Tuesday, March 27, 2018

How to win a Monell claim against a city in an excessive force claim

The plaintiff in this case won his excessive force claim against a City of Hartford Police Officer, winning a judgment in excess of $450,000. Defendant Allen appealed from that verdict and lost, as noted in my blog post from earlier this week. Outlaw cross-appealed from the trial court's ruling that he could not sue the City under Monell, the seminal Supreme Court case addressing municipal liability for civil rights violations. The Court of Appeals agrees that plaintiff cannot sue the city.

The case is Outlaw v. City of Hartford, decided on March 7. Under Section 1983, the federal civil rights law, you cannot simply sue a municipality because one of its police officers violated your rights. You have to show the officer violated your rights pursuant to a municipal custom and practice. This is hard to prove, as Supreme Court rulings over the years have tightened the legal standards such that many plaintiffs' lawyers don't bother with Monell claims and instead focus their efforts on the individual wrongdoing officer, who is usually indemnified by the municipality anyway, so what's the difference?

There are reasons to go after the City in a case like this, including the possibility that a jury may not want to rule against an officer who has a nice family and instead go after the big, bad faceless City. But this case tells us that you have to jump through some hoops to get there. Plaintiff tries to show that excessive force is a City policy by showing (1) a civilian review board report for 1994 (10 years before the police smacked plaintiff around) states the board was met with hostility and jeers by City officers and the police department did not cooperate with the board's investigations; (2) from 1998 through 2005, there were 66 excessive force lawsuits against the City and 87 other claims that were brought to the City's insurer; (3) from June 2003 through November 2004, Allen had filed 11 use-of-force reports in connection with his job duties; (4) the Cintron v. Vaughn class action that was filed in 1969 led to a consent decree in 1973 requiring more training for the officers; and (5) an expert opinion said the City was not systematically tracking the use of force by its officers.

This all sounds like the predicate for a good Monell claim. The Court of Appeals (Kearse, Livingston and Katzmann) disagrees. That class action did not focus on excessive force but racial discrimination. the lawsuits evidence does not work because there is no evidence as to the facts in those cases or how thoroughly the City investigated them. The simple fact that these claims were brought and some were settled does not permit an inference that the City was deliberately indifferent to in supervising the officers, and some of these cases did not involve claims of excessive force. The remaining evidence on plaintiff's Monell claims also fails. The Court concludes that plaintiff did not do enough to get the information he needed to win this claim:

The record before us does not show that Outlaw made requests for information as to the City's "investigations" of excessive-force complaints; but it does show that he had sought the foundational information as to the existence of such complaints. His effort to obtain that basic preliminary information was largely resisted by the City. For example, during the discovery period, Outlaw had requested production by the City of, inter alia, all excessive-force complaints against HPD officers from 1994 to 2004, and all of Allen's HPD disciplinary records (see Outlaw's document request to the City, Nos. 4, 6). Aside from identifying one complaint against Gordon and two against Allen, the City refused production of such complaints, objecting that the request was "overly broad, vague and unduly burdensome" and that as the request covered "a period of nine [sic] (9) [sic] years prior to the date of the [Outlaw] incident," it was "unlikely to lead to the discovery of admissible evidence" (City's Objection to Outlaw's document request No. 4). Moreover, in response to Outlaw's far more limited request for disciplinary records of just the officers other than Gordon and Allen who were "involved in the incident/arrest of the Plaintiff referenced in the Complaint," the City objected that the request was "overly broad, vague, and unduly burdensome" on the specious ground that the "interrogatory seeks information from the entire Harford [sic] Police Department based on the term `involved'" (City's objection to Outlaw's document request No. 3 (emphases added)). And the City declined to disclose Allen's disciplinary records on the ground, inter alia, that the request "constitutes an invasion of [Allen's] personal privacy." (City's Objection to Outlaw's document request No. 6.) Allen himself, in response to an interrogatory asking whether he had "ever been accused of violating anyone's civil rights" (Outlaw's Interrogatory No. 1 to Allen), similarly objected to the question as an invasion of his privacy.

. . .

However, the record does not show any determined effort by Outlaw to obtain the potentially probative information that defendants declined to provide.

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