# Gilbert v. City of Minneapolis

> District Court, D. Minnesota · July 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10651603

## Case

- **Court:** District Court, D. Minnesota
- **Decided:** July 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10651603

## How later opinions describe it (automated extraction)

- noting that absent a facially unlawful policy, plaintiff’s claims are analyzed under the deliberate indifference analysis
- concluding that eleven previous incidents of police misconduct was not sufficient to establish this element

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Desmond Gilbert, Case No. 21-CV-02350 (JMB/LIB)

Plaintiff,

v. ORDER

City of Minneapolis, Minneapolis
Police Officers Christopher Kelley,
Evan Komarek, and Joseph Foxley,
in their individual and official
capacities,
Defendants.

Lucas J. Kaster and Matthew H. Morgan, Nichols Kaster, PLLP, Minneapolis, MN, for
Plaintiff Desmond Gilbert.
Heather P. Robertson, Kristin R. Sarff, Sharda R. Enslin, Minneapolis City Attorney’s
Office, Minneapolis, MN, for Defendants City of Minneapolis, Minneapolis Police
Officers Christopher Kelley, Evan Komarek, and Joseph Foxley, in their individual and
official capacities.

Plaintiff Desmond Gilbert brings this civil rights action under 42 U.S.C. § 1983
against three Minneapolis Police Officers: Christopher Kelley, Evan Komarek, and Joseph
Foxley (the Officer Defendants) and the City of Minneapolis (the City). Gilbert alleges
that the Officer Defendants used excessive force in violation of the Fourth Amendment
when they arrested him on October 29, 2019. Gilbert also asserts municipal liability claims
against the City under Monell v. Department of Social Services, 436 U.S. 658 (1978), and
City of Canton v. Harris, 489 U.S. 378 (1989). Gilbert now moves for summary judgment
on his municipal liability claims (Counts II and III). (Doc. No. 35.) For the reasons set
forth below, the Court denies Gilbert’s motion.

BACKGROUND
The facts underlying Gilbert’s section 1983 claims are largely disputed by the
parties. The facts relevant to resolving Gilbert’s motion, when viewed in the light most
favorable to the City as the non-moving party, are summarized below.
A. Gilbert’s Arrest
On the evening of October 29, 2019, an anonymous caller called 911 to report “a lot

of yelling coming from next door” and noted the noise was possibly coming from the
second or third floor of an apartment complex nearby. (Doc. No. 40 at 3; Doc. No. 68-2B.)
Three police officers, Officer Michael Kennedy, Officer Joel Hagen, and Sergeant Jamy
Schwartz, responded to the call. (Doc. No. 41 at 18, 20, 23.) Upon arrival to the scene,
the officers heard yelling coming from the Passage Apartments. (Doc. No. 68-4 at 28 (filed

under seal); Doc. No. 68-3 at 33–34 (filed under seal); Doc. No. 39-11 at 61:17–62:7.) The
officers entered the apartment complex and walked through the building to determine
where the sound was coming from. (Doc. No. 68-4 at 29 (filed under seal); Doc. No. 68-3
at 37–38 (filed under seal); Doc. No. 39-11 at 68:11–69:1.) The officers located the
apartment where the noise was coming from and knocked on the door. (Doc. No. 68-4 at

31–32 (filed under seal); Doc. No. 68-3 at 37–39 (filed under seal); Doc. No. 39-11 at
68:11–69:9.)
A woman, Michelle Adams, answered the door. (Doc. No. 39-1 at 70:14–25, 89:16–
20; Doc. No. 39-5 at 00:43.) A man, Emmanuel Culver, stood behind Adams as she spoke
with the officers. (Doc. No. 39-5 at 00:43–01:03.) Officer Kennedy entered the threshold
of the apartment. (Id. at 1:00–1:04.) Culver objected to Officer Kennedy’s entry into the

