Petition for Writ of Certiorari — City of Pittsburgh v. Beck

Supreme Court, U.S.

") FILED

Yo. 961159 Jan 21 1997

GFFICE OF THE CLERK

In O) he .

Supreme Court of the Clnited States

October Term 1996

CITY OF PITTSBURGH,

Petitioner,

v.

ROBERT G. BECK,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petition for Writ of Certiorari

George R. Specter*

Deputy Solicitor

Susan E. Malie

Assistant City Solicitor

Jacqueline R. Morrow

City Solicitor

CITY OF PITTSBURGH

Department of Law

Firm #046

313 City-County Building

414 Grant Street

Pittsburgh, Pennsylvania 15219

(412) 255-2002

* Counsel of Record

Counsel for the Petitioner

THE LEX GROUP ¢ 1205 East Main Street @ Suite 2 East Richmond, VA 23219

(804) 644-4419 @ (800) 856-4419 @ Fax: (894) 644-3256

QUESTIONS PRESENTED

I. Whether the Court of Appeals for the Third Circuit

appropriately eliminated the burden of plaintiffs to introduce

evidence of "deliberate indifference" in causes of action

advanced against municipalities under 42 U.S.C. §1983 when it

eliminated the burden of plaintiffs to introduce any evidence,

through expert testimony or otherwise, to which the trier of fact

may compare the challenged customs, policies or practices

employed by municipalities before rendering a decision as to

whether deficiencies in such customs, policies or practices exist

which may amount to "deliberate indifference"?

I]. Whether the Court of Appeals for the Third Circuit has

violated principles of federalism by enabling Federal Courts to

independently establish requisite criteria and standards for

adequate supervision, training, investigation and discipline of

municipal police officers?

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CASELAW

Va feter’ LR Workers’ Uni

Local 473 A.F.L-C.LO. v. McElroy,

367 U.S. 886, 81 S.Ct. 1743,

ie: RU POE rikcevecnesenestiertnSiinintanssinnidieionss 10

489 U.S. 378, 103 L.Ed. 2d 412,

ele KEE BE UEP encsicctstunsvanianennsenesicn’ 6, 7,9, 10

Mark v. Borough of Hatboro,

Ew Biases” a Ay > Gene ecereee i]

Monell v Mew Veok Cine £ Pianiah Gamiinne

436 U.S. 658, 98 S.Ct. 2018,

Die Kitts ME WEE CE FMD ooctciccsnssodisiocaseransinare 4, 6,9, 10

Oklahoma City v, Tuttle,

471 U.S. 808, 105 S.Ct. 2427,

ERS Hee Bee 2B: 3. | PP eT aE RET RE TEE 6

Rizzo v. Goode,

423 U.S. 362, 96 S.Ct. 598, -

OO Fi ie NE Se FOOD weicsinaabarasnsnencisicssntnincnioseoncs 6, 10

Sampson v. Murray,

415 U.S. 61, 94S. Ct. 937,

Fi Roe BI GF PD enccnnseneicsjssivnesiestontircincevessonies 10

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342 U.S. 117, 72S. Ct. 1 18, 96 L.Ed. 138 (1950)...10

72 F.3d 1040 (2d Cir. 1995)

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STATUTES AND RULES OF COURT

sscieligia nis eee ee ee 1-9

OPINIONS AND ORDERS OF THE COURTS BELOW

The Opinion of the United States District Court for the

Western District of Pennsylvania is transcribed at pages 186

through 195 of the trial transcript. (App. 22). The Opinion of

the United States Court of Appeals for the Third Circuit is

reported at 89 F.3d 966 (1996). (App. 1) Both Opinions have

been reproduced and annexed hereto.

JURISDICTION

Judgment was entered in the within action on July 22,

1996. Jurisdiction of this Court is conferred under 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

AMENDMENT IV OF THE UNITED STATES

CONSTITUTION

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the

persons or things to be seized.

42 U.S.C. §1983

§1983. Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress. For the

purposes of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be considered to

be a statute of the District of Columbia.

(R.S. §1979; Dec. 29, 1979, P.L. 96-170, §1, 93 Stat.

1284.)

