Alanda Forrest v. Kevin Parry

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-4351

_____________

ALANDA FORREST,

Appellant

v.

KEVIN PARRY, PHM; Camden City Police Officer; JASON

STETSER, PHM; Camden City Police Officer; CITY OF

CAMDEN; CITY OF CAMDEN DEPARTMENT OF

PUBLIC SAFETY; WARREN FAULK; PAULA DOW;

DEPARTMENT OF THE TREASURY, State of New Jersey;

JOHN DOES I-IV

______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civ. Action No. 1-09-cv-01555)

District Judge: Honorable Robert B. Kugler

______________

Argued November 15, 2018

Before: GREENAWAY, JR., BIBAS, and FUENTES, Circuit

Judges.

(Filed: July 10, 2019)

______________

Elizabeth A. Rose [ARGUED]

Sullivan & Cromwell

1700 New York Avenue, N.W.

Suite 700

Washington, DC 2006

Counsel for Appellant

John C. Eastlack, Jr.

Daniel E. Rybeck, [ARGUED]

Georgios Farmakis

Weir & Partners

20 Brace Road

Suite 200

Cherry Hill, NJ 08034

Lilia Londar [ARGUED]

Weir & Partners

215 Fries Mill Road

2nd Floor

Turnersville, NJ 08012

Counsel for Appellee

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OPINION

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GREENAWAY, JR., Circuit Judge.

In Beck v. City of Pittsburgh, we were faced with what

we deemed “a question of considerable interest in [a] period of

alleged rising police brutality in major cities across the

2

country”—what is sufficient evidence from which a jury can

infer that a municipality adopted a custom of permitting its

police officers to use excessive force? 89 F.3d 966, 967 (3d

Cir. 1996). More than two decades later, the interest and

allegations persist, and, as it would appear, so does the

question.

The evidence in this case demonstrates that the Internal

Affairs Unit (“Internal Affairs”) of the since-disbanded

Camden Police Department was woefully deficient in

investigating civilian complaints about officer misconduct.

Citing Beck, the District Court found this to be sufficient.

However, the Court narrowed the case to only this evidence,

and, as a result, did not consider its significance when

combined with the non-Internal Affairs-related deficiencies in

Camden’s supervision and training of its police officers. This

occurred in two phases: first, the District Court unilaterally

divided Appellant, Alanda Forrest’s 42 U.S.C. § 1983

municipal liability claim into three theories, labeled failure to

supervise through Internal Affairs, failure to supervise, and

failure to train, and, second, it then associated the evidence

pertaining to the deficiencies in Internal Affairs to only the first

theory.

Forrest argues that this resulted in errors at various

stages. At summary judgment, it resulted in a grant in favor of

Camden on the failure to supervise and train theories. On the

parties’ motions in limine, the Court improperly excluded

evidence that was material to the § 1983 theory that survived

summary judgment, and effectively awarded summary

judgment on the state law negligent supervision claim which it

had previously deemed triable. The jury instructions then

confused the relevant law regarding the sole surviving claim.

3

We agree. The artificial line, drawn by the District

Court, between what were ostensibly theories with largely

overlapping evidence resulted in erroneous rulings as to what

was relevant, as well as instructions as to what law the jury was

to apply. We will therefore reverse those aspects of the District

Court’s rulings that resulted in error, vacate part three of the

jury verdict, and remand for further proceedings consistent

with this opinion.

BACKGROUND

On July 1, 2008, two police officers kicked down

several doors of the residence at 1270 Morton Street, Camden,

New Jersey (“1270 Morton”). According to Forrest, his

encounter with the officers began with him pinned between the

wall and the door of the upstairs bedroom, which had been

kicked open. He heard his acquaintance, Kennedy Blevins,

twice scream, “why you beating on me[?]” Pl.’s Resp. Br. Ex.

64-a, at 105:10–17, ECF No. 144-76. One officer asked,

“where the drugs at?” and Blevins twice responded, “I don’t

know what you talking about.” Id.

Just a few hours earlier, Forrest had just finished work

for a housing contractor at a house across the street. He went

to 1270 Morton Street to speak with some acquaintances. He

and one such acquaintance—Shahede Green—had been on the

porch for a while when the two noticed a police car “coming

down the opposite direction” on a one-way street. Id. at 96:3.

It was around midnight at this point, so Forrest decided to call

a cab. The two went inside as Forrest waited for the cab to

arrive. While waiting, Forrest heard a number of sounds that

4

caused him to be alarmed, all of which culminated in what

sounded like someone kicking the front door.

At the time, the house was occupied by Forrest, Green,

Blevins, and two women. One of the women was known as

Hot Dog and the other, Kesha Brown. Forrest left Green and

Hot Dog downstairs, and went upstairs to Blevins’s room.

Brown was also upstairs, in bed in what is referred to as the

“front room.” Id. at 106:22–23. As Forrest began explaining

to Blevins that the front door had been kicked, Blevins’s

bedroom door was kicked open. Being near the bedroom door,

Forrest reflexively stepped back, and was immediately covered

by the door. Forrest remained pinned between the door and the

wall, fearing that he would immediately be shot by an officer

if he came out from behind the door.

Through the opening between the door and the wall,

Forrest heard Blevins’s screams. He saw another officer come

up the stairs, and moments afterwards, heard Brown scream.

Forrest saw the officer “doing something with his arm,” but

could not make out what the officer was doing. Id. at 107:9–

11. Eventually, the officer told Brown to go downstairs. The

officer then entered Blevins’s room, where Forrest, Blevins,

and the other officer were located. One of the officers swung

the door away from Forrest, and hit him in the face, knocking

him out. When Forrest regained consciousness, an officer,

later identified as Kevin Parry, was on top of him. Officer

Parry repeatedly punched Forrest in the face. Officer Parry

then handcuffed Forrest, and the officers—Parry and Jason

5

Stetser—dragged Forrest down the stairs. Forrest suffered a

laceration to his ear, facial bruising, and injuries to his knees.1

Officer Parry placed Forrest in the back seat of the

supervising Sergeant’s vehicle. Officer Parry proceeded to tell

Forrest that any drugs found in the house would be attributed

to him. The Sergeant, Dan Morris, then took Forrest to a

vacant parking lot, at which point Forrest asked “I’m bleeding

like crazy. Why you got me here? Why don’t you take me to

the hospital?” Pl.’s Resp. Br. Ex. 64-b, at 134:19–21, ECF No.

144-77. Sergeant Morris allegedly ordered Forrest to shut up,

and said, “my officers don’t plant drugs on people.” Id. at

136:25–137:2. Officers Parry and Stetser arrived soon after,

and Sergeant Morris passed something to Officer Parry.

1

Brown’s testimony corroborates the account provided

by Forrest, up to and including his being dragged down the

stairs. For example, she testified that Forrest was behind the

door of Blevins’s room when she walked into the upstairs

hallway, and that, after Forrest was hit in the face with the door,

one officer “beat him up pretty bad,” at one point “hit[ting] him

in the head with a flashlight[.]” Pl.’s Resp. Br. Ex. 44, at 44:3–

6, ECF No. 144-20. According to Brown, the officer hit

Forrest “so many times” that “[h]e urinated all over himself[,]”

“his face was swollen,” and “his head was full of blood.” Id.

at 45:6–11. Brown further testified that 1270 Morton belonged

to her, she was renting a room to Blevins, Green was her

boyfriend, and Hot Dog was visiting on the day of the incident.

And that she was “asleep and . . . naked from the waist down,”

when an officer entered the front room with a flashlight. Id. at

20:18–24.

6

Forrest was taken to the hospital to be treated thereafter.

When the attending nurse inquired as to what caused his

injuries, he simply told her that he tripped and fell. The officers

had previously warned that if Forrest said any more, they

would charge him with having assaulted five officers.

In the police report he prepared regarding this incident,

Officer Parry wrote that he had observed Forrest engaging in a

hand-to-hand drug transaction on the porch of 1270 Morton,

and that Forrest initiated the physical altercation with him and

Officer Stetser. Officer Parry testified to that version of events

before the grand jury and claimed that Forrest was in

possession of 49 bags of a controlled dangerous substance.

Forrest was subsequently charged with possession of a

controlled substance, possession with intent to distribute,

possession within one thousand feet of a school, and resisting

arrest.

Forrest filed a complaint with Internal Affairs on July

21, 2008. He alleged that he was assaulted by Officer Parry

“and his partner,” which resulted in “a cut ear [that] required

stitches, [bruises] on [his] knees, pain in [his neck], and

headaches.” Def.’s Mot. Ex. 33, ECF No. 138-4 at 59. The

complaint went nowhere, so he wrote a follow-up letter two

months later. The letter reiterated the assault charges and

indicated that Internal Affairs had yet to respond to Forrest’s

initial complaint. Forrest ultimately pleaded guilty to

possession with intent. He was sentenced to three years and

eighteen months in a New Jersey state prison.

