JEFFERSON v. OFFICER GEORGE LIAS

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_________________________________________

:

DEVIN JEFFERSON, :

: Civ. No. 15-1086 (KM) (MAH)

Plaintiff, :

:

v. : OPINION

:

OFFICER GEORGE LIAS; CITY OF :

ELIZABETH, :

Defendants. :

_________________________________________ :

KEVIN MCNULTY, U.S.D.J.

I. INTRODUCTION

On January 15, 2014, plaintiff Devin Jefferson led Elizabeth Police Department (“EPD”)

officers in a car chase that ended with defendant Officer George Lias shooting Jefferson in the

arm. Jefferson thereafter brought this suit against Lias and the City of Elizabeth (the “City”)

asserting a Fourth Amendment excessive force claim and a Monell1 claim pursuant to 42 U.S.C.

§ 1983 and the New Jersey Civil Rights Act, N.J.S.A. § 10:6-2 (“NJCRA”). DE 47 (third

amended complaint). Following the close of discovery, Lias moved for summary judgment and

the City moved for summary judgment and to bar Jefferson’s liability expert. DE 77 & 78

(motions). I granted defendants’ motions for summary judgment after finding that Lias was

entitled to qualified immunity; that Jefferson suffered no constitutional injury; and that the

Monell claim against the City therefore failed because there was no underlying constitutional

violation. DE 86 (opinion), 87 (order). The United States Court of Appeals for the Third Circuit

1 In Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978), the Supreme Court held that a

municipal government may be liable under § 1983 “when execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury” alleged by the plaintiff.

vacated the grant of summary judgment in favor of Lias, finding that he was not entitled to

qualified immunity for a claim of unreasonable use of force. Jefferson v. Lias, 21 F.4th 74 (3d

Cir. 2021). Because the claim against Lias was revived, it becomes necessary to analyze the

Monell claim against the City. Id. at 87. At the Court’s invitation, the City and Jefferson then

filed supplemental briefing (DE 97, 98, 99). The City’s motion for summary judgment and to

bar the testimony of Jefferson’s expert (DE 78) is now ripe for decision. For the reasons stated

below, the City’s motion is denied.

II. BACKGROUND

1. Facts

The facts pertaining to the January 15, 2014, incident and Jefferson’s Monell claim are

set forth below. I view the facts relevant to Jefferson’s Monell Claim against the City in the light

most favorable to Jefferson.

a. The Car Chase and Shooting

The Third Circuit summarized the facts of the January 15, 2014, incident as follows:

The events in question took place . . . as Jefferson was driving home from a

concert venue in Elizabeth, New Jersey. Officer Timothy Staffer of the Elizabeth

Police Department, on patrol in his cruiser that night, took notice of Jefferson

traveling at a high speed with his car alarm blaring. Jefferson, playing music

loudly in his car, was apparently oblivious to the alarm. Officer Staffer,

suspecting the vehicle may have been stolen, turned to follow Jefferson and

activated his siren and overhead lights in an attempt to pull over the vehicle. As it

so happened, Jefferson was approaching the end of a five-year probation term and

was driving with an open container of alcohol in the car. Fearing a probation

violation, Jefferson did not pull over for Officer Staffer, and a car chase ensued.

Officer Lias, also on duty that night, eventually joined the pursuit of Jefferson

after hearing radio dispatches concerning the activity. At the time Lias joined the

pursuit, he was only aware of the information that had been communicated over

the radio, namely that Jefferson was driving a possibly stolen vehicle, the

vehicle’s license plate number, and the direction it was headed. Although other

officers during the pursuit “observed Mr. Jefferson traveling at high speeds,

running red lights, ignoring police signals to pull over, and driving in close

proximity to other vehicles,” Lias did not personally witness Jefferson running red

lights or weaving in and out of traffic.

Near the end of the pursuit, Jefferson was traveling northbound on Jefferson

Avenue when he made a right turn on Mary Street, hitting a fire hydrant. Officers

then surrounded Jefferson’s vehicle on both left and right sides. To evade the

officers, Jefferson reversed, first striking a police vehicle before backing up onto

the intersection of Jefferson Avenue and Mary Street, attempting to turn back

onto Jefferson Avenue from the direction he had arrived. Lias arrived at the scene

in his vehicle as Jefferson was in the process of completing his maneuver in the

intersection. He had not personally witnessed Jefferson striking either the fire

hydrant or the police vehicle.

Both parties characterize the following moments, which culminated in Lias

shooting Jefferson, in different terms. According to Jefferson, as he finished

reversing from Mary Street and began to proceed forward onto Jefferson Avenue,

“Lias exited from the front passenger door of his vehicle, maneuvered around the

hood of his car toward Plaintiff's vehicle, and settled into a shooting position.

Officer Lias discharged his firearm at Plaintiff as Plaintiff’s vehicle passed in

front of him . . . Prior to shooting, Officer Lias did not see any police officers

attempt to escape Plaintiff’s vehicle path.” In Officer Lias’ telling, “[i]n the last

split second as Mr. Jefferson was passing Officer Lias’s police car, Officer Lias

discharged his firearm once at Mr. Jefferson’s vehicle because he testified that he

feared for his own safety and others around him, including other officers and

Officer Banos who he did not know where he was at the time but knew he was in

the area.” The record contains video footage depicting the shooting obtained from

a utility pole.

Jefferson was struck in his left forearm, fracturing the bones there. After he was

hit, Jefferson continued to drive away and checked himself into the hospital.