STATEMENT OF THE CASE

Robert Beck asserts that on October 31, 1993, he was

subjected to the use of excessive force by City of Pittsburgh

Police Officer Anthony Williams, such use of force having

resulted from an alleged custom of the City of Pittsburgh as

manifested through the City's failure to adequately investigate

and discipline its police officers for use of excessive force. Beck

asserts these claims under 42 U.S.C. §1983 and the Fourth

Amendment to the United States Constitution.

In an attempt to establish the basic elements of his claim

against the City, i.e., that Beck's injuries were "caused" by the

"deliberate indifference" of the City as manifested through

deficiencies in the City's investigative and disciplinary systems,

Beck introduced the following evidence at trial: (a) Testimony

of Carla Gedman explaining the City's systems for conducting

investigations of alleged police misconduct through its Office of

Professional Standards, ("OPS"); (b) Testimony of Charles

Moffatt explaining the disciplinary systems utilized by the

Police Bureau; (c) Testimony relating to complaints of

misconduct filed with OPS against Officer Williams; and (d)

Year-end reports prepared by OPS containing notes and

Statistics relating to misconduct complaints filed against City

Police Officers.

At the close of Beck's case, the City moved for

judgment as a matter of law on the basis that Beck had failed to

present any evidence which might support the deliberate

indifference element of his §1983 claim against the City. The

City argued that while Beck introduced detailed evidence

concerning the systems actually employed by the City, i.e.,

those which were subject to challenge, Beck failed to introduce

any evidence of an acceptable standard against which a jury

could possibly compare those systems sc as to assess

deficiencies therein.

The District Court agreed, and, granting the City's

motion, stated:

You would have the jury infer that because

Williams was never disciplined, the city tacitly

authorized the use of excessive force. But |

think the law is clear that the jury can't make that

assumption. Judge Cohill has an opinion in this

court saying that isolated events will not

establish a pattern of abusive behavior.

Recitation of the number of complaints filed is

not sufficient to prove a policy or custom. Policy

or custom has to be established by knowledge

and acquiescence. I think absent any evidence of

a failure to investigate or evidence of a less than

meaningful investigation or less than meaningful

response to complaints of excessive force is

fatal. (App. 26).

The Court of Appeals for the Third Circuit reversed the

decision of the Trial Court on the following basis: That "[i]t is

not beyond the ken of an average juror to assess what a

reasonable municipal policymaker would have done with the

information in this case" (App. 21); and that Beck "Presented

sufficient evidence from which a reasonable jury could have

inferred that the City of Pittsburgh knew about and acquiesced

in a custom tolerating the tacit use of excessive force by its

police officers." (App. 21)

REASONS FOR ISSUANCE OF THE WRIT

I. | THE DECISION OF THE COURT OF APPEALS IS

IN DIRECT CONTRAVENTION OF MONELL _V.

DEPARTMENT OF SOCIAL SERVICES AND ITS

PROGENY AS THE COURT OF APPEALS HAS ENTIRELY

EMASCULATED THE INTENDED PURPOSE AND

EFFECT OF THE DELIBERATE INDIFFERENCE

REQUIREMENT IN ACTIONS ADVANCED UNDER 42

U.S.C. §1983.

The Court of Appeals for the Third Circuit has

effectively emasculated the deliberate indifference requirement

in actions advanced against municipalities under 42 U.S.C.

$1983, in direct contravention of the mandate of this Court as

expressed through the seminal decision of Monell v. Dept. of

Social Services, 436 U.S. 658 (1978) and its progeny. Pursuant

to its holding herein, the Third Circuit has exposed

municipalities to unprecedented de facto respondeat superior

liability and extreme inconsistency at a time when

municipalities seek guidance relative to the duties attendant to

their role as supervisor, trainer, investigator and disciplinarian

of municipal police officers.

The Opinion of the Third Circuit dictates that the

disposition of causes of action challenging the sufficiency of

municipal policies, customs and practices relative to

Supervision, training, investigation and discipline of police

officers may be hinged solely upon the independent criticism,

conjecture and personal lay opinions of the Court and jury.