Forrest served eighteen months of that sentence. He

was released when Officer Parry later admitted that he had

7

falsified the police report regarding the incident with Forrest.

Specifically, Sergeant Morris, and Officers Parry and Stetser

were three of five officers that were charged with, and pleaded

guilty to, conspiracy to deprive individuals of their civil rights.

Officers Stetser and Parry admitted to filing false reports,

planting drugs, and lying under oath in front of grand juries, at

suppression hearings, and at trials. The investigation into their

activities resulted in judgments vacated, charges dismissed, or

pending indictments forfeited in over 200 criminal cases. As

to Forrest in particular, Officer Parry admitted that he did not

observe a hand-to-hand drug transaction, but falsely included

that in the report he had prepared.2

2

Camden emphasizes that Forrest nonetheless admitted

that his plea was not coerced, but rather free and voluntary.

Appellees’ Br. 7. In addition, at argument, it represented that

there remains a dispute as to whether Forrest “was engaged in

drug possession.” Oral Arg. Audio at 23:30–24:10. Forrest

puts forth that this may not have been the first time that he

freely and voluntarily entered a guilty plea to an offense he

believed he did not commit. He testified that, in those

circumstances, he does not like “putting [his] life in somebody

else’s hand” and that he would much rather take his own

chances. Pl.’s Resp. Br. Ex. 64a, at 60:15–20, ECF No. 144-

76. Thus, if he thinks he is “getting another break,” he takes

the plea. Id. at 60:20–22.

He attributes this approach to when he chose to go trial

in a case brought against him when he was a minor. He

testified that sometime in 1971, two police officers lured him

from the porch of his mother’s home in Camden, accused him

of having committed a robbery, and arrested him. He did not

take a plea, but “went all the way to court with it.” Pl.’s Resp.

8

While still in prison, Forrest brought this action in

federal court in the District of New Jersey. By April 2015, his

was one of approximately 89 lawsuits brought against the City

of Camden (“Camden”) based on the actions of the above-

referenced officers. Camden proposed a global settlement for

these suits,3 but Forrest opted out. He moved forward with his

claims, which included a municipal liability claim under 42

U.S.C. § 1983, a conspiracy claim under 42 U.S.C. § 1985(3),

and a state law claim for negligent supervision.4 Camden

moved for summary judgment on all counts in March of 2015.

Br. Ex. 64, at 37:4–5, ECF No. 144-75. He was found guilty

and ended up serving seven months in a juvenile correctional

facility before he was told that a mistake had been made.

Forrest ultimately laments the situation, stating, “I think that

might have damaged me.” Id. at 38:23.

3

It has no bearing on the analysis in this case, but

Camden also disbanded its police department, and formed a

new one. See, e.g., Kate Zernike, To Fight Crime, a Poor City

Will Trade In Its Police, https://www.nytimes.com/2012/09/2

9/nyregion/overrun-by-crime-camden-trades-in-its-police-

force.html.

4

Forrest’s conspiracy claim did not survive summary

judgment, and he does not mention this claim in his opening

brief. Any argument as to this claim is therefore waived. See

United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It

is well settled that an appellant’s failure to identify or argue an

issue in his opening brief constitutes waiver of that issue on

appeal.” (citations omitted)).

9

Despite the breadth of Camden’s motion, its brief only

mentioned Forrest’s municipal liability claim under § 1983.

Forrest responded in kind, with a singular focus on his

§ 1983 claim. His brief opposing summary judgment divided

that claim into two: first, he argued that, through its policy or

custom of permitting officers to be “essentially unsupervised,”

Camden was “the moving force” behind the constitutional

deprivation of his rights, Pl.’s Resp. Br. 30, ECF No. 144; and

second, that Camden’s failure to train and supervise their

officers constituted “a deliberate indifference to the rights of

persons those officers would come into contact with,” id. at 34.

The evidence he cited reflects the police department’s troubled

history in the years leading up to Forrest’s arrest, and is best

described in six segments, all of which pertain to Camden’s

supervision and investigation of its officers.

First, the New Jersey Attorney General (“NJAG”) had

been commissioned to conduct a review of Camden’s police

operations on five separate occasions prior to Forrest’s arrest,

in 1986, 1996, 1998, 2002 and, most recently, 2006. The

NJAG twice appointed the Camden County Prosecutor to

oversee the police department, once in 1998, and the other in

2003. One of the NJAG reports warned that Camden’s failure

to commit manpower and resources to proactively managing

police misconduct would place it “in the position of failing to

adequately protect the civil rights of its citizens and sets the

stage for significant civil liability.” App. 128. More

specifically, with a backlog of over 350 uninvestigated

complaints in 2002, the same report expressly cautioned:

The number of open investigations is simply

unacceptable and overwhelms whatever progress

the unit may have accomplished since our last

10

review. . . . The failure to immediately address

the complaint backlog and, over the longer term,

ensure that the backlog does not reoccur on a

regular basis, could lead one to conclude that the

City of Camden and the police department are

deliberately indifferent to the conduct of its

police officers and the civil rights of its citizens.

App. 123 (emphases added).

Second, Camden did not address the backlog. Rather, it

maintained an extensive, recurring backlog in the years leading

up to Forrest’s arrest. The backlog was as high as 487

complaints in 2004, and 461 in 2005, and, though declining,

remained in 2006 and 2007, at 205, and 175, respectively. As

to complaints regarding excessive force, which Forrest’s

complaint and follow-up letter alleged, Camden was

investigating and closing a mere fraction, and sustaining an

even smaller number. Taken together, Camden sustained

about 1% (7 of 622) of the complaints alleging serious

misconduct from 2004 to 2008, consisting of excessive force,

improper arrest, improper search, and differential treatment.5

Third, the evidence suggests that the investigations that

were conducted were seriously deficient. A representative

5

Excluding Forrest’s, there were six complaints lodged

against Officer Stetser in that span, including one for excessive

force, one for improper arrest, and one for

harassment/improper detainment. Officer Parry was the

subject of two complaints during the same time frame, one of

which does not appear on the mechanism used to track such

complaints.

11

example is an Internal Affairs investigative memorandum

where the investigator did not interview witnesses, but rather

solely based the determination on the incident reports authored

by the officers involved. The memorandum derived from an

investigation into a complaint filed against Officers Stetser and

Parry about a year before Forrest’s arrest and which contained

allegations that were nearly identical to Forrest’s. Indeed, the

complainant alleged the officers planted drugs on him. The

Internal Affairs investigator concluded that this complaint was

“unfounded,” which means that the complainant was “lying,

more or less.” Pl.’s Resp. Br. Ex. 48, at 30:11–15, ECF No.

144-27. This finding was premised on the incident report

prepared by Officer Parry, which stated that he and Officer

Stetser observed the complainant engage in a drug transaction

in an alleyway. The investigation into this complaint revealed

that two similar complaints had been filed against Officer

Stetser, and that the incident report for both—prepared by

Stetser—also stated that each complainant was separately

observed engaging in a drug transaction.6

The fourth segment is the testimony of former high

officials in the police department, including the former Chief

of Police, a former Deputy Chief, the former Supercession

Executive,7 and the Sergeant who took over Internal Affairs in

6

The investigation into these complaints was prompted

by a request from the complainant’s lawyer to access the other

two complaints.

7

The NJAG appointed the Camden County Prosecutor

to “supercede the management, administration and operation”

of the police department in 2003. App. 103. The Camden

12

2009. Their combined testimony reflects that, in the years

leading up to and including the year of Forrest’s arrest, there

were deficiencies with how the department tracked officer

whereabouts, there were no performance reviews (contrary to

recommendations by the 2006 NJAG report) and the sergeant-

to-officer ratio was two to three times more than

recommended.

Specifically, John Scott Thomson (“Chief Thomson”),

who became Chief of the now-defunct Camden Police

Department in 2008 and is now Chief of the newly-established

Camden County Police Department, testified. He explained

that, prior to his taking over the department and at the time of

Forrest’s arrest, the police department “relied upon what you

wrote on your log to determine where you were” and that “an

officer could [theoretically] write anything they wanted down

[, since] there just wasn’t a checks and balance (sic) on it.”

Pl.’s Resp. Br. Ex. 42-a, at 57:11–13, 65:5–8 ECF No. 144-16.

The Supercession Executive testified that he was not aware of

another major police department that did not have a

performance evaluation system. Yet despite his and the

NJAG’s recommendations, Camden failed to implement such

a system throughout the entirety of his term.