Jefferson was eventually indicted in New Jersey State Court for second-degree

eluding, and ultimately pled guilty to the charge.

Jefferson, 21 F. 4th at 76–77 (citations omitted).

b. Officer Lias and the Elizabeth Police Department

(i) Officer Lias

Lias entered the police academy in 2010 and, at the time of the events in question

(January 2014), had been employed by the EPD for approximately 4 years. DE 82-3 (Lias

Deposition Transcript (“Lias Tr.”)) at 3. He had been performing police duties since June 2010.

Id. at 4. The EPD had not formally evaluated Lias’s performance as a police officer since “early

in [his] career,” and he never had a semi-annual or annual evaluation. Id. at 4–5. At his 2018

deposition, Lias testified that he had not seen an evaluation with his name on it since he emerged

from probationary status. Id. at 5–7.

Between June 2010, the month Lias commenced regular police duties, and January 15,

2014, Lias was the subject of six complaints—known as “Complaints Against Police” or

“CAP”—three of which involved alleged excessive force. Ginzburg Decl. dated Oct. 17, 2019,

Ex. 3 (Lias CAPs History).2 The excessive force complaints are summarized as follows:

1. A complainant alleged that in November 2013, he (the complainant) was walking to a

liquor store with a friend when two officers in an unmarked car stopped him. The

driver of the car—evidently Lias—“pointed a gun at him and told him to leave the

area”; as they attempted to do so, the officers arrested them. During the arrest—which

the complainant admitted he resisted—Officer Lias allegedly pepper sprayed him and

punched him in the head 8 to 10 times. Lias denied pointing a gun at the complainant

but admitted using pepper spray and force, stating that he used force in part because

he saw that the complainant was wearing a two-finger ring resembling “brass

knuckles,” and feared for his safety. The investigating officer found the charge was

not sustained; that Lias used an “appropriate level of force”; and that there was “no

corroboration of [the complainant’s] accusation that Lias at any point pulled his

weapon.” The complainant was found to be in possession of a ring resembling brass

knuckles and two small bags of marijuana, but criminal charges were dismissed.

2 CAPs are the subject of a protective order and, therefore, were not filed on the Court’s

electronic filing system.

2. A complainant alleged that in August 2012, Officer Lias responded to a complaint of

loud music in her backyard. As she was unplugging the speaker, Lias punched her in

the head, then dragged her onto the ground and handcuffed her. Another officer

completed an investigation report stating that the complainant had resisted arrest, and

that, as Officer Lias was attempting to arrest her, several men attempted to interfere,

at which point Lias “pulled out his service weapon & ordered everyone to stay back.”

Lias admitted striking the complainant while she was handcuffed, but stated that he

only did so because she had “grabbed a hold of my right wrist with her hand and dug

her fingernails into my wrist breaking the skin.” He also admitted drawing his

service weapon “for the safety of my partner and myself” because “several parties ran

toward my direction” to help the complainant. The complaint was not sustained after

the complainant did not respond to letters asking her to speak with investigators about

the incident.

3. A complainant alleged that in August 2010, he was attending a house party when

several officers entered “to look for suspects of an assault/robbery.” The officers

ordered everyone onto the floor. The complainant allegedly “pointed out to the

officers that the handcuffs on his cousin” were too tight; in response, officers sprayed

the complainant with pepper spray and “began hitting and kicking him as he lay on

the floor.” Several witnesses—including partygoers and officers—confirmed that

Lias used force on the complainant, but disagreed as to the extent and the reasons.

The partygoers generally stated that Lias assaulted Medina and it was unclear why;

the officers generally stated that Medina acted aggressively and attempted to stand up

after being ordered to remain on the floor, at which point Lias used force to subdue

him. An investigation concluded there was an altercation between Lias and the

complainant, but that Lias’s use of force was justified. The investigating officer

wrote: “while it is irrefutable that . . . Officer Lias in particular employed a significant

degree of force . . . , there is no indication that the force used was excessive or

unnecessary.” Thus Lias was “exonerated.”

Lias has never been required to attend additional or supplemental training beyond the

required semi-annual training. DE 82-3 at 8–9 (Lias Tr.). Further, Lias was not aware “of any

fellow police officers that have been disciplined,” for any reason, ever. Id. at 10.

(ii) Excessive Force Complaints against EPD Officers

Between 2011 and 2017, EPD officers had 119 excessive force complaints.. DE 82-8 at

2–22 (EPD Professional Standards Summary Report Forms (statistics of complaints made

against EPD officers from 2011 to 2017 and reported to the Union County Prosecutor’s Office)).

Records produced during discovery, and testimony of EPD Deputy Chief Giacomo Sacca,

establish that the EPD did not sustain any of these complaints. DE 82-8 at 2–22 (EPD’s

Professional Standards Summary Report Forms); DE 82-10 (Sacca Deposition Transcript

(“Sacca Tr.”)) at 5. Sacca testified that from 1995, when he joined the EPD, to 2017, a span of 22

years, he could recall the EPD sustaining only one excessive force complaint. DE 82-10 at 6.

