This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).








State of Minnesota,

City of Minneapolis,







Cassandra Kathleen Bagley, et al.,

Respondents (C4-00-1866),

Eleanor Lynn King, Michael Allen Nelson, and

Benjamin Hsing Tsai,

Respondents (C4-00-1866),

Sean Eric Begley,

Respondent (C5-00-1911),

Michael J. Borowski,

Respondent (C5-00-1911),

Christine Lauren Estrada, Micah Oleen

Johnson, and Russ Andrew Smarjesse,

Respondents (C5-00-1911),

David Lach Collins and Gwen Ellen Steel,

Respondents, (C5-00-1911),

Giovanni (NMN) Conti, Aaron Gregory

Lindberg, and Thomas William Radio,

Respondents (C5-00-1911),

Mary Cecile Scully and Thomas Elias Snell,

Respondents (C5-00-1911),

Nicholas Antiona Penalsa,

Respondent (C5-00-1911),

Michael Leo Donlin,

Respondent (C5-00-1911),

Michael Richard Evenson,

Respondent (C5-00-1911),

Annah Jewell Gardner, and

Keith Edward Jackson,

Respondents (C5-00-1911),

Michael Bradley Newman,

Respondent (C5-00-1911),

Peter Alvin Schulze, and Marcie

Lynn Sims,

Respondents (C5-00-1911).



Filed April 10, 2001

Affirmed as modified and remand

Toussaint, Chief Judge


Hennepin County District Court

File No. 0070474


Mike Hatch, Attorney General, 445 Minnesota Street, Suite 1400, St. Paul, MN 55101; and


Jay M. Heffren, Minneapolis City Attorney, Michael Eugene Hess, Assistant Minneapolis City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for appellant)


David Wayne Shamla, 3125 Holmes Avenue South, Suite 106, Minneapolis, MN 55408 (for respondents Bagley and Penalsa)


Jordan Scott Kushner, 529 South 7th Street, Suite 636, Minneapolis, MN 55415 (for respondents King, Nelson, Tsai and Newman)


Jerry Strauss, 250 Second Avenue South, Minneapolis, MN 55401 (for respondent Begley)


Ted Dooley, 301 Fourth Avenue South, Suite 270, Minneapolis, MN 55415 (for respondent Borowski)


Patricia Crumley, 301 Fourth Avenue South, Suite 270, Minneapolis, MN 55415 (for respondents Estrada, Johnson and Smarjesse)


Dominique Willard, 565 Portland Avenue, Suite 204, St. Paul, MN 55102 (for respondents Collins and Steel)


Keith Ellison, 2311 Wayzata Boulevard, Minneapolis, MN 55405 (for respondents Conti, Lindberg and Radio)


James Dahlquist, 301 Fourth Avenue South, Suite 270, Minneapolis, MN 55415 (for respondents Scully and Snell)


Carla Kjellberg, 1660 South Highway 100, St. Louis Park, MN 55416 (for respondent Donlin)


Michael Lander, 301 Fourth Avenue South, Minneapolis, MN 55415 (for respondent Evenson)


Teri Goral, 1970 Burns Avenue, Suite 322, St. Paul, MN 55119 (for respondents Gardner and Jackson)


Kristine Zajac, 270 Grain Exchange North, Minneapolis, MN 55415 (for respondents Schulze and Sims)


            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Foley, Judge.*

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge

Appellant challenges the district court’s pretrial orders requiring disclosure of the identities and photographs of undercover police officers monitoring a demonstration.  Appellant argues that (1) the district court failed to conduct an in camera review; and (2) the identities of the undercover officers are not discoverable as material witnesses.  Because Minnesota law requires the district court to conduct an in camera review to weigh the competing interests in determining discoverability, we affirm as modified and remand.


In July 2000, respondents Bagley, Begley, Borowski, Carapella, Collins, Donlin, Estrada, Evenson, Gardner, Hill, Jackson, Johnson, King, Kaster, Krupa, Lindberg, Lindell, Nelson, Newman, Penalsa, Piechowski, Radio, Schulze, Scully, Sims, Smarjesse, Snell, Steel, Stover, Thomas, and Wallace were charged with Unlawful Assembly and Failure to Obey a Police Officer.  Respondents Clark, Crouley, Ford, Gooden, Grosscup, Jorgenson, McNichols, Olson, Rivera, Sanderson, and Shaffer were charged with Unlawful Assembly.  Respondent Conti was charged with Assault in the 5th Degree and Obstruction of Legal Process.  Respondent Tsai was charged with Riot in the 3rd Degree, Disorderly Conduct, Unlawful Assembly, and Failure to Obey a Police Order.  (All respondents listed above will be referred to as “respondents”).