Edward Hargis, who was Deputy Chief from 2004

through January of 2008, doubled down on that testimony,

stating, “[a]fter [the NJAG 2006 report] was issued, we started

County Prosecutor later installed a Supercession Executive to,

inter alia, manage the day-to-day activities of the police

department, and represent the County Prosecutor in overseeing

all department activities. The Supercession Executive was

installed in 2006 and remained until 2008.

13

designing a performance evaluation [system], but then it did

not become much of a concern.” Pl.’s Resp. Br. Ex. 40, at

35:15–36:17, ECF No. 144-8. Along those lines, the Sergeant

who took over Internal Affairs in 2008 testified that the officer-

to-sergeant ratio is supposed to be five to seven officers to a

sergeant. Yet, between 2004 and 2009, the Supercession

Executive stated that “they were woefully over in number” in

some commands, with “12, 15 plus to a sergeant.” Pl.’s Resp.

Br. Ex. 41-b, at 137:1–6, ECF No. 144-13.

Chief Thomson ultimately commented that one of the

most pressing problems facing the department when he took

over in 2008 was a “culture of apathy and lethargy”—by which

he meant that there were no “mechanisms of accountability,”

and, as such, “CPD was an organization in which you could

have the greatest cop in the world or the laziest cop in the world

. . . .” Pl.’s Resp. Br. Ex. 41-c, at 37:23–39:4, ECF No. 144-

15.

Fifth, Officers Parry and Stetser were aware of the

alleged inadequacies in supervision. Officer Parry explained

that he continued to engage in illicit behavior even when

Sergeant Morris could no longer cover for him as his

supervisor. When asked whether he was concerned that a

Sergeant who was not a party to the conspiracy would

“discover what was going on,” Officer Parry responded, “No.

. . . Because, like I said, nobody seemed to care.” Pl.’s Resp.

Br. Ex. 68, at 36:2 to 37:7, ECF No. 144-87. He noted that, in

fact, supervision was worse after Sergeant Morris stopped

supervising him, stating:

Because the more sergeants had to do, the more

that—you know, the more paperwork that had to

be completed for our squad, the less they were on

14

the street and there was no supervision for them

. . . [B]ecause before if you were on regular

patrol, if you were at a job, a sergeant was on the

street with you. They would show up a lot of

times. Sergeants were getting so, you know,

backed up with paperwork, they were really

never around. . . . These guys, like I said, they

would take their liberties because they knew that

nobody was going to be around and they had to

answer no questions.

Id. at 28:22 to 29:17. And when Sergeant Morris was their

supervisor, Officer Parry testified that he and Officer Stetser

had no concern about their misconduct, as it was very rare that

a Captain or Lieutenant would show up or review their reports.

Nor did concern about complaints being filed with Internal

Affairs ever cross their mind. Worse yet, Officer Stetser also

testified that, Lieutenant Pike, his supervisor at one point,

“most likely” knew that he was writing false reports and

accepted them. Pl.’s Resp. Br. Ex. 54-a, at 40:16–18, ECF No.

144-43.

Sixth, Officer Vautier, a fellow officer at the time,

testified about two incidents in which Officer Stetser engaged

in questionable behavior in front of his superiors without

reprimand. The first took place in Spring of 2007 when Officer

Stetser put drugs in a Lieutenant’s bag in front of the entire

squad as a prank. According to the officer, the Lieutenant

discovered this and did nothing. The officer also testified that

he reported this, as well as that Officer Stetser bragged about

passing out drugs at parties, to a Sergeant within Internal

Affairs. The Sergeant responded by confirming that there had

been other complaints about Officer Stetser’s passing out drugs

at parties, but never wrote anything down and kept the report

15

off the record. The second incident was in May of 2007, and

involved a Sergeant who conducted an integrity test on Officer

Stetser, whereby he placed a precise amount of an illegal

substance in a bag and handed it to Officer Stetser to turn it in

before the end of the day. Officer Stetser failed—he was given

45 bags and only turned in 30.

*****

Camden prevailed. The District Court granted partial

summary judgment. It divided Forrest’s § 1983 claim into

three theories that it devised. Each theory was then associated

with a specific subset of the above segments, without

consideration of the segments’ combined impact on any

particular theory. The result is that, along with Forrest’s state

law negligent supervision claim, only one of the theories was

considered to have the evidentiary support necessary to survive

summary judgment. This surviving theory was then narrowly

framed as a failure to supervise through the Internal Affairs

process, which again reflected the Court’s view that

supervision-related deficiencies that were apparent elsewhere

were not relevant to the incident with Forrest.

The jury returned a verdict in favor of Camden on the §

1983 theory that was presented to them. In parts one and two

of the verdict form, it unanimously found that Officers Stetser

and Parry violated Forrest’s Fourth Amendment right to be free

from excessive force and to be free from false arrest. But, in

part three, the jury found that Forrest had not proved that these

deprivations of his constitutional right resulted from Camden’s

actions.

Forrest appealed.

16

DISCUSSION8

Forrest challenges the District Court’s rulings at various

stages of the underlying proceedings. At summary judgment,

he argues that the District Court erred in granting Camden’s

motion on any portion of his § 1983 claim. Regarding the

Court’s rulings at the motions in limine hearing, he argues that

it effectively awarded summary judgment on his state law

negligent supervision claim, and improperly excluded

evidence that was material to the remaining portion of his §

1983 claim. Lastly, Forrest contends that the Court issued jury

instructions that were erroneous and prejudicial as to the §

1983 claim.

We agree that there were several errors below,

beginning with some of the District Court’s rulings at summary

judgment. Indeed, the Court unilaterally divided Forrest’s

claim into three theories it devised—failure to supervise

through the Internal Affairs process, failure to supervise, and

failure to train. To support that division, the District Court

considered the Internal Affairs-related evidence—consisting

of segments one through four—as only supporting the first

theory. In turn, the first theory was the only that survived

summary judgment. We conclude that aspects of all three

theories should survive when the evidence, consisting of

segments one through six, is considered in its entirety.

Moreover, the District Court’s subsequent efforts to exclude

the segments that supported the theories that did not survive

summary judgment resulted in erroneous evidentiary rulings as

8

The District Court had jurisdiction under 28 U.S.C. §§

1331, 1367(a); we have jurisdiction over appeals from all final

decisions by the District Court under 28 U.S.C. § 1291.

17

to what was relevant, as well as incorrect instructions as to

what claims the jury was required to consider and the requisite

legal elements. We will therefore reverse the portions of the

District Court’s summary judgment and evidentiary rulings

that resulted in error, vacate part three of the verdict rendered

by the jury, and remand for further proceedings.

Summary Judgment

Standard

Our review of a district court’s decision at summary

judgment is plenary, and we apply the same standard as the

District Court. See Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d

Cir. 2014). We determine whether the moving party has

established that there is no genuine dispute of material fact and

is entitled to judgment as a matter of law. See Wharton v.

Danberg, 854 F.3d 234, 241 (3d Cir. 2017) (citing Fed. R. Civ.

P. 56(a)). We view all facts in the light most favorable to the

non-moving party and draw all inferences in that party’s favor.

Id. The elements of the underlying claim are central to our

determination, as a fact is only material if it might affect the

outcome of the suit under the governing law. See

Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ., 470 F.3d 535, 538 (3d Cir. 2006). We therefore begin

our discussion with an examination of the underlying elements

of the species of § 1983 claim that Forrest presented to the

District Court.

As we recently reiterated, a § 1983 claim against a

municipality may proceed in two ways. Estate of Roman v.

City of Newark, 914 F.3d 789, 798–99 (3d Cir. 2019). A

plaintiff may put forth that an unconstitutional policy or

custom of the municipality led to his or her injuries, id. at 798

18

(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694

(1978)), or that they were caused by a failure or inadequacy by

the municipality that “reflects a deliberate or conscious

choice,” see id. (internal quotation marks omitted) (quoting

Brown v. Muhlenberg Twp., 269 F.3d 205, 215 (3d Cir. 2001)).

The latter avenue arose in the failure-to-train context, but

applies to other failures and inadequacies by municipalities,

including those related to supervision and discipline of its

police officers. Id. at 798–99 (“[Plaintiff] has not pled a

municipal policy . . . [but] has . . . adequately pled that the City

failed to train, supervise, and discipline its police officers.”).

