Opposing Bifurcation in Police Misconduct

Cases

Robert LeRoux Hernandez, Boston, Massachusetts

Proof of municipal liability for violation of civil rights, under Monnell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), often depends on evidence of multiple complaints against one or more police officers who are themselves defendants in the litigation. See, e.g., Foley v. City of Lowell, 948 F.2d. 10, 13-16 (1st Cir. 1991). Indeed, what better proof of a custom and policy of reckless disregard of the constitutional rights of civilians which caused a plaintiff̓s injuries than a pattern of inaction in dealing with prior misconduct by these very same officers. Increasingly defense counsel complain, however, that evidence of prior or subsequent misconduct potentially admissible against the municipality is inadmissible against the individuals and should be excluded under principles of Fed. R. Evid. 403. Whatever its probative value, the argument goes, admission of such evidence creates a danger of unfair prejudice, confusion of the issues or misleading the jury as to the liability of the individual police officers. To avoid this problem defendants have, with increasing success, argued that the case against the municipality should be bifurcated from the case against the individuals. In further support, they urge that in the event that the underlying case against the individuals fails, there will be no need to go through a lengthy trial against the municipality, thus preserving precious judicial resources.

Plaintiffs have every interest in opposing bifurcation. Successful opposition depends on a frontal attack on the “judicial economy” argument, persuasive explanation of the potential admissibility of evidence of extraneous misconduct against the individual defendants and reinforcement of the idea that jurors will listen to limiting instructions from the bench. Plaintiffs̓ counsel, therefore, must be prepared to demonstrate that the pattern of evidence is admissible in the trial against the individual officers for both substantive reasons and to impeach them and their witnesses. Thus no judicial economy would be effected by bifurcation.

Counsel for the defendants must not be allowed to persuade the court on the basis of speculation about the plaintiff̓s case as to how plaintiff will use information gained through discovery or investigation against the various defendants; they should not be permitted to characterize evidence concerning other events as “unrelated.” If the offending individuals were inspired by the existence of a municipal policy reflected in other similar acts of misconduct, evidence of that municipal policy is directly relevant to their conduct Forcing the jury to reconsider the same facts a second time—or forcing a second jury to consider the same facts—obviously would seriously disserve judicial economy.

The conduct of individual defendants does not arise in a vacuum. Their conduct may have occurred in an environment in which superiors will support them, will not hold them accountable for their conduct, and in which their fellow officers will lie for them and maintain the code of silence. Because municipal policy and custom provide the individual defendants with the means to escape accountability, plaintiffs may properly introduce evidence—direct and circumstantial—which establishes the individual officers̓ knowledge of and reliance on the wrongful custom and policy.

Without such evidence, jurors may well be misled into believing that individual officers are constrained by their formal oath of office and desire to avoid punishment from engaging in conduct which would compromise plaintiffs̓ constitutional rights. Evidence of the municipal policy is necessary to rebut such erroneous inferences. The plaintiffs must be permitted to prove that the culture in which these officers operated was one of disrespect for rights, in which an officer could know with reasonable certainty that his or her status will not be negatively affected by aggressive use of false arrest and excessive force, and one in which all other officers can be counted upon to remain silent.

While, as a general proposition, evidence of prior misconduct is inadmissible to prove that individual defendants acted in conformity with such prior conduct or to impeach them (unless the individual defendants have sworn falsely that no such prior complaints have ever been made against them), it” may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed. R. Evid. 404(b).

Evidence of the environment in which these officers operated is an essential element in proving their states of minds at the time they assaulted plaintiffs. Cf. McCabe v. Mach, 908 F.3d 1333 (1st Cir. 1996) (trial court did not abuse discretion in admitting “prior acts of institutional violence committed [by plaintiff, because this evidence] had bearin~ on the [defendant] correction officers̓ state of mind . . Senra v. Cunningham, 9 F.3d 168, 171 (1st Cir. 1993) (evidence of plaintiff̓s prior incidents of intoxication and domestic disturbances admissible under Fed.R. Evid. 404(b) to demonstrate state of mind and that conduct was “objectively reasonable” in light of the “facts and circumstances confronting them.” Quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).

Additionally, such evidence may well be relevant to the issue of whether the individual defendants acted with probable cause or a reasonable belief that they had the right to arrest plaintiffs. The “facts” upon which they allegedly made their decision to arrest may in fact be colored by callous indifference to constitutional rights. See Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 559 (1st Cir. 1989); Germany v. Vance, 868 F.2d 9, 18, esp. n. 10(1st Cir. 1989), reh. denied 868 F.2d 9(1st Cir.

1989). Such states of mind are not an accident or something that suddenly arose out of a vacuum, but rather reflections of entrenched attitudes which motivated these actors over the course of time. Demonstration of such attitudes toward constitutional rights on other occasions is relevant to the motivation and conduct of these officers with respect to plaintiffs on this occasion. (Such evidence is relevant not only to the question of violation of plaintiffs̓ rights under 42 U.S.C. §1983, but also to the issue of punitive damages. See Germany, 868 F.2d at 20.) The individual defendants̓ intent and purpose in pursuing a course of conduct are defined by their expectations as to what would happen when and if they falsely arrested plaintiffs, subjected plaintiffs to excessive force, racial abuse, or prosecution on false charges. 

What might otherwise be misperceived as random acts may actually be part of an orderly, preexisting arrangement with peers and superiors. Such conduct may fairly be said to have been planned, as demonstrated by the methods that have been successful on other occasions. They may be said to have been inspired by their own prior experiences and that of others. The theme of their plan is evident from evidence of custom. They knew what was required to accomplish their unlawful goal.

Evidence of these officers̓ prior conduct with respect to others is thus probative of their motive, intent and lack of good faith in dealing with plaintiffs. See jay Edwards, Inc. v. New England Toyota Distributor, Inc., 708 F.2d 814, 824 (1st Cir. 1983); United States v. Wa!!, 577 F.2d 690, 696 (9th Cir. 1978), citing United States v. Moore, 522 F.2d 1068, 1079 (9th Cir. 1975), cert. denied, 423 U.S. 1049 (1976). Such evidence demonstrates their plan, their knowledge that they would get away with it and the absence of mistake or accident with respect to any particulars in their conduct.

The jurors must be instructed unambiguously that they may not consider evidence of prior acts as evidence in the particular case that the defendants acted in the way or committed the acts which plaintiffs allege. But they may consider these prior acts as evidence on the issues of motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident in reference to plaintiffs̓ proposition that defendants felt free to violate plaintiffs̓ rights with impunity and that they felt obliged to be silent in the face of brutality.

Instructions that are “plain, to the point, and oft repeated,” GutierrezRodriguez, 882 F.2d at 574, will adequately protect the individual defendants from any unfair prejudice about which they are concerned. See also Hammann v. Hartford Accident and Indemnity Co., 620 F.2d 588, 589 (6th Cir. 1980). The court may fairly “presume that the jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it. Gutierrez-Rodriguez, 882 F.2d at 574, and thereby ensure that defendants̓ legitimate concerns are addressed without sacrificing plaintiffs̓ right to introduce crucial probative evidence. Presenting the evidence efficiently with vigilance from the bench will ensure that theseproceedings will be expeditiously terminated without the unnecessary expenditure of judicial resources and at a lower cost for all concerned.

Originally printed in ATLA Civil Rights Section Newsletter Fall 1998