McDaniels v. City of Philadelphia
McDaniels v. City of Philadelphia
Opinion of the Court
Memorandum Opinión
Before the Court is Defendant City of Philadelphia’s Motion for Summary Judgment. For the reasons that follow, the motion is denied, as there are factual disputes regarding nearly every element of Plaintiffs claim, and Defendant has failed to put forward any compelling evidence or argument that it is entitled to judgment as a matter of law.
I. BACKGROUND
This ease concerns the shooting death of Aaron Lamar McDaniels by Jermias Olivo, a Philadelphia Police Officer with a checkered past.
A. The August 20 Shooting of Mr. McDaniels
The parties agree that on the evening of August 20,2013, Officer Olivo and his partner, Officer Camarote, were in uniform and driving a marked patrol car when they attempted to stop a Buick for disregarding a stop sign.
The parties dispute what happened next. Plaintiff alleges based on independent eyewitness testimony that Officer Olivo approached the Buick with his gun drawn, opened the door, and yelled “get out, get out.”
Officer Olivo provided a different account of the shooting, and testified that as he approached the Buick, Mr. McDaniels opened the door and pointed a gun at him.
B. The Philadelphia Police Department’s (“PPD’s”) Use-of-Force Policies and Training Practices
Mr. McDaniels’.s death came during a rise in shootings by PPD officers between 2007 and 2014 despite an overall downward trend in violent crime during the same period.
The DOJ Report found that PPD officers did not “receive regular, consistent training on the department’s deádly force policy,” and were not .provided sufficient alternatives to.,the use' of deadly force.
The DOJ also found PPD’s use-of-force policies fragmented and confusing.
The DOJ’s conclusions were consistent with those reached by Plaintiffs proffered expert on police practices, Dr. R. Paul McCauley. Dr. McCauley undertook a review of PPD deadly force incidents over a 15-year period, and found that PPD officers received inadequate training and lacked clear guidance regarding when the use of deadly force was appropriate.
C. PPD’s Disciplinary System
Plaintiff has put forward evidence that the problems at PPD extended to its disciplinary system as well. A 2003 report by PPD’s Integrity and Accountability Office (“IAO”) found that investigations by PPD’s Internal Affairs Division (“IAD”) suffered from excessive and chronic delays, a haphazard penalty system, inadequate followup efforts, and a pervasive failure to discipline officers who had violated PPD policies or engaged in severe misconduct.
Dr. McCauley conducted an audit of IAD investigations and concluded that similar problems still plagued PPD’s disciplinary system at the time of Mr. McDaniels’s death. Specifically, Dr. McCauley found that IAD investigations frequently were untimely and incomplete, and often failed to account for flawed threat perception or poor tactical decisions when investigating a shooting by an officer.
Dr. McCauley determined that PPD’s disciplinary system failed to identify Officer Olivo as a problem officer and take appropriate disciplinary measures despite numerous red flags. Before he shot Mr. McDaniels, Officer Olivo had amassed a staggering record of complaints, including two other shootings, an illegal search, physical and verbal abuse, witness intimidation, domestic assault, and steroid abuse.
D. Procedural History
After Mr. McDaniels’s death, Plaintiff filed suit against Officer Olivo in the Philadelphia Court of Common Pleas asserting state-law claims. Plaintiff later amended the Complaint to add a § 1983 claim against the City of Philadelphia. Defendants then removed the case to federal court, and Officer Olivo was dismissed by agreement of the parties, leaving only the § 1983 claim against the City, which now moves for summary judgment.
II. LEGAL STANDARD
A. Summary Judgment Standard
A court will award summary judgment on a claim or part of a claim where there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
In evaluating a summary judgment motion, a court “must view the facts in the light most favorable to the non-moving party,” and make every reasonable inference in that party’s favor.