Plaintiffs that proceed under a municipal policy or

custom theory must make showings that are not required of

those who proceed under a failure or inadequacy theory, and

vice versa. Notably, an unconstitutional municipal policy or

custom is necessary for the former theory, but not for the latter,

failure or inadequacy theory. Id. at 798 (“[F]or failure-to-train

claims . . .[,] a plaintiff need not allege an unconstitutional

policy.”) (citing Reitz v. County of Bucks, 125 F.3d 139, 145

(3d Cir. 1997)). This difference can be significant because a

plaintiff presenting an unconstitutional policy must point to an

official proclamation, policy or edict by a decisionmaker

possessing final authority to establish municipal policy on the

relevant subject. And, if alleging a custom, the plaintiff must

evince a given course of conduct so well-settled and permanent

as to virtually constitute law. Id. On the other hand, one whose

claim is predicated on a failure or inadequacy has the separate,

but equally demanding requirement of demonstrating a failure

or inadequacy amounting to deliberate indifference on the part

of the municipality. See id. This consists of a showing as to

whether (1) municipal policymakers know that employees will

confront a particular situation, (2) the situation involves a

19

difficult choice or a history of employees mishandling, and (3)

the wrong choice by an employee will frequently cause

deprivation of constitutional rights. Carter v. City of

Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999).

Although we have acknowledged the close relationship

between policy-and-custom claims and failure-or-inadequacy

claims, Barks v. First Corr. Med, 766 F.3d 307, 316–17 (3d

Cir. 2014), the avenues remain distinct: a plaintiff alleging that

a policy or custom led to his or her injuries must be referring

to an unconstitutional policy or custom, and a plaintiff alleging

failure-to-supervise, train, or discipline must show that said

failure amounts to deliberate indifference to the constitutional

rights of those affected. That is not to say that the plaintiffs

cannot be one and the same, with claims sounding in both.

They can. See id. at 798–99 (“[Plaintiff] has sufficiently

alleged a custom of warrantless or nonconsensual searches . . .

[and] has also adequately pled that the City failed to train,

supervise, and discipline its officers.”).

Analysis

With that understanding, recall that, in his brief

opposing summary judgment, Forrest purported to divide his §

1983 municipal liability claim into two theories. One alleged

that a policy or custom of “essentially unsupervised” officers

was the “moving force” behind the constitutional deprivation

of his rights. Pl.’s Resp. Br. 30, ECF No. 144. The other

alleged that Camden’s failure to train and supervise their

officers constituted deliberate indifference to the rights of

individuals with whom the officers would come into contact.

Id. at 34.

20

The District Court did not adopt that framing, and

instead further divided the claim into three separate theories.

It described them as, first, “that [Internal Affairs] was

inadequate and provided no accountability for Stetser and

Parry[,]” second, “that the City’s supervisory structure and

inadequate monitoring system left Stetser and Parry

unsupervised[,]” and third, “that Stetser and Parry received

inadequate training because training about how to recognize

and eradicate excessive force and misconduct was necessary.”

App. 14 (internal quotation marks omitted). Further, the

District Court enunciated the legal requirements for all three

theories as that Forrest had to demonstrate a policy or custom

as to the alleged failures or inadequacies and that said policy

or custom amounted to deliberate indifference.9

9

In setting forth the law, the District Court purports to

rely on our decision in Beck. See App. 7 (citing Beck, 89 F.3d

at 972, for the proposition that, “[w]hile the Supreme Court

originally fashioned ‘the deliberate indifference’ doctrine in

the context of a city’s alleged failure to train its police officers,

the Third Circuit has since adopted this standard in other policy

and custom situations.” (emphasis added)). The portion of

Beck cited by District Court quotes language from our decision

in Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir.

1991), which references a policy or custom of deliberate

indifference. However, contrary to what the District Court’s

opinion suggests, neither Beck nor Simmons established a

species of § 1983 municipal liability predicated on the

existence of an unconstitutional policy or custom of or

amounting to deliberate indifference. Beck involved a claim

regarding an unconstitutional policy or custom of tacitly

authorizing police officers to use excessive force in violation

21

Forrest does not challenge the District Court’s ruling

regarding the first theory—that a policy or custom of

inadequate supervision through Internal Affairs amounted to

deliberate indifference—as it survived summary judgment.

But he does take issue with how he was allowed to proceed on

that claim. We take up those challenges in subsections (B),

(C), and (D). We now turn our focus to Forrest’s challenges to

the District Court’s ruling regarding his failure-to-supervise

and failure-to-train theories.

At the outset, we emphasize that, properly considered,

there are two ways in which Forrest’s § 1983 claim against

Camden may have proceeded: first, that Camden’s policy or

custom of permitting excessive force, false arrest, or other

constitutional violations led to Forrest’s injuries; and/or

second, that Camden’s failure to supervise, discipline, or train

its officers amounted to deliberate indifference to the rights of

the individuals with whom those officers would come into

contact. As a result, the bare notion that a custom or policy of

“essentially unsupervised” officers led to Forrest’s injury has

no basis in law. See Pl.’s Resp. Br. 30, ECF No. 144. We

therefore consider his claim as sounding in the latter—that

Camden’s failure to supervise, investigate, and train its officers

amounted to deliberate indifference.

Despite incorrectly announcing that Forrest had to

demonstrate an unconstitutional policy or custom of, or

of the Fourth Amendment. Beck, 89 F.3d at 968. Similarly,

Simmons involved an alleged policy that violated the Eighth

Amendment—that is, one of “deliberate indifference to the

medical needs of intoxicated and potentially suicidal

detainees.” Simmons, 946 F.2d at 1064.

22

amounting to, deliberate indifference, the District Court treated

Forrest’s claim as we will: it properly conducted a deliberate

indifference analysis for each alleged failure on the part of

Camden. However, it divided up the quantum of evidence to

the detriment of Forrest’s failure-to-supervise theory and

adopted an unduly narrow view of the evidence supporting

Forrest’s failure-to-train theory.

Per the evidentiary division, the lion’s share of the

evidence we laid out in Section I.C.—four out of the six

segments—was associated with only the first theory, which the

Court labeled “Failure to Supervise, Investigate, and

Discipline.” App. 16. This consisted of the evidence that

Internal Affairs had substantial backlogs and was not

adequately investigating complaints in the years leading up to

Forrest’s arrest, as well as the evidence of a lack of adequate

supervision based on the absence of a system of progressive

discipline and any mechanism to track officer performance.

Despite its overlap with the first theory, the second

theory, labeled “Failure to Supervise,” App. 21, was limited to

the evidence pertaining to Camden’s failure to track officer

whereabouts, “CPD’s supervisory structure, and generally

inadequate supervision of its officers’ day-to-day activities . . .

.” App. 21–22. The District Court did not mention the

evidence suggesting that the particular officers at issue

engaged in illicit conduct knowing that that they were not

being supervised, and the testimony regarding the two

incidents that should have alerted the officers’ superiors but did

not. Nor did the Court consider how, if taken together, the

quantum of evidence laid out in Section I.C. supported a

failure-to-supervise theory. Camden’s motion was ultimately

denied as to the “Failure to Supervise, Investigate, and

23

Discipline” theory, but granted as to the “Failure to Supervise”

theory. App. 21–22.

A different, yet equally problematic narrowing occurred

with regard to the third theory, labeled “Failure to Train.” App.

22. The District Court construed this theory as merely focusing

on the inadequacies in Camden’s training program, as it

pertained to Officers Stetser and Parry. See App. 22–23

(stating, “Plaintiff has not adequately demonstrated that the

training Parry and Stetser received was so deficient as to reflect

[Camden]’s deliberate indifference to constitutional rights.”).

It then granted Camden’s motion.

We will reverse the District Court’s grant of summary

judgment on the failure to supervise theory, and, to the extent

that it overlooked Forrest’s allegations regarding the training

supervisors received, also its ruling on the failure to train

theory.

Failure to Supervise

The evidence presented by Forrest may convince a

reasonable jury that Camden’s failure to supervise and

discipline its officers amounted to deliberate indifference to the

rights of individuals with whom those officers would come into

contact. The record would support a finding that Camden’s

policymakers knew that their officers would require

supervision, that there was a history of officer supervision

being mishandled, and that, in the absence of such supervision,

constitutional violations were likely to result. Indeed, the

evidence suggesting that the particular officers at issue

engaged in illicit conduct—often consisting of false arrest and

excessive force—knowing that that they were not being

supervised, and that there were a few incidents that should have

24

alerted the officers’ superiors, but did not, is significant. Those

evidentiary points combined with the NJAG reports, the

evidence regarding Internal Affairs’ complaint backlog and

other deficiencies, and the testimonies offered by Chief

Thomson, the Supercession Executive, former Deputy Chief

Hargis, and the Sergeant who took over Internal Affairs in

2009, is sufficient to withstand a motion for summary

judgment.

