Amicus Curiae Brief — Molly Vogt, as Trustee for the Heirs and Next of Kin of Joshua Vogt, Deceased, Petitioner v. CO Robert Anderson, et al.

No. 24-883

IN THE

Supreme Court of the United States

MOLLY VOGT, AS TRUSTEE FOR THE HEIRS AND

NEXT OF KIN OF JOSHUA VOGT, DECEASED,

Petitioner,

v.

CO ROBERT ANDERSON, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

BRIEF OF THE LAW ENFORCEMENT ACTION

PARTNERSHIP AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

JONATHAN C. BOND

Counsel of Record

LAVI M. BEN DOR

JOHN N. REED

TRISTAN LOCKE

AUDREY PAYNE

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

(202) 955-8500

JBond@gibsondunn.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 2

ARGUMENT ............................................................... 4

I.

ADVERSE-INFERENCE INSTRUCTIONS

SERVE AS CRUCIAL REMEDIES FOR AND

DETERRENTS AGAINST DESTRUCTION OF

EVIDENCE............................................................... 4

II. THE EIGHTH CIRCUIT’S DECISION

EFFECTIVELY NULLIFIES ADVERSEINFERENCE INSTRUCTIONS ................................... 11

III. THE EIGHTH CIRCUIT’S RULE WILL

UNDERMINE PUBLIC TRUST IN LAW

ENFORCEMENT AND THE SAFETY OF

CORRECTIONAL FACILITIES .................................. 13

A. Diluting Sanctions For Intentional

Spoliation By Law Enforcement Will

Undermine Effective Functioning Of

Correctional Systems ...................................15

B. The Eighth Circuit’s Approach Will

Reduce Public Trust In The Police And

Hinder Efforts To Protect Public Safety ....... 18

CONCLUSION .......................................................... 22

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Adkins v. Wolever,

554 F.3d 650 (6th Cir. 2009) .................................. 5

Alexander v. South Carolina State

Conference of the NAACP,

602 U.S. 1 (2024) .................................................... 4

Anderson v. Creighton,

483 U.S. 635 (1987) .............................................. 14

Aramburu v. Boeing Co.,

112 F.3d 1398 (10th Cir. 1997) .............................. 5

Beaven v. United States Department of Justice,

622 F.3d 540 (6th Cir. 2010) .................................. 5

Chambers v. NASCO, Inc.,

501 U.S. 32 (1991) .................................................. 4

Crouse v. Town of Moncks Corner,

848 F.3d 576 (4th Cir. 2017) ................................ 19

Epic Systems Corp. v. Tata Consultancy

Services Ltd.,

980 F.3d 1117 (7th Cir. 2020) .............................. 10

Flagg v. City of Detroit,

715 F.3d 165 (6th Cir. 2013) .................................. 7

Gilbert v. Homar,

520 U.S. 924 (1997) .............................................. 18

GN Netcom, Inc. v. Plantronics, Inc.,

930 F.3d 76 (3d Cir. 2019) ..................................... 5

iii

Cases (continued)

Page(s)

Hallmark Cards, Inc. v. Murley,

703 F.3d 456 (8th Cir. 2013) .................................. 8

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .............................................. 14

Harris v. Pittman,

927 F.3d 266 (4th Cir. 2019) ................................ 19

Higgs v. Costa Crociere S.p.A.,

969 F.3d 1295 (11th Cir. 2020) .............................. 8

Hoffer v. Tellone,

__ F.4th __, 2025 WL 479041

(2d Cir. Feb. 13, 2025) ..................................... 5, 10

Kentucky v. Stincer,

482 U.S. 730 (1987) .............................................. 12

Kronisch v. United States,

150 F.3d 112 (2d Cir. 1998) ................... 6, 7, 10, 12

Mitchell v. Forsyth,

472 U.S. 511 (1985) .............................................. 14

Nation-Wide Check Corp. v. Forest Hills

Distributors, Inc.,

692 F.2d 214 (1st Cir. 1982) .................................. 7

National Hockey League v. Metropolitan

Hockey Club, Inc.,

427 U.S. 639 (1976) ................................................ 6

Pearson v. Callahan,

555 U.S. 223 (2009) .............................................. 14

iv

Cases (continued)

Page(s)

Reynolds v. City of Chicago,

296 F.3d 524 (7th Cir. 2002) ................................ 18

Scott v. Harris,

550 U.S. 372 (2007) .............................................. 12

Silvestri v. General Motors Corp.,

271 F.3d 583 (4th Cir. 2001) .............................. 5, 7

Stevenson v. Union Pacific Railroad Co.,

354 F.3d 739 (8th Cir. 2004) .................................. 5

Thiel v. Southern Pacific Co.,

328 U.S. 217 (1946) .............................................. 20

United States v. Taffaro,

919 F.3d 947 (5th Cir. 2019) ................................ 20

United States v. Ulbricht,

858 F.3d 71 (2d Cir. 2017) ................................... 20

West v. Goodyear Tire & Rubber Co.,

167 F.3d 776 (2d Cir. 1999) ................................... 5

Wyatt v. Cole,

504 U.S. 158 (1992) .............................................. 14

Zubulake v. UBS Warburg LLC,

220 F.R.D. 212 (S.D.N.Y. 2003) ............................. 7

Statutes

42 U.S.C. § 1983 ........................................................ 14

v

Rules

Page(s)

