Sixth Circuit Reinforces the Importance of Protecting the Identities of Confidential Informants

Matt CrossIn Nelson v. City of Madison Heights, et al., while conducting a narcotics investigation at a motel police walked by the room of Shelly Hilliard (“Hilliard”) and spotted a bag of marijuana through the window. After obtaining her consent to enter the room, police found the bag of marijuana. In order to avoid arrest, Hilliard offered to call her drug dealer and order drugs from him. Hilliard signed a confidential informant form in which the sheriff’s department promised to use all reasonable means to protect her identity.

Police intercepted the drug dealer on his way to the motel. While questioning the passenger in the drug dealer’s vehicle, police revealed Hilliard as the source of their information. The passenger conveyed this information to the drug dealer. The police warned Hilliard the drug dealer knew she had set them up and he appeared angry about it. Soon thereafter, the drug dealer and an accomplice abducted and murdered Hilliard.

Hilliard’s mother (“Nelson”) filed a section 1983 claim against the police departments for which Hilliard served as a confidential informant. The defendant officer that revealed Hilliard’s identity moved for summary judgment based on qualified immunity and the district court denied the motion.

On appeal, the Sixth Circuit noted that government officials performing discretionary functions are afforded qualified immunity as long as their conduct does not violate clearly established constitutional rights. Hilliard’s interest in preserving her life is one such right.

Although the state has no duty to protect citizens from private acts of violence, it cannot cause or increase the risk of harm to citizens through its own affirmative acts without due process. Nelson claimed defendants were responsible for her daughter’s death under the “state created danger” theory. In order to establish liability under this theory, Nelson had to show:

(1)    An affirmative act by defendants that created or increased the risk Hilliard would be exposed to an act of violence by a third party;
(2)    Defendants’ action placed Hilliard in a special danger, as distinguished from a risk that affects the public at large; and
(3)    Defendants knew or should have known its actions specifically endangered Hilliard.

The defendant officer argued that he did not create or increase Hilliard’s risk of violence because she volunteered to be a confidential informant, citing Summar v. Bennett, 157 F.3d 1054, 1056 (6th Cir. 1998). In Summar, the informant was made aware that he would eventually have to testify and reveal his identity. An officer provided the prosecutor with the confidential informant’s name so it could be included in a pleading. The defendant became aware of the pleading and had the informant murdered.

The Sixth Circuit found the facts in Nelson distinguishable from Summar because the officer in Nelson never told Hilliard she would have to testify and reveal her identity. Further, the officer directly disclosed Hilliard’s identity to the person from whom he was supposed to protect Hilliard.

The defendant officer also argued Nelson could not prove he was deliberately indifferent to the risk of disclosing Hilliard’s identity because his decision to do so was a “split second decision that did not involve reflection.” However, the Court held that this was a question of fact for the jury and viewing the evidence in the light most favorable to Nelson a reasonable jury could find the officer acted with deliberate indifference and violated Hilliard’s constitutional rights under the state created danger theory.

TAKEAWAY:

Confidential informants are an invaluable investigative tool and it is important for law enforcement personnel to be aware of the risks involved in using confidential informants. Law enforcement personnel should do all in their power to ensure the safety of confidential informants. The Court in Nelson highlighted the importance of making sure informants are fully informed of the extent to which they are expected to cooperate. In Nelson, the Court made much of the fact that the officer did not tell Hilliard she would need to testify and reveal her identity. As a result, the officer’s decision to reveal her identity increased her risk of harm. Tell informants they may be required to testify and reveal their identity even if their testimony is not ultimately necessary. Failure to do so may result in civil liability for the injury or death of an informant.

Matt Cross is an attorney in our Traverse City office where he focuses his practice on business law, insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.