Camden argues that Forrest cannot demonstrate a nexus

between the deprivation he suffered and Camden’s conduct

because, in the months leading up to Forrest’s arrest, its hands

were tied. To support that argument, it cites its internal

processes: when Internal Affairs received a complaint, it

forwarded that complaint to the Camden County Prosecutor’s

Office (“CCPO”), and took no further action. Id. at 8. It left

the investigation entirely up to the CCPO. Id. Camden asserts

that this process was in effect with respect to Officers Stetser

and Parry in 2008, and, as such, Internal Affairs’s

investigations of those officers were stayed up to and through

the time of Forrest’s arrest. Id. at 8.

We reject this argument for two reasons. First, as the

District Court pointed out, Camden’s own submission

demonstrates that the CCPO did not take over investigations

into Officers Stetser and Parry until September 16, 2008, well

over two months after Forrest’s arrest. See Def.’s Mot. Ex. 29,

ECF No. 138-4 at 13. Second, even assuming that was not the

case, there is a genuine dispute of material fact as to whether

Internal Affairs’s investigation would have resulted in

Forrest’s arrest (and the surrounding incident) being prevented.

Indeed, even when Camden did investigate complaints against

these officers, its investigation amounted to a review of the

25

false reports they prepared, and thus resulted in no disciplinary

action against the officers.

We will therefore reverse the District Court’s decision

granting summary judgment as to the § 1983 claim that

Camden’s failure to supervise its officers amounted to

deliberate indifference to the rights of individuals with whom

those officers would come into contact.

Failure to Train

As to the failure to train theory, Forrest’s arguments to

the District Court did not only focus on the training Officers

Stetser and Parry received, but also the training that

supervising officers received. Pl.’s Resp. Br. 35 (arguing that

“training session[s] for officers, supervisors and command

officers about how to recognize and eradicate excessive force

and misconduct [are] necessary”). Forrest reiterates the same

two-part argument on appeal: that “the training provided to

Stetser and Parry . . . was inadequate” and “[s]imilarly, training

for supervisors was deficient, as sergeants did not receive

training geared toward officer discipline.” Appellant’s Op. Br.

40.

We agree with the District Court that evidence

regarding the training that officers received is insufficient as a

matter of law. The alleged deficiency in a training program

must be closely related to the alleged constitutional injury

because “[i]n virtually every instance where a person has had

his or her constitutional rights violated by a city employee,

[said] plaintiff will be able to point to something the city ‘could

have done’ to prevent the unfortunate incident.” City of

Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989) (citation

omitted).

26

Here, even if we accept that, based on the sheer volume

of complaints, Camden had to have known that it had a

problem with officers violating the constitutional rights of

citizens, the link between that and the alleged deficiencies in

the training program is simply too tenuous. The officers knew

that their conduct was criminal, and, as the encounter in this

case shows, used their authority to pressure victims to refrain

from immediately reporting their activities. As a result, there

is no proof from which to infer that implementing the changes

to the training program that Forrest suggests would have made

any difference. Lastly, in terms of awareness, the testimonial

evidence from higher officials point to supervision and

accountability as the critical issues, not training.

The opposite is true of the evidence regarding the

inadequacies in training that supervisors received. Camden

policymakers knew or should have known that supervisor-level

officers would be confronted with officer misconduct, whether

first hand or via complaints and reports from others, and that

the wrong choice—failure to report or admonish—would lead

to the sort of behavior that occurred here: officers whose

behavior caused the deprivation of constitutional rights, but

who had no reason to change that behavior. And, although the

situation does not necessarily involve a difficult choice, the

evidence here demonstrates a genuine dispute of material fact

as to whether supervisors had a history of mishandling this

choice.

Indeed, the sheer volume of complaints from outsiders,

coupled with the absence of any internal response may lead a

reasonable jury to conclude that Camden was aware of

supervisors mishandling or being unable to handle their duties.

This is even more pronounced when one examines the

testimonies of higher officials who expressed great concern

27

that officers were not being adequately supervised, and called

for various measures to address that reality, including a formal

performance evaluation system and a reduction in the

supervisor-to-officer ratio. See also App. 128 (warning that

Camden’s failure to commit manpower and resources to

proactively managing police misconduct would place it “in the

position of failing to adequately protect the civil rights of its

citizens and set the stage for significant civil liability.”).

The call for these measures was warranted and the need

for training apparent. The testimony provided by Officers

Stetser and Parry reflects that they were aware that supervision

was lacking, whether co-conspirator Sergeant Morris covered

for them or not. Officer Stetser, in particular, explained that

one of his supervisors “most likely” knew that he was writing

false reports, and accepted them. Pl.’s Resp. Br. Ex. 54-a at

40:16–18, ECF No. 144-43. The record further provides ample

basis for this confidence. Recall that Officer Stetser failed an

integrity test administered by a supervising officer, and

pranked another by planting drugs in the supervising officer’s

bag. When this was reported to a Sergeant in Internal Affairs,

the Sergeant merely responded with his own account of similar

behavior by Officer Stetser in other contexts. See Supra

Section I.C., Segment Six.

The foregoing demonstrates Camden’s policymakers

were aware that Camden needed a large shake up in its

supervisory regime. It also raises significant questions as to

whether Camden’s supervisor-level officers were adequately

trained on how to discipline and combat officer misconduct

when it was brought to their attention, including the kinds of

misconduct—false arrest and excessive force—that led to

Forrest’s injuries. Thus, while we agree that Forrest’s claim

regarding the adequacy of the training officers received fails

28

on causation grounds, we conclude that a genuine dispute of

material fact exists as to whether the need for more or different

training for supervisors was obvious, and the failure to provide

that was very likely to result in a violation of constitutional

rights. We will therefore reverse the District Court’s summary

judgment ruling as to this iteration of Forrest’s § 1983 claim.

Motions in Limine

Forrest presents two challenges to the District Court’s

decisions on the motions in limine. He argues that the District

Court improperly granted summary judgment on his state law

negligent supervision claim, and excluded evidence that was

material to his surviving § 1983 claim. We agree—the District

Court sua sponte granted summary judgment without

providing the procedural safeguards the Federal Rules of Civil

Procedure require before judgment on the merits can be

granted. We also agree that the Court’s evidentiary rulings

constituted an abuse of discretion, as they stemmed from an

incorrect, narrow view of Forrest’s surviving § 1983 claim.

State Law Negligent Supervision Claim

The District Court ruled that Forrest’s state law

negligent supervision claim survived summary judgment. But

there is no mention of the claim for the remainder of the

proceedings, including at trial. On appeal, Forrest contends

that the District Court effectively granted summary judgment

on that claim at the motions-in-limine hearing. Appellant Op.

Br. 42–43. He argues that this is clear from District Court’s

opening remark at that hearing that the only remaining claim

was the failure to supervise through Internal Affairs. Id. at 43.

Camden counters that Forrest waived this issue by failing to

object when the District Court made that remark. Appellee

29

Resp. Br. 40. We first address the District Court’s remark and

its effect, and then the question of plain error.

The District Court’s Remark

It is well-settled that district courts may grant summary

judgment sua sponte, so long as the losing party is given notice

when summary judgment is being contemplated. See Fed. R.

Civ. P. 56(f) (permitting a sua sponte grant “[a]fter giving

notice and a reasonable time to respond . . .”); Gibson v. Mayor

& Council of City of Wilmington, 355 F.3d 215, 222 (3d Cir.

2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 326

(1986)); see also Otis Elevator Co. v. George Washington

Hotel Corp., 27 F.3d 903, 910 (3d Cir. 1994). The purpose is

to give the losing party the opportunity to marshal all the

evidence that would be used to oppose summary judgment.

Gibson, 355 F.3d at 224. Along those lines, although motions

in limine are not designed to eliminate claims or theories, see

Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d

Cir. 1990), the Federal Rules of Civil Procedure do not prohibit

a grant of summary judgment when said motions have been

filed. Whenever the summary judgment ruling is made, the

court must provide the parties with adequate notice and an

opportunity to oppose. Id. at 1069–70 (finding notice

inadequate where neither the parties nor the court suggested

the possibility of trial not going forward).

In the past, we have determined that a motion in limine

resulted in a sua sponte grant of summary judgment based on

an express statement by the district court, see Brobst v.

Columbus Servs. Int’l, 761 F.2d 148, 154 (3d Cir. 1985)

(quoting the district court as having stated, “The court finds, as

a matter of law, that . . .”) (emphasis added), or, indirectly, by

30

way of the court having eliminated the evidentiary basis for a

claim, see Bradley, 913 F.2d at 1069–70.

