Trial Magazine

Xavier Ingram was 20 years old when his neck was broken during an arrest by Camden County, N.J., police officers. Ingram claimed that the officers forcefully kneed him in the back and neck as he screamed, “I can’t breathe. I can’t feel my legs,” and that a sergeant then stepped down on his neck. Their use of force crushed his cervical spine, leaving him with quadriplegia. Last spring, after eight years of highly contentious litigation, his case was tried for four weeks in New Jersey federal court.

While the defense mirrored the police chief’s official statement made the day after the incident—that Ingram was responsible for causing his injuries when he ran from the police and then slipped and fell to the ground, that he was a dangerous person who was charged with possession of drugs and a stolen gun, and that the officers did an excellent job—the plaintiff side tackled that defense head-on as a false narrative.

The plaintiff’s claims against the officers for excessive force, failure to provide medical care, and supervisory liability were supported by a team of experts in spinal trauma, biomechanical engineering, and police practices, as well as witnesses at the scene. Significantly, extensive video provided a contextualized time line for each stage of the encounter. And the officers’ credibility was undermined by their irreconcilable and conflicting stories.

At the end of the day, the nine-member jury could not reach a unanimous verdict, resulting in a mistrial—but weeks later, the case was settled, bringing a measure of closure and justice to Ingram and his family. This case, and many other civil rights cases, have demonstrated strategies to prevail in excessive force claims.

Boots on the Ground

Even with heightened awareness and public concern over police misconduct, relatively few cases garner the type of media attention that quickly brings details to light. So, you must put “boots on the ground” to gather critical evidence as quickly as possible. There is no substitute for going to the scene with a private investigator and police practices expert.

Immediately send preservation letters to the defendants. As soon as possible, serve your letter of representation along with requests to preserve all evidence on the chief of police and the city’s counsel. Use a process server or delivery service to generate a valid date and time of proof of service to avoid any dispute over when the other side was under a duty to locate and preserve the evidence.

Be broad and bold in your demands to preserve all categories of potential evidence. For example, request:

• all video (bodycam, vehicle, scene, and routine surveillance video, including “Eye in the Sky” systems) of the area for a period of time before, during, and after the event
• all automatic vehicle locator data and mobile computer data from the police vehicles involved
• all audio to and from the officers, including calls to central dispatch and radio transmissions
• all post-incident photos of the scene, as well as photos of the officers and their clothing, vehicles, and weapons, along with weapon use and inspection reports
• all use-of-force reports
• complete internal affairs files (including associated ESI and the audit trail and routing data), recorded statements of target officers and witnesses, communications, memos, and log-in reports¹
• all physical and biological evidence, including fingerprint and DNA evidence on any contraband alleged to have been seized from your client
• all evidence room video, chain-of-custody and reports for any evidence turned in, and all testing on any contraband alleged to have been seized from your client
• all police reports, both drafts and final signed versions, together with the corresponding ESI audit trail data
• all ESI (emails with attachments, cell phone records, and text messages) from the police department and the officers involved
• press releases about the incident, both drafts and final versions
• the officers’ personnel files, internal affairs case history, and early warning system records²
• the officers’ training and testing records, including all corresponding ESI with audit trails, electronic signature records, and anything else that may apply.

If any evidence was not properly preserved or is no longer available, explore the circumstances as to why—it may substantiate a claim of spoliation, which could trigger sanctions, including an adverse inference charge.

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Counter defense use-of-force justifications with a detailed breakdown of the police response, step-by-step in the actual environment, to show flaws in their response.

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Map out what happened at the scene, step-by-step. Break down the sequence of events that led up to the point of physical contact between your client and the police. Then map out, photograph, and video record the entire scene. Mark and measure the distance between critical points leading up to the physical encounter. If the officer’s observations of the scene before or at the time they made contact with your client are at issue, consider a line-of-sight expert. If the incident occurred at night, consider using a forensic lighting expert or an accident reconstruction expert to address these types of issues.

The unique characteristics of the scene, throughout the sequence of events, provide perspective about the officers’ observations and the reasonableness of their actions at the time—against which their flawed response to the circumstances can be more fully demonstrated and appreciated.

You must have in-depth familiarity with the sequence of events and how it played out at the scene when deposing witnesses and officers—particularly to counter the defense that the police were faced with making “split-second decisions” and to slow down the pace of the encounter or show how alternate police responses were available. It is common for the defense to cast the event as rapidly unfolding and fraught with danger—real or perceived—to justify the use of force. Countering this with a detailed breakdown of the police response, step-by-step in the actual environment, shows flaws in their response, supported by their training and use-of-force standards.

Talk to people in the community. While this is a crucial way to identify eyewitnesses, it also helps you gain insight into the community—the dynamics of its relationship with the police and any prior incidents of police misconduct. Locate witnesses and take detailed sworn statements. If possible, photograph witnesses at the location where they made their observations.

Obtain all electronic evidence available. Track down and secure all available video from the area, such as housing complex and business security cameras, residential home doorbell cameras, and witnesses’ cell phone cameras. Document the sources and all relevant details as to how the video footage was copied for authentication and admissibility purposes.

