Young B. Kim
Young B. Kim

A subpoena that would have required Cook County Circuit Judge Charles P. Burns to testify about his decision to grant an application for a search warrant has been quashed.

In a written opinion last week, U.S. Magistrate Judge Young B. Kim held Burns’ analysis of the warrant application is shielded by a privilege called the mental process privilege or the judicial deliberative process privilege.

The privilege “generally protects judges from being forced to testify about their reasoning, motivations or thought processes in performing judicial functions or in coming to a final judgment,” Kim wrote, citing Ciarlone v. City of Reading, 263 F.R.D. 198 (E.D. Pa. 2009).

And he wrote Burns would be required to disclose privileged information if he was forced to comply with the subpoena issued by plaintiffs Hester and Gilbert Mendez.

The Mendezes sought Burns’ testimony during discovery in their civil rights lawsuit against the city of Chicago and seven police officers. Burns is not a party in the case.

The Mendezes allege police executing a search warrant, authorized by Burns, broke down the front door of their apartment, handcuffed Gilbert and screamed profanities at the couple and their sons.

Officers also pointed loaded guns at the sons, then ages 5 and 9, while the boys pleaded with them not to shoot their father, the Mendezes allege.

They allege the officers continued to search the apartment even after they learned the targets of the warrant did not live there.

The city has a different account of the November 2017 incident.

It contends the officers executed a valid search warrant and that the apartment smelled of burnt cannabis when they entered. The city also denies the officers pointed guns at the boys.

The Mendezes filed their suit in August 2018.

It included counts of unlawful search, warrantless entry and false arrest as well as counts under Illinois law. The Mendezes later added a count alleging police violated their sons’ right to be free of excessive force.

The Mendezes issued their subpoena for Burns’ deposition testimony in December 2019. Burns moved to quash the deposition.

In his opinion Thursday, Kim noted the Mendezes maintain they wanted to ask Burns only “purely factual questions.”

One line of questioning the couple wanted to pursue concerns the details of Burns’ discussion with Joseph Cappello, the officer seeking the warrant, Kim wrote. Questions the Mendezes wanted to ask, he wrote, include whether Burns asked Cappello if the address of the apartment to be searched had been independently verified and if children were present at that address.

The other line of questioning concerned the usual procedures Burns and the city follow to confirm facts about the address and occupants of the place to be searched, Kim wrote.

He wrote the information the Mendezes are seeking go to the heart of Burns’ deliberations.

“The court finds that both lines of plaintiffs’ proposed questions are highly likely to invade into Judge Burns’ decision-making process and therefore target privileged material,” Kim wrote.

The case is Hester Mendez, et al. v. City of Chicago, et al., No. 18 C 5560.

The Mendezes are represented by Al Hofeld Jr. of the Law Offices of Al Hofeld Jr. LLC.

“I humbly believe the motion to quash was wrongly decided,” Hofeld wrote in an email. “With all due respect to Judge Kim, I think he construed the judicial deliberative process privilege, which is very important, too broadly.” 

Kim incorrectly construed the privilege to cover his clients’ questions seeking “factual information,” Hofeld wrote.

Citing United States v. Frankenthal, 582 F. 1102 (7th Cir. 1978), he wrote the 7th U.S. Circuit Court of Appeals allows a judge to be questioned about such information.

“This was the only type of question plaintiffs planned to ask Judge Burns,” Hofeld wrote.

Burns is represented by Illinois Assistant Attorney General Tanya K. Bouley.

“Plaintiffs’ counsel represents that he does not seek testimony concerning Judge Burn’s thoughts or decision-making process,” Bouley wrote in the motion to quash the subpoena, which was filed in January.

“However, any inquiry as to Judge Burn’s customary practices with respect to search warrants and his understanding of his duties would compel him to testify concerning the mental processes he uses in examining complaints for search warrants and in deciding to sign search warrants.”