Federal Rule of Civil Procedure 37 ................... 6, 8, 10

Other Authorities

Thomas Baker et al., Exploring the

Association Between Procedural Justice

in Jails and Incarcerated People’s

Commitment to Institutional Rules,

6 Corrections: Policy, Prac. & Rsch. 189

(2019) .................................................................... 17

Michael T. Cahill, Punishment Decisions at

Conviction: Recognizing the Jury as FaultFinder, 2005 U. Chi. Legal F. 91 ......................... 20

Civil Rights Division, U.S. Department of

Justice, Investigation of Georgia Prisons

(2024), https://perma.cc/34XP-Z5N6 .................... 16

Emily Ekins, Cato Institute,

Policing in America (2016),

https://perma.cc/U56H-D2MM............................. 19

The End of Sanctions? The Dramatic Decline

in Sanctions and the “De-Risking” of

eDiscovery, Logikcull (Mar. 21, 2019),

https://perma.cc/AGQ4-MUDH .......................... 10

Andrew Goldsmith, Police Reform and the

Problem of Trust,

9 Theoretical Criminology 443 (2005) ................. 21

vi

Other Authorities (continued)

Page(s)

Sarah Himmelhoch & Neeli Ben-David,

Rule 26 Proportionality: Have the 2015

Amendments Brought Common Sense to

the Preservation Obligation?,

68 DOJ J. Fed. L. & Prac., no. 3 (2020) ........... 9, 10

Investigations Division, N.J. Office of the

State Comptroller, Department of

Corrections’ Internal Affairs Unit Failed to

Adequately Investigate Abuse Allegations

(2024), https://perma.cc/KNL9-3SQL ................. 16

David S. Kirk et al., The Paradox of Law

Enforcement in Immigrant Communities:

Does Tough Immigration Enforcement

Undermine Public Safety?,

641 Annals Am. Acad. Pol. &

Soc. Sci. 79 (2012) ................................................ 21

Emery G. Lee III, Federal Judicial Center,

Motions for Sanctions Based Upon

Spoliation of Evidence in Civil Cases:

Report to the Judicial Conference Advisory

Committee on Civil Rules (2011),

https://perma.cc/5LKU-H4D6 ............................ 5, 9

National Institute of Corrections, U.S.

Department of Justice, Inmate Behavior

Management: The Key to a Safe and

Secure Jail (2009) ................................................ 17

vii

Other Authorities (continued)

Page(s)

Office of Community Oriented Policing

Services, U.S. Department of Justice,

Building Trust Between the Police and the

Citizens They Serve (2014),

https://perma.cc/5WEC-NVSB ............................. 20

Office of the Inspector General,

U.S. Department of Justice, Review of the

Federal Bureau of Prisons’ Monitoring of

Contract Prisons (2016),

https://perma.cc/DB4P-35P5 ............................... 16

Panel Discussion—Sanctions in Electronic

Discovery Cases: Views from the Judges,

78 Fordham L. Rev. 1 (2009) ................................. 8

Kyle Peyton et al., A Field Experiment on

Community Policing and Police Legitimacy,

116 Proc. Nat’l Acad. Scis. 19,894 (2019) ............ 19

Cathal Ryan & Michael Bergin, Procedural

Justice and Legitimacy in Prisons:

A Review of Extant Empirical Literature,

49 Crim. Just. & Behavior 143 (2021)................. 17

Hon. Shira A. Scheindlin & Kanchana

Wangkeo, Electronic Discovery Sanctions in

the Twenty-First Century,

11 Mich. Telecomm. & Tech. L. Rev. 71 (2004) ........ 9

Benjamin Steiner & John Wooldredge,

Examining the Sources of

Correctional Officer Legitimacy,

105 J. Crim. L. & Criminology 679 (2015) .......... 17

viii

Other Authorities (continued)

Page(s)

Graham Streich, Court Mandated

Technology-Assisted Review in

E-Discovery: Changes in Proportionality,

Cost-Shifting, and Spoliation,

90 Fordham L. Rev. Online 139 (2022) .................. 9

Tenn. Comptroller of the Treasury,

Performance Audit Report, Department

of Correction (2020),

https://perma.cc/G57C-8SZC ............................... 16

Tom R. Tyler and Yuen J. Huo, Trust in

the Law: Encouraging Public Cooperation

with the Police and Courts (2002) ....................... 19

John Henry Wigmore, Evidence in Trials at

Common Law (Chadbourn rev. 1979) ............... 4, 5

Dan H. Willoughby, Jr. et al., Sanctions for

E-Discovery Violations: By the Numbers,

60 Duke L.J. 789 (2010) ......................................... 9

1

INTEREST OF AMICUS CURIAE*

The Law Enforcement Action Partnership (LEAP)

is a nonprofit organization whose members include police, prosecutors, judges, corrections officials, and other

law-enforcement officials advocating for criminaljustice and drug-policy reforms that will make our

communities safer and more just. Founded by five police officers in 2002 with a sole focus on drug policy,

today LEAP’s speakers bureau numbers more than

300 criminal-justice professionals advising on policecommunity relations, incarceration, harm reduction,

drug policy, and global issues. Through speaking engagements, media appearances, testimony, and support of allied efforts, LEAP reaches audiences across

a wide spectrum of affiliations and beliefs, calling for

more practical and ethical policies from a publicsafety perspective.

This case presents an important opportunity to

ensure that law-enforcement officers are deterred

from destroying evidence of their misconduct and are

kept accountable for violating citizens’ constitutional

rights. That accountability is essential to maintaining the integrity of law enforcement, building trust in

police, and ultimately keeping the public safe. LEAP

and its members thus have an interest in ensuring that

remedies are available to victims of law-enforcement

misconduct and that legal rules creating perverse incentives for law enforcement are overturned.