Thus, contrary to the mandate of this Court and consistent

DEI: SERENE

ica

theories adopted by Courts of Appeals throughout the country,

the Third Circuit has eliminated the burden of plaintiffs to

produce evidence which would demonstrate that municipal

policies, customs or practices which are challenged under §1983

are contrary to, or fall short of, accepted "industry" standards,

such standards being defined through expert testimony or by

comparison with methods utilized by other similarly situated

municipalities. Simply, plaintiffs are no longer required to

introduce evidence of an acceptable standard policy, custom or

practice, through expert testimony or otherwise, to which the

fact-finder may compare the municipal policy, custom or

practice in question so as to render an informed decision as to

the sufficiency of such policy, custom or practice.

Rather, the Third Circuit will permit juries to infer

deliberate indifference solely on the basis of evidence relating

only to the policy, custom or practice actually utilized by the

municipality. The consequence of the Third Circuit's decision

has been the imposition of de facto respondeat superior liability

on municipalities across the country under Section 1983, a

result this Court expressly considered and unequivocally

rejected.

In an action involving the alleged failure of the City of

Canton to adequately train its police department, such failure

having allegedly resulted in the failure of an officer to provide

medical care to the plaintiff, this Court expressly laid the

following foundation in support of its pronouncement that the

deliberate indifference standard shall be applied to actions such

as that sub judice:

» ee a ee

To adopt lesser standards of fault and

causation would open municipalities to

unprecedented liability under Section 1983. In

virtually every instance where a person has had

his or her constitutional rights violated by a city

employee, a Section 1983 plaintiff will be able

to point to something the city "could have done"

to prevent the unfortunate incident. See

Oklahoma City v, Tuttle, 471 U.S., at 823, 105

S.Ct., at 2436 (opinion of REHNQUIST, J.).

Thus, permitting cases against cities for their

"failure to train" employees to go forward under

Section 1983 on a lesser standard of fault would

result in de facto respondeat superior liability on

municipalities-a result we rejected in Monell:

436 U.S., at 693-694, 98 S.Ct., at 2037. It would

also engage the federal courts in an endless

exercise of second-guessing municipal

employee-training programs. This is an exercise

we believe the federal courts are ill suited to

undertake as well as one that would implicate

serious questions of federalism. Cf. Rizzo v.

Goode, 423 U.S. 362, 378-380, 96 S.Ct. 598,

607-608, 46 L.Ed.2d 561 (1976).

City of Canton v. Harris, 489 U.S. 378, 390 (1961).

In direct contravention of the above mandate of this

Court, the Beck decision provides that every §1983 plaintiff

advancing a claim for failure of a municipality to adequately

train, supervise, investigate or discipline need only elicit

testimony from the defendant-municipality itself relative to the

training, supervisory, investigative or disciplinary procedures

actually utilized by the defendant-municipality, and from this

evidence, a jury may simply "infer" that the municipality was

deliberately indifferent. Such a standard defies the language of

Canton and subverts the very purpose of the Court's imposition

of the deliberate indifference standard.

Under Beck, neither the Court nor the jury will be

offered any guidepost against which they could possibly

measure alleged degrees of deficiency in procedures utilized by

municipalities. A jury may, with no further guidance, and

regardless of the effort employed or sophistication of a

municipal policy, simply infer deliberate indifference utilizing

any criteria it so chooses. Under Beck, a Court or jury may, on

its Own initiative, devise procedures and guidelines which a

particular Court or jury alone deems acceptable for the limited

purpose of its deliberations relative to a particular case, and

compare that particular "jury's standard" to a municipality's

existing procedures. With this "information", a jury may, based

upon sheer speculation and conjecture, infer that a municipality

"must have been" deliberately indifferent and "must have"

caused the plaintiff's injury.

The arbitrary and capricious nature of such a process is

readily apparent. At a time when municipalities seek direction

in formulating adequate systems for responding to most serious

issues, the Court of Appeals has held that municipalities must be

left to decipher the whims of each random jury before whom

such cases are tried, and that, regardless of the efforts of the

municipality, culpability may be inferred on the basis of nothing

more than mere conjecture.