B. Monell Liability Under § 1983
Plaintiff brings a claim under § 1983 alleging that Officer Olivo violated Mr. McDaniels’s right to be free from the unreasonable use of deadly force under the Fourth and Fourteenth Amendments. “[Section] 1983 provides remedies for deprivations of rights established in the Constitution or federal laws,” but “does not, by its own terms, create substantive rights.”
.There is no respondeat superior liability under § 1983,
Plaintiff asserts two theories of § 1983 liability: (1) that PPD failed to train Officer Olivo adequately regarding the use of deadly force; and (2) that PPD failed to discipline Officer Olivo adequately for previous violations of PPD policy. Both theories are well established,
For failure-to-train claims, liability attaches only “where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.”
III. DISCUSSION
Defendant moves for summary judgment on the following grounds: (1) Plaintiff cannot establish a constitutional violation by Officer Olivo; (2) Plaintiff has failed to offer competent evidence of liability under either a failure-to-train or failure-to-discipline theory; (3) Plaintiff cannot establish deliberate indifference on behalf of Police Commissioner Ramsey, the relevant policymaker here; and (4)- Plaintiff cannot establish causation. The Court will address each argument in turn.
A. Fourth Amendment Violation
The Court begins with the threshold question of whether Plaintiff can establish a constitutional violation. It is well established that an officer’s unreasonable use of deadly force may ground a claim for violation of a decedent’s Fourth Amendment rights under § 1983.
B. Monell Liability
Defendant argues that Plaintiff cannot adduce competent evidence that PPD failed to train or discipline Officer Olivo. The Court will address each theory of liability separately.
1. Failure-to-Train
Recognizing that Plaintiffs failure-to-train theory rests upon Dr. McCauley’s Report and the DOJ Report, Defendant launches a number of attacks on both, not one of which is persuasive.
a. Dr. McCauley’s Report
Defendant does not challenge Dr. McCauley’s expert qualifications. Instead, Defendant’s primary argument is that because Dr. McCauley’s opinions have been criticized in other cases, they cannot be credited here,
Next, Defendant identifies six areas of Dr. McCauley’s report that it
First, Defendant criticizes Dr. McCau-ley’s focus on partner splitting, arguing that such tactical decisions are irrelevant to whether Officer Olivo’s use of deadly force was unreasonable.
Second, Defendant argues that Dr. McCauley has no basis to criticize IAD’s investigation into Mr. McDaniels’s death.
Third, Defendant argues that Dr. McCauley erred by focusing on IAD’s investigation of Officer Olivo after Mr. McDaniels’s death, because any deficiencies in an ex post investigation cannot have contributed to Mr. McDaniels’s death.
Fourth, Defendant argues that Dr. McCauley’s opinion is predicated upon “outdated audit reports,”
Fifth, Defendant argues that Dr. McCauley erred by reviewing all Complaints Against Police (“CAPs”) between 2003-2014, including those involving physical abuse and harassment, rather than focusing only on shooting incidents.
Finally, Defendant argues that Dr. McCauley’s audit of shooting investigations—one per year from 2003-2014—fails to reveal a pattern of unreasonable use of deadly force.
b. The DOJ Report
Rather than offering evidence that disputes the conclusions of the DOJ Report, Defendant argues that the Report is inadmissible because: (1) it contains hearsay; (2) it contains expert testimony that does not comport with Federal Rule of Evidence 702; and (3) it is a subsequent remedial measure barred by Federal Rule of Evidence 407.
i. The DOJ Report Is Admissible as a Public Report Under Rule 803(8)
In general, an out-of-court statement offered for the truth of the matter asserted constitutes hearsay and is inadmissible.
ii. The DOJ Report Is Not Expert Opinion Subject to Rule 702
Defendant next argues that the DOJ Report is inadmissible : because it does not meet Rule 702’s requirements for
iii. The DOJ Report Is Not a Subsequent Remedial Measure Barred By Rule 407
Finally, Defendant argues that the DOJ Report is inadmissible under Rule 407, which provides: “When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove... culpable conduct.” However, the DOJ Report does not constitute an improvement in PPD’s practices that would be barred by Rule 407 because it contains only recommendations, not actual remedial measures.
