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McDaniels v. City of Philadelphia

United States District Court, E.D. Pennsylvania

February 13, 2017

NICOLE MCDANIELS, Plaintiff,
v.
CITY OF PHILADELPHIA, Defendant.

          MEMORANDUM OPINION

          Rufe, J.

         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 Plaintiff's 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 case concerns the shooting death of Aaron Lamar McDaniels by Jermias Olivo, a Philadelphia Police Officer with a checkered past.[1] The parties have stipulated to some of the following facts, although others remain in dispute.[2]

         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.[3] Mr. McDaniels was riding in the front passenger seat and Kareem Gordon was driving.[4] The Buick initially stopped, but sped off when the officers exited their patrol car.[5] The officers returned to their vehicle and a brief chase ensued, which ended when the Buick struck a minivan at the intersection of 22nd Street and Glenwood Avenue and came to rest on a nearby sidewalk.[6] Mr. Gordon fled the scene on foot while Mr. McDaniels remained in the car.[7] Officer Camarote split off to chase after Mr. Gordon while Officer Olivo approached the passenger side of the Buick.[8]

         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.”[9] Mr. McDaniels, who was unarmed, remained seated and turned toward Officer Olivo.[10] Officer Olivo “then just started shooting, ” paused briefly when Mr. McDaniels appeared to lean over, and resumed firing.[11] Plaintiff offers the opinions of two experts that Mr. McDaniels was unarmed at the time of the shooting, although a gun was later recovered from the car.[12]

         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.[13] Officer Olivo claims that he instructed Mr. McDaniels to drop the weapon and then fired two shots when Mr. McDaniels failed to do so.[14] In response, Mr. McDaniels raised his weapon again, and Officer Olivo fired several more rounds until the gun fell from his hands.[15]

         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.[16] In August 2013, then-Police Commissioner Charles Ramsey asked the United States Department of Justice (“DOJ”) to provide technical assistance to the PPD, including an evaluation of its use-of-force policies.[17] The resulting report, An Assessment of Deadly Force in the Philadelphia Police Department, was issued in 2015 and identified numerous deficiencies in PPD's use-of-force policies, training programs, and investigative procedures.

         The DOJ Report found that PPD officers did not “receive regular, consistent training on the department's deadly force policy, ” and were not provided sufficient alternatives to the use of deadly force.[18] For example, officers lacked de-escalation training, which can reduce the likelihood that officers will resort to deadly force.[19] PPD also did not provide officers with comprehensive training covering a wide variety of scenarios, including foot pursuits in high- crime areas.[20] This lack of training contributed to threat perception failures by officers in the field, such as mistakenly believing that an unarmed person was carrying a weapon.[21]

         The DOJ also found PPD's use-of-force policies fragmented and confusing.[22] In particular, PPD Directive 10, which governed the use of deadly force at the time of Mr. McDaniels's shooting, was poorly worded and incorrectly led officers to believe they could employ deadly force whenever they feared for their life.[23] However, this was inconsistent with the Directive's intent and controlling Supreme Court precedent, both of which limit the use of deadly force to situations in which it is objectively reasonable.[24] As a result, PPD officers were sent into the field without a clear understanding of when the use of deadly force was permissible under PPD policy or federal law.

         The DOJ's conclusions were consistent with those reached by Plaintiff's 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.[25] Dr. McCauley determined that due to a lack of training, PPD officers engaged in dangerous tactics such as “partner splitting”-in which two partners split up to pursue different suspects-which can heighten the risk that an officer will fear for his or her life and resort to deadly force unnecessarily.[26] Dr. McCauley concluded that PPD's “longstanding practice and custom” of failing to train officers caused Officer Olivo to resort unnecessarily to the use of deadly force against Mr. McDaniels.[27]

         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 follow-up efforts, and a pervasive failure to discipline officers who had violated PPD policies or engaged in severe misconduct.[28] The IAO Report also found that “the conditions necessary for meaningful and lasting reforms” did not exist because PPD leadership generally tolerated misconduct and an “inherent fraternity” existed between officers and the IAD personnel charged with disciplining them.[29]

         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.[30] In addition, because disciplinary proceedings only focused on the shooting in question and did not take into account an officer's previous misconduct-including past shootings-they did not adequately penalize officers for repeated violations of PPD policy, even though repeated shootings are exceedingly rare and thus a strong red flag that an officer may need additional training or monitoring.[31] Dr. McCauley also found that PPD lacked an effective early warning system to identify and track problem officers, making repeated violations of PPD policy more likely.[32]

         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.[33] Dr. McCauley found that PPD did not meaningfully investigate these incidents and took no remedial actions in the wake of the two prior shootings despite evidence that Officer Olivo had made improper decisions regarding the use of force in both situations.[34] Moreover, none of these prior incidents were taken into account during PPD's review of Mr. McDaniels's death, and Officer Olivo was ultimately cleared of any wrongdoing in that investigation.[35] Dr. McCauley concluded that Mr. McDaniels's death could have been avoided if PPD had intervened and taken remedial action after receiving the previous complaints against Officer Olivo.[36]