Likewise, locate and preserve your client’s cell phone data (calls, texts, and GPS location data) and social media accounts—you must anticipate a discovery demand for your client’s ESI.³ Moreover, your client’s calls, texts, or social media posts can shed light on their activities and state of mind days or hours before the police encounter.

Don’t overlook the parallel criminal case. If criminal charges have been lodged against your client, work with their criminal defense attorney to share discovery. The overlap and interplay between the criminal and civil cases present both risk and opportunity that you should not overlook. Analyze sworn statements, grand jury testimony, evidence handling and testing reports, and all other criminal discovery to see how it impacts both cases.

In the Ingram case, discovery from the civil and criminal cases showed that the fingerprint and DNA evidence was wrongfully destroyed and the alleged drug and gun evidence was mishandled, which violated established police practices. This undermined the criminal charges and supported the civil claims of conspiracy and false arrest.

Develop the Causes of Action

Once you’ve gathered this basic evidence, next determine which causes of action apply to your client’s circumstances. Drill down on the distinct elements and level of proof needed to establish the substantive claims to be asserted under 42 U.S.C. §1983, as well as any concurrent claims under state law, both as to the individual officers and the municipality.⁴ Use a checklist to make sure the elements are adequately pleaded and to help focus discovery.

Excessive force claims against the officers. The most common claims in these cases are Fourth Amendment excessive force claims against the officers arising out of an arrest, investigatory stop, or seizure⁵ requiring proof of a seizure and that the force used was objectively unreasonable.⁶ Whether an officer’s use of force was objectively reasonable is a fact-sensitive inquiry reviewing many factors, including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers or others, whether the suspect was actively resisting arrest or attempting to evade arrest by flight,⁷ the severity of the plaintiff’s injuries, and other circumstances unique to the case.⁸

The circumstances surrounding an excessive force claim often give rise to additional claims against the officers, such as for failure to provide medical care, supervisory or bystander liability for failing to intervene or stop the improper use of force or otherwise participating in or facilitating its use, false arrest, and assault and battery.

Monell claims. Monell claims are brought against the municipality when officials have acted unconstitutionally pursuant to local law, custom, or policy.⁹ There is no respondeat superior liability for a §1983 civil rights violation, so the only way to hold the municipality liable is through a Monell claim. State law may provide another avenue for imposing municipal liability, such as claims for negligent training and supervision.

While in-depth research on the law in your jurisdiction is essential, generally, to hold the municipality liable for the constitutional wrong, there are two separate and distinct theories for imposing liability.¹⁰ One is by proving that an unconstitutional policy or custom was the moving force behind the encounter and injuries.¹¹ The other is a failure or inadequacy claim—in other words, failure to train, failure to supervise, failure to discipline—that amounts to “deliberate indifference” to the rights of individuals who come into contact with the police.¹²

Venue. Whether to file in federal court or state court is a case-specific analysis, with advantages and disadvantages to both. On one hand, many believe that federal courts are better equipped to handle the legal intricacies of federal claims arising under §1983. On the other hand, a verdict must be unanimous in federal court.¹³ By comparison, because the jury pool is smaller in state court, it offers litigators more predictability. And, in many instances, plaintiff attorneys may be more knowledgeable about the evidentiary and discovery rules of their respective state courts.

A plaintiff filing in federal court only has to assert a claim arising under federal law; the federal court then has supplemental jurisdiction over any state law claims.¹⁴ A plaintiff who wishes to litigate in state court but asserts causes of action under federal law runs the risk of having the case removed.¹⁵

Focus on Depositions

Once you are ready to proceed to depositions, identify and focus on the policing standards applicable to each stage of the encounter and each step of the officer’s conduct at issue. Were the officers properly trained on those standards? How did their conduct in this event fail to comport with the standards, particularly concerning the use of force? Developing the proofs that policing standards were violated is essential—you need this to defeat claims of qualified immunity and motions for summary judgment. This evidence also serves as the basis for opinions your police practices expert will provide.

The defense of qualified immunity protects officers from liability only if their “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”¹⁶ It does not shield officers who know or should know they were acting outside of the law. For example, it is clearly established that use of force against an arrestee who is already restrained or poses no threat violates the Fourth Amendment.¹⁷

Depose the officers one after the other. It’s essential to strategize the deposition process. Start with the defendant officers, preferably as close together as possible. This allows you to lock down each officer’s version of events while securing a side-by-side comparison. Never take the police reports at face value; when deposing the officers, drill down on any contrasting details among their reports. Look for the absence of information that should have been documented but was not—this can lead to the discovery of critical information or gaps in the officers’ recollections.

Challenging an officer’s observations and recorded statements against those of another officer also may be effective. This may reveal material variations in accounts about what happened and who did what, calling their credibility into question.

Maximize the use of Federal Rule of Civil Procedure 30(b)(6) witnesses to establish the basis for your claims. For example, to establish the specific standards the officers were expected to know and follow, a defendant’s 30(b)(6) witnesses could testify on police academy and ongoing police department training and policies on the use of force, the use of deadly force, and the use of the specific weapons or tactics at issue. Finally, work your depositions up through the chain of command to the chief of police to secure valuable admissions.