* Pursuant to this Court’s Rule 37.2, because this brief is filed

earlier than 10 days prior to the due date, the brief itself suffices

as notice to the parties. Pursuant to Rule 37.6, no counsel for a

party authored this brief in whole or in part, and no person or

entity other than amicus or its counsel made a monetary contribution to this brief ’s preparation.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Joshua Vogt died of a drug overdose while in police

custody. When his daughter sued, correctional officers

watched—and then intentionally destroyed—the only

video footage showing his critical final moments. The

district court found the deliberate destruction of that

crucial evidence sufficient to award an adverseinference instruction permitting—but not requiring—a

jury to infer that the destroyed video would have been

harmful to the case of respondents, three officers who

were responsible for caring for Mr. Vogt that night.

But a jury never had that chance. The Eighth Circuit held that summary judgment was warranted for

respondents despite the adverse inference a jury

would have been able to draw at trial because, in the

court’s view, the evidence that jail officials opted to

preserve did not contradict respondents’ own selfserving testimony. Pet. App. 7a-9a. That approach—

which conflicts with those of several other courts of

appeals, Pet. 11-21—leaves the adverse-inference instruction here a dead letter. It prevents the instruction from serving its critical role in protecting the jury’s

factfinding function and remedying the harms caused

by the officials’ misconduct. The Eighth Circuit’s approach also enables officers who violate civil liberties

to evade any attempt to hold them accountable by destroying evidence of their misconduct and using the absence of that evidence to prevail at summary judgment.

The decision below jeopardizes the important role

of adverse-inference instructions in our legal system.

Such an instruction ensures that bad-faith spoliation

does not short-circuit the jury’s critical factfinding

role, and it restores the party prejudiced by destruction of evidence to the position it would otherwise

3

have enjoyed. The threat of such instructions also deters potential spoliators and in turn can reduce the

likelihood that misconduct will occur in the first place.

Judges appreciate the potency of these instructions

and accordingly issue them only in truly serious cases

of discovery misconduct, like what happened here. An

adverse-inference instruction in those circumstances

is thus not a windfall for victims of spoliation but instead a critical and proportional response that protects the integrity of the judiciary against litigants’

worst instincts.

The likely effects of the Eighth Circuit’s treatment

of adverse inferences at the summary-judgment stage

are not difficult to predict. Under its approach, an

adverse-inference instruction does not meaningfully

change the calculus at summary judgment whenever

corrupt officers have presented their own countervailing narrative of events based on the record that they

distorted. As a result, the Eighth Circuit’s approach

weakens a critical check on such officers who may face

strong incentives to destroy evidence when they have

engaged in misconduct. The decision below thus leaves

defendants with greater ability and more motivation to

destroy evidence with impunity.

That result imperils public trust in law enforcement, threatening the ability of officers—the overwhelming majority of whom are law-abiding and decent—

to keep themselves and our communities safe. Public

trust in law enforcement is vital for officers to do their

jobs safely and effectively in a variety of contexts. Prisoners are more likely to comply with correctional officers’ instructions (and officers are

more likely to be safe) if prisoners perceive officers

as fair. And the public is more likely to assist lawenforcement efforts and report crimes if they trust the

4

police to act with integrity. Shielding bad apples from

consequences for destroying evidence of their own

misconduct will undermine that trust—making it

more difficult for honest law-enforcement officers to

do their jobs.

This Court should grant the petition.

ARGUMENT

I.

ADVERSE-INFERENCE INSTRUCTIONS SERVE

AS CRUCIAL REMEDIES FOR AND DETERRENTS

AGAINST DESTRUCTION OF EVIDENCE

Adverse-inference instructions are important tools

to maintain the proper administration of the judicial

process. These instructions serve two principal purposes: They maintain fairness in legal proceedings by

curing the harm suffered after a party destroys relevant evidence, and they deter future spoliation by ensuring that litigants who act in bad faith will be held

accountable. Although an adverse inference can “pac[k]

a wallop,” Alexander v. South Carolina State Conference of the NAACP, 602 U.S. 1, 36 (2024), that is by

design; such instructions are a proportionate response

to truly serious discovery misconduct and are essential safeguards helping to ensure the fair administration of justice.

A. Federal courts have ample power to ensure

that parties adequately preserve evidence—and to impose consequences for parties’ failure to do so. Courts

have long enjoyed the inherent authority “to fashion an

appropriate sanction for conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32,

44-45 (1991); accord 2 John Henry Wigmore, Evidence

in Trials at Common Law § 291, at 227-229 (Chadbourn rev. 1979) (Wigmore). That inherent authority

“include[s] broad discretion to craft proper sanctions

5

for spoliated evidence.” Adkins v. Wolever, 554 F.3d

650, 651 (6th Cir. 2009) (en banc); see, e.g., Silvestri v.

General Motors Corp., 271 F.3d 583, 590 (4th Cir.

2001); West v. Goodyear Tire & Rubber Co., 167 F.3d

776, 779 (2d Cir. 1999). Potential sanctions can include, for example, the reopening of discovery, a prohibition on presenting certain evidence or testimony,

monetary penalties, or (in the most severe cases) even

judgment for the injured party. See Emery G. Lee III,

Federal Judicial Center, Motions for Sanctions Based

Upon Spoliation of Evidence in Civil Cases: Report to

the Judicial Conference Advisory Committee on Civil

Rules 8-9 (2011) (Lee), https://perma.cc/5LKU-H4D6.