apartment and asked if the officers had a search warrant. (Id.) Officer Kennedy brought
Culver out into the hallway of the apartment building to secure him against a hallway wall.
(Id. at 1:04–1:44.)
Shortly thereafter, Adams, Gilbert, and Keona Carter all entered the hallway from
the apartment. (Doc. No. 39-4 at 4:45–58.) Adams and Carter yelled at the officers. (Id.)
Adams began recording the officers. (Id. at 5:42.) Gilbert left the hallway and re-entered

the apartment. (Id.) Gilbert came back into the hallway and spoke with Sergeant Schwartz.
(Id. at 5:40–44.) An “officer needs help” call was sent out by dispatch or inadvertently
generated by one of the three officers’ radios around this time, and the Officer Defendants
responded to that call. (Doc. No. 68-3 at 51 (filed under seal); Doc. No. 68-4 at 148 (filed
under seal); Doc. No. 39-11 at 70:8–9.)

Officer Kelley pulled Gilbert away from the scene and used an armbar across
Gilbert’s chest to pin him against the wall. (Doc. No. 39-7 at 1:16; Doc. No. 39-4 at 6:14;
Doc. No. 68-2E at 2:05; Doc. No. 39-12 at 1:49; Doc. No. 41 at 16.) Moments later, Officer
Kelley deployed chemical irritant, or mace, onto Gilbert’s face. (Doc. No. 39-7 at 1:17–
1:19; Doc. No. 41 at 16.) Officers Komarek and Foxley then took Gilbert to the ground

and placed him into the prone position. (Doc. No. 39-13 at 2:05–2:15.) Officer Komarek
then used his knee to pin Gilbert’s head to the ground. (Doc. No. 39-13 at 2:10; Doc. No.
41 at 15.) Simultaneously, Officer Foxley used his knee to pin Gilbert’s lower back to the
ground and handcuffed him. (Doc. No. 39-12 at 1:49–2:15.) The Officers’ body worn
camera footage1 shows that Gilbert began to convulse. (Doc. No. 39-12 at 2:35–4:50.)
Gilbert says that, at this time, he had a seizure. (Doc. No. 37 at 14.) The City, however,

characterizes Gilbert’s movements as “thrashing.” (Doc. No. 70 at 25.) Officers requested
Emergency Medical Services (EMS). (Doc. No. 39-12 at 3:30.) EMS arrived and took
Gilbert to the hospital, where he spent the night. (Id. at 15:30; Doc. No. 39-19 at 127:3–
10.) Gilbert was put on concussion protocol and later received treatment for a slanted
pelvis. (Doc. No. 39-19 at 129:17–20, 144:2–14:1.) Gilbert also suffered night terrors
following the incident. (Id. at 145:4–11.)

B. The Investigations and Reports of the Minnesota Department of Human
Rights and the United States Department of Justice
After the killing of George Floyd in May 2020—and after Gilbert’s October 2019
arrest—both the Minnesota Department of Human Rights (MDHR) and the United States
Department of Justice (DOJ) launched pattern or practice investigations of the Minneapolis
Police Department (MPD).2 (See Doc. No. 39-15 [hereinafter, “MDHR Report”] at 6; Doc.
No. 39-16 [hereinafter, “DOJ Report”] at 5.) The MDHR published its report on April 27,
2022 (MDHR Report), based on a review of the time period from January 2010 through

December 2020. (MDHR Report at 2, 12.) The MDHR found that “there is probable cause

1 Officer Kelley’s body worn camera appears to have only recorded the events that took
place after Gilbert was taken to the ground by Officers Komarek and Foxley. (See Doc.
No. 68-2J.)

