A primer on "John Doe" police litigation

A potential client walks into your office because she wants to sue the police, who assaulted her for no reason. The problem is that you don't know who the officers are. Lawsuits have to identify the defendants by name. If you don't know their names, how do you proceed?

The case is Barrett v. City of Newburgh, a summary order decided on December 21. The answer is that you have to name the defendants as John or Jane Doe. Eventually, you have to name them before the statute of limitations runs out, though there are some exceptions. There is relatively little guidance on John Doe litigation. This case provides a primer.

Plaintiff had a confrontation with the police. She sued the City and John Doe defendants. Under Rule 15(c)(1)(c), "lack of knowledge of a John Doe defendant's name does not constitute a mistake of identity," which means you have to name them before the statute of limitations runs out. But under CPLR 1024, a plaintiff who identifies a John Doe defendant by name can do so outside the statute of limitations if he exercises "due diligence, prior to the running of the statute of limitations, to identify the defendant by name" and he describes the John Doe party in such a way that the correct party is fairly apprises that he is the correct defendant.

The Court of Appeals (Raggi, Jacobs and Droney) notes that the due diligence standard "is not forgiving." The plaintiff has to get moving on this as soon as he files the complaint. The Second Circuit cites federal trial-level and state appellate rulings that bear this out. In the end, "A plaintiff exercising due diligence will take concrete and timely steps to ascertain an officer defendants' identity, for example by submitting multiple discovery demands" or FOIL requests.

The Second Circuit says plaintiff did not exercise due diligence. The Monell claim against the City was dismissed in March 2014. In March 2015, plaintiff filed formal discovery demands on the City's lawyer for police reports relating to the incident. The City did not respond to this, so plaintiff asked again in July 2015. Again, nothing, so she served a subpoena duces tecum on the Police Chief for this information, which finally arrived "months later." The Court thinks the City should have provided these names sooner. But the focus here is on plaintiff. While "she pursued at least avenues to identify the officers," "for reasons not clear to the Court, Barrett waited more than two years after the events took place to begin to inquire into the names of the defendant Does." This sequence convinces the Court of Appeals that the district court did not abuse its discretion in denying the motion to file an amended complaint that would have named the John Doe defendants.