         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.”[37] A fact is “material” if resolving the dispute over the fact “might affect the outcome of the suit under the governing [substantive] law.”[38] A dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[39]

         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.[40]Further, “a court may not weigh the evidence or make credibility determinations.”[41]Nevertheless, the party opposing summary judgment must support each essential element of the opposition with concrete evidence in the record.[42] “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.”[43] This requirement upholds the “underlying purpose of summary judgment [which] is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense.”[44] Therefore, if, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine dispute as to any material fact, summary judgment is appropriate.[45]

         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.”[46] Thus, as a threshold matter, Plaintiff must establish that Officer Olivo violated Mr. McDaniels's constitutional right, which requires showing “that a ‘seizure' occurred and that it was unreasonable.”[47]

         There is no respondeat superior liability under § 1983, [48] so to hold the City liable for Officer Olivo's actions, Plaintiff must also establish that Defendant maintained a policy or custom which led to the constitutional injury.[49] To do so, Plaintiff must: “(1) identify a policy or custom that deprived [Mr. McDaniels] of a federally protected right, (2) demonstrate that the municipality, by its deliberate conduct, acted as the ‘moving force' behind the alleged deprivation, and (3) establish a direct causal link between the policy or custom and the plaintiff's injury.”[50]

         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.[51]

         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.”[52] In addition, “a district court should impose liability only when the training should have been more thorough or comprehensive, not merely because municipal training could have been more thorough or comprehensive.”[53]

         Regarding failure-to-discipline claims, “a city may be liable for its failure to discipline an officer after multiple complaints against him, particularly where the prior conduct which the officer engaged in is similar to the conduct which forms the basis for the suit.”[54] In determining failure-to-discipline liability, “[i]t is not enough that an investigative process be in place;” rather, “[t]he investigative process must be real” and “have some teeth.”[55] For failure-to-discipline claims, as with failure-to-train claims, it is not enough for the plaintiff to establish merely that the disciplinary process was inadequate. Rather, the plaintiff must show that the city's failure amounted to “deliberate indifference to the rights of persons with whom the police come into contact.”[56] “Only then can such a shortcoming be properly thought of as a city ‘policy or custom' that is actionable under § 1983.”[57]

         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.[58]Here, the parties agree that Officer Olivo killed Mr. McDaniels, and there is a genuine factual dispute regarding whether Officer Olivo's use of force was reasonable under the circumstances. The Court thus turns to the other requirements for Plaintiff's § 1983 claim.

         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 Plaintiff's 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, [59] which amounts to nothing more than a credibility attack that is inappropriate for summary judgment.[60]

         Moreover, the cases cited by Defendant hardly amount to a wholesale rebuke of Dr. McCauley's opinions. Instead, these cases either did not address Dr. McCauley's report directly[61] or involved situations where the record as a whole was plainly insufficient to support a § 1983 claim.[62] Here, in contrast, Dr. McCauley's opinions are based, in part, on the DOJ Report, which found widespread deficiencies in PPD's training practices.[63] Courts in other § 1983 cases have relied upon Dr. McCauley's opinions regarding police practices in denying summary judgment motions, and the Court cannot conclude that doing so here would be improper simply because Dr. McCauley's findings were not accepted in other, factually distinguishable, cases.[64]

         Next, Defendant identifies six areas of Dr. McCauley's report that it believes are either conclusory or unsupported by the record. Defendant's unsubstantiated quarrels with Dr. McCauley go only to the weight of his opinions, however, and are insufficient to carry Defendant's burden at summary judgment.[65] They are also unconvincing.

         First, Defendant criticizes Dr. McCauley's focus on partner splitting, arguing that such tactical decisions are irrelevant to whether Officer Olivo's use of deadly force was unreasonable.[66] But Dr. McCauley's opinion is not that partner splitting rendered Officer Olivo's ultimate use of force unreasonable, but that partner splitting is a dangerous tactic that stems from flawed PPD training programs and, here, placed Officer Olivo in a position where he was more likely to use deadly force against an unarmed civilian.[67] Thus, partner splitting may be relevant to the extent it shows that PPD failed to train Officer Olivo, and that this training failure caused Mr. McDaniels's death.[68]

         Second, Defendant argues that Dr. McCauley has no basis to criticize IAD's investigation into Mr. McDaniels's death.[69] However, Dr. McCauley based his criticism on the record of the investigation, which showed that IAD did not address alleged tactical failures such as partner splitting, accepted Officer Olivo's version of events over independent eyewitness accounts, and ignored evidence from the Medical Examiner.[70] Dr. McCauley also found that IAD did not account for Officer Olivo's two previous shootings when investigating Mr. McDaniels's death- a potentially serious omission, given that it is exceedingly rare for officers to be involved in more than one shooting.[71] All of this could lead a reasonable factfinder to conclude that IAD's investigation into Mr. McDaniels's death was flawed in ways that were symptomatic of broader problems in PPD's disciplinary process, as Dr. McCauley did.[72]