2 The MDHR initiated its investigation under the pattern-or-practice provision of the
Minnesota Human Rights Act, Minn. Stat. § 363A.12. (See MDHR Report at 6.) The DOJ
initiated its investigation under the pattern-or-practice provision of the Violent Crime
Control and Enforcement Act of 1994, 42 U.S.C. § 14141. (See DOJ Report at 11.)
that the City and MPD engage in a pattern or practice of race discrimination in violation of
the Minnesota Human Rights Act.” (Id. at 9.) Specifically, the MDHR Report found that

MPD engages in a pattern or practice of discriminatory policing as shown by racial
disparities in how MPD officers use force against, stop, search, and arrest Black
individuals. (Id.)
The DOJ published its report on June 16, 2023, based on a review of the time period
from January 2016 through August 2022. (DOJ Report at 2, 11.) The DOJ Report found
that the DOJ “has reasonable cause to believe that the City of Minneapolis and the

Minneapolis Police Department engage in a pattern or practice of conduct that deprives
people of their rights under the Constitution and federal law.” (Id. at 5.) Specifically, the
DOJ found that MPD uses excessive force, including unjustified deadly force and other
types of force and that the MPD unlawfully discriminates against Black people in its
enforcement activities. (Id.)

C. This Action
On October 21, 2021, Gilbert filed a three-count Complaint against the City of
Minneapolis and the Officer Defendants under section 1983. (Doc. No. 1 [hereinafter,
“Compl.”].) In Count I, Gilbert alleges that the Officer Defendants used excessive force
when arresting him, thereby depriving him of his civil rights in violation of the Fourth

Amendment. (Compl. ¶¶ 94–102.) In Counts II and III, Gilbert alleges that the City is
liable for the Officer Defendants’ unconstitutional conduct. (Id. ¶¶ 103–113.)
To address Gilbert’s motion, the Court must first determine the type of municipal
liability pleaded in each count. To be clear, a municipality may be liable under section
1983 if any of the following occurs: (1) an official municipal policy violates the
constitution; (2) an authorized municipal representative directs another employee to take

unconstitutional action; (3) an unwritten custom, that violates the constitution, is so
widespread that it has the force of law; and (4) the municipality fails to train or supervise
municipal employees. See Atkinson v. City of Mountain View, 709 F.3d 1201, 1214 (8th
Cir. 2013) (citing Monell for the proposition that a municipality may be liable under section
1983 if the constitutional violation resulted from “an official municipal policy” or “an
unofficial custom,” and citing Canton for the proposition that a municipality may be liable

if the constitutional violation resulted from “a deliberately indifferent failure to train or
supervise”) (quotations omitted); see also Pembaur v. City of Cincinnati, 475 U.S. 469,
480–81 (1986) (explaining that a municipality may be liable under section 1983 if an
authorized decisionmaker directed a particular unconstitutional course of action that
resulted in the complained-of injury).

Counts II and III include overlapping and repetitive language, with both counts
referring to municipal liability on the basis of an unwritten custom and on the basis of a
failure to train. (Compl. ¶¶ 104, 105, 110, 111.) For purposes of the instant motion, the
Court construes Count II as asserting a section 1983 claim of municipal liability pursuant
to Monell on the basis that the City maintained an unwritten custom of using excessive

force.3 The Court construes Count III as asserting a section 1983 claim of municipal

3 The Court cannot construe Count II as raising an “official policy” variety of Monell
liability because there is no allegation identifying any official policy that violated the
constitution. Likewise, the Court does not construe Count II as raising the Pembaur variety
of Monell liability because there is no allegation that any authorized City representative
liability pursuant to Canton on the basis that the City failed to adequately train or supervise
its employees, including the Officer Defendants, in avoiding the use of excessive force and
unlawful restraint maneuvers.4

