Jeremy Brown v. THOMAS J. DART, Sheriff, in his official capacity

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 26, 2016
Decided August 02, 2016
Before
DIANE P. WOOD, Chief Judge
DANIEL A. MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15-3162
JEREMY BROWN,
Plaintiff,
v.
THOMAS J. DART, Sheriff, in his
official capacity, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 14-cv-00175
John J. Tharp, Jr.,
Judge.
APPEAL OF: Jacqueline Brown,
Third-Party Petitioner.
O R D E R
Plaintiff Jeremy Brown, a correctional officer, filed a civil rights lawsuit against
his employers, the Sheriff of Cook County and Cook County, Illinois, over adverse
employment actions that he alleges were based on race. Defendants answered that the
actions were taken as a result of a domestic battery that Jeremy committed against his
wife, Jacqueline Brown. Jacqueline appeals the order compelling her deposition
testimony about the incident. Because Jacqueline is a non-party to Jeremy’s lawsuit and
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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she is appealing an order compelling her testimony, we may consider her appeal under
the collateral order doctrine. Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1125 (7th
Cir. 1997). For the following reasons, we affirm the district court’s order denying her
motion to quash the deposition subpoena.
I. Background
Both Jeremy and Jacqueline are correctional officers employed by the Sheriff of
Cook County. On March 1, 2012, Jeremy allegedly choked Jacqueline, headbutted her,
broke her nose, and then fled the scene. Jacqueline reported the incident to Chicago
police officers, who investigated and filed a report that Jacqueline was the victim of a
domestic battery by her husband. Jacqueline, however, refused to file a complaint,
refused a protective order, and refused to acknowledge that she was a victim of
domestic violence. Jeremy was neither arrested nor charged.
The police reported the incident to the Cook County Sheriff’s Office of
Professional Review (OPR). The Sheriff’s Office de-deputized Jeremy, placed him on
leave, ordered him to complete a fitness-for-duty examination, opened an OPR
investigation, and reassigned him to a different division when he returned to work.
Jacqueline told the OPR investigators that it had all been a big misunderstanding.
Jeremy filed a civil rights lawsuit under 42 U.S.C. §§ 1981 and 1983 against the
Sheriff and Cook County, claiming that the adverse employment actions were racially
motivated. During discovery, defendants subpoenaed Jacqueline to testify about the
alleged domestic violence incident. She moved to quash the subpoena on the grounds
that her testimony was protected by the adverse spousal testimonial privilege. The
magistrate judge to whom discovery was referred denied her motion to quash.
Jacqueline objected to the ruling, and the district court overruled her objection. She
appeals.
II. Discussion
We review de novo the purely legal question of a privilege’s scope. United States
v. BDO Seidman, LLP, 492 F.3d 806, 814 (7th Cir. 2007). We review all findings of fact and
the application of the law to those facts in connection with a district court’s ruling on a
claim of privilege for clear error. Id.

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No. 15-3162 Page 3
“There are two distinct marital evidentiary privileges under federal law: [1] the
marital communications privilege and [2] the adverse spousal testimonial privilege.”
United States v. Brock, 724 F.3d 817, 820 (7th Cir. 2013). The more commonly known
marital communications privilege is available in civil and criminal cases and either
spouse can invoke the privilege, but it applies only to communications made in
confidence. Id. It is akin to the priest-penitent or doctor-patient privilege. This case is
not about the marital communications privilege. Instead, this case is about the adverse
spousal testimonial privilege.
The adverse spousal testimonial privilege may be available in criminal cases
when a spouse’s testimony would be adverse to the non-testifying party spouse. The
justification for the privilege is that it protects marital harmony, which is a good not
only for the husband, wife, and children, but for society as well. Hawkins v. United
States, 358 U.S. 74, 77 (1958). It used to be that the privilege could be invoked by either
spouse, so that the non-testifying spouse could block the voluntary testimony of the
other. Id. at 78–79. In Wyatt v. United States, 362 U.S. 525 (1960), the Supreme Court
announced an exception to the privilege for cases in which one spouse has committed a
crime against the other. Now, the victim spouse cannot be prevented from testifying,
and can even be compelled. Id. at 527–30. The Supreme Court further limited the
privilege in Trammel v. United States, 445 U.S. 40 (1980), so that now only the testifying
spouse can invoke the privilege. Id. at 53.
The district court declined to extend the privilege to Jacqueline for several
reasons, the primary reason being that the privilege is limited to criminal cases because
it applies only “where life or liberty is at stake.” Hawkins, 358 U.S. at 77. Jacqueline
argues that this was legal error and frames the issue of whether the privilege is limited
to criminal cases as one of first impression. She argues that the Seventh Circuit has not
made a “square holding” on the issue. There is some truth to her contention that we
have yet to hold definitively that the privilege is limited to criminal cases, but it does
not help her because “it is not necessary to fully defend the civil-criminal distinction in
order to reject the marital privilege” in a civil case. Ryan v. C.I.R., 568 F.2d 531, 544 (7th
Cir. 1977). For we have held that even if the privilege were available in civil cases, “the
privilege should be limited to instances in which it makes the most sense, where a
spouse who is neither a victim nor a participant observes evidence of the other spouse’s
crime.” Id. (adhering to United States v. Van Drunen, 501 F.2d 1393, 1397 (7th Cir. 1974)).
Here, Jacqueline is the victim of her husband’s alleged domestic battery, so the
privilege is unavailable. In fact, the district court relied on this point as an alternative

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basis for denying Jacqueline the privilege: “according to the officers who responded to
the March 2012 domestic dispute, it appears that Mrs. Brown was the victim of
plaintiff’s alleged conduct. Hence, the privilege would likely be unavailable to her in
any event, notwithstanding the existence of a distinction between civil and criminal
cases.” Dist. Ct. Order at 4 (Sept. 16, 2015).
III. Conclusion
Accordingly, we AFFIRM the district court’s denial of Jacqueline Brown’s
Motion to Quash Deposition Subpoena.

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