(iii) EPD Early Warning System and Excessive Force Investigations

Sacca testified that in 2017, the Attorney General “came out with a formalized method

for an early warning system[3] that created an officer flagging system and what must be put in

3 Attorney General Law Enforcement Directive No. 2018-3 explains:

An Early Warning System (“EW System”) is an important management tool designed to

detect patterns and trends in police conduct before that conduct escalates. An effective

EW System can assist a law enforcement agency in identifying and remediating

problematic officer conduct that poses a potential risk to the public, to the agency, and

it.” DE 78-5 (Sacca Tr.) at 33. Sacca also testified that “[p]rior to that, early warnings were

mentioned within the guideline that agencies had a responsibility to monitor the performance of

their officers . . . .” Id. Sacca stated that the EPD’s internal affairs unit had a system for

monitoring complaints against personnel in 2014. Id. When a new complaint came in, there

would be a review of the officer’s complaint history in the central filing system maintained by

the internal affairs unit. Id. Sacca stated he could not answer how many excessive force

complaints would need to be lodged before internal affairs issued an early warning. Id. The

internal affairs unit’s review of Lias’s use of force against Jefferson on January 15, 2014, did not

mention his complaint history. Ginzburg Decl. dated Oct. 7, 2019, Ex. 1 (CAPs) at 335–37. As

noted above, at that point Lias had been the subject of six prior complaints, three of which

involved excessive force.

Sacca also testified that supervisors, rather than members of the internal affairs unit,

could investigate complaints considered to be minor rule infractions, but that excessive force

complaints were not considered to be minor rule infractions. DE 78-5 at 25. Thus, according to

Sacca, excessive force complaints were investigated by either internal affairs unit investigators

or, in the case of serious bodily injury, the Union County Prosecutor’s Office. Id. at 25–26.

However, the record contains several examples of excessive force-related CAPs that were

investigated by supervisors, not permanent personnel of the internal affairs unit. See, e.g.,

Ginzburg Decl. dated Oct. 7, 2019, Ex. 1 at 001–010 (CAP 5554), 047–49 (CAP 5614), 064

to the officer. EW Systems, therefore, serve to not only increase public safety and

public confidence in law enforcement, but also to assist officers through early

intervention.

Id. (available at https://www.njoag.gov/resources/ag-directives/ (last visited on Sept. 20, 2022).

This directive mandating that all law enforcement agencies in New Jersey adopt and implement

EW Systems was issued on March 20, 2018. Id.

(CAP 5628), 068–70 (CAP 5629), 113–14 (CAP 5757), 145 (CAP 5808), 150 (CAP 5817), 203–

05 (CAP 5894/5895/5896), 210 (CAP 5902), 212 (CAP 5914/5915), 332–33 (CAP 5950).

Although the EPD had 267 excessive force complaints for the ten-year period between

2008 and 2017, the Elizabeth City Council never discussed the EPD’s police training methods,

budget, use of force, use of deadly force, or vehicular pursuit guidelines. DE 82-9 at 7, 10 (City’s

response no. 39 to Jefferson’s requests for production).

2. The Bayer Report

Jefferson retained William J. Bayer as his liability expert on police practices. DE 78-5 at

38. Bayer was employed by the New York City Police Department for thirty-two years,

attaining the ranks of sergeant, lieutenant, captain, and deputy inspector. Id. He also served as the

chief of police for Vanderbilt University and the enforcement inspector for the New York City

Department of Parks and Recreation. Id. He has undergraduate degrees in business and public

administration, masters’ degrees in public administration and criminal justice, and his PhD

dissertation subject area “was the role of the patrol sergeant (supervisor) in police operations.”

Id. Bayer asserts since 2006, he works in police and law enforcement practices as a private

consultant and expert witness in a variety of areas including investigation of critical incidents;

the internal affairs function; police discipline; use of force and deadly force issues; high-speed

pursuits; investigative procedures and supervision; personnel practices; management,

supervision, and administration; liability management; and police and procedure development.

Id.

Bayer’s expert report opines that it is “highly suspect” that between 2011 and 2018 there

were more than 250 excessive force complaints made against EPD officers without one being

sustained. DE 78-5 at 39. Bayer sets forth the following CAP examples in his report in support of

his conclusion that the EPD did not adequately investigate excessive force complaints:

CAP 2011-5660: The complainant’s charge was not sustained because, among

other things, the complainant supposedly did not state to medical personnel that

he was assaulted by the police. However, the complainant did make that statement

to medical personnel.

CAP 2011-5632: Complainant “mouthed off” to the police and was roughed up.

He was arrested for disorderly conduct. Investigation resulted in determination of

unfounded.

CAP 2011-5627: Complainant suffered a punctured lung and broken ribs. The

charge of excessive force was not sustained.

CAP 2011-5618: Investigator was unable to contact the complainant and

therefore the charge was not sustained.

CAP 2011-5614: The police were involved in a bar fight that resulted in an

insufficient investigation.

CAP 2011-5617: No investigation conducted.

CAP 2011-5608: No investigation of an allegation of a police officer having

alcohol on his breath.

CAP 2011-5628: The investigator believed the officer’s version of events without

explaining why.

CAP 2011-5655: The investigator believed the officer’s version of events without

explaining why.

CAP 2013-5947 (Involving Officer Lias): Investigator accepted Officer Lias’s

word over that of the complainant; Lias claimed that the complainant (Wright)

sold marijuana to Gallman as an excuse for a stop. However, no marijuana was

recovered from Gallman. Elizabeth Police Department refused to comply with

defendants’ discovery requests. The case was ultimately dismissed against both

complainants.

CAP 2013-5665: The investigator believed the officer’s account with no

explanation.

CAP 2013-5617: Complainant complained of being hit on his head by the police

repeatedly. There was no investigation.

CAP 2013-5902: Complainant was stopped for no reason and slammed onto

police vehicle. There was no investigation.

CAP 2013-5914/5915: Criminal charges were dismissed against the complainant

in exchange for withdrawing excessive force complaint.