In short, none of Defendant’s arguments warrants disregarding the DOJ Report on summary judgment, and the Court concludes that it, combined with Dr. McCau-ley’s testimony, creates a genuine issue of material fact regarding whether PPD failed to train its officers adequately.
2. Failure-to-Discipline
Regarding failure-to-discipline liability, Defendant argues that Plaintiff has
Defendant’s first argument- amounts to little more than an assertion that IAD adequately investigated Officer Olivo prior to the shooting of Mr. McDaniels, which cannot satisfy Defendant’s burden at summary judgment.
Defendant also suggests that Officer Oli-vo’s history of complaints is insufficient to ground a failure-to-discipline claim as a matter of law, relying on the Third Circuit’s decision in Beck v. City of Pittsburgh.
Many of the salient facts from Beck are present here. Like the officer in Beck, Officer Olivo had a history of disciplinary complaints, and Dr. McCauley found that IAD failed to investigate these incidents properly, including by ignoring evidence that Officer Olivo had violated PPD policy in both prior incidents.
Defendant’s second argument—that IAD’s disciplinary practices have been
In short, Plaintiff has put forward sufficient evidence to create a genuine issue of material fact regarding whether PPD’s disciplinary processes were adequate.
C. Deliberate Indifference
Defendant argues that Plaintiff cannot establish deliberate indifference because: (1) Plaintiff has not adduced evidence sufficient to'show that the relevant decision-maker, former Police Commissioner Ramsey, was deliberately indifferent; and (2) the mere existence of PPD training programs regarding the use of- deadly force precludes a finding of deliberate indifference. Similar arguments have already been rejected in-other cases in .this District, and they fail here .as well.
1. A Genuine Issue of Material Fact Exists Regarding Whether Defendant Was Deliberately Indifferent
First, Defendant argues that Plaintiff has failed to put forward evidence of deliberate indifference. In order to- establish deliberate indifference, Plaintiff must show: “(1) municipal policymakers know that employees will confront a particular situation; (2) the situation involves a difficult choice or a history of employees mishandling; and (3) the wrong choice by an employee will frequently cause deprivation of constitutional rights.”
Here, it is beyond peradventure that PPD policymakers “knew that officers would confront situations where they would have to determine whether to use
Defendant nonetheless argues that the DOJ Report cannot show deliberate indifference because it only suggests “best practices” but does not indict current PPD practices.
Defendant also argues there is no evidence that Commissioner Ramsey specifically was aware of any deficiencies in PPD’s training programs and disciplinary system. But there is no requirement “that the responsible decisionmaker must be specifically identified by the plaintiffs evidence,” and “[practices so well-settled as to have the force of law are aseribable to municipal decisionmakers.”
2. The Mere Existence of a Training Program Does Not Insulate Defendant From Liability
Second, Defendant argues that the mere existence of PPD’s training programs means that Plaintiff cannot establish deliberate indifference.
In short, Defendant has failed to establish that it is entitled to summary judgment on the issue of deliberate indifference.
D. Causation
Finally, Defendant argues that Plaintiff cannot establish causation.
Here, as discussed, Plaintiff has put forward evidence that Mr. McDaniels’s death would have been avoided had Officer Olivo
IV. CONCLUSION
For the reasons stated above, Defendants’ motions will be denied. An appropriate Order will be entered.
. Plaintiff Nicole McDaniels brings this case as the administrator of Mr. McDaniels’s estate,
. Doc. No, 16-1 (Defendant’s Statement of Stipulated Material Facts).
. Id. ¶ 1.
. Id. ¶2.
. Id. ¶ 3.
. Id. n 4-5.
. Id. ¶ 6.
. Id. ¶¶ 6-7.
. Doc. No. 17-2, Ex. B (Deposition of Tahir Lamar) at 25:7-13.