The situation here is different. The District Court did

not make an express statement, at least not one outright

purporting to grant summary judgment. Nor did it necessarily

eliminate the evidentiary basis for Forrest’s state law negligent

supervision claim, given the evidentiary overlap with his

surviving § 1983 claim. Instead, Forrest’s argument is

premised on the District Court’s lone remark that, “This is the

only claim left in the case, the failure to supervise through the

Internal Affairs process.” App. 345. But these are differences

without a distinction. The principle remains: whether

expressly or in effect, a district court may not grant summary

judgment without providing the losing party notice, or a notice-

equivalent, and an opportunity to oppose. See Gibson, 355

F.3d at 223 (citing Otis, 27 F.3d at 910).

Thus, as we ordinarily would, we examine whether the

Court granted summary judgment on Forrest’s state law

negligence claim, and, if so, whether Forrest had adequate

notice and an opportunity to oppose.

By itself, the District Court’s remark that “the failure to

supervise through the Internal Affairs process” was “the only

claim left in the case” is ambiguous, at best. By the time the

District Court makes this statement, the case had been

narrowed to two claims: a § 1983 claim on the theory that

“[Camden]’s Internal Affairs system was inadequate and

provided no accountability . . . [,]” App. 14; and a state law

negligent supervision claim “on the theory that the internal

affairs department provided inadequate supervision of its

officers,” App. 24. Thus, a remark that the only remaining

claim is the failure to supervise through Internal Affairs leads

31

one to ask: is it the § 1983 or the state law? The answer can

be found in the remainder of the Court’s other statements at the

motions-in-limine hearing, as well as the jury instructions and

verdict form.

The remainder of the Court’s motions-in-limine

statements demonstrate that the remark at issue was referring

to the § 1983 claim as the only remaining claim. Specifically,

in the moments before making the remark Forrest cites, the

District Court stated, “I’m going to start with the order in which

[the motions] were filed on the docket. And the first is number

164, which is defendant’s motion to bar evidence unrelated to

the Monell claim.” App. 345. The Court then proceeded to

explain that “there are no training claims left in the case,” and,

having narrowed the surviving municipal liability claim to the

theory involving the inadequate supervision provided through

Internal Affairs, stated, “This is the only claim left in the case,

the failure to supervise through the Internal Affairs process.”

Id.

The jury instructions and verdict form further

demonstrate that Forrest’s state law claim was not the claim

being referred to as the only one remaining. This claim is

absent from the portion of the jury instructions that sets forth

what the jury was to consider. Instead, the jury is instructed

that, “[t]he plaintiff, Alanda Forrest, is suing under Section

1983 . . . .” App. 456. As to the verdict form, the portion

identifying the claims against Camden singularly asks,

“Has plaintiff proven by a preponderance of the

evidence that the deprivation of Alanda Forrest’s

constitutional right(s) was the proximate result

of a well-settled policy of inadequate supervision

32

by the City of Camden of its officers, including

Jason Stetser and/or Kevin Parry?”

App. 442.

This singular ask is particularly significant because, as

the District Court noted at summary judgment, Forrest’s state

law negligent supervision claim was an independent claim,

with distinct elements. See App. 24. Notably, the claim is not

limited to injuries arising from constitutional violations, and

neither requires that the plaintiff’s injuries result from a well-

settled policy or custom nor a showing of deliberate

indifference. Rather, the consensus is that a negligent

supervision claim under New Jersey law only requires a

relatively straightforward negligence showing—that is, that

the employer knew or had reason to know the employee

exhibited dangerous characteristics, that there was a reasonable

foreseeability of harm to others, and that the negligent

supervision was the proximate cause of the injuries. Panarello

v. City of Vineland, 160 F. Supp. 3d 734, 769 (D.N.J. 2016);

see also Smith v. Harrah's Casino Resort of Atl. City, 2013 WL

6508406, at *3 (N.J. Super. Ct. App. Div. 2013) (“Several

jurisdictions have held that a claim of negligent supervision

requires proof of the same elements recited by our Supreme

Court . . . with respect to a claim of negligent hiring.”).

With all that in view, we conclude the District Court’s

statement amounted to a sua sponte grant of summary

judgment as to Forrest’s state law negligent supervision claim.

We also conclude that the Court did so without

providing Forrest with notice and an opportunity to respond.

Indeed, prior to its sua sponte grant, the Court held that

Forrest’s state law negligent supervision claim would be tried,

33

and had not made any interim rulings that would contradict

that. See App. 23–24. So, as of the time of the Court’s remark,

Forrest had no reason to believe that this claim was at risk of

an adverse summary judgment ruling.10

Plain Error

Camden argues that even if the District Court’s grant

constituted error, we should not reverse because Forrest

waived this issue by failing to object. Forrest counters that the

failure to object can be excused because the issue qualifies

under our plain error doctrine. We agree with Forrest.

Where a timely objection is not raised below, we reverse

only where the grant constitutes plain error. See Gibson, 355

F.3d at 255 n.4 (citing United States v. Knight, 266 F.3d 203,

206 (3d Cir. 2001)). In this context, this is true where we find

(1) an error, (2) that is plain—i.e., clear and obvious—and (3)

the error affected the defendant’s substantial rights. See

10

Forrest points to the Joint Pre-Trial Order as evidence

that he had reason to believe that his state law negligence claim

would be tried. However, the document is, at best, ambiguous

on this point. Under a subsection labeled “PLAINTIFF’S

LEGAL ISSUES:” it lists the issue of whether “[Camden was]

negligent in failing to adequately supervise and monitor the

actions of its police officers.” Joint Pretrial Order 35, ECF No.

161. But, like the District Court’s remark, it does not specify

whether this is referring to the state law negligent supervision

claim or Forrest’s § 1983 claim. For our purposes, it is enough

that the District Court’s summary judgment opinion indicated

that this claim would be tried, and the record is devoid of any

interim ruling or reference that suggested otherwise.

34

Walden v. Georgia-Pacific Corp., 126 F.3d 506, 522 (3d Cir.

1997); see also Selkridge v. United of Omaha Life Ins. Co., 360

F.3d 155, 166 (3d Cir. 2004). Even then, we exercise our

power to reverse “sparingly”—that is, only for “serious and

flagrant” errors jeopardizing “the integrity of the proceeding.”

Pennsylvania Environmental Defense Foundation v. Canon-

McMillan School Dist., 152 F.3d 228, 234 (3d Cir. 1998).

The District Court’s sua sponte grant constituted such

an error. It is well established that noncompliance with the

notice provisions of the Federal Rules deprives a court of the

authority to grant summary judgment. See Fed. R. Civ. P. 56(f)

(permitting a sua sponte grant only “[a]fter giving notice and a

reasonable time to respond . . .”). And, as a result of the

District Court’s noncompliance, the plaintiff was deprived of a

jury trial on a claim that the Court previously deemed triable—

in other words, a designation that a reasonable jury could find

in his favor—despite there being no change in the quantum of

evidence between the designation and subsequent deprivation.

The seriousness of this error cannot be overstated: it not

only deprived a litigant of his day in court, but it effectively

designated a matter for the jury and then stepped into the jury’s

province to decide the same matter. All of this occurred

without any explanation, and in a procedural setting that serves

an entirely different function: on the parties’ motions in

limine, rather than on a dispositive motion. See Gibson, 355

F.3d at 224 (issuing a cautionary note that “the sua sponte grant

of summary judgment, without giving notice to the parties, is

not the preferred method by which to dispose of claims . . .

because [courts] run the risk of unduly prejudicing the parties

. . . [and] such grants . . . can have serious, if unintended,

consequences.”).

35

We will reverse and remand, with the instruction that

the claim should go to the jury unless the District Court seeks

to grant summary judgment on it. If the Court so seeks, it may

grant summary judgment only after providing adequate notice

and opportunity for Forrest to oppose.

The District Court’s Evidentiary Rulings

A ruling on the admissibility of evidence is reviewed for

abuse of discretion. Forrest v. Beloit Corp., 424 F.3d 344, 349

(3d Cir. 2005). There is an abuse of discretion if the district

court’s decision “rests upon a clearly erroneous finding of fact,

errant conclusion of law, or an improper application of law to

fact.” Id. (quoting Oddi v. Ford Motor Co., 234 F.3d 136, 146

(3d Cir. 2000)).