         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.[73] But Dr. McCauley does not opine (and Plaintiff obviously does not argue) that the post-shooting investigation caused Mr. McDaniels's death, but rather that his death could have been avoided if Officer Olivo had been identified as a problem officer prior to the shooting.[74]

         Fourth, Defendant argues that Dr. McCauley's opinion is predicated upon “outdated audit reports, ”[75] but Dr. McCauley also based his opinion on the 2015 DOJ Report, a 2009 Use of Force Assessment conducted by the Police Executive Research Forum, and a “Police Shooting Spreadsheet” produced by PPD that included details on 1, 509 shootings and the corresponding IAD investigations between 2003-2014, all of which can hardly be described as outdated.[76] And the 2003 IAO Report, which Dr. McCauley reviewed, found that IAD's deficiencies were deep-rooted and resistant to change, so Dr. McCauley's opinion that similar problems remain is not so far-fetched as to warrant summary judgment.[77]

         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.[78] But Dr. McCauley cited the CAPs report to show that IAD sustained only 3.3% of all complaints, and only 1% of complaints involving physical abuse, during that period-a rate below the expected range of 10-13% that Dr. McCauley opines is typical of police departments.[79] That IAD sustains complaints at below the expected rate may evidence overall failures or biases in PPD's disciplinary system and thus may support Dr. McCauley's opinion.

         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.[80] However, Dr. McCauley reached the opposite conclusion and determined that these incidents made it “abundantly clear the PPD systematically fails to address critically important factors, including tactics threat assessment, and de-escalation when investigating police misconduct.”[81] While Defendant may not agree, the issue of whether Dr. McCauley's assessment is reasonable is a factual dispute for the jury, not grounds for summary judgment.[82]

         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.[83] None of these arguments is compelling and, in fact, similar challenges to the DOJ Report have been rejected by other courts in this District.[84] The Court will briefly retread this ground here.

         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.[85] However, Rule 803(8) contains an exception for “factual findings from a legally authorized investigation” in a civil case so long as “the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.”[86] The DOJ Report satisfies these criteria-it contains factual findings from an investigation carried out by the DOJ at PPD's request, and Defendant has not suggested that it lacks trustworthiness.[87] While Defendant argues that portions of the Report are inadmissible because they reference statements of PPD officers and thus contain hearsay within hearsay, this is not true of the Report's conclusions and recommendations, which are factual findings and thus admissible under Rule 803(8).[88]

         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 expert testimony.[89] However, the premise of this argument-that the DOJ Report contains expert opinions subject to Rule 702-is misplaced because the Report is not offered as expert testimony, and merely contains factual findings made by the DOJ at PPD's request. There is no requirement that a public report admissible under Rule 803(8) must also satisfy Rule 702, [90] and the DOJ Report is therefore properly before the Court.[91]

         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.[92]Defendant nonetheless claims that public policy requires the Court to ignore the DOJ Report because “parties should not be penalized for looking at ways to improve their processes, policies, or products.”[93] That logic is backwards, however, because it would allow parties to escape liability merely for speculating about ways to improve their practices without actually doing so. That is why Rule 407's prohibition extends only to evidence of remedial measures that “are taken, ” not those that are merely hypothetical.[94]

         In short, none of Defendant's arguments warrants disregarding the DOJ Report on summary judgment, and the Court concludes that it, combined with Dr. McCauley'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 failed to adduce sufficient evidence to bring this theory to a jury because: (1) IAD adequately investigated Officer Olivo after his two prior shooting incidents; and (2) PPD's disciplinary policies have been found to be sufficient in other cases. Neither argument is persuasive.

         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.[95] As explained, Plaintiff has put forward expert opinion that these prior investigations were inadequate, which is enough to create a genuine dispute regarding the sufficiency of IAD's processes.

         Defendant also suggests that Officer Olivo'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.[96] In Beck, the plaintiff brought a failure-to-discipline claim alleging excessive force by a Pittsburgh police officer, and presented evidence at trial that the officer had incurred five excessive-force complaints prior to the incident in question and that the police department's internal investigation system was structurally flawed.[97] The trial court nonetheless granted judgment as a matter of law in favor of the defendant, finding that the mere fact the department had investigated plaintiff's complaint barred plaintiff's claim.[98] The Third Circuit reversed, explaining that the officer's prior complaints, combined with the evidence that the department's investigative process was lacking, was sufficient to bring the case to the jury.[99]

         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.[100] And like the investigative process in Beck, [101] Dr. McCauley found that IAD investigations were deficient because they evaluated incidents in a vacuum, rather than taking past infractions into account, and were suspect in general because ...


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