.Id.
. Id. at 25:14-16.
. See Doc. No. 17-3, Ex. C (Expert Report of Dr, Charles Wetli, MD); Doc. No. 18-1, Ex. E (Expert Report of Dr. Albert B. Harper).
. Doc. No. 17-1, Ex. A (Deposition of Jermi-as Olivo) at 30:8-38:13.
. Id. at 36:18-37:19.
. Id. at 37:6-41:12.
. Doc. No. 17 (Plaintiffs Response to Defendant’s Motion for Summary Judgment) at 5; Ex, J (U.S. Dep’t of Justice, Collaborative Reform Initiative: an Assessment of Deadly Force in the Philadelphia Police Department (2015)) ("DOJ Report”) at 2, 10-11. Defendant has not stipulated to these facts, but does, not dispute that they must, be viewed in the light most favorable to Plaintiff for the purposes of this summary judgment motion. Doc, No. 25 (Defendant’s Reply Memorandum in Support of Motion for Summary Judgment) at 1.
.' DOJ Report at 1.
. Id. at 40-42.
. Id. at 69-70,
. Id. at 83-84.
. Id.
. Id. at 40-43.
. Id. at 43-45.
. Id.; see also Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ("[T]he ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.”) (citations omitted).
. Doc. No. 19-1, Ex. H (McCauley Report).
. Id. at 15-17.
. Id. at 44-45.
. Doc. No. 23-1, Ex. L (Phila. Police Dep’t Integrity and Accountability Office: Disciplinary System (2003)) (“IAO Report”) at 1-3, 14-19.
. Id. at 4.
. McCauley Report at 15, 34.
. McCauley Report at 17. In fact, only approximately 3% of PPD officers have been involved in three firearm discharges, as Officer Olivo was. Id. at 16-17.
. Id. at 16.
. Id. at 12-13. These incidents all appear in Officer Olivo’s "Concise Officer History.” Doc. No. 30 (Ex. C. to Defendant’s Reply in Support of Motion for Summary Judgment).
. McCauley Report at 12.
. Id. at 15-16.
. Id. at 16.
. Fed. R. Civ. P. 56(a).
. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. Id.
. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
. Boyle v. Cty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998).
. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).
. Walden v. Saint Gobain Carp., 323 F.Supp.2d 637, 641 (E.D. Pa. 2004) (citing Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976)).
. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).
. Torres v. City of Allentown, No. 07-0934, 2008 WL 2600314, at *2 (E.D. Pa. June 30, 2008) (citations omitted).
. Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) (citation omitted).
. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
. Berry v. City of Phila., 188 F.Supp.3d 464, 474 (E.D. Pa. 2016) ("[I]n order to hold the city liable, she must prove that a municipal policy or custom caused the constitutional violation.”) (citing Berg v. Cty. of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000)).
. Torres, 2008 WL 2600314, at * 4 (internal quotation marks omitted) (citing Bd. of the Cty. Comm’rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)).
. E.g., Wnek v. City of Phila., Civil Action No. 05-cv-3065, 2007 WL 1410361, at *3 (E.D. Pa. May 11, 2007) ("Courts have recognized that municipal liability may arise where a police department has failed to train or discipline its officers.”) (citations omitted).
. City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
. Berrios v. City of Phila., 96 F.Supp.3d 523, 536 (E.D. Pa. 2015) (quoting City of Canton, 489 U.S. at 392, 109 S.Ct. 1197).
. Wnek, 2007 WL 1410361, at *3 (citations omitted).
. Beck v. City of Pittsburgh, 89 F.3d 966, 974 (3d Cir. 1996)
. See id. at 972 (citation omitted).
. Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011).
. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).
. Doc, No. 25 at 4-7.