CAP 2013-5921: Charge of assault against a police officer was downgraded to

ordinance violation in exchange for dismissal of excessive force complaint.

CAP 2013-5932: No investigation done.

CAP 2013-5950: The officers’ word was believed and no further investigation

done other than taking statements.

DE 78-5 at 39–40.

Bayer opines that a review of EPD CAPS “suggests a police culture and custom and an

institutional toleration allowing, permitting, excusing and encouraging the use of excessive

force.” DE 78-5 at 41. He notes that “excessive force complaints are investigated by patrol

supervisors directly involved with the subordinates under investigation” and “they are then

reviewed by a higher ranking officer who can be viewed as a ‘rubber stamp’ of approval.” Id.

Bayer concludes that “if there are no consequences for using excessive force, it becomes the

policy of the agency.” Id. Bayer points to Lias’s six CAPs from 2010 through 2013, and opines:

In a properly administrated personnel management system, three or four such

complaints should have triggered an evaluation of Officer Lias’s performance and

indicated a need for additional training or counseling. These systems, generally a

computerized database of all of an officer’s documented actions and activities,

sometimes called “early warning systems,” would have alerted police

management to take a closer examination of Officer Lias’s performance and led to

the type of training or counseling that should have precluded the shooting of the

plaintiff.

DE 78-5 at 41.

Bayer further opines that the EPD’s lack of routine formal performance evaluations—

“where a supervisor interacts with the officer to discuss performance, make recommendations,

and follow up”—prior to 2015 “is in marked contrast to virtually every single other police

department that [Bayer is] aware of, which conduct routine performance evaluations.” DE 78-5

at 41.

Bayer also opines that it is “highly unusual” for complaints to be investigated by the

officers’ supervisors and not specifically trained internal affairs investigators. DE 78-5 at 41–42.

He explains:

In my experience and knowledge of policing, the purpose of an internal affairs

unit within a police department is to perform investigations of complaints against

police personnel. Having direct supervisors perform investigations of complaints

against personnel results in a bias against complainants because their supervisors,

as human beings and colleagues, would much prefer to avoid censuring their

subordinates by sustaining allegations of excessive force. Among other things,

substantiating such allegations may negatively impact a police officer’s career

prospects, possibility of promotion, pay raises, etc. Supervisors are inherently

adverse to putting their colleagues’ livelihood in danger on account of complaints

oftentimes made by criminal offenders. For these reasons, internal affairs units are

typically staffed by officers detached from the officers they are assigned to

investigate.

DE 78-5 at 41–42.

III. DISCUSSION

A. The City’s Motion to Bar Jefferson’s Expert

The City moves to bar Bayer’s testimony on the basis that: (1) his opinions are “net

opinions”4 and his report consists of bare, unsupported conclusions; (2) his judgments,

conclusions, and opinions are not the product of reliable principles or methods; and (3) he

“reaches his opinions by simply accepting the version of facts as presented by Plaintiff, while

totally discounting the version as presented by Defendants.” DE 78-3 at 17–18, 85 at 9.

Jefferson responds as follows:

4 “Under New Jersey law, an expert’s bare conclusions, unsupported by factual evidence are an

inadmissible net opinion.” W. Am. Ins. Co. v. Jersey Cent. Power & Light Co., No. 03-6161,

2008 WL 5244232, at *5 (D.N.J. Dec. 15, 2008) (quotations omitted). The admissibility of

expert testimony in federal court, however, “is not governed by the New Jersey net opinion rule,

but by the Federal Rules of Evidence.” Gurvey v. Twp. of Montclair N.J., No. 19-17525, 2022

WL 970303, at *19 (D.N.J. Mar. 31, 2022). Nevertheless, it is not uncommon for New Jersey

federal courts and federal practitioners to use the shorthand terminology “net opinion,” even

when applying federal standards.

(1) Bayer’s opinion is based on the records in this action, including the pleadings, the

depositions of Jefferson and Sacca, the City’s responses to interrogatories, hundreds of pages of

CAP investigation reports, State of New Jersey Internal Affairs Policies and Procedures, internal

affairs statistics compiled by the Union County Prosecutor’s Office, and case law concerning

Monell-based liability, DE 82 at 34 (citing DE 75 at 39, 43–44 (Bayer Report);

(2) Bayer relied on his nearly forty years of law enforcement service and his review of

the aforementioned materials in concluding that (a) it is highly unusual that the EPD did not

sustain one of more than 250 excessive force claims, (b) the EPD does not formally evaluate its

officers on a regular basis, (c) the EPD’s internal affairs unit’s investigations were inadequate,

(d) internal affairs investigators implemented various methods to avoid sustaining excessive

force complaints, (e) the EPD failed to implement an effective early warning system, and (f) a

large percentage of excessive force claims were investigated by supervisors and not trained

internal affairs personnel; and

(3) Bayer specifically drafted his report to avoid opining on the ultimate legal issue of

whether Lias’s use of force was justified; instead he opines generally that Lias’s use of force

against Jefferson could have been avoided if the EPD had given Lias additional guidance and

training. DE 82 at 34–36.