DISCUSSION
Gilbert now moves for summary judgment on Counts II and III.5 In response, the
City argues that the record includes questions of fact. The Court concludes, as explained

directed an employee to take the allegedly unconstitutional action that resulted in Gilbert’s
injuries.
In his briefs, Gilbert appears to argue that summary judgment is warranted because the City
maintained an official policy that permitted officers to utilize head and neck restraints and
an unwritten custom of aggression instead of de-escalation. In Counts II and III of his
Complaint, however, Gilbert does not allege these things as official policies or unwritten
customs. Evidence of policies or customs concerning neck restraints and de-escalation
could support Gilbert’s more general claims that the City maintained an unofficial custom
of using excessive force and that the City failed to train police officers to avoid the use of
excessive force and unlawful restraint maneuvers, but the Court cannot agree with Gilbert
that summary judgment is proper based on a specific policy or custom that Gilbert
identified in his argument but did not specifically mention in the language of either Count
II or Count III. In addition, disputed factual issues remain as to whether Gilbert was ever
subject to a neck restraint and as to the adequacy of the training provided. Atkinson, 709
F.3d at 1216 (noting that absent a facially unlawful policy, plaintiff’s claims are analyzed
under the deliberate indifference analysis).

4 The Court construes Count III in this way because the allegations are narrowly tied to
failure to train and supervise MPD officers to avoid the use of excessive force and unlawful
restraint maneuvers. The language used in the Complaint does not raise an “unwritten
custom” variety of Monell liability because any allegations that are consistent with that
claim are repetitive of, and subsumed by, the claim raised in Count II. Moreover, the
language used in Count III does not raise either an “official policy” or Pembaur variety of
Monell liability.

5 The City argues that the motion is premature because Gilbert must prove the constitutional
violation in Count I in order for the City to be liable. In his reply brief, Gilbert concedes
that the City is correct: establishing Count I is an essential element of the claims of
municipal liability raised in Counts II and III. See Schoettle v. Jefferson Cnty., 788 F.3d
855, 861–62 (8th Cir. 2015) (stating that a municipality cannot be held liable under Monell
below, that there remain genuine disputes of material fact as to both counts, precluding
entry of summary judgment.6

As a threshold matter, the Court reiterates the well-established standard that applies
to Gilbert’s motion. Summary judgment is warranted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to return
a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn

where there is no underlying constitutional violation). Gilbert also concedes that summary
judgment is precluded by questions of fact concerning the elements of Count I. Gilbert
asks this Court to presume he has proven Count I, and to rule on the summary judgment
motion in a manner akin to entering a directed verdict on the second phase of a two-part
bifurcated trial. The Court assumes without deciding that Gilbert can prevail at trial on
Count I and declines to deny the motion as premature.

6 The City also asks the Court to conclude that the Officer Defendants are entitled to
qualified immunity and, on that basis, deny Gilbert’s summary judgment motion. (See
Doc. No. 70.) However, the City made no dispositive motion of its own on this basis, and
it cited to no authority that supports the proposition that the Court may decide qualified
immunity absent a dispositive motion to do so. Instead, the City relies on authority that
suggests the opposite. See Payne v. Britten, 749 F.3d 697, 702 (8th Cir. 2014) (noting that
defendants are entitled to “a reasoned denial or grant of their claim of qualified immunity”
at any permissible stage of the proceedings in “which a proper motion is filed.” (emphasis
added)); Hunter v. Bryant, 502 U.S. 224, 226 (1991) (analyzing agent’s motion for
summary judgment on qualified immunity grounds); see also Lampkins v. Thompson, 337
F.3d 1009, 1014 (8th Cir. 2003) (“Although procedurally unusual, the qualified immunity
defense is not waived or lost if a case proceeds to trial.”). The Court declines to address
qualified immunity at this time.
in their favor. Id. at 255. Further, on a motion for summary judgment, “the court does not
weigh the evidence, make credibility determinations, or attempt to discern the truth of any

factual issue.” Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008).
I. Count II
Gilbert argues that he is entitled to summary judgment on Count II because the
record evidence demonstrates that the City7 maintained a widespread custom of using
excessive force. To prevail on his motion for summary judgment, Gilbert must
demonstrate that the undisputed record evidence establishes each of the following elements

of his claim: (1) the existence of a pattern of unconstitutional misconduct by the
municipality’s employees that is continuing, persistent, and so widespread that it has the
effect of law; (2) deliberate indifference to or tacit authorization of such conduct by the
municipality’s policymaking officials after notice to the officials of that misconduct; and
(3) that the plaintiff was injured by acts pursuant to the municipality’s custom, i.e., that the

custom was a moving force behind the constitutional violation. Meier v. City of St. Louis,