. See Miller ex rel. Miller v. Evenflo Co., Civil Action No. 3:09-108, 2011 WL 7037127, at *2 n.2 (W.D. Pa. Dec. 15, 2011) (rejecting "a challenge to the credibility of the opinion of Plaintiff’s expert at the summary judgment stage”); Donohoe v. Am. Isuzu Motors, Inc., 155 F.R.D. 515, 521 n.7 (M.D. Pa. 1994) (rejecting argument that plaintiff’s expert was not credible due to opinions expert.had provided in other cases on the ground that such
. Carswell v. Borough of Homestead, 381 F.3d 235, 243-44 (3d Cir. 2004) (holding that officer was entitled to qualified immunity, an issue of law that could not be decided by reference to Dr. McCauley's opinion).
. Palm v. Las Vegas Metro. Police Dep’t, No. 97-15896, 1998 WL 196727, at *2 (9th Cir. 1998) (unpublished opinion) (affirming grant of summary judgment and finding that Dr, McCauley’s opinion did not create a triable issue of fact regarding whether officer used unreasonable force in shooting plaintiff’s son where uncontroverted eyewitness testimony established that decedent had just committed a rape and was lunging toward officer at time of shooting). Most of the other cases cited by Defendant similarly involve factual records so inadequate that Dr. McCauley's opinion alone was insufficient to establish liability. See Woloszyn v. Cty. of Lawrence, 396 F.3d 314, 325-26 (3d Cir. 2005) (affirming grant of summary judgment for municipality on failure-to-train claim involving jailhouse suicide because Dr. McCauley did not suggest any specific training methods that might have prevented the suicide and there was no other evidence of a failure to train); Taylor v. Moletsky, Civil Action No. 07-4883, 2010 WL 299747, at *8-9 (E.D. Pa. Jan. 22, 2010) (granting summary judgment on Monell claim where plaintiff was struck by a police car because plaintiff could not identify any other instance where a similar harm occurred and therefore could not establish that his injuries were caused by a municipal policy or custom); Small v. City of Phila., Civil Action No. 05-5291, 2007 WL 674629, at *10-11 (E.D. Pa. Feb. 26, 2007) (finding Dr. McCauley’s opinion that PPD failed to train officers on the execution of high-risk arrest warrants was insufficient to survive a summary judgment motion because Dr. McCauley’s report focused only on the incident in question and there was no evidence that PPD's training practices as a whole were inadequate); Henderson v. City of Phila., Civil Action No. 98-3861, 1999 WL 482305, at *22 (E.D. Pa. July 12, 1999) (granting summary judgment on Monell claim that PPD’s failure to train officers regarding involuntary confinement procedures caused plaintiff's schizophrenic son to jump out of a second-floor window because there was no evidence that the son’s injuries could have been prevented through superior training).
. See McCauley Report at 4-6 (listing materials reviewed), 18-22 (discussing DOJ Report), 22-24 (discussing IAO Report).
. See Lyons v. City of Phila., Civil Action No. 06-5195, 2007 WL 3018945, at *8-9 (E.D. Pa. Oct. 12, 2007) (finding that Dr. McCauley's report and other record evidence created a triable issue of fact as to whether PPD’s deficient investigative process caused plaintiff officer's injuries during a physical altercation with another officer, who had numerous red flags including off-duty criminal charges); see also Doswell v. City of Pittsburgh, Civil Action No. 07-0761, 2009 WL 1734199, at *12-13 (W.D. Pa, June 16, 2009) (denying summary judgment on claim that the Pittsburgh Police Department failed to train and supervise its employees based in part on Dr. McCauley’s opinion that the department’s internal investigation practices were deficient); Williams v. Twp. of W. Deptford, Civil Action No. 05-1805, 2008 WL 1809134, at *11 (D.N.J. Apr. 22, 2008) (denying municipality’s motion for summary judgment in part due to Dr. McCau-ley’s opinion that police department’s procedures for investigating complaints of excessive force were inadequate).