Resolution of issues raised by claimants such as Robert

Beck does not lie neatly within the pages of textbook guidelines

and learned treatises as might be the case in litigation involving

allegations of medical malpractice or design defect. Rather,

given the latent complexity of issues raised by §1983 claimants,

the unique nature of a police officer's role in our communities

and the evolution of and disparity between the needs, resources

and concerns of individual communities, complete, consistent

and accurate resolution can only be achieved through careful

analysis of practical experience of municipalities and relevant

field of expertise, including, without limitation, sociology,

psychology, economics and management.

Indeed, everyone has his or her own personal opinion

concerning relative degrees of discipline which "could" be

imposed or of what might constitute an ideal investigative

process. As the City of Canton Court states, "In virtually every

instance where a person has had his or her constitutional rights

violated by a city employee, a §1983 plaintiff will be able to

point to something the city "could have done". City of Canton,

489 U.S. at 390. However, such use of isolated personal

opinions and criticism as a standard relative to that which a

municipality "could have done" has been expressly rejected by

this Court on the basis that this cannot reasonably be deemed

the standard by which a municipal defendant charged with the

responsibilities and burdens at issue is to be judged, particularly

Where the standard will vary from jury to jury, as such a

malleable standard effectively imputes de facto respondeat

superior liability upon all municipalities.

Upon review of direct evidence of particularized,

acceptable standards and guidelines, juries may make reasoned.

educated and consistent determinations of whether

municipalities indeed fall short of recognized and consistent

standards and guidelines and whether such inadequacies amount

to deliberate indifference. Without such guidance, a jury

cannot, with any degree of certainty, gauge the deficiencies, if

any, within a municipal system.

The City of Pittsburgh has been engaged in an ongoing

effort to improve its methods of training, discipline, supervision

and investigation as the City recognizes and accepts the duties

and responsibilities attendant to management of its Police

Bureau. However, the City respectfully submits that the Third

Circuit has imposed an insurmountable burden upon

municipalities, rendering it impossible for any municipal

government to comply with any degree of certainty to the

varying standards which will be imposed by courts and juries in

the future. The City respectfully disagrees with the Appellate

Court's characterization as "ridiculous" the City's contention that

expert direction is necessary to streamline the varying and

complex possibilities available to municipalities as instructor

and disciplinarian since it is the case, upon review of the

Opinion of the Court of Appeals, that while reasonable minds

may differ as to what the City "could have done", no evidence

has been proffered, and by virtue of the Court's Opinion, no

evidence will be required in the future in this and other §1983

cases and thus, no direction will be shed as to what the City

"should have done".

The District Court rendered its decision on the basis of

reasoned precedent of this Court, prior decisions of the Third

Circuit as well as decisions of other Circuit Courts of Appeals,

See, ¢.g., Monell, Mark v. Borough of Hatboro, 51 F.3d 1137

(3d Cir. 1995), Vann v. City of New York, 72 F.3d 1040 (2d

Cir. 1995), all of which reject the conclusions of the Third

Circuit in Beck.' To accept the decision of the Third Circuit is

to affirm imposition of vicarious liability against municipalities

under §1983 in direct contradiction of the mandate of this Court.

Il. THE THIRD CIRCUIT HAS VIOLATED BASIC

PRINCIPLES OF FEDERALISM BY ENABLING FEDERAL

COURTS TO ESTABLISH THE CRITERIA AND

STANDARDS FOR SUPERVISION, — TRAINING,

INVESTIGATION AND DISCIPLINE OF MUNICIPAL

POLICE BUREAUS.

The "serious questions of federalism" to which the City

of Canton Court refers have also been implicated by the Circuit

Court's decision. The Beck Court has held that federal courts,

including random juries, without the aid of expert testimony or

evidence of applicable standards and guidelines, can "engage. . .

in an endless exercise of second-guessing" municipal

procedures, an "exercise [the Supreme Court] believe[s] the

federal courts are ill suited to undertake". City of Canton, 489

U.S. at 390. If it is the Court's intention to allow Federal Courts

to critique municipal procedures for training, discipline,

supervision and investigation using a given Federal Court's or

jury’s own independent criteria, such a theory runs directly

afoul of principles of federalism.

See also, Fulwood v, Quentin Porter, 639 A.2d 594, 600-60 (D.C.