Jefferson also asserts that he retained Bayer to testify about matters requiring specialized

knowledge—the intricacies, best practices, and standard operating procedures of police internal

affairs units. DE 82 at 38. Jefferson contends that Bayer’s testimony will assist the trier of fact in

determining whether the City had a custom or unofficial policy of tolerating excessive force by

its officers. Jefferson argues that Bayer’s opinion on the reasons for requiring regular

performance evaluations, reviewing an officer’s prior complaint history, and having a detached,

trained cadre of internal affairs officers will illuminate the jury on whether the absence of these

and other elements of a modern, professional internal affairs department were evidence of the

City’s deliberate indifference to a decades-long and continuing pattern of unconstitutional acts

by its police officers. DE 82 at 38–39.

For the reasons below, the City’s motion to bar Bayer’s testimony is denied.

1. Applicable Law

The admissibility of expert testimony in federal court is governed by Federal Rule of

Evidence 702, which provides:

A witness who is qualified as an expert by knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise if: (a) the expert’s

scientific, technical, or other specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in issue; (b) the testimony is based

on sufficient facts or data; (c) the testimony is the product of reliable principles

and methods; and (d) the expert has reliably applied the principles and methods to

the facts of the case.

Rule 702 has “a liberal policy of admissibility.” Pineda v. Ford Motor Co., 520 F.3d 237, 243

(3d Cir. 2008) (citation omitted). As such, the “rejection of expert testimony is the exception and

not the rule.” Fed. R. Evid. 702, advisory committee’s note to 2000 Amendment. The party

offering the expert must establish each requirement by a preponderance of the evidence. In re

TMI Litig., 193 F.3d 613, 663 (3d Cir. 1999).

Rule 702 has been summarized as embodying “three distinct substantive restrictions on

the admission of expert testimony: qualifications, reliability, and fit.” Elcock v. Kmart Corp., 233

F.3d 734, 741 (3d Cir. 2000).

As for qualifications,“[t]o qualify as an expert, Rule 702 requires the witness to have

‘specialized knowledge’ regarding the area of testimony.” Betterbox Commc’ns Ltd. v. BB

Techs., Inc., 300 F.3d 325, 335 (3d Cir. 2002) (citation omitted). The Third Circuit has instructed

courts to interpret this requirement “liberally,” and has advised that the basis of specialized

knowledge “can be practical experience as well as academic training and credentials.” Waldorf v.

Shuta, 142 F.3d 601, 625 (3d Cir. 1998) (quotations and citation omitted). “The language of Rule

702 and the accompanying advisory committee notes make clear that various kinds of

‘knowledge, skill, experience, training, or education’ [ ] qualify an expert as such.” In re Paoli

R.R. Yard PCB Litig., 916 F.2d 829, 855 (3d Cir. 1990) (quoting Fed. R. Evid. 702).

As for reliability, “[a]n expert’s opinion is reliable if it is based on the methods and

procedures of science rather than on subjective belief or unsupported speculation; the expert

must have good grounds for his or her belief.” Elcock, 233 F.3d at 745 (cleaned up). In

evaluating an expert’s reasoning or methodology, a court should consider:

(1) whether a method consists of a testable hypothesis; (2) whether the method

has been subject to peer review; (3) the known or potential rate of error; (4) the

existence and maintenance of standards controlling the technique’s operation; (5)

whether the method is generally accepted; (6) the relationship of the technique to

methods which have been established to be reliable; (7) the qualifications of the

expert witness testifying based on the methodology; and (8) the non-judicial uses

to which the method has been put.

In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n.8 (3d Cir. 1994) (citations omitted). “[T]his

list is non-exclusive and . . . each factor need not be applied in every case.” Elcock, 233 F.3d at

746.

And as for “fit,” expert testimony must “assist the trier of fact to understand the evidence

or to determine a fact in issue.” Fed. R. Evid. 702. “This condition goes primarily to relevance.”

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993). This standard is met “when

there is a clear ‘fit’ connecting the issue in the case with the expert’s opinion that will aid the

jury in determining an issue in the case.” Meadows v. Anchor Longwall & Rebuild, Inc., 306 F.

App’x 781, 790 (3d Cir. 2009) (citations omitted).

2. Analysis

Keeping in mind Rule 702’s liberal policy of admissibility, I find that Bayer’s proposed

testimony meets the requirements of qualifications, reliability, and fit.

First, Bayer is qualified to opine on relevant police policy and procedure, including best

practices and standard operating procedures of police department internal affairs units. He has

specialized knowledge arising out of his academic training and credentials and, in particular, his

practical experience as a law enforcement officer for nearly forty years. See DE 82 at 37 (as part

of his work in the NYPD, Bayer established a “computerized Early Warning System in the

Personnel Bureau to track police behavior,” and acted as an Integrity Control Officer within his

own precinct”); see also Toscano v. Case, No. 11-4121, 2013 WL 5333206, at *9 (D.N.J. Sept.

20, 2013) (plaintiff’s expert’s “many years in law enforcement, including nearly 40 years as an

Officer in the Rutherford, New Jersey Police Department, means he is well-versed in proper

police practices and procedures and is indeed qualified to testify as to same”); id. at *10 (defense

expert’s “nearly thirty years of service on the front line of law enforcement means he . . . is well-

versed in proper police practices and procedures and is indeed qualified to testify as to same”).