. Fed. Labs., Inc. v. Barringer Research Ltd., 696 F.2d 271, 274 (3d Cir. 1982) (on summary judgment, a court is not "at liberty to disbelieve the good faith statements of experts. . .presented by the non-moving party”) (citations omitted). Cf. Walker v. Jacques, Civil No. 04-351 (RMB), 2007 WL 2122028, at *6 n.7 (D.N.J. July 23, 2007) (identifying portions of expert’s opinion as conclusory but determining that such problems constituted "an issue of credibility more appropriately left to the province of the jury”).
. Doc. No. 25 at 8.
. In another variation on its “partner splitting” argument, Defendant argues that Dr. McCauley’s opinion on this point is irrelevant because "it was Officer Olivo's partner who split and ran.. .not Officer Olivo.” Doc. No. 25 at 8. But Plaintiff’s sole remaining claim is for municipal liability, not personal liability against Officer Olivo, so it is hardly disposi-tive that it was Officer Camarote who "split and ran,” as that decision still may have resulted from deficient PPD training practices, and the effect was that Officer Olivo was alone with Mr. McDaniels.
. See Jones v. City of Phila., Civil Action No. 08-3336, 2011 WL 710212, at *4-5 (E.D. Pa. Feb. 25, 2011) (denying summary judgment on Monell claim where plaintiff alleged that officer fatally shot individual after engaging in partner splitting, and concluding that "a reasonable jury could find that the City's failure to adopt a ‘partner splitting’ and ‘foot pursuit’ policy.. .rendered [the officer] unequipped to properly handle the incident in question and thereby ‘caused’ the alleged constitutional violation.”) (citation omitted); Pelzer v. City of Phila., 656 F.Supp.2d 517, 532 (E.D. Pa. 2009) (denying summary judgment on Monell claim because there was evidence that PPD failed to train its officers adequately concerning pursuit of suspects, including by not training them regarding partner splitting). Despite the existence of these two cases—both of which involved the City—Defendant’s counsel maintains that he is aware of "no prece-dential case law in either the 3rd Circuit or any other Federal Circuit which holds that the tactical decision to partner split by an officer is a factor to be used in analyzing the reasonableness of an officers’ use of force.” Doc. No. 25 at 8.
. Doc. No. 25 at 8-9.
. McCauley Report at 12.
. Id. at 13-15.
. Defendant also claims that a review of the IAD investigations alone is inadequate because no depositions of City officials were taken, Doc. No. 25 at 9, but there is no requirement that an expert rely on all possible sources of evidence, and the lack of deposition testimony on this subject goes, at most, to Dr. McCauley’s credibility.
. Doc. No. 25 at 9.
. See Beck, 89 F.3d at 974-75 (holding that pattern of complaints against an officer could establish that police department knew officer was likely to act unreasonably and therefore ground a § 1983 claim).
. Doc. No. 25 at 9.
. McCauley Report at 17-21, 23-24, 27-34.
. IAO Report at 4 ("[T]he conditions necessary for meaningful and lasting reforms do not exist in the Department,”).
. Doc. No. 25 at 9.
. McCauley Report at 25-26.
. Doc. No. 25 at 9-10.
. McCauley Report at 34.
. Cf. Owens v. City of Phila., 6 F.Supp.2d 373, 393 (E.D. Pa. 1998) (denying defendant’s motion for summary judgment on § 1983 claim because plaintiff presented unrebutted expert testimony that, combined with the facts in the record, would allow factfinder to conclude that the defendant had failed to train corrections officers regarding suicide prevention).
. Under Federal Rule of Civil Procedure 56(c)(2), at summary judgment "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”
. See Berry, 188 F.Supp.3d at 475 (denying summary judgment motion and noting that “both [other] courts in this District that have addressed this DOJ Report in the context of summary judgment motions on § 1983 Mo-nell claims have similarly denied the defendants’ motions); Valdez v. City of Phila., Civ. A. No. 12-7168, 2016 WL 2646667, at *4 (E.D. Pa. May 10, 2016) (similar); Coyett v. City of Phila., 150 F.Supp.3d 479 (E.D. Pa. 2015) (similar).