One particularly important and powerful sanction

is an adverse-inference instruction, which either permits or requires the jury to infer that the spoliated evidence would have been unfavorable to the party that

failed to produce it. 2 Wigmore 227-229. That potent

sanction is warranted only when evidence has been destroyed with a “culpable state of mind.” Beaven v.

United States Department of Justice, 622 F.3d 540,

553 (6th Cir. 2010) (citation omitted). That typically

requires a showing of “bad faith”—an “intentional destruction” of evidence “indicating a desire to suppress

the truth.” Stevenson v. Union Pacific Railroad Co.,

354 F.3d 739, 746 (8th Cir. 2004); accord, e.g., GN Netcom, Inc. v. Plantronics, Inc., 930 F.3d 76, 83 (3d Cir.

2019) (adverse inference appropriate when evidence

withheld in “bad faith,” i.e., with “‘inten[t] to impair

the ability’ of a litigant to put on a case or defend itself ”

(citation omitted)); Aramburu v. Boeing Co., 112 F.3d

1398, 1407 (10th Cir. 1997) (similar; collecting cases);

but see Hoffer v. Tellone, __ F.4th __, 2025 WL 479041,

at *1, *4-*5 (2d Cir. Feb. 13, 2025) (negligence can constitute “‘culpable state of mind’” required for adverseinference sanction under court’s inherent authority).

6

Recognizing the importance of addressing spoliation in the digital age—when important files can be

permanently deleted with the click of a button—the

Rules Committee in 2015 amended Federal Rule of

Civil Procedure 37 to codify expressly district courts’

authority to sanction spoliation in the context of electronically stored information (ESI). When a litigant

has been “prejudice[d]” by the loss of ESI “because a

party failed to take reasonable steps to preserve it,”

Rule 37(e) authorizes a court to order sanctions “no

greater than necessary to cure the prejudice.” The

Rule permits the court to impose the most severe

sanctions—adverse-inference instructions, dismissals, and default judgments—only if the court finds

that the spoliating party acted “with the intent to deprive another party of the information’s use in the litigation.” Fed. R. Civ. P. 37(e)(2). If it makes that finding, the court can “presume that the lost information

was unfavorable to the party” or “instruct the jury

that it may or must” draw that inference. Ibid.

B. Adverse-inference instructions are essential to

ensuring the integrity of the judicial process. Like other

powerful sanctions that may be imposed only in cases of

egregious misconduct, adverse inferences serve both “to

penalize those whose conduct may be deemed to warrant such a sanction” and “to deter those who might be

tempted to such conduct in the absence of such a deterrent.” National Hockey League v. Metropolitan Hockey

Club, Inc., 427 U.S. 639, 643 (1976) (per curiam).

First, adverse-inference instructions cure the

prejudice suffered by the victim of spoliation and the

justice system. Spoliation deprives the victim of evidence that would potentially help her case—thus

skewing the evidentiary landscape in the spoliator’s

favor. See Kronisch v. United States, 150 F.3d 112,

7

126 (2d Cir. 1998) (“[A] party’s destruction of evidence * * * suggests that the evidence was harmful

to the party responsible for its destruction.”). And it

simultaneously disables the trier of fact—the jury—

from performing its truth-seeking function, by concealing potentially important evidence.

Adverse-inference instructions address both harms.

They “restor[e] the prejudiced party” to her original “position” by either enabling or requiring the jury to fill in

evidentiary gaps by inferring facts. Kronisch, 150 F.3d

at 126. That “level[s] the evidentiary playing field,”

Silvestri, 271 F.3d at 590 (citation omitted), and

“plac[es] the risk of an erroneous judgment on the

party that wrongfully created the risk,” Nation-Wide

Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d

214, 218 (1st Cir. 1982) (Breyer, J.). And such instructions revive the jury’s ability to find facts free of the

artificial impediment interposed by destruction of evidence. Adverse-inference instructions are therefore

no “windfall.” Flagg v. City of Detroit, 715 F.3d 165,

178 (6th Cir. 2013). They merely undo the damage

caused by destruction of evidence and remove an obstacle to the jury’s proper fulfillment of its function.

Second, beyond redressing the harms caused by

spoliation in a specific case, an adverse-inference instruction also deters spoliation in future cases. It is a

“commonsensical proposition that the drawing of an

adverse inference against parties who destroy evidence

will deter such destruction” going forward. Kronisch,

150 F.3d at 126; accord Nation-Wide, 692 F.2d at 218

(similar); Zubulake v. UBS Warburg LLC, 220 F.R.D.

212, 219 (S.D.N.Y. 2003) (“The in terrorem effect of an

adverse inference is obvious.”). When parties know

8

that destroying evidence will be met with correspondingly severe consequences, they will think twice before destroying evidence.

C. Recognizing the potency of adverse-inference

instructions, courts award them judiciously. Courts

have adopted meaningful safeguards—both doctrinally and as a matter of discretion—on the use of adverse inferences.

A party seeking an adverse-inference instruction

must clear a high bar. The district court must find

both bad faith (or some other, similarly culpable mental state) on the part of the wrongdoer and prejudice

to another party from the loss of the evidence. Hallmark Cards, Inc. v. Murley, 703 F.3d 456, 461 (8th

Cir. 2013); see Fed. R. Civ. P. 37(e)(1)-(2) (similar);

Panel Discussion—Sanctions in Electronic Discovery

Cases: Views from the Judges, 78 Fordham L. Rev. 1,

9-10 (2009) (Views from the Judges) (remarks of Hon.