The District Court excluded evidence of conduct that (a)

post-dated Forrest’s arrest,11 (b) was not specific to Internal

Affairs, and (c) related to other wrongdoing by Officers Stetser

and Parry. It found this evidence inadmissible on the grounds

11

In a footnote, Forrest also argues that the District

Court’s exclusion of evidence that pre-dated his arrest was

improper. Appellant’s Br. 45 n.13. This evidence included the

2002 NJAG report which warned that the failure to

immediately address the complaint backlog could lead to an

adverse finding on deliberate indifference. It also included

complaints regarding Sergeant Morris, who supervised

Officers Stetser and Parry during Forrest’s arrest. For all the

same reasons we set forth below, the exclusion of that evidence

constituted an abuse of discretion—the evidence is highly

relevant to determining deliberate indifference on the part of

Camden.

36

that it was insufficiently related to the theory that Camden

failed to supervise through the Internal Affairs process.

Under the Federal Rules, relevant evidence is generally

admissible, and irrelevant evidence is not. Fed. R. Ev. 402.

Yet the bar for what constitutes relevant evidence is low. See,

e.g., Failla v. City of Passaic, 146 F.3d 149, 159 (3d Cir. 1998)

(“The test of relevance under the Federal Rules of Evidence is

low.”); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 783 (3d

Cir. 1994) (describing the Federal Rules as having a “low

threshold of relevancy”). The test is whether the evidence has

“any tendency to make a fact more or less probable than it

would be without the evidence,” where “the fact is of

consequence in determining the action.” Fed. R. Ev. 401

(emphasis added).12

The District Court framed the facts of consequence in

this case as only those that demonstrated a failure to supervise

through the Internal Affairs process. In so framing the case,

the District Court concluded that (a) evidence that post-dated

12

Camden appears to suggest that the evidence was

properly excluded under Federal Rule of Evidence 403, which,

in broad terms, permits the exclusion of relevant evidence if its

probative value is substantially outweighed by its prejudicial

effect. However, the District Court excluded the evidence at

issue on Rule 401, relevancy grounds. In addition, Camden

does not (and we cannot) identify what prejudice, if any, would

result from admitting the evidence at issue. We thus construe

Camden’s arguments as speaking to relevancy alone and

proceed accordingly. See Appellee Br. i. (characterizing the

District Court’s rulings as “[p]roperly [e]xcluding [i]rrelevant”

evidence and testimony).

37

Forrest’s arrest was not relevant because it was not causally

connected—that is, such evidence would not have helped

Internal Affairs prevent the incident with Forrest; (b)

testimonies by Chief Thomson, the Supercession Executive,

and the Camden County Prosecutor were not relevant because

they were not specific to Internal Affairs, but referred to the

police department in general; and (c) the complaints against

Officers Stetser and Parry were not relevant because they did

not concern planting drugs or excessive force.

The District Court’s framing of the case was unduly

narrow and incorrect. Forrest’s sole surviving claim was not

that Internal Affairs failed to supervise, but, more broadly, that

Camden failed to investigate and discipline its officers, and

that failure amounted to deliberate indifference to the rights of

those to whom those officers would come into contact. To that

effect, evidence is not irrelevant merely because it does not

show causation, does not specifically pertain to one unit of

Camden’s police department, or does not focus on the

particular activities carried out by the officers that were

involved in Forrest’s encounter. It is only irrelevant if it bears

on no aspect of the overarching theory and its underlying

elements. With that framing in mind, we conclude that the

District Court’s evidentiary rulings constituted an abuse of

discretion as to the evidence set forth above.

Post-arrest evidence is highly relevant to whether

Camden’s failure amounted to deliberate indifference.

At the outset, causation is not the sine qua non of

relevance. The post-arrest evidence included Forrest’s

complaint, the follow-up letter that he sent to Internal Affairs,

and other Internal Affairs complaints regarding similar

38

misconduct by Officers Stetser and Parry.13 Although the

failure to investigate those complaints could not have caused

Forrest’s alleged injuries, they are highly relevant to whether

Camden was deliberately indifferent to a continued pattern of

police misconduct. Specifically, Camden’s handling of

complaints after Forrest’s arrest is highly relevant to

demonstrating that it maintained the same practice prior to and

at the time of said arrest.

We held as much in Beck. 89 F.3d at 957–68. The case

involved a college student, Beck, who brought an excessive

force claim against the City of Pittsburg. Id. at 969–70. He

alleged that an officer used excessive force in the process of

arresting him for driving under the influence. Id. Inter alia,

Beck produced evidence that several complaints had been filed

alleging similar acts of excessive force by the officer, some

before and some after his arrest, but none of them were

sustained or resulted in discipline. Id. at 970. As to the pre-

arrest complaint, we stated, “[it] may have evidentiary value

for a jury’s consideration [as to] whether the City and

policymakers had a pattern of tacitly approving the use of

excessive force.” Id. at 973. We found that the post-arrest

complaint could support an inference that policymakers knew,

or should have known of the officer’s behavior, and, “because

13

We need not reach Forrest’s argument that the District

Court excluded the Sergeant who took over Internal Affairs’s

testimony that, when he took over in May of 2009, “there were

a lot of [Internal Affairs] cases open . . . and the investigations

weren’t done,” in addition to other department-wide

deficiencies. See Appellant Br. 49–50. The District Court

ruled that the Sergeant would be permitted to testify about “the

400 open [Internal Affairs] cases.” See App. 365.

39

the complaints . . . came in a narrow period of time and were

of a similar nature,” they could also support an inference that

policymakers knew of the officer’s “propensity for violence

when making arrests.” Id.

The same is true of the evidence that was excluded by

the District Court here. Forrest’s complaint was filed days

after his arrest, with a follow-up note not long after that. In

addition, the complaints in this case also came in a narrow

period of time and are of a similar nature. Indeed, the three

related complaints are dated December 27, 2007, August 12,

2008, and August 26, 2008, which is less than two months

removed from Forrest’s arrest or, in the case of the first, may

have pre-dated his arrest or was made less than six months

after.14 In terms of the nature of the incidents, the first

complaint contained allegations that Officers Stetser and Parry

threw drugs on the floor and claimed that they belonged to the

complainant. The second alleged that Officer Stetser was

taking drugs from drug dealers and putting them on other

people. And the third was that Officer Stetser slammed a minor

onto his marked vehicle, falsely accused the minor of having

drugs on his person, and threatened to arrest everyone inside

the minor’s residence.

This evidence clearly lends credence to the notion

Camden was aware of related, concerning conduct by its

officers and had not responded. It was therefore an abuse of

14

The parties dispute this issue. The ambiguity arises

because the document containing the testimony states that the

“Date of Occurrence” is December 27, 2007, App. 236, but the

questioner says the date on which the testimony is being given

is December 1, 2009.

40

discretion to exclude this evidence merely because it was not

causally related to the incident involving Forrest.

The excluded testimonies are highly relevant to

Camden’s investigative and disciplinary inadequacies,

as well as the issue of deliberate indifference.

The excluded testimonies consisted of Chief Thomson’s

statement that, when he became Chief, “the greatest weakness

of [Camden] was a culture of apathy and lethargy,” in which

there was “no mechanism of accountability in place”;

Supercession Executive Venegas’s testimony that Camden

failed to implement the NJAG 2006 report’s recommendations,

which included a recommendation to implement formal

personnel evaluation and progressive discipline processes;

and, the Camden County Prosecutor’s testimony that he

received allegations in 2005 that Officer Stetser engaged in

criminal activity and referred those allegations to Internal

Affairs for investigation. We examine each, in turn.

The District Court’s conclusion that Supercession

Executive Venegas’s testimony was not relevant is belied by

the fact that it cited the crux of that testimony in its opinion

denying Camden’s summary judgment motion. Specifically,

the opinion states,

In August 2006, Arturo Venegas began his duties

as Supercession Executive, and his consulting

agreement implied that the Police Department

lacked “clear standards of performance for the

police department and its employees” and a

“system of progressive discipline that holds both

employees and their managers accountable for

performance and behavior.” While this evidence

41

does not compel a finding of Monell liability, it

aids Plaintiff in establishing genuine issue of

material fact suitable for a jury.

App. 20 (emphasis added). Simply put, evidence that aids a

plaintiff in establishing a genuine dispute of material fact more

than meets the low threshold set by Rule 401.

In addition, the record is clear that both Chief Thomson

and Supercession Executive Venegas were directly responsible

for all of Camden Police, including Internal Affairs. Their

testimony regarding Camden’s across-the-board investigatory

and disciplinary deficiencies is thus highly relevant to

establishing Camden’s awareness of, and response to, those

deficiencies.

Finally, the District Court excluded the Camden County

Prosecutor’s testimony that the office received allegations

against Stetser in 2005 and referred those allegations to

Internal Affairs. Internal Affairs’s records do not reflect that

referral or a subsequent investigation. See App. 392–93. The

District Court deemed this evidence irrelevant because there

was no evidence that Camden received the referral. Camden

defends that ruling on the additional ground that the incident

involved an informant who could not identify a picture of

Officer Stetser.