Second, Bayer’s opinions measure up to the reliability requirements of Rule 702 and the

relevant case law. Bayer provides the foundation for his opinions throughout his report. See DE

78-5 at 39–42. His opinions are based on, inter alia, an analysis of the deposition testimony and

documentary evidence produced in this case—including hundreds of pages of CAP investigation

reports and EPD internal affairs statistics—as well as his considerable law enforcement

experience. Additionally, Bayer’s proposed testimony is similar to customs and practices expert

testimony that has generally been admitted to clarify or explain police practices and procedures

for the jury. See, e.g., Davis, 397 F.3d at 178–79 (testimony of police offer serving as an expert

witness as to the methods of operation for drug traffickers in the South Philadelphia area was

sufficiently reliable where the officer’s testimony was grounded in his 14 years of experience as

a veteran of the Philadelphia police force and 12 years of experience with narcotics trafficking

cases); Toscano, 2013 WL 5333206, at *9–10 (allowing career law enforcement officials to

testify about proper law enforcement practices and procedures); Doswell v. City of Pittsburgh,

No. 07–0761, 2009 WL 1734199, at *12–13 (W.D. Pa. June 16, 2009) (denying summary

judgment on claim that the police department failed to train and supervise its employees based in

part on police practices expert’s opinion that the department’s internal investigation practices

were deficient);Williams v. Twp. of W. Deptford, 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

police practices expert’s opinion that police department’s procedures for investigating

complaints of excessive force were inadequate);

And third, Bayer’s testimony satisfies the “fit” requirement of Rule 702. Here, the

question is whether Bayer’s testimony will help the jury resolve Jefferson’s Monell claim.

Bayer’s opinion is based on his knowledge and experience and analysis of depositions and

documentary evidence pertaining to the claim. Bayer will not be permitted to express an opinion

on the ultimate issues in the case that are the province of the jury: i.e., whether the City had an

unofficial policy or custom of indifference to excessive force complaints, and whether any such

custom contributed to Jefferson’s injuries. But his testimony may be helpful to the finder-of-fact

in determining whether the EPD’s practices differed from standard law enforcement practices.

The City’s criticisms of Bayer’s methods and challenges to the factual bases for his

opinions go to the weight to be accorded Bayer’s opinions, not their admissibility. These

arguments provide fair grounds for cross-examination, but not exclusion. When Bayer testifies,

the City will have the opportunity to challenge him on his methodology and opinions, with the

aim of undermining his credibility and conclusions. See Daubert, 509 U.S. at 596 (“Vigorous

cross-examination, presentation of contrary evidence, and careful instruction on the burden of

proof are the traditional and appropriate means of attacking shaky but admissible evidence.”);

Walker v. Jacques, Civil No. 04–351, 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”).

In sum, I find Bayer that qualifies as an expert; that his opinions are the product of

sufficiently reliable reasoning and factual application for admissibility; and that his opinions are

relevant to the Monell claim. Accordingly, the City’s motion to preclude Bayer’s testimony is

denied.

B. City’s Motion for Summary Judgment

Counts three and five of Jefferson’s third amended complaint, DE 47, assert claims

against the City under 42 U.S.C. § 1983 and the NJCRA. In essence, Jefferson alleges that the

EPD had an unofficial policy or custom of tolerating and condoning its officers’ use of excessive

force as evidenced by, among other things, (a) its failure to sustain a single excessive force

complaint in the years leading up to the events in question (DE 47 ¶¶ 23–24); (b) its failure to

formally evaluate its officers, id. ¶ 30; (c) inadequate internal affairs procedures, id. ¶ 46; (d) its

failure to review officers’ complaint histories (including Lias’s complaint history) when it

received new excessive force complaints, id. ¶ 43; and (e) its failure to properly train and

supervise its officers. See id. ¶ 46 (referencing “inadequate training”); id. (“All of the facts set

forth in the above paragraphs . . . demonstrate that the City failed to train and supervise its

officers adequately . . . .”).

The City seeks summary judgment on the Monell claim, arguing that (1) Jefferson has not

proven a municipal policy or custom that caused a violation of his constitutional rights, DE 78-3

at 9; (2) Jefferson’s complaint contains only brief, vague, and conclusory assertions that officers

have not been properly trained in, inter alia, appropriate use of force, id. at 14; and (3) discovery

has not revealed evidence that the EPD’s training program is inadequate or deficient. Id.

For the reasons stated below, the City’s motion for summary judgment is denied.

A. Summary Judgment Standard

A court shall grant summary judgment “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a summary judgment

as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(a),

(c). An issue is “genuine” if it is supported by evidence such that a reasonable jury could return a

verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is “material” if, under the governing substantive law, a dispute about the fact

might affect the outcome of the suit. Id. The moving party bears the initial burden of

demonstrating the absence of material issues of fact. Celotex Corp., 477 U.S. at 323. “If the

moving party meets its burden, the burden shifts to the nonmoving party to go beyond the

pleadings and come forward with specific facts showing that there is a genuine issue for trial.”

Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (internal citations and quotation marks

omitted).

“At the summary judgment stage of proceedings, courts do not weigh the evidence or

make credibility determinations, but, instead, leave that task to the fact-finder at a later trial if the

court denies summary judgment.” Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014) (quotations and

citation omitted). The non-moving party’s evidence “is to be believed and all justifiable

inferences are to be drawn in his favor.” Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d

Cir. 2004) (citation omitted). Summary judgment should be granted if the Court finds, in

consideration of all the evidence, that no reasonable trier of fact could find for the nonmoving

party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).

1. 42 U.S.C. § 1983 and NJCRA Claims

a. Applicable Law

Section 1983 is not itself a source of substantive rights, but provides a vehicle for

vindicating the violation of other federal rights. Graham v. Connor, 490 U.S. 386, 393–94

(1989). Section 1983 provides in relevant part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen

of the United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress . . . .

42 U.S.C. § 1983. “To state a claim for relief under § 1983, a plaintiff must allege the violation

of a right secured by the Constitution or laws of the United States,” and “that the alleged

deprivation was committed or caused by a person acting under color of state law.” West v.