7 It is well established that police departments are not entities subject to liability under
section 1983, and the Court construes the Complaint to assert that the City had an unofficial
custom of using excessive force. See Ketchum v. City of W. Memphis, 974 F.2d 81, 82 (8th
Cir. 1992); see also De La Garza v. Kandiyohi Cnty. Jail, Corr. Inst., 18 F. Appx 436, 437
(8th Cir. 2001) (per curiam) (noting that a county jail and county sheriff’s department were
not legal entities subject to suit under section 1983 and quoting Dean v. Barber, 951 F.2d
1210, 1214 (11th Cir. 1992) (“Sheriff’s departments and police departments are not usually
considered legal entities subject to suit.”)). Similarly, Gilbert’s claims against the Officer
Defendants in their official capacities are analyzed as claims against the City. See Morris
v. Cradduck, 954 F.3d 1055, 1060 (8th Cir. 2020) (stating section 1983 claims against
municipal officials in their official capacities are treated as claims against the
municipality).
78 F.4th 1052, 1057–58 (8th Cir. 2023). The record presented here contains genuine issues
of material fact regarding all three elements of the Monell claim raised in Count II.

Gilbert argues that the DOJ Report and the MDHR Report establish, beyond dispute,
the first element of Count II.8 (E.g., MDHR Report at 45 (concluding that “[b]y teaching
an approach to policing that emphasizes aggression, MPD creates a culture that results in
unnecessary escalation and/or excessive force during encounters with community
members”); DOJ Report at 14, 15 (concluding that “MPD officers routinely use excessive
force, often when no force is necessary” and that the “MPD’s pattern or practice of using

excessive force violates the law”).) Gilbert also emphasizes a March 29, 2019 citizen
complaint alleging numerous policy violations against Officer Kelley, including that
Officer Kelley told the complainant, “If you report me, I don’t care; go ahead, nothing will
happen.” (Doc. No. 50 at 2.)
This record evidence, however, is disputed by the City, precluding summary

judgment of Count II. See, e.g., Anderson, 477 U.S. at 255 (“Credibility determinations,

8 In its briefing, the City notes that it intends to seek exclusion of both the MDHR Report
and DOJ Report at trial. (Doc. No. 70 at 53 n.12.) However, the City does not expressly
request that the Court strike the MDHR Report and DOJ Report or otherwise refrain from
considering the reports when resolving the pending motion for summary judgment. The
Court observes that the reports contain hearsay statements but acknowledges that Federal
Rule of Evidence 803(8)(A)(iii) provides an exception to the rule against hearsay for “[a]
record or statement of a public office if . . . it sets out . . . in a civil case . . . factual findings
from a legally authorized investigation.” Fed. R. Evid. 803(8)(A)(iii). Absent a request to
strike the reports, and because the City makes no argument that the reports did not result
from legally authorized investigations, the Court concludes that, for the purposes of
summary judgment, the evidence relied upon by Gilbert is properly before this Court. At
this time, the Court does not address the admissibility of the reports at trial.
the weighing of the evidence, and the drawing of legitimate inferences from the facts are
jury functions.”). The Court concludes that a genuine issue of material fact exists regarding

the factual statements in the reports, the extent to which the facts of this case are similar to
the fact patterns summarized in the reports, and the weight to be given to the reports, which
both assessed police conduct that post-dates the incident in question. Moreover, the City
contests Gilbert’s characterization of MPD training and emphasizes written policies
discouraging the use of excessive force. (E.g., Doc. No. 39-18 [hereinafter, “MPD Policy”]
at 84 (“MPD is committed to unbiased policing” and “[n]o person shall be singled out or

treated differently as a consequence of his/her race”); Id. at 94 (“sworn MPD employees
shall only use the amount of force that is objectively reasonable”); Id. at 97 (“officers shall
use de-escalation tactics”). Given the conflicting evidence in the record, the Court cannot
conclude that, as a matter of law, MPD had an unwritten custom of using excessive force
that became so widespread it had the effect and force of law. Brewington v. Keener, 902