Shira A. Scheindlin) (noting importance of bad faith

and prejudice for awarding the “powerful” adverseinference instruction). Even when those prerequisites

have been proved, courts exercising their discretion

typically reserve adverse inferences for cases of especially serious spoliation where lesser sanctions are insufficient to deter future misconduct. See, e.g., Higgs

v. Costa Crociere S.p.A., 969 F.3d 1295, 1301, 1307

(11th Cir. 2020) (upholding adverse-inference instruction sanction imposed for an “egregious discovery violation” (citation omitted)); see also Views from the

Judges 18 (remarks of Hon. Elizabeth D. Laporte) (explaining that severe sanctions are reserved for “very

egregious behavior”); ibid. (remarks of Hon. Loretta

A. Preska) (observing that such instructions are ap-

9

propriate only if a lesser sanction would not be adequate to “penalize the defendant and counsel and to

deter such conduct by others”).

Data show that these checks are meaningful and

that judges are careful to issue adverse-inference instructions only rarely in response to serious discovery

violations. A 2011 study for the Judicial Conference

examining civil cases in 19 districts found that parties

brought sanctions motions in only 0.12% of cases, that

the motions were granted only 28% of the time, and

that adverse inferences were imposed in just 44% of

cases where a sanction was imposed (0.01% of the total

cases surveyed). Lee 1-4. Several other studies have

reported similar findings. See Dan H. Willoughby, Jr.

et al., Sanctions for E-Discovery Violations: By the

Numbers, 60 Duke L.J. 789, 811 (2010) (finding 52

written opinions awarding adverse-inference instructions for e-discovery violations, out of all federal civil

cases decided prior to 2010); Hon. Shira A. Scheindlin

& Kanchana Wangkeo, Electronic Discovery Sanctions

in the Twenty-First Century, 11 Mich. Telecomm. &

Tech. L. Rev. 71, 73, 77 & n.30 (2004) (identifying only

45 written opinions adjudicating sanctions motions

concerning alleged e-discovery spoliation in federal

civil cases between 2000 and 2004, and seven adverseinference instructions issued across those opinions).

The promulgation of Rule 37(e) has made judges

even more focused in recent years on “tightly correlating the importance of the evidence and the degree of

prejudice with the particular sanctions imposed.” Sarah Himmelhoch & Neeli Ben-David, Rule 26 Proportionality: Have the 2015 Amendments Brought Common Sense to the Preservation Obligation?, 68 DOJ J.

Fed. L. & Prac., no. 3, at 81, 94 (2020) (Himmelhoch);

see also Graham Streich, Court Mandated Technology-

10

Assisted Review in E-Discovery: Changes in Proportionality, Cost-Shifting, and Spoliation, 90 Fordham L. Rev.

Online 139, 144 (2022) (recognizing that Rule 37(e)

“made it harder for requesting parties” to obtain sanctions for spoliation). That is in part because the Rule

requires a finding of “intent to deprive another party

of the information’s use in the litigation,” Fed. R. Civ.

P. 37(e)(2)—a showing more demanding than some circuits had previously required, see Himmelhoch 90-91;

Hoffer, 2025 WL 479041, at *4-*5. Unsurprisingly, according to one recent study, Rule 37(e)’s amendments

have reduced the frequency with which judges impose

severe spoliation sanctions. See The End of Sanctions? The Dramatic Decline in Sanctions and the

“De-Risking” of eDiscovery, Logikcull (Mar. 21, 2019),

https://perma.cc/AGQ4-MUDH. The study found that

just 36% of spoliation sanctions motions were granted

in 2018, a marked decline from the 63% of motions

granted in 2014. Ibid. These data reflect the reality

that courts take care to police the limits on serious

sanctions such as adverse inferences.

Beyond the showing needed to obtain an adverse

inference, some courts also require that a victim of spoliation produce additional evidence to survive a motion

for summary judgment. See Kronisch, 150 F.3d at 128

(“[W]here the innocent party has produced some (not

insubstantial) evidence in support of his claim, the intentional destruction of relevant evidence by the opposing party may push a claim that might not otherwise survive summary judgment over the line.”);

cf. Epic Systems Corp. v. Tata Consultancy Services

Ltd., 980 F.3d 1117, 1136 (7th Cir. 2020) (“[E]vidence

supporting an adverse inference, combined with other

relevant circumstantial evidence, may be a sufficient

evidentiary basis for a jury’s verdict,” although “the

destruction of evidence—by itself—is insufficient”).

11

Irrespective of whether and to what extent such further limitations are warranted, they show that courts

recognize the power of adverse-inference instructions

and exercise caution when dealing with them.

*

*

*

A court’s decision to issue an adverse-inference instruction reflects its considered judgment that fairness requires severe consequences for the spoliating

party’s deliberate failure to preserve evidence. The

instruction empowers (or requires) the jury to remedy the evidentiary imbalance by inferring that the

missing evidence would have weighed in the spoliation victim’s favor. And it disincentivizes others from

engaging in similar conduct that undermines the integrity of the judicial process.

II. THE EIGHTH CIRCUIT’S DECISION EFFECTIVELY

NULLIFIES ADVERSE-INFERENCE INSTRUCTIONS

The Eighth Circuit’s approach erodes the vital

role of adverse-inference instructions in litigation.

