September 20, 2018
Author: Edward R. Forman
Organization: Marshall and Morrow, LLC
I. Introduction
In filing a police liability case, there are many things to take into account. Among them are a choice of jurisdiction, causes of action, concerns about sovereign immunity and qualified immunity, and formulating a discovery plan. Time spent working up a case prior to filing may well be the most valuable time you spend on a case. The time you spend deciding not to file a case may be the most valuable time spent in your law practice.
To be successful, prior to filing a case you should obtain as much information as you can through witness interviews, public records requests and other channels discussed below. You should be able to evaluate the strengths and weaknesses of your case, as well as anticipate likely defenses.
II. What to do Before Filing Suit
It is critical in police liability claim to do a full investigation prior to filing suit. Witnesses should be interviewed, and if possible statements should be taken. Names of additional witnesses can be found through reviewing written records. All possible documents should be obtained if possible, and should be thoroughly reviewed. Do not rely on summaries of recorded interviews. If you think an expert will be helpful or necessary, you should at least have an informal conversation with one at this stage.
III. Obtaining Records Pre-Suit
In police liability cases, formal discovery is not your only avenue to important documents. Frequently, documents can be obtained by public records requests, contacting the court reporter who made a record of the hearing at issue, accessing the criminal file through the Clerk of Courts, or making an informal request to the plaintiff’s criminal attorney, if any. Medical records will likely require a HIPAA release from your client.
What documents are relevant and useful will vary from case to case. The following is a list of documents which should almost always be obtained if relevant.
(1) Police reports of an incident
(2) Copies of sworn complaints initiating criminal charges
(3) Cruiser videos/audio recordings
(4) Dispatch tapes
(5) Copies of internal affairs investigation documents
(6) Training documents
(7) Witness statements
(8) Records containing witness contact information
(9) Documents pertaining to or authored by experts, including past testimony and reports.
Additional documents can be obtained from other sources:
(1) Transcripts of trial and/or hearing testimony
(2) Reports of paramedics of fire personnel.
(3) Post incident photographs taken by friends or family members
(4) Documents produced by the prosecution in a criminal case.
(5) Medical records
(6) Surveillance tapes from nearby businesses.
(7) Worker compensation files if an officer claims an injury
(8) A visit to the scene – bring a camera and measuring tape
Some items, like surveillance tapes of nearby businesses, will may available only by subpoena. Therefore, it is important that you make a written request to a third party as early as possible asking that footage be retained and not destroyed, whether subject to a destruction schedule or otherwise. Such a letter can also be sent to the police department at issue, although a public records request should serve the same purpose.
Internal affairs investigations are not obtainable by public records request during the pendency of an investigation. They are obtainable, however, once the investigation has concluded.
IV. Pre-Suit Negotiations
If time permits, you may well wish to send a demand letter prior to filing suit. This serves two purposes: (1) it may provide your client with their desired outcome without years of litigation and provide the defendant with the opportunity to dispose of the case with a minimum of publicity; and (2) it will give you the defendant’s perspective on what occurred, which will be valuable and might even save you from filing a meritless case. Even if resolution at this stage is not possible, the time spent organizing a demand letter will assist you in eventually drafting a Complaint.
V. Jurisdictions (Federal v. State).
Once you have decided to file an action, the first question in filing an action is whether to do so in state or federal court. Both federal and state courts have subject matter jurisdiction in civil rights actions filed pursuant to 42 U.S.C. § 1983. Therefore, police liability plaintiffs will have their choice of venue in to initiate an action.
Federal district courts are courts of limited jurisdiction. The authority for federal courts to hear a § 1983 actions is codified in 28 U.S.C. § 1331. The federal courts have jurisdiction to hear cases filed under 42 U.S.C. § 1983 by virtue of 28 U.S.C. § 1343. If a federal court has subject matter jurisdiction to hear a claim, it also has supplemental or pendent jurisdiction to hear state-law claims that arise from the same case or controversy. 28 U.S.C. § 1367. If the claim or claims in the case that serve as the basis of the original federal subject matter jurisdiction are dismissed, the federal court may decide the state law claims or, in its discretion, remand the state-law claims to state court. 28 U.S.C. §1367(c)(3).
Ohio Courts are courts of general jurisdiction and have subject matter jurisdiction over federal constitutional claims. There are significant differences between state and federal courts, such as the requirement in federal court that jury verdicts be unanimous, the number of jurors, and certain discovery restrictions.
As a practical matter, however, if a plaintiff files a federal civil rights action in state court, the defendant will remove the case to federal court following the procedures in 28 U.S.C. § 1446- 1448. Diversity in citizenship of the parties is not required for removal on the basis of federal question jurisdiction. The removal must be filed within 30 days of the service of the complaint upon the defendant, or 30 days after the federal claim is added to the complaint. All defendants must agree to removal. Chicago, Rock, Island & Pacific Railway v. Martin, 178 U.S. 245, 248 (1900); Proctor v. Vishay Intertechnology Inc. 584 F.3d 1208 (9th Cir. 2009. Therefore, rather than occasion additional delay by going through the removal process, plaintiffs may wish to initiate claims in federal courts.
VI. The Complaint
In drafting a Complaint, include all federal and state causes of action that the facts will support. For example, a physical assault on a handcuffed suspect may be both an excessive force claim under federal law and a battery under state law. If there is evidence that a county or municipality has failed to adequately train its officers or has continued to employ and officer knowing of their propensity to commit illegal acts, they must be named as a defendant.
Fed. R. Civ. P. 8(a) requires only a short and plain statement of the court’s jurisdiction, the claim showing the pleader is entitled to relief, and a demand for the relief sought. However, you may wish to include a substantial amount of detail, especially the specific facts which you believe constitute the violation. This will avoid a motion to dismiss for failure to adequately plead a factual matter under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). It has the additional benefit of obtaining admissions from the defendant on specific factual matters, as well as an impetus to fully organize your case before filing.
VII. Experts
Expert testimony can be an important part of police liability litigation, especially in the area of excessive force. Police use of force is generally viewed on a continuum, from mere Presence to the use of deadly force. Each of these levels of force may be used under certain circumstances. Expert testimony may be required to establish that an officer’s use of force was unwarranted under particular circumstances.
Forensic testimony, including ballistic testimony, may also be required. This can establish where an officer was standing when a shot was fired, or whether an injury is consistent with an officer’s description of use of force. Expert testimony is also important if you are trying to show municipal liability. Experts can testify as to the adequacy of training given to officers.
You may well wish to consult with an expert prior to filing suit.