Explore every aspect of each officer’s physical contact with your client and their use of force. You must show how the officer violated use-of-force training and standards and how their actions were objectively unreasonable under the circumstances. It is also essential proof for injury causation: Proving the officer’s use of force caused your client’s physical injuries should be supported by competent medical experts and may require a biomechanical engineer.¹⁸

Use all incident video to your advantage in depositions. Depending on what you have, you may be able to make sequence video clips or take screenshots of critical points of the encounter. Play the video or show the screenshots to the officer or witness on a projection screen behind them. Also videotape the deposition and ensure that you or your videographer captures both the witness and the image on the screen. Then have the witness testify about what the video shows. Use the video time stamp or a laser pointer to highlight the image for an accurate cross-reference to the testimony.

Using video from the incident and recording the deposition lets you lock down key testimony and provides an effective visual to use at trial. Your experts may rely on it as foundation for opinions, and the deposition testimony eliminates speculation about what the video shows or does not show. Take video clips from the depositions to create story boards on themes to use at trial. Nothing is quite as compelling as when you have the officers providing conflicting testimony on a key point and you play their respective testimony, one after the other, for the jury.

Develop Your Trial Theme Early

The theme you are going to open and close with at trial should be developed as you conduct discovery and finalize expert reports. An effective theme is one that fits the unique facts of your case. In Ingram, our theme was tightly focused on what each of the police officers did to him during the arrest, as well as their post-arrest actions.

It was also about policing as a structured organization and system, with policies, rules, and standards that all officers are expected to know and follow—from the first-line police officer up through the chief. The reason for this is safety—the safety of the officers and members of the community they encounter. As with any structured system, when the rules and standards are violated and misconduct is not effectively addressed or corrected, the safeguards in the system start to fail. This leads to problematic police encounters, which can be expected to continue until a tragic event occurs.

Excessive force cases—and challenging police departments—are hard-fought matters; they require dedication and homing in on the best evidence and strategies to obtain justice for your client and to hold the police accountable for their conduct.

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AAJ Resources

• Police Misconduct Litigation Group
• “Police Misconduct” Litigation Packet

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Beth G. Baldinger is a partner at Mazie Slater Katz & Freeman in Roseland, N.J., and is this year’s recipient of the AAJ Civil Rights Section Leonard Weinglass in Defense of Civil Liberties Award. She can be reached at bbaldinger@mazieslater.com.

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Notes

1. Many internal affairs (IA) systems automatically generate log-in reports for each IA case, which is a date/time stamped record of every person who opened the IA file and what they did. Communications include the transmission and receipt of records, reports, and memos, including the status and results of the IA investigation; recommendations as to the complaint disposition; and official letters to complainants as to the IA investigation outcome. All of this can be very useful at depositions of witnesses, particularly on Monell claims.
2. Early warning systems are used to track and monitor each officer’s performance, which includes all use-of-force reports; any IA complaints (citizen or department violations) and outcomes; high-speed pursuits; weapon discharges; and other incidents or “red flag” events. Based on the number and types of tracked events, the officer may be subject to heightened supervision, re-training, discipline, or suspension. These records—and failures in implementing early warning systems in accordance with policy—should be explored in discovery as they may help support a Monell claim based on failure to supervise or train.
3. For more, see Jessica Breuer, Connecting the Digital Dots, Trial, July 2022, at 26.
4. For more, see Matthew J. Kita, 10 Things to Know Before Taking §1983 Excessive Force Cases, Trial, Sept. 2020, at 18.
5. See, e.g., Graham v. Connor, 490 U.S. 386, 388 (1989).
6. Id. at 395–97.
7. Id. at 396.
8. See Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997).
9. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
10. Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (“Although we have acknowledged the close relationship between policy-and-custom claims and failure-or-inadequacy claims, the avenues remain distinct: a plaintiff alleging that a policy or custom led to his or her injuries must be referring to an unconstitutional policy or custom, and a plaintiff alleging failure-to-supervise, train, or discipline must show that said failure amounts to deliberate indifference to the constitutional rights of those affected.”) (citation omitted).
11. Monell, 436 U.S. at 694.
12. City of Canton v. Harris, 489 U.S. 378, 388–89 (1989).
13. Fed. R. Civ. Pro. 48(b) (“Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members.”).
14. 28 U.S.C. §1331; 28 U.S.C. §1367.
15. 28 U.S.C. §1331.
16. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For more on qualified immunity, see Antonio Romanucci, Bhavani Raveendran, & Christopher Burton, Confronting Qualified Immunity and the “Reasonable Officer” Standard, Trial, Sept. 2020, at 24; Bhavani Raveendran, A Dangerous Lack of Clarity, Trial, Oct. 2021, at 18.
17. See, e.g., Graham, 490 U.S. 386; Kingsley v. Hendrickson, 576 U.S. 389 (2015).
18. Biomechanical engineers can provide invaluable expert testimony to demonstrate how the officer’s use of physical force caused an injury at issue and to demonstrate how an officer’s version of how the injury occurred is not consistent with the injury.