Atkins, 487 U.S. 42, 48 (1988). The NJCRA, N.J.S.A. 10:6-1 et seq., was modeled after § 1983

and creates a state law cause of action for violation of an individual’s federal and state

constitutional rights. Owens v. Feigin, 194 N.J. 607, 947 A.2d 653 (2008). “The NJCRA is

interpreted analogously to § 1983.” Alexander v. Borough of Pine Hill, No. 17-6418, 2020 WL

6779148, at *5 (D.N.J. Nov. 18, 2020).

As noted, § 1983 imposes liability on a “person” who violates another’s constitutional

rights under color of state law, and here Jefferson seeks to impose liability on the City. A

municipality or other local government entity is a “person” for purposes of § 1983, Bd. of the

County Comm’rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 403 (1997), and may be

liable under § 1983 if it has a policy or custom which led to a violation a plaintiff’s constitutional

rights. Monell v. N.Y. City Dept. of Soc. Servs., 436 U.S. 658, 694 (1978). Jefferson does not

allege that the City or the EPD had a formally approved official policy that permitted the use of

excessive force; rather, his claim is that the de facto custom and practice of the EPD was to

tolerate and condone its officers’ use of excessive force. That, if proven, is a legally sufficient

basis for a Monell claim: “[A]n act performed pursuant to a ‘custom’ that has not been formally

approved by an appropriate decisionmaker may fairly subject a municipality to liability on the

theory that the relevant practice is so widespread as to have the force of law.” Bd. of Cnty.

Comm’rs of Bryan Cnty., 520 U.S. at 404.

“[T]he Plaintiffs have the burden of showing that a government policymaker is

responsible by action or acquiescence for the policy or custom.” Jiminez, 503 F.3d at 250. The

plaintiff need not specifically identify a responsible decisionmaker, however, because practices

that are considered custom or policy under Monell are ascribed to municipal decisionmakers.

Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990).

With respect to a claim of excessive force, the Third Circuit has held that a municipality

can be found liable under Monell when it “knew about and acquiesced in a custom tolerating the

tacit use of excessive force by its police officers.” Beck v. City of Pittsburgh, 89 F.3d 966, 976

(3d Cir. 1996). “As long as the causal link is not too tenuous, the question whether the municipal

policy or custom proximately caused the constitutional infringement should be left to the jury.”

Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990).

b. Analysis

On this record, and viewing the disputed material facts in the light most favorable to

Jefferson, a reasonable jury could find that during the relevant time, the City had an unofficial

custom of tolerating its officers’ use of excessive force, which caused the constitutional

deprivation alleged here.5

The record contains evidence indicating that from 2011 through 2013, i.e., the three years

leading up to the January 15, 2014 incident, there were more than 70 excessive force complaints

brought against EPD officers, and the EPD did not sustain any. DE 82-8 at 13–22. Further, the

City does not appear to dispute Jefferson’s assertion that between 2011 and 2018, the EPD

received more than 250 excessive force complaints and did not sustain a single one. DE 78-5 at

39.

As I have previously noted, such numbers, “though suggestive, are insufficient to defeat

summary judgment.” Cooper v. City of Jersey City, No. 18-9200, 2021 WL 1589348, at *6

(D.N.J. Apr. 22, 2021). But here, as in Cooper, there is more. As detailed above, Lias had been

the subject of six CAPS, including three for excessive force, and in two of the excessive force

complaints he was alleged to have drawn his gun, see Ginzburg Decl. dated Oct. 17, 2019, Ex. 3

(Lias CAPs History). Further, in each case the investigating officers assumed the credibility of

officers over the complainants, and there is no indication in the investigative reports that the

investigating officers considered Lias’s history of complaints. Courts have found genuine issues

5 A finding of liability against the City is contingent on a finding against Lias for excessive force

in violation of the Fourth Amendment. See Nabelsi v. Holmdel Twp., No. 20-20702, 2021 WL

5578851, at *9 (D.N.J. Nov. 30, 2021) (citation omitted) (“The requirement that the plaintiff

must initially prove that he was deprived of a federal right is settled and familiar. That’s the first

step in every § 1983 claim, including a claim against a municipality under Monell. A Monell

plaintiff must establish that he suffered a deprivation of a federal right before municipal fault,

deliberate indifference, and causation come into play.”) (cleaned up).

of material fact “relating to the adequacy of an investigatory system where, among other facts,

the investigative agency did not consider prior or similar complaints against a particular officer

and assumed the credibility of officer’s testimony while discounting the credibility of witnesses

associated with the complainant.” Cooper, 2021 WL 1589348, at *6 (citing Merman v. City of

Camden, 824 F. Supp. 2d 581, 591 (D.N.J. 2010)).6

Second, the EPD did not formally evaluate officers. DE 78-5 at 41; DE 82-3 at 4–7 (Lias

testified that the EPD has not evaluated his performance as a police officer since “early in [his]

career”; he has never had a semi-annual or annual evaluation; and he has not seen an evaluation

with his name on it since he emerged from probationary status”). Bayer, Jefferson’s expert, will

testify that this is highly unusual for most law enforcement agencies DE 78-5 at 41, and the EPD

evidently does not dispute the point. A reasonable jury would not need to, but could, find that a

formal evaluation process could have brought to light Lias’s excessive force CAPs prior to the