App. 1994) wherein the District of Columbia Court of Appeals expressly

rejected the theory now adopted by the Court of Appeals for the Third

Circuit.

The federal government is one of limited expressed

powers, all other powers being reserved to the States. US.

Constitution, Amend. 10. Thus, where, as here, the exercise of

authority by state officials is attacked, federal courts must

consistently be mindful of the special delicacy of the balance to

be preserved between federal power and a state's administration

of its own laws. Rizzo v, Goode, 423 U.S. 362, 378 (1976),

Citing, Stefanelli v. Minard, 342 U.S. 117, 120 (1950). The

courts must contend with "the well established rule that the

government has traditionally been granted the widest latitude in

the dispatch of its own internal affairs." Cafeteria and

Restaurant Workers' Union Local 473 AFEL-CLO. vy,

McElroy, 367 U.S. 886, 896 (1961), cited with approval.

Sampson v. Murray, 415 U.S. 61, 83 (1974); Rizzo, 423 U:S. at

379.

The City of Pittsburgh respectfully submits that the

adequacy of its methods for monitoring the City's own internal

affairs, i.e., procedures relative to training, discipline,

supervision and investigation, is to be judged in the context of

particularized, acceptable "industry" standards which are

defined by knowledgeable parties, not against criteria

independently developed and imposed in a vacuum by District

Courts and juries. Thus, while the federal Judicial system may

be utilized to resolve the issue of whether acceptable standards

have been violated, the system may not be used to establish

acceptable standards sua sponte.

CONCLUSION

Petitioner prays that the within Petition be granted and

the judgment of the Court of Appeals be reversed consistent

with the decisions of this Court in Monell v. New York City

Dept. of Social Services and City of Canton v. Harris.

10

Respectfully Submitted,

atk: AT

George R. Specter

Deputy City nell

Pa. 1.D,#01017

aol Mat:

(s&an E. Malie

Assistant City Solicitor

Pa. I.D. #68998

Pa. I.D. #37222

City of Pittsburgh

Department of Law

Firm #046

313 City-County Building

414 Grant Street

Pittsburgh, PA 15219

(412) 255-2002

DATED: January 17, 1997

11

No.

CIn Oj he

Supreme Court of the Clnited States

October Term 1996

CITY OF PITTSBURGH,

Petitioner,

v.

ROBERT G. BECK,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Appendix to Petition for Writ of Certiorari

George R. Specter*

Deputy Solicitor

Susan E. Malie

Assistant City Solicitor

Jacqueline R. Morrow

City Solicitor

CITY OF PITTSBURGH

Department of Law

Firm #046

313 City-County Building

414 Grant Street

Pittsburgh, Pennsylvania 15219

(412) 255-2002

* Counsel of Record

Counsel for the Petitioner

THE LEX GROUP ¢ 1205 East Main Street @ Suite 2 East ¢ Richmond, VA 23219

(804) 644-4419 © (800) 856-4419 @ Fax: (804) 644-3256

TABLE OF CONTENTS

Appendix to Petition

Appendix Page

Opinion,

United States Court of Appeals

for the Third Circuit,

PUNE OO By RUM veneer cacseéees

Opinion,

United States District Court

for the District of Pennsylvania

ee UE tos i'n eb kw wo wes

Order,

Denying Petition for Rehearing with

Suggestion for Rehearing In Banc,

United States Court of Appeals

for the Third Circuit,

entered October 24, 1996 ...........

App. 1

IN THE UNITED STATES COURT OF APPEALS,

FOR THE THIRD CIRCUIT

Rober: BECK,

Appellart,

V.

CITY OF PITTSBURGH,

Appellee.

No. 95-3328.

Argued May 21, 1996.

Filed July 22, 1996

Entered: July 22, 1996

An Appeal from the United States District Court for

the Western District of Pennsylvania D.C. No 94-cv-156

Colin E. Fitch, Esquire (argued) Marriner & Crumrine

800 Washington Trust Building Washington, PA 15301

Counsel for Appellant

Virginia S. Scott, Assistant City Solicitor (argued)

Jacqueline R. Morrow, City Solicitor City of Pittsburgh

Department of Law Firm #046 313 City-County Building 414

Grant Street Pittsburgh, Pa 15219 Counsel for Appellee

Before SLOVITER, Chief Judge, SAROKIN and

ROSENN, Circuit Judges.