. Fed. R. Evid. 801, 802
. Fed. R, Evid. 803(8)(A)(iii)-(B)..
. See Valdez, 2016 WL 2646667, at *3.
. E.g., Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988) (holding that portions of public reports stating conclusions or opinions constitute “factual findings” within the meaning of Rule 803(8) and are admissible as such).
There are two other problems with Defendant’s hearsay argument. First, it ⅛ not .clear that statements by PPD Officers in the DOJ Report are hearsay at all, as they may constitute statements by an opposing party's agent or employee under Fed. R. Evid. 801(d)(2)(D), Second, even if statements within the DOJ Report are inadmissible as hearsay within hearsay, Dr. McCauley is still likely able to rely upon them in forming his expert opinions, as he did here. See Fed. R. Evid. 703.
. Doc. No. 25 at 11 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).
. Clark v. Clabaugh, 20 F.3d 1290, 1294-95 (3d Cir. 1994) ("Rule 803(8) does not on its face require that the one who undertakes the investigation and authors the report be qualified as an expert before the report becomes admissible, as the defendants contend.”).
. Valdez, 2016 WL 2646667, at *4 (rejecting argument that DOJ Report was inadmissible under Rule 702).
. Id. at *4 ("The Report itself does not contain any measures that would have made [an] alleged violation any less likely to occur; only the Philadelphia Police Department's decisions to implement those recommendations would have done so. Instead, the Report is more appropriately viewed as a sort of ‘step zero'—providing facts, data, and conclusions that would guide future policy decisions, but not the policy decisions themselves.”); see also Coyett, 150 F.Supp.3d at 482 n.5 ("The [DOJ Report] is not a 'subsequent remedial measure’ as articulated in Rule 407.”).
Defendant cites Kelly v. Las Vegas Metropolitan Police Department, No. 2:12-cv-02074-LRH-CWH, 2014 WL 3725927, at *11 (D. Nev. July 25, 2014) in support of its position, and while it is true that the court in that case found a similar DOJ report inadmissible under Rule 407, the court also found the report irrelevant and, in any event, this decision is not binding on the Court.
. Doc. No. 25 at 12.
. See Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:50 (2016) ("Rule 407 does not apply to investigative reports, or post-accident inspections that reflect the condition of the machine or instrumentality in question or analyze the cause or reasons for an accident. The reason is that such reports or inspections are not themselves remedial measures, and do not themselves even reflect decisions to take or implement such measures.”).
. Celotex, 477 U.S. at 328, 106 S.Ct. 2548 (White, J., concurring) ("It is not enough to move for summary judgment without supporting the motion in any way or with a concluso-ry assertion that the plaintiff has no evidence to prove his case.”).
. 89 F.3d 966 (3d Cir. 1996).
. Id. at 970.
. McCauley Report at 12-16.
. Beck, 89 F.3d at 973 (noting that "under the sterile and shallow.. .system of investigation, each complaint was insulated from other prior and similar complaints and treated in a vacuum”).
.McCauley Report at 17. Defendant asserts that unlike the disciplinary system in Beck, IAD maintains an “Internal Affairs Case Management System” that provides officer “alerts” with respect to complaints, and therefore functions as a tracking system, Doc. No. 25 at 21, but cites no evidence regarding the existence or effect of this system. Even taking Defendant at its word, Dr. McCauley’s review of IAD investigations shows that any tracking system IAD had in place may not have been effective, creating a triable issue of fact. Moreover, the DOJ Report found that PPD’s early intervention systems “remain largely untested and unverified.” DOJ Report at 108.
. 455 F.Supp.2d 302, 344 (E.D. Pa. 2006).
. Civ. A. No. 95-3969, 1996 WL 502281, at *6 (E.D. Pa..Aug. 29, 1996) ("The Court is satisfied that Plaintiff has come forward with evidence upon which a reasonable juror could conclude that the Township's internal investigation procedures are inadequate by today’s professional standards.”).