The district court determined that such an instruction

was warranted here after the only video footage showing Mr. Vogt’s critical last moments was “intentionally

destroyed” by respondents’ colleagues. Pet. App. 3a;

see Pet. 6-7; Pet. App. 72a, 78a-81a. Based on jail officials’ deliberate destruction of evidence, which the

court determined was “properly imputed” to respondents under settled case law, Pet. App. 92a; see id.

at 85a-92a, the court held that the high bar for a permissive adverse-inference instruction was met.

If properly respected, that instruction would have

empowered the jury to decide whether and how far to

draw the inference. Adverse-inference instructions

reflect “the common sense notion” that a spoliator destroys only evidence that would harm his case in some

12

way. Kronisch, 150 F.3d at 126. But determining

what that evidence would likely have shown is a complex question, and the precise answer may be unknowable. Our legal system entrusts such determinations to juries based on the nature of what the spoliated evidence could have shown and the totality of the

other evidence at trial. Here, the latter would have

included not only respondents’ testimony and the evidence that survived the spoliation, but also the jury’s

assessments of respondents’ credibility based on their

body language, demeanor, and other clues that would

be revealed only during cross-examination—“the

greatest legal engine ever invented for the discovery

of truth.” Kentucky v. Stincer, 482 U.S. 730, 736

(1987) (citation and quotation marks omitted).

At the summary-judgment stage, the district

court’s obligation here was no different than usual—

to “view the facts and draw reasonable inferences ‘in

the light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550 U.S. 372,

378 (2007) (brackets and citation omitted). The court

was thus required to draw all reasonable inferences

about what the spoliated footage could have shown in

favor of petitioner (the nonmovant) and decide

whether those inferences, together with the surviving evidence, sufficed for her to make it to trial.

Here, that should have led the court to draw the alltoo-reasonable inference that the spoliated footage

could have contradicted respondents’ testimony. The

court should then have concluded that the combination of that inference and other record evidence favoring petitioner, see Pet. App. 11a-13a (Shepherd, J.,

dissenting), created a bona fide factual dispute about

what occurred in Mr. Vogt’s final moments, precluding summary judgment.

13

The district court, however, disregarded that obligation, and the Eighth Circuit’s approach led the

court of appeals to affirm that abdication. Like the

district court, the majority ventured out to decide for

itself what the spoliated evidence would or would not

have shown and resolved respondents’ summaryjudgment motion based on whether that hypothetical

evidence contradicted the record curated by jail officials—respondents’ “testimony” and the “videos” that

had not been destroyed. Pet. App. 3a, 8a-9a; see id. at

10a, 12a-13a (Shepherd, J., dissenting). But determining what facts the spoliated evidence would have

shown is ultimately the job of the jury at trial. In resolving a summary-judgment motion, the courts’ obligation was to preserve the jury’s prerogative by assuming all reasonable inferences in petitioner’s favor.

The Eighth Circuit’s approach usurps that responsibility and leaves adverse-inference instructions with

very little role to play at summary judgment. Indeed,

the instruction loses any practical significance whenever a court disagrees with the inference based on its

own assessment of the other evidence in the record.

That misguided approach “invades the province of the

jury” and “render[s]” adverse-inference instructions “a

nullity.” Pet. App. 12a-13a (Shepherd, J., dissenting).

III. THE EIGHTH CIRCUIT’S RULE WILL UNDERMINE

PUBLIC TRUST IN LAW ENFORCEMENT AND THE

SAFETY OF CORRECTIONAL FACILITIES

The consequences of the Eighth Circuit’s approach

are severe, particularly for cases like this one involving alleged wrongdoing by law enforcement. If

an adverse-inference instruction does not alter a

party’s prospects of surviving summary judgment, officers facing civil lawsuits for misconduct have weak

incentives to preserve damaging evidence. And bad

14

actors already have a strong and countervailing incentive to destroy damning evidence. As this Court has

recognized, suits against government officials impose

serious financial and time-related burdens on them.

See, e.g., Anderson v. Creighton, 483 U.S. 635, 638

(1987). And the Court has expressed concerns that officials will respond to those burdens by changing their

conduct in ways that are inconsistent with their obligations to the community as law-enforcement officers.

See ibid. (noting risk that lawsuits “will unduly inhibit officials in the discharge of their duties”);

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (noting

risk that lawsuits will lead to “inhibition of discretionary action” (citation omitted)).

Weakening a key deterrent against spoliation will

predictably and significantly undermine efforts “to

hold public officials accountable” under civil-rights

statutes like 42 U.S.C. § 1983 “when they exercise

power irresponsibly.” Pearson v. Callahan, 555 U.S.

223, 231 (2009); see Harlow v. Fitzgerald, 457 U.S.

800, 807 (1982) (acknowledging “the importance of a

damages remedy to protect the rights of citizens”). If

adverse-inference instructions do not provide a meaningful check on spoliation, relief becomes illusory, because officers can dodge liability by destroying evidence of their misconduct and then pointing to the

lack of such evidence to defeat civil-rights suits at

summary judgment. The Eighth Circuit’s approach

only portends more spoliation and more difficulty in

holding responsible law-enforcement officers who

“us[e] the badge of their authority to deprive individuals of their federally guaranteed rights.” Wyatt v.

Cole, 504 U.S. 158, 161 (1992).

15

Allowing officers to escape accountability will in

turn threaten public safety. The criminal-justice system depends on community trust. Members of the public are more likely to obey the law and cooperate with

law enforcement when they believe that officers are

equally bound to follow the rules they enforce. Checks

on officer misconduct like the adverse-inference instruction are essential to preserving that trust and enabling the vast majority of police and correctional officers who are honest and law-abiding to keep their

communities safe.