App. |

OPINION OF THE COURT

ROSENN, Circuit Judge.

1. This appeal raises a question of considerable

interest in this period of alleged rising police brutality in major

cities across the county: ‘when does an aggrieved citizen

adduce sufficient evidence to a jury from which it can infer

that a municipality has adopted a custom of permitting its

police officers to use excessive force in the performance of

their duties. Specifically, we must determine if the plaintiff.

Robert G. Beck, presented sufficient evidence to withstand a

motion for judgment as a matter of law pursuant to Federal

Rule of Civil Procedure 50(a).

Beck, a rehabilitation counselor for the Epilepsy

Foundation of America, sued Police Officer Anthony Williams

and his employer, the City of Pittsburgh, in the United States

District Court for the Western District of Pennsylvania, under

42 U.S.C. §1983, for deprivations of his constitutional rights.

Beck alleged that Williams engaged in police brutality and

used excessive force against him while making an arrest, and

that the City of Pittsburgh's custom of tacitly authorizing its

police officers to use excessive force resulted in Beck's

personal injuries and damages. Beck brought additional

pendent state law tort claims against Officer Williams.

The district court bifurcated Beck's cases against

Williams and the City of Pittsburgh. Beck's case against

Williams ended in a mistrial when the jury could not return a

verdict. Beck dropped his case against Williams, and

proceeded only against the City. After Beck presented his

case, the City moved for judgment as a matter of law. The

court granted the motion, holding that Beck presented

insufficient evidence for a reasonable jury to find that the City

See generally Pierre Thomas, Police Brutality: An Issue

Rekindled, WASH. POST, Dec. 6, 1995, at Al.

App. 2

of Pittsburgh had established a policy or custom tacitly

authorizing its police officers to use excessive force. Beck

timely appealed to this court.” We reverse the judgment of the

district court and remand for further proceedings consistent

with this opinion.’

I.

In the early morning hours of October 31, 1993, Beck

and two college friends left a Halloween party on the South

Side of Pittsburgh. Beck had borrowed his parents’ car for the

evening, and parked it in a vacant lot near the party site. It had

begun to sleet, and as Beck began to drive the car toward the

exit of the parking lot, it skidded in circles on the wet

pavement. Although the parties have differing views on what

occurred next, for the purposes of this appeal, we must view

the evidence in a light most favorable to Beck, the nonmoving

party. See Macleary v. Hines, 817 F.2d 1081, 1083 (3d Cir.

1987). Thus, we take the facts from Beck's testimony and

other evidence presented by him at trial.

Beck testified that Officer Williams, working alone,

blocked the only exit from the lot with his police cruiser.

Williams stopped Beck's car, and ordered him out of the

vehicle. Beck claimed that he complied with all of Officer

Williams's commands. Williams kicked the door shut as Beck

attempted to get out of his car, then jerked open the door, and

pushed his gun into Beck's face. After cursing at Beck and

using obscene language, Williams allegedly struck him in the

’ The district court properly exercised jurisdiction pursuant to 42

U.S.C. §1983 and 28 U.S.C. §1331. This court may hear the appeal as a

final judgment of the district court. See 28 U.S.C. §1291.

: We also reject the City's argument on appeal, that Beck failed to

plead a viable §1983 claim. Even if we were to agree with the City that

the complaint itself does not adequately present the claim, it was "tried

by express ... consent of" the City, and therefore we treat the claim "in all

respects as if [it] had been raised in the pleadings." Fed.R.Civ.P. 15(b).

App. 3

face six to eight times with the end of his gun, pulled Beck

from the car, forced him to the ground, and kicked him in the

ribs. At this time, several other police officers arrived at the

scene. An officer placed Beck into Williams's police vehicle,

and Williams, alone, removed Beck to the police station.

There, he charged Beck with "driving under the influence" and

reckless driving, and lodged him in a cell.