January 15, 2014 incident, and triggered a need for discipline or additional supervision and

training. See Forrest v. Parry, 930 F.3d 93, 102 (3d Cir. 2019) (“The Supercession Executive

testified that he was not aware of another major police department that did not have a

performance evaluation system.”); id. at 116 (while evidence that police department lacked clear

standards of performance and a “system of progressive discipline that holds both employees and

their managers accountable for performance and behavior” does not compel a Monell finding, it

6 See also Sims v. Tropicana Entm’t, Inc., No. 13-1981, 2016 WL 4801431, at *7 (D.N.J. Sept. 9,

2016) (plaintiff demonstrated a genuine issue of material fact by introducing evidence that the

police officer accused of excessive force was subject to six internal affairs complaints in the

three years prior to plaintiff’s arrest); D’Arrigo v. Gloucester City, No. 04-5967, 2007 WL

1755970, at *13 (D.N.J. June 19, 2007) (a jury could find that the city “has a policy or custom of

ignoring unconstitutional excessive force in the police department such that it is deliberately

indifferent to excessive force in violation of the Fourth Amendment” where plaintiff presented

evidence that in 25 years no officer was fired for a disciplinary reason and the police department

leadership had “no knowledge or recollection of an internal investigation of a complaint of

excessive force that resulted in a finding of excessive force”).

“aids Plaintiff in establishing genuine issue of material fact suitable for a jury”) (emphasis in

original).

Third, there is a genuine issue of material fact as to whether the internal affairs unit

reviewed, or genuinely reviewed, officers’ histories of excessive force complaints. Sacca

testified that when a new internal affairs complaint was filed, there was a review of the officer’s

history in the central filing system maintained by the internal affairs unit. DE 78-5 at 33.

However, the internal affairs unit’s review of Lias’s use of force against Jefferson on January 15,

2014 did not mention his internal affairs history, see Ginzburg Decl. dated Oct. 7, 2019, Ex. 1 at

335–37, even though, as discussed above, Lias had recently been the subject of three excessive

force complaints (among others). Bayer opines that in a properly administered internal affairs

system, “three or four [CAPs] should have triggered an evaluation of Officer Lias’s performance

and indicated a need for additional training or counseling.” DE 78-5 at 41. Additionally, only one

of the CAPs that Bayer described in his report referenced a review of an officer’s internal affairs

history. Id. at 250. Further, Sacca testified that he could not answer how many excessive force

complaints would need to be lodged before internal affairs issued an early warning. Id. at 33.

Fourth, there is a dispute of material fact as to whether excessive force complaints were

investigated by trained internal affairs personnel. Sacca testified that all excessive force

complaints were handled by internal affairs personnel or, in the case of serious bodily injury, by

the Union County Prosecutor’s Office. DE 78-5 at 25–26. But there are several examples of

excessive force-related CAPs that were investigated by supervisors, not permanent personnel of

the internal affairs unit. See, e.g., Ginzburg Decl. dated Oct. 7, 2019, Ex. 1 at 001-010 (CAP

5554), 047-49 (CAP 5614), 064 (CAP 5628), 068-70 (CAP 5629), 113-14 (CAP 5757), 145

(CAP 5808), 150 (CAP 5817), 203-05 (CAP 5894/5895/5896), 210 (CAP 5902), 212 (CAP

5914/5915), 332–33 (CAP 5950).

Further, the record indicates that supervisors, and not permanent internal affairs

personnel, investigated Lias’s pre-January 15, 2014, excessive force complaints. Ginzburg Decl.

dated Oct. 7, 2019, Ex. 1 (CAPs 5554, 5757 and 5947). Bayer opines that in his experience the

practice of farming out CAPs to patrol supervisors is highly unusual, explaining that internal

affairs units are typically staffed by officers detached from the officers they are assigned to

investigate. DE 78-5 at 42.

When viewed collectively, the EPD’s failure to sustain even one excessive force

complaint in the three years leading up to the January 15, 2014 incident, combined with the

evidence described above—including Lias’s history of six complaints, and three excessive force

complaints, in just three years—could lead a reasonable jury to conclude that the EPD had a

deficient early warning system; failed to consider officers’ excessive force history; tasked

supervisors (rather than internal affairs personnel) with excessive force investigations; and failed

to meaningfully investigate; all of which contributed to an unofficial custom of tolerating its

officers’ use of excessive force. See Beck, 89 F.3d at 974 (noting that the “jury readily could

have found the Office of Professional Standards was nothing more than a facade to cover the

violent behavioral patterns of police officers under investigation, to protect them from

disciplinary action, and thereby perpetuate the City’s custom of acquiescing in the excessive use

of force by its police officers”).

Or not. A jury could reject any of the factual conclusions above, or could determine that

even if the EPD’s customs and practices were deficient, they did not cause Jefferson’s injuries.

That is what an “issue of fact” means. The question ultimately is for the jury to resolve. Cooper,

2021 WL 1589348, at *8 (“[T]he purpose of summary judgment is to identify, not to resolve,

such factual issues, which are for the jury.”).

IV. CONCLUSION

A reasonable jury could (but need not) on this record, impose municipal liability on the

City pursuant to 42 U.S.C. § 1983 and N.J.S.A. § 10:6-2. Further, Jefferson has met his burden

of establishing that his expert’s testimony is admissible pursuant to Federal Rule of Evidence

702. Accordingly, the City’s motion for summary judgment and to bar Jefferson’s expert is

denied. An appropriate order follows.

/s/ Kevin McNulty

DATED: September 28, 2022 ______________________________

KEVIN MCNULTY

United States District Judge