The Eighth Circuit’s approach makes it significantly harder to hold officers responsible when they

engage in misconduct. It will accordingly strain the

relationship between members of the public and law

enforcement—in prisons and on the streets alike—

and undermine good-faith corrections and policing efforts. These far-reaching effects on public safety illustrate why this Court’s review is urgently needed here.

A. Diluting Sanctions For Intentional

Spoliation By Law Enforcement Will

Undermine Effective Functioning Of

Correctional Systems

By sapping the force of a key remedy for spoliation

by corrections departments like the one here, the

Eighth Circuit’s rule diminishes public confidence in

the integrity of correctional systems. That in turn

threatens to make correctional facilities less safe for

inmates and guards alike.

Spoliation in prisons is already a serious problem.

In just the past decade, for example, audits of federal

contract prisons and of state prisons in New Jersey,

Tennessee, and Georgia found that prison officials

16

frequently failed to obtain, or even prematurely destroyed, video surveillance. See Office of the Inspector General, U.S. Department of Justice, Review of

the Federal Bureau of Prisons’ Monitoring of Contract

Prisons 28 (2016), https://perma.cc/DB4P-35P5; Investigations Division, N.J. Office of the State Comptroller, Department of Corrections’ Internal Affairs

Unit Failed to Adequately Investigate Abuse Allegations 18-20 (2024) (New Jersey Audit), https://perma.

cc/KNL9-3SQL; Tenn. Comptroller of the Treasury,

Performance Audit Report, Department of Correction

195-197 (2020) (Tennessee Audit), https://perma.cc/

G57C-8SZC; Civil Rights Division, U.S. Department

of Justice, Investigation of Georgia Prisons 62, 73, 83

(2024), https://perma.cc/34XP-Z5N6. Spoliation at

those institutions has made it more difficult to “hold

government officials accountable for their actions” and

“assure the public, legislators, and other stakeholders

about management decisions.” Tennessee Audit x, 197.

And it has “undermine[d] oversight [of correctional facilities] and raise[d] doubts in the minds of the public

that investigations into alleged police misconduct

were conducted with integrity.” New Jersey Audit 19.

If left unchecked, spoliation problems in correctional facilities, and the accompanying decay in public

trust, may only grow worse. Without the remedial

powers of adverse-inference instructions, more abusive correctional officers will likely avoid justice. And

without the deterrent effect of those instructions,

more correctional officers will likely destroy evidence

that could prove that they engaged in misconduct.

Although inmates without legal training may not uniformly appreciate the technical niceties of Rule 56 and

adverse-inference instructions, they see and hear

about the ultimate results of civil-rights litigation

against bad apples in their facilities. As a result, if

17

spoliation threatens the justice system, inmates will

know—increasing toxic perceptions that the correctional system is unfair and harming inmates’ trust in

that system.

That loss of public trust will threaten good-faith

corrections efforts. If inmates do not believe that officers are acting with integrity, that will make jails

and prisons less safe for both inmates and officials.

Research has consistently shown that inmates are

most likely to cooperate with and comply with orders

from correctional officers when they have faith that

the officers are administering evenhanded, just treatment. See, e.g., Thomas Baker et al., Exploring the

Association Between Procedural Justice in Jails and

Incarcerated People’s Commitment to Institutional

Rules, 6 Corrections: Policy, Prac. & Rsch. 189, 189

(2019) (“[P]rocedural justice is the strongest predictor

of self-regulation in jails.”); Benjamin Steiner & John

Wooldredge, Examining the Sources of Correctional

Officer Legitimacy, 105 J. Crim. L. & Criminology 679,

698-700 (2015) (suggesting that “treating inmates

more fairly and with dignity during routine interactions might go a long way towards making prisons

safer and more orderly, not to mention more morally

just”). But when inmates perceive prison staff to be

treating inmates unfairly, willfully concealing misconduct, or acting as though they are unconstrained

by law or procedure, the inmates are more likely to

disobey orders and prison regulations. See Cathal

Ryan & Michael Bergin, Procedural Justice and Legitimacy in Prisons: A Review of Extant Empirical Literature, 49 Crim. Just. & Behavior 143, 143 (2021).

Reduced compliance and cooperation, in turn, will

likely result in greater security threats to correctional

officers and other inmates. See National Institute of

18

Corrections, U.S. Department of Justice, Inmate Behavior Management: The Key to a Safe and Secure Jail

1-2 (2009). Failing to impose stronger sanctions

against spoliation, in short, will reduce inmates’ trust

in correctional officers and thereby increase the risk

of violent interactions in jails and prisons—further inhibiting the proper operation of correctional facilities.

B. The Eighth Circuit’s Approach Will

Reduce Public Trust In The Police And

Hinder Efforts To Protect Public Safety

More broadly, too, allowing law-enforcement officers to destroy evidence without meaningful consequences will also diminish the public’s trust in and cooperation with good-faith policing efforts. Police officers “occupy positions of great public trust and high

public visibility” in our society. Gilbert v. Homar,

520 U.S. 924, 932 (1997). But if officers who violate

that trust are not held to account, the government

cannot “maintai[n] public confidence * * * in its police

force.” Ibid. The Eighth Circuit’s improper approach

to adverse-inference instructions at summary judgment magnifies the risk that officers who destroy evidence will escape liability. The ensuing loss of public

confidence will only exacerbate existing tensions between law-abiding police officers and their communities and undermine law enforcement’s ability to maintain public safety.