This argument and the District Court’s basis are beside

the point. As Forrest points out, when viewed in conjunction

with the fact that Internal Affairs had instances in which certain

complaints were missing, a reasonable jury could construe this

as further evidence of the inadequacy of Camden’s

investigatory regime.

42

The excluded other-misconduct complaints further

demonstrate Camden’s investigative deficiencies and is

also highly relevant to the issue of deliberate

indifference.

The excluded other-misconduct complaint was dated

May 28, 2008, a few months prior to Forrest’s experience. The

complainant alleged that on May 1, 2008, he was approached

by two officers when he came out of a Chinese restaurant after

ordering food. Officer Stetser approached and greeted the

complainant in a nice manner, but then proceeded to “jump in

his face all of a sudden (literally face to face) yelling,

‘Motherfucker, you been watching me, motherfucker!’” App.

341. The officers then handcuffed and searched the

complainant, who then proceeded to explain that he only came

out for some food. The officers thereafter walked the

complainant back to their police van and handed him a

summons for loitering before releasing him.

The District Court excluded this evidence because

“Well, it has nothing to do with planting drugs or [excessive

force],” despite previously acknowledging that it contained an

allegation that Officer Stetser “wrongfully arrested someone.”

App. 376–77. Further, while the complaint itself concerned the

issuance of a wrongful ticket, the underlying conduct is

analogous to what the officers exhibited with Forrest a few

months later—that is, abruptly approaching unwitting civilians

and flagrantly ignoring Fourth Amendment prohibitions.

Thus, given the temporal proximity and the similarities

between the incident and Forrest’s own experience, the District

Court’s decision to exclude this evidence as irrelevant

amounted to an abuse of discretion.

43

For the foregoing reasons, we conclude that the District

Court abused its discretion when it excluded evidence that

post-dated Forrest’s arrest, albeit not specific to Internal

Affairs or strictly related to other wrongdoing by Officers

Stetser and Parry.

Jury Instruction Errors

Forrest did not object to the instructions provided to the

jury. The errors he alleges here have therefore not been

preserved. Rule 51(d)(2) provides that we “may consider a

plain error in the instructions that has not been preserved . . . if

the error affects substantial rights.” Harvey, 635 F.3d at 609

(quoting Fed. R. Civ. P. 51(d)(2)). Under that standard, we

reverse only if the error is “(1) fundamental and highly

prejudicial or if the instructions are such that the jury is without

adequate guidance on a fundamental question and (2) our

refusal to consider the issue would result in a miscarriage of

justice.” Id. at 612 (quoting Alexander v. Riga, 208 F.3d 419,

426–27 (3d Cir. 2000). We therefore proceed by first

considering whether the District Court committed an error, and

if so, whether the error meets the threshold for reversal.

The jury instructions errors are twofold: first, the

instructions confuse the jury as to the legal requirements for

each species of § 1983 liability, and, second, it narrows the

jury’s focus to only evidence pertaining to Internal Affairs and

Officers Stetser and Parry.

Per the former, recall that the onus of demonstrating an

official policy or custom only falls on a plaintiff whose

municipal liability claim is predicated on an unconstitutional

policy or custom, but that such a plaintiff need not show

deliberate indifference on the part of the municipality. On the

44

other hand, a plaintiff advancing a claim predicated on a

municipality’s failure or inadequacy in training, supervision,

or otherwise is spared from demonstrating the existence of an

unconstitutional policy or custom but must make the deliberate

indifference showing. To the contrary, the jury here was

incorrectly instructed that, in order to find a municipal liability

for inadequate supervision, it had to find that Camden adopted

a policy or custom of inadequate supervision amounting to

deliberate indifference to the fact that it would “obviously

result in the violation of an individual’s right to be free from

unlawful arrest and excessive force.” App. 463–64.

Indeed, in relevant part, the instructions begin by stating

that the jury must find “that an official policy or custom of

[Internal Affairs] caused the deprivation [of his constitutional

rights].” App. 462. And, after presenting the requirements for

determining whether a policy or custom existed, it frames

Forrest’s claim as “[Camden] adopted a policy of inadequate

supervision and that this policy caused the violation of

[Forrest’s] right[s] . . . .” App. 463. It then immediately follows

with instructions that the jury must also find that Internal

Affairs failed to adequately supervise Officers Stetser and

Parry, and that said supervision amounted to deliberate

indifference. App. 463–64. The result is confusion as to

whether the policy or custom finding is antecedent to reaching

the deliberate indifference inquiry, or if the two are intertwined

in some other way.

Per the second error, the instructions frame the case as

solely pertaining to the adequacy of Internal Affairs’s

supervision of Officers Stetser and Parry, rather than the

adequacy of Camden’s supervision and investigation of its

officers in general. Specifically, the instructions state that,

45

In order to hold the municipality liable for the

violation of [Forrest’s constitutional rights] . . .,

you must find that [Forrest] has . . . proved by

preponderance of the evidence . . . [that] [f]irst,

[Internal Affairs] failed to adequately supervise

Stetser and Parry. Second, [Internal Affairs]’s

failure to supervise Stetser and Parry amounted

to deliberate indifference . . . . Third, [Internal

Affairs]’s failure to adequately supervise[ ]

proximately cause[d] the violation . . .

App. 463–64 (emphasis added). Further, in instructing the jury

on the elements of deliberate indifference, the Court again

directed the jury to examine whether “[Internal Affairs] knew

that Jason Stetser and Kevin Parry would confront a particular

situation.” Id.15

In contrast, the legal requirement for deliberate

indifference is whether “(1) municipal policymakers know that

employees will confront a particular situation; (2) the situation

involves a difficult choice or a history of employees

15

Forrest argues that the District Court also instructed

the jury on the failure-to-supervise theory that did not survive

summary judgment, rather than the failure to investigate and

discipline theory that did. But the District Court repeatedly

referred to the surviving theory as one for failure to supervise,

but only through Internal Affairs. See App. 463 (“[O]fficials

within [Internal Affairs] are policymaking officials for the

issue of whether [Camden] inadequately supervised its

officials and investigated [I]nternal [A]ffairs complaints.”)

(emphasis added). We are therefore not persuaded that what

Forrest asserts amounted to error.

46

mishandling; and (3) the wrong choice by an employee will

frequently cause deprivation of constitutional rights.” Carter,

181 F.3d at 357 (emphasis added). It is not narrowed to the

particular employees in the case. Notably, as the record makes

clear, the Chief of Police had ultimate authority over Camden’s

police department and Internal Affairs but is not properly

considered within Internal Affairs. We therefore conclude that

the instructions provided to the jury regarding Forrest’s § 1983

claim constituted error.16

16

At argument, Camden made the case that the jury

instructions were not erroneous because they were consistent

with the Third Circuit’s Model Jury Instructions. As we

recently reiterated, despites their label, the Third Circuit Model

Jury Instructions are not drafted by members of this Court, and

are thus “neither law nor precedential.” See Robinson v. First

State Cmty. Action Agency, 920 F.3d 182, 189–90 (3d Cir.

2019). We nonetheless have observed that it is unlikely that

“the use of a model jury instruction can constitute error.” Id.

at 90 (quoting United States v. Petersen, 622 F.3d 196, 208 (3d

Cir. 2010)). To that effect, the instructions regarding

inadequate training or supervision claims do not suggest that a

showing of a policy or custom is required, but merely that a

program was inadequate, that this inadequacy amounted to

deliberate indifference, and proximately caused the violation

complained of. See Third Circuit Model Civil Jury Instruction

4.6.7. Similarly, on deliberate indifference, the same set of

instructions ask whether the entity at issue knew that

“employees would confront a particular situation.” Id.

(emphasis added). For the reasons we have set forth, we are

not persuaded that the District Court’s instructions were

consistent.

47

We also conclude that both errors meet the threshold for

reversal. The District Court’s instructions narrowed the

universe of evidence that the jury could rely on to only

evidence that pertained to Internal Affairs’ supervision of

Officers Stetser and Parry, to the exclusion of its broader

investigatory inadequacies. It also left the jury without

guidance on the fundamental question of what it needed to find

to conclude that Camden was or was not liable. Our failure to

consider either error would result in a miscarriage of justice.

We therefore consider both. As Part 3 of the jury verdict is the

only aspect that concerned Camden’s liability under § 1983,

we will vacate that aspect of the verdict.

CONCLUSION

For all of the above reasons, we will reverse the above-

specified aspects of the District Court’s summary judgment

and evidentiary rulings, vacate part three of the jury verdict,

and remand for further proceedings consistent with this

opinion.

48