Respondents and other individuals allegedly blocked pedestrian and vehicular traffic, and pushed their way through police lines as they marched through Minneapolis streets to protest the International Society of Animal Geneticists Conference (ISAG). Before and during the conference, undercover police officers gained information about the protest in an attempt to prevent illegal activity.

In September 2000, respondents Gooden, King, and Nelson filed a motion to compel disclosure of the identities and photographs of all the undercover officers involved in the ISAG protest.  The district court issued a written order compelling appellant, the City of Minneapolis, to disclose the identities and photographs of the undercover officers working at the protest in an undercover capacity.  The district court offered appellant an in camera review if appellant was “reluctant to disclose for public safety reasons.”    

            Instead, appellant chose to file a motion for reconsideration.  Appellant argued that the respondents failed to meet their burden under the Minnesota Government Data Practices Act, Minnesota Rules of Evidence and the Minnesota Rules of Criminal Procedure.  Respondents Bagley, Carapella, Grosscup, Hill, Kaster, Krupa, Lindell, Piechowski, Rivera, Stover, Thomas, Tsai, and Wallace joined in the discovery motion.

            In October, the district court ordered appellant to identify all the undercover officers involved in the ISAG conference.  The district court also noted that any person disseminating information to the public would be subject to contempt.  Appellant filed an appeal.

            After appellant filed the notice of appeal, respondents Begley, Borowski, Clark, Collins, Conti, Crouley, Donlin, Estrada, Evenson, Ford, Gardner, Jackson, Johnson, Jorgenson, Lindberg, McNichols, Newman, Olson, Pensala, Radio, Sanderson, Schultze, Scully, Shaffer, Sims, Smarjesse, Snell, and Steel brought a motion to join the October discovery order.  The district court granted the motion. Appellant then filed another appeal.

            In November 2000, the two appeals were consolidated.  In January 2001, this court ordered the dismissal of portions of the appeals pertaining to certain respondents.


“The trial court has broad discretion in rulings on discovery and evidence.”  State v. Bakken, 604 N.W.2d 106, 110 (Minn. App. 2000) (citation omitted).  A district court’s decision whether to release non-public data is reviewable under the “abuse of discretion” standard.  Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987).


Appellant argues that the district court erred in failing to conduct an in camera review to determine the discoverability of the identities and photographs of the undercover officers involved in the ISAG protests. Upon a motion by defendant, a district court may require the prosecution to disclose information upon a showing by the defendant that the information “may relate to the guilt or innocence of the defendant or negate the guilt or reduce the culpability of the defendant as to the offense charged."  Minn. R. Crim. P. 9.01, subd. 2(3).  Here, the parties dispute the discoverability of the identities and photographs of the undercover officers.  “[D]ata in dispute shall be examined by the court in camera.”  Minn. Stat. § 13.82, subd. 7(c) (2000) (emphasis added).  Minnesota courts have also held that an in camera review is necessary before disclosure in a criminal prosecution in order to properly balance the competing interests of the parties involved.  State v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987); State v. Hopperstad, 367 N.W.2d 546, 549 (Minn. App. 1985).  In Paradee, the court held that “trial courts, who by training and experience are qualified for the task of determining matters of relevancy, are capable of determining what if any of the information in the records might help in the defense.”  Id.  The defendants have an initial burden of a “minimal showing of a basis for the in camera inquiry.”  State v. Solheim, 477 N.W.2d 785, 787 (Minn. App. 1991).  To determine whether disclosure of the identity of an informant is necessary, the defendant must show whether (1) the informant was a material witness; (2) the testimony is material to the issue of guilt; (3) the state’s evidence is suspect; and (4) the testimony might disclose entrapment.  State v. Ford, 322 N.W.2d 611, 614 (Minn. 1982).

Here, even though the district court provided appellant the opportunity to conduct an in camera review that appellant subsequently waived, the district court improperly determined respondents’ need for disclosure without conducting an in camera review.   See Paradee, 403 N.W.2d at 642 (the district court shall conduct an incamera review before disclosure to properly balance the competing interests of the parties involved) (emphasis).  We remand to the district court to conduct an in camerareview to determine the discoverability of the identities of the undercover officers and to set guidelines of discovery accordingly, including a new specific protective order addressing who can review the photos and videotapes of the ISAG protests.  See Minn. Stat. § 13.03, subd. 6 (pursuant to the rules of evidence and a balancing of the interests involved, the district court should determine whether the information requested is discoverable).  This court need not address the issue of discoverability.

Finally, appellant is not appealing a pretrial suppression order.  Here, appellant is appealing a pretrial order to compel discovery.  The “critical impact” standard does not apply to a prosecution appeal of a discovery order.  State v. Cain, 427 N.W.2d 5, 9-10 (Minn. App. 1988).  Therefore, “the critical impact” standard does not apply.

Affirmed as modified and remand.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.