“Effective police work, including the detection and

apprehension of criminals, requires that the police

have the trust of [their] community.” Reynolds v. City

of Chicago, 296 F.3d 524, 530 (7th Cir. 2002). “[A] police department’s ability to protect the public depends

on the public’s trust that the police department will

use its powers responsibly and adequately discipline

19

officers who do not.” Crouse v. Town of Moncks Corner, 848 F.3d 576, 589 (4th Cir. 2017) (Motz, J., concurring in the judgment). The extent to which members of the public cooperate with police is a product of

that trust: They need to credit the good faith of officers in order to feel comfortable calling on law enforcement to help in emergencies and aiding police investigations. See, e.g., Kyle Peyton et al., A Field Experiment on Community Policing and Police Legitimacy,

116 Proc. Nat’l Acad. Scis. 19,894, 19,894 (2019) (finding that even “a single instance of positive contact

with a uniformed police officer” can “substantially improve” a person’s “attitud[e] toward police, including

legitimacy and willingness to cooperate”); Emily Ekins,

Cato Institute, Policing in America 1 (2016), https://

perma.cc/U56H-D2MM (“Groups who feel less favorable toward local law enforcement are less certain they

would report a crime they witnessed. * * * [W]hen the

police have legitimacy, the law has legitimacy, which

encourages compliance and cooperation.”).

Public trust in police also enhances the effectiveness of law enforcement’s interactions with the public.

People are also “more willing to defer to [law enforcement’s] directives and decisions” when they believe

that they are being treated fairly. Tom R. Tyler and

Yuen J. Huo, Trust in the Law: Encouraging Public Cooperation with the Police and Courts 7 (2002). Police officers likewise need to feel trusted by the people they

serve to do their jobs effectively. See Harris v. Pittman,

927 F.3d 266, 286 (4th Cir. 2019) (Wilkinson, J., dissenting) (observing that “societal respect” for law enforcement is necessary to sustain “professional police work”).

Consequences for police misconduct are imperative to building that trust. “Nothing is more corrosive

to public confidence in our criminal justice system

20

than the perception that there are two different legal

standards”—one for law-enforcement officials “and

another for everyone else.” United States v. Taffaro,

919 F.3d 947, 949 (5th Cir. 2019) (Ho, J., concurring

in the judgment). Even the bad acts of a small number

of officers can poison community trust in the police if

they are not met with appropriate consequences. See

Office of Community Oriented Policing Services,

U.S. Department of Justice, Building Trust Between

the Police and the Citizens They Serve 17 (2014),

https://perma.cc/5WEC-NVSB; see also United States

v. Ulbricht, 858 F.3d 71, 105 (2d Cir. 2017) (“[W]hen

law enforcement officers * * * violate the rights of citizens” or engage in other misconduct, “they undermine the public’s vital trust in the integrity of law enforcement” and may “compromise the investigations

and prosecutions on which they work” unless they are

held to account.).

The Eighth Circuit’s approach, by diminishing the

force of a valuable tool for police accountability, would

further erode police-community relations. Adverseinference instructions are an important way of maintaining public trust in law enforcement because they

empower the jury—“drawn from a cross-section of the

community” and designed to represent the public—to

determine the consequences of spoliation. Thiel v.

Southern Pacific Co., 328 U.S. 217, 220-225 (1946). Allowing the jury, not the court, to weigh the significance of missing evidence ensures that the public decides when to hold officers accountable for destroying

evidence. And police, too, may benefit from the added

public legitimacy that ensues when officers are found

not liable by a jury despite the court’s issuance of an

adverse-inference instruction. Cf. Michael T. Cahill,

Punishment Decisions at Conviction: Recognizing the

Jury as Fault-Finder, 2005 U. Chi. Legal F. 91, 133

21

(suggesting, in the criminal context, that increased

jury participation “enhance[s] the system’s legitimacy

among the general public”). The Eighth Circuit’s rule

obstructs this trust-building function by empowering

trial courts to keep cases from juries based on courts’

own assessments of how jurors should have viewed

the record, exacerbating the perceived lack of accountability for officers.

The loss of trust that the Eighth Circuit’s decision

exacerbates will likely have significant adverse practical effects. If people do not feel comfortable calling

on the police in a crisis, that will threaten public

safety. See Andrew Goldsmith, Police Reform and the

Problem of Trust, 9 Theoretical Criminology 443, 443

(2005) (“Without public trust in police, ‘policing by

consent’ is difficult or impossible and public safety suffers.”). And if community members are less likely to

cooperate in police investigations, police officers will

find it harder to discharge their duties and protect the

public in the future. See David S. Kirk et al., The Paradox of Law Enforcement in Immigrant Communities:

Does Tough Immigration Enforcement Undermine

Public Safety?, 641 Annals Am. Acad. Pol. & Soc. Sci.

79, 79 (2012) (lawless actions by officers “undermin[e]

individuals’ willingness to cooperate with the police

and engage in the collective actions necessary to socially control crime”). Providing meaningful accountability for spoliation therefore benefits both the overwhelming majority of law-enforcement officers who

serve honorably and the communities who rely on

them to ensure public safety.

22

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JONATHAN C. BOND

Counsel of Record

LAVI M. BEN DOR

JOHN N. REED

TRISTAN LOCKE

AUDREY PAYNE

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

(202) 955-8500

JBond@gibsondunn.com

Counsel for Amicus Curiae

February 21, 2025