. Coyett, 150 F.Supp.3d at 485-86 (quoting Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)).
. Thomas v. Cumberland Cty., 749 F.3d 217, 233 (3d Cir. 2014) (quoting Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)).
.City of Canton, 489 U.S. at 390 n.10, 109 S.Ct. 1197 ("[C]ity policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons.... Thus, the need to train officers in the constitutional limitations on the use of deadly force can be said to be 'so obvious,’ that failure to do so could properly be characterized as 'deliberate indifference’ to constitutional rights.”).
. Berry, 188 F.Supp.3d at 475.
. DOJ Report at 2, 33; Berry, 188 F.Supp.3d at 475 (finding that PPD’s knowledge of police shootings, as found by the DOJ Report, could establish deliberate indifference).
. See Valdez, 2016 WL 2646667, at *6 (finding that DOJ Report constituted sufficient "evidence of a lack of training in de-es-calation tactics that a reasonable jury could determine that Defendant’s failure to train constituted deliberate indifference on the Philadelphia Police Department’s part”); Berry, 188 F.Supp.3d at 475 (finding that the DOJ Report "could lead a reasonable jury to determine that the City of Philadelphia knew about a pattern of violations of constitutional rights and...was deliberately indifferent to the inadequacies of the PPD’s deadly force training"); Coyett, 150 F.Supp.3d at 487-88 (finding that DOJ Report, coupled with procedural failures evident in officer's disciplinary proceedings, suggested deliberate indifference).
. Doc. No. 25 at 14-15.
. DOJ Report at 5, 44-45. In a somewhat different factual context, the Third Circuit has found that evidence of a lack of de-escalation training itself is sufficient to create a genuine issue of material fact regarding deliberate indifference. See Thomas, 749 F.3d at 225-226 (holding, in context of failure-to-train claim concerning corrections officers, that evidence of a lack of de-escalation training was sufficient to establish deliberate indifference for summary judgment purposes).
. Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (citations and internal quotation marks omitted).
. Hernandez v. Borough of Palisades Park Police Dep’t, 58 Fed.Appx. 909, 913 (3d Cir. 2003) (citation omitted).
. E.g., Berry, 188 F.Supp.3d at 475 (DOJ Report, combined with other evidence, established that the relevant policymaker was deliberately indifferent to inadequacies in PPD’s training programs).
. Doc. No. 25 at 17.
. Doc. No. 27 (Ex. A to Defendant’s Reply in Support of Motion for Summary Judgment); Doc. No. 28 (Ex. B to Defendant's Reply in Support of Motion for Summary Judgment).
. DOJ Report at 69.
. Doc. No. 25 at 22,
. Grazier ex rel. White v. City of Phila., 328 F.3d 120, 125 (3d Cir. 2003) (quoting City of Canton, 489 U.S. at 389, 109 S.Ct. 1197) (internal quotation marks omitted).
. Thomas, 749 F.3d at 226 (quoting Canton, 489 U.S. at 391, 109 S.Ct. 1197).
. Coyett, 150 F.Supp.3d at 486 (citation and internal quotation marks omitted).
. Id. (citation omitted).
. See Coyett, 150 F.Supp.3d at 488-89 (determining that the “question of causation— specifically, whether the City’s custom of failing to provide adequate use of force training, or a suitable internal disciplinary process for its officers, was the ‘moving force’ behind [a police shooting]—is one best left for a jury resolution”); see also Berry, 188 F.Supp.3d at 464 (finding that there was "sufficient evidence of a causal link between the PPD's training failures and [plaintiff’s decedent’s] death for [pjlaintiff to defeat summary judgment”).
Reference
- Full Case Name
- Nicole MCDANIELS v. CITY OF PHILADELPHIA
- Cited By
- 10 cases
- Status
- Published