F.3d 796, 802 (8th Cir. 2018) (“[I]n the face of an express municipal policy prohibiting
excessive force, two incidents of excessive force—even assumed to be true—cannot be
considered a pattern of widespread and pervasive unconstitutional conduct.”); but see Ware
v. Jackson Cnty., 150 F.3d 873, 882 (8th Cir. 1998) (“[T]he existence of written policies
of a defendant are of no moment in the face of evidence that such policies are neither

followed nor enforced.”).
Gilbert also argues that reasonable jurors would necessarily find in his favor on the
second element of Count II: that the City either showed deliberate indifference toward or
tacitly authorized the wrongful conduct after being put on notice of it. Notice is the
touchstone of deliberate indifference in the context of section 1983 municipal liability,
Atkinson, 709 F.3d at 1216, and Gilbert argues that the City received sufficient constructive

notice for the following two reasons: (1) the reports reviewed complaints of excessive force
spanning a long period of time; and (2) the DOJ Report referenced findings of racial
disparities in the use of force in a 2018 Hennepin County Public Defender report and a
2015 ACLU report. (Doc. No. 37 at 46–47; DOJ Report at 46).
The Court concludes, contrary to Gilbert’s argument, that the issue of constructive
notice is not so one-sided that Gilbert is entitled to judgment as a matter of law. Whether

the complaints referenced in the DOJ and MDHR reports (and the findings of racial
disparities in the Hennepin County Public Defender and ACLU reports) are sufficient to
constitute tacit authorization or deliberate indifference requires an inferential step—one
that falls within the province of the jury, not the Court. Anderson, 477 U.S. at 255.
Moreover, the general nature of the findings in the reports, without more, cannot establish

as a matter of law that previous complaints bear sufficient factual similarity to establish the
second element of this claim. See Mettler v. Whitledge, 165 F.3d 1197, 1205 (8th Cir.
1999) (affirming summary judgment in favor of the municipality where the plaintiff
presented evidence of previous complaints, but did not show that “the incidents giving rise
to these [previous] complaints [bore] some factual similarity” to the circumstances

surrounding the section 1983 claim at issue); see also Brewington, 902 F.3d at 802
(affirming summary judgment in favor of the municipality where the plaintiff presented
evidence of prior complaints, but the existence of these complaints was insufficient to
satisfy this element of Monell and listing cases, including Pineda v. City of Houston, 291
F.3d 325, 329 (5th Cir. 2002) (concluding that eleven previous incidents of police
misconduct was not sufficient to establish this element)).

Finally, questions of fact also preclude summary judgment when considering the
third element: causation. Gilbert must establish that reasonable jurors would find a causal
link between the complained-of injuries and the unwritten custom of using excessive force.
See Ricketts v. City of Columbia, 36 F.3d 775, 779–80 (8th Cir. 1994) (“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.”); see also

Ware, 150 F.3d at 884–85 (concluding that the jury could find a causal link between the
municipality’s failure to address past instances of similar misconduct and the subsequent
violation of the plaintiff’s constitutional rights). In this case, Gilbert does not develop any
explicit causation argument or otherwise identify evidence concerning this element.
Absent such evidence, the Court must deny the summary judgment motion on Count II.