= Subsequently, Beck filed a formal civilian

complaint with the Police Department against Williams. The

Office of Professional Standards ("OPS"), the city department

responsible for investigating complaints against police

officers, investigated. OPS took Statements from Beck, his

two companions who witnessed the incident, and Officer

Williams. Although Beck's friends fully supported Beck's

allegations, OPS found Beck's complaint to be unfounded.

noting thai the mug shot taken on the night he was in custody

did not reveal any evidence of the trauma he claimed.

At trial, Beck called Carla Gedman, a civilian assistant

chief of OPS, as a witness. Gedman Supervises all OPS

employees and investigators, and is responsible for forwarding

all OPS findings through the chain of command in the

Pittsburgh Police Department to the Chief of Police.* Gedman

testified that OPS acts as a fact-finding body, and is not

responsible for disciplining police officers. OPS merely

investigates each complaint against an officer for use of

excessive force, and decides whether the complaint is

"unfounded," "exonerated," "not sustained," "sustained," or

"closed by memo." It makes no recommendations. OPS

merely forwards its result to Police Department officials (see

' OPS is an investigating agency of the City. It investigates

allegations of misconduct for fire, police, building inspectors,

administrative personnel in police safety, and performs background

investigations for all prospective employees. After OPS completes its

fact finding, its conclusions are reviewed by the police chain of

command: the city's assistant chief of operations, the police officer's

commander, the Chief of Police, and the director of public safety.

App. 4

\

supra note 4). The Department may overturn any OPS

finding. Gedman could not remember, however, if the

Department ever actually had reversed an OPS finding.

Gedman testified that OPS will classify a complaint as

"unfounded" when the facts indicate that the compliant is

untruthful or inaccurate: and as "exonerated" when everything

the complainant states is true, but OPS finds that the officer

followed proper police procedure. OPS will label a complaint

as "closed by memo" when a complainant drops the claim, or

is uncooperative in the investigatory process. Further, OPS

applies a preponderance of evidence standard in determining

whether to sustain a complaint. Gedman explained that the

complainant has the burden of showing that 51% of the

evidence supports his or her version of the incident. Beck

contends that OPS's preponderance standard mandates a

finding of "not sustained" whenever OPS is faced with only

the complainant's word against the officer's word. Gedman

stated that she "wouldn't be comfortable" with that assessment.

She testified, however, that a finding of "not sustained"

amounts to a "draw," where OPS can neither prove nor

disprove the allegations.

According io Gedman, OPS approaches each

complaint against a police officer as a separate, independent

event. Thus, OPS cabins each complaint and will not consider

prior conduct of or prior complaints against the officer in

determining the outcome of the pending complaint. Gedman

further testified that OPS has no formal policy or mechanism

in place to track prior complaints. She noted that, in the

exercise of her discretion, she may alert police officials if she

notices that an officer has a number of complaints against him

or her within a short period of time, e.g., two months. From

her perspective, Gedman testified that she did not consider

prior complaints of the use of excessive force relevant in

assessing the pending complaint under investigation. She

further stated: "We do not report patterns of cases to the

police bureau." However, the OPS annual report does contain

App. 5

Statistics of complaints relating to police use of excessive force

and statistics pertaining to complaints of police verbal abuse.

In some cases where Gedman believes it to be relevant.

Gedman testified that she may report a series of incidents to

the chain of command for a particular officer, but that is within

her discretion. She does not have a formal system for

determining when or what particular conduct calls for such a

report.

"3 Beck also offered in evidence excerpts of the

deposition of Charles Moffit, Pittsburgh's Assistant chief of

operations. Moffit is the first person in the police chain of

command to review OPS findings. He stated that the Police

Department will only take an officer's prior conduct into

account in reviewing an OPS finding if OPS has sustained a

complaint against the officer for that conduct.

In addition to the above, Beck introduced reports of

specific civilian complaints against Williams for use of

excessive force. In October 1990, OPS investigated a written

complaint filed against Officer Williams by Demetrius

Yancey. Yancey complained that for no apparent reason,

Williams grabbed him and pushed his face hard against the

police vehicle. The officer searched him and was verbally

abusive. The OPS report of the case found: Yancey's brother,

who was present at the incident, gave a statement to the

investigator almost identical to the complainant's. Both

brothers were questioned separately and there were no

inconsistencies. "The Yancey brothers were very vehement on

the denunciation of Officer Williams conduct and also they

were believable." The report, however, recommended that the

case be closed as not sustained because "there is [sic] no in

depth corroborations of the allegations."

