3d 140, 150 (3rd Cir. 1997) 

(“[W]e agree with the newspapers that there is a significant public interest in gaining 

access to proceedings that investigate allegations of government misconduct.”); 

Associated Press, 705 F.3d at 1145 (pretrial documents “containing allegations . . . of 

government misconduct, are often important to a full understanding of the way in which 

‘the judicial process and the government as a whole’ are functioning”).

In the present case, the alleged conduct of law enforcement personnel is a 

profoundly important question that has gripped the public’s attention. Transparency 

surrounding Mr. Muhaymin’s trial is paramount to ensure public trust in both law 

enforcement agencies and our judicial system. The police actions that led to Mr. 

Muhaymin’s unfortunate death bear some similarities to what occurred in the George 
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Floyd case in Minneapolis. Mr. Floyd’s death sparked public outcry and led to worldwide 

demonstrations, and began a dialogue about police use of force throughout the United 

States. Mr. Muhaymin’s death represents an important opportunity for community 

reflection and discussion surrounding the law enforcement practices within Phoenix, one 

of the largest cities in the United States. Sealing judicial records in this case only serves 

to undermine public scrutiny of those who hold power and authority, and destroys public 

trust in our institutions. Thus, the media’s and public’s interest in access to these sealed 

records is significant.

B. The Ninth Circuit has long recognized a presumptive right of access to 

exhibits attached to motions related to the merits of a case.

The Ninth Circuit has established a presumptive right of public access to exhibits 

attached to pre-trial motions related to the merits of the case:

We acknowledged explicitly . . . that the strong presumption of access to judicial 

records applies fully to dispositive pleadings, including motions for summary 

judgment and related attachments. We adopted this principle of disclosure because 

the resolution of a dispute on the merits, whether by trial or summary judgment, is 

at the heart of the interest in ensuring the “public’s understanding of the judicial 

process and of significant public events.” . . . . Thus, “compelling reasons” must 

be shown to seal judicial records attached to a dispositive motion.

Kamakana, 447 F.3d at 1179 (citations omitted). The court more recently clarified that this 

standard applies to more than just “dispositive” motions: 

Consistent with our precedent, we make clear that public access to filed motions 

and their attachments does not merely depend on whether the motion is technically 

“dispositive.” Rather, public access will turn on whether the motion is more than 

tangentially related to the merits of a case. While many technically nondispositive 

motions will fail this test, some will pass. Our reading of the public access cases is 

consistent with our own case law, and more importantly, comports with the old 

tradition of ensuring public access which “antedates the Constitution and . . . is 

now beyond dispute.”
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Ctr. for Auto Safety, 809 F.3d at 1101 (citation and footnote omitted).

C. The Ninth Circuit has explicitly stated that the “good cause” standard is 

insufficient to justify sealing documents filed in court.

The Ninth Circuit has also established that the lesser standard that justifies a 

protective order is not sufficient to then seal dispositive court documents. “The 

‘compelling reasons’ standard is invoked even if the dispositive motion, or its 

attachments, were previously filed under seal or protective order.” Kamakana, 447 F.3d 

at 1179. “A ‘good cause’ showing will not, without more, satisfy a ‘compelling reasons’ 

test.” Id. at 1180; see also Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1136 

(9th Cir. 2003) (“[T]he presumption of access is not rebutted where, as here, documents 

subject to a protective order are filed under seal as attachments to a dispositive motion.”).

It follows from this holding that an agreement to seal documents found in a 

stipulated protective order cannot negate the common law or constitutional right of the 

public to have a presumptive right of access to court documents.

III. No party has demonstrated that the records should be sealed. 

If a court contemplates sealing a document, it must balance competing interests of 

the public against the interest asserted by the party seeking to seal the judicial records; then, 

it must articulate on the record facts that support that compelling interest. Kamakana, 447 

F.3d at 1181 (citing Hagestad v. Tragesser, 49 3.Fd 1430, 1435 (9th Cir. 1995)); see also

United States v. Bus. of Custer Battlefield Museum & Store Located at Interstate 90, Exit 

514, S. of Billings, Mont., 658 F.3d 1188, 1195 (9th Cir. 2011) (holding that compelling 

reasons must outweigh the general history of access and the public policies favoring 
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disclosure). The factual findings articulated by the court cannot be based on hypothesis or 

conjecture. Kamakana, 447 F.3d at 1181. The factual basis must be “specific enough that 

a reviewing court can determine whether the closure order was properly entered.” Press–

Enterprise Co. v. Superior Ct., 487 U.S. 1, 9–10 (1986) (“Press–Enterprise II”); see

Phoenix Newspapers, 156 F.3d at 950 (finding a conclusory order denying access to 

hearing transcripts for generalized security concerns was not specific enough to justify 

closure).

The Court in this case has not articulated any justification for sealing the documents, 

other than repeatedly finding “good cause appearing” consistent with the Protective Order.

Moreover, neither party has put forth any facts that justify sealing under the compelling 

reason standard. The generalized interests cited by the Defendants fail to meet the 

compelling reason standard required to seal court records. Kamakana, 447 F.3d at 1185 

(“Simply invoking a blanket claim, such as privacy or law enforcement, will not, without 

more, suffice to exempt a document from the public's right of access.”).

In addition, as discussed above at II.A., the court must find “there is a substantial 

probability that, in the absence of closure, this compelling interest would be harmed; and 

. . . there are no alternatives to closure that would adequately protect the compelling 

interest.” Oregonian Publ’g Co., 920 F. 3d at 1466. Again, as stated above, alternatives 

must include redactions of sensitive portions of a document instead of complete sealing. 

With no finding of compelling interests or reasons on the record, the Court has obviously 

not met the requirements of consideration of the effectiveness of closure or more narrow 

alternatives to closure. Id.
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CONCLUSION

For the foregoing reasons, the Court should grant AP’s Motion to Intervene, and 

either disclose all sealed documents and exhibits or enter into the record particular facts as 

to why nondisclosure outweighs the public’s presumption of access, after considering 

objections and alternatives.

Respectfully submitted this 17th day of September, 2021.

/s/ Gregg P. Leslie

Gregg P. Leslie

Tayler Brown

First Amendment Clinic, Public Interest Law Firm

Arizona State University Sandra Day O’Connor

 College of Law

111 E. Taylor St., Mail Code 8820

Phoenix, AZ 85004