II. Count III
In Count III, Gilbert asserts that the City is liable under Canton for failing to
properly train and supervise MPD officers to avoid the use of excessive force and unlawful
restraint maneuvers. (Compl. ¶¶ 109–113.) To prevail on summary judgment, Gilbert
must demonstrate that there is no a genuine dispute of material fact on the following three

elements of his claim: (1) the City’s police officer training and supervision practices were
inadequate; (2) the City was deliberately indifferent to the rights of others in adopting these
training and supervision practices, and the City’s failure to train and supervise was a result
of deliberate and conscious choices it made; and (3) the City’s alleged training and
supervision deficiencies caused Gilbert’s constitutional deprivation. See Ulrich v. Pope
Cnty., 715 F.3d 1054, 1061 (8th Cir. 2013). Again, the record presented contains fact

disputes that preclude summary judgment of Count III.
To support its motion concerning the first element, Gilbert again relies on the
findings in the reports. (E.g., MDHR Report at 47 (finding that “MPD officers receive
insufficient in-service training with respect to use of force”); DOJ Report at 83 (finding
that MPD’s training contained “systemic deficiencies . . . that contribute to the pattern or
practice of violations” and that “revealed an overreliance on using force during

encounters”).) The reports also faulted MPD for failing to adequately investigate or
discipline officers for their conduct. (MDHR Report at 43, 45 (finding that “MPD creates
a culture that results in unnecessary escalation and/or excessive force during encounters
with community members,” stating that “[m]any officers reported . . . that violating a
policy is not a significant problem because MPD does not hold officers accountable when

policies are violated,” and concluding that “supervisors are not adequately reviewing and
assessing inaccuracies or false statements made by officers in their use of force reports”);
DOJ Report at 81 (noting that “[d]iscipline for MPD officer misconduct is rare” and “[e]ven
when officers admit policy violations, they may not be held accountable.”). Other evidence
in the record, however, suggests that MPD officers were sufficiently trained in appropriate

restraint techniques and avoiding the use of force. (See Doc. Nos. 68-1, 68-5, 68-6 (filed
under seal).) Given this conflicting evidence, genuine issues of material fact remain
concerning the adequacy of the training provided to members of the MPD.
To establish the second element: that the City “had notice that the training
procedures and supervision were inadequate and likely to result in a constitutional

violation,” Brewington, 902 F.3d at 803, Gilbert emphasizes the findings in the reports
concerning the knowledge that City officials may have had. (MDHR Report at 69 (finding
that “[f]ormer and current Mayors, City officials, Police Chiefs, and high-level MPD
officials acknowledge that there is a problem with MPD’s organizational culture that
results in racial disparities”); (DOJ Report at 46 (quoting Mayor Jacob Frey as stating that
“[w]e knew, and continue to know, there is disparate treatment” of communities of color),

83 (finding that “City and MPD leaders were candid in their assessment of MPD’s training
programs, saying, ‘[W]e have had a lot of problems’”).) These statements and findings,
however, are general in nature and do not concern specific training deficiencies. Nor do
they refer precisely to the pertinent period of time preceding the 2019 incident at issue in
this matter. Without more definitive evidence, the Court cannot grant summary judgment.

Whether City policymakers had constructive notice or actual notice of the training
deficiencies is a question for the jury. Anderson, 477 U.S. at 255; see also Farmer v.
Brennan, 511 U.S. 825, 841 (1994) (“[L]iability is appropriate when policymakers are ‘on
actual or constructive notice’ of the need to train.”).
Finally, as to the element of causation, Gilbert has failed to identify evidence that

would relate to or establish that the allegedly deficient training caused his injuries. Without
such an argument, Gilbert cannot prevail on the motion for summary judgment.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,

IT IS HEREBY ORDERED THAT: Gilbert’s Motion for Partial Summary Judgment (Doc.
No. 35) is DENIED.

Dated: July 26, 2024 /s/ Jeffrey M. Bryan
Judge Jeffrey M. Bryan
United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10651603. Public record. Not legal advice.