On April 10, 1991 OPS received a civilian complaint

against Officer Williams from Dr. Irwin T. Templeton. OPS

sent this complaint to Williams's commanding officer for

investigation. The Chief of Police ultimately exonerated

Officer Williams.

App. 6

In June 1991, Dwayne Jones, a citizen, filed a

complaint with OPS charging that while he was jogging,

Officer Williams "for no apparent reason grabbed him and

threw him into the rear of the police car ...". He was hand-

cuffed and removed to a police station. Williams ignored

Jones's complaints that the cuffs were too tight and b=rting,

searched him, found nothing, issued a citation and released

him to a relative. The complaint was not sustained because

"there wasn't any evidence to prove or disprove the

allegations.". The complaint also charged that Williams

addressed him with obscene language and called him a

"punk."

On July 8, 1991, Wayne Harvard filed a citizen's

complaint with OPS charging Officer Williams with assaulting

him and hitting him on the head and face with a billy club and

with verbal abuse. Hospital records described the source of

Harvard's injuries as a fall or beating with a club. Harvard

admitted to falling in a foot chase but claimed that Williams

struck him in the face causing some of the injuries. He alleged

that after he put his hands behind his back as ordered,

Williams put handcuffs on him and "took a billy club, a small

billy club, and hit me on the side of the face.". When Harvard

inquired why the attack, Williams did not reply but "kept on

hitting me and just beating me up" and called for back.

On November 4, 1993, the plaintiff in this case filed

his handwritten complaint with OPS. In investigating this

complaint, OPS also had written statements from each of

Beck's friends who witnessed the alleged assault. The

complaint was disposed of as "unfounded." In accordance

with its practice, OPS made no reference to previous

complaints against Officer Williams.

Slightly over two months later, on January 24, 1994,

Donald Debold filed a complaint against Williams, who, with

other officers, had come to his home to answer a domestic call.

The officers questioned Debold three times as to whether he

had hit anyone. When Debold answered in the negative,

App. 7

Williams began to taunt him. Debold then said something to

Officer Williams who responded by punching him in the jaw.

OPS exonerated Officer Williams.

None of the foregoing complaints was sustained and

none of them resulted in discipline. None of these dispositions

was overruled by the Chief of Police or his assistant. However,

the Police Department did discipline Officer Williams once:

this action arose out of an internal police claim that he verbally

abused a fellow police officer using language similar to that

which Williams allegedly used in his past encounters with the

civilian complainants. As the district court observed and

counsel for the City agreed: "This shows that they treat a

complaint by a fellow officer seriously."

Finally, Beck introduced OPS year-end reports,

circulated through the Police Department, for the years 199]

and 1994.” The 1994 report revealed that OPS sustained an

overall 3.4% of "use of force” complaints in the years 1990

through 1994. The 1991 report noted, inter alia:

Use of force has been an issue in the

past. Actual discipline for excessive force is

very low. Unlike many other police

departments, ours does not employ any

formalized reporting mechanism for the use of

force... This type of report allows objective

evaluations of the use of force before

complaints are filed. It would certainly

identify points for retraining, and officers

typically engaged in this behavior. We could

develop a better understanding of the vague

phrase "reasonable use of force," as incidents

routinely reported could be audited and

; In its brief to this court, the City contends that Beck relies on

incidents and reports that were not in evidence in making his case against

the City before this court. We consider only the evidence admitted into

evidence in making our decision in this appeal.

App. 8

properly examined... Most cases cannot be

sustained because it is usually the officer and

complainant on the scene only; and no neutral

evidence is available. We do report patterns of

cases to the Police Bureau however; e.g. an

officer receiving three complaints in two

months.

The independent events do not indicate

that the civilians conspired against one

particular officer. The officer's credibility is at

issue when a discernible pattern of complaints

develop [sic]... officers and patterns like this

will be focus [sic] of our “early I.D." program

... those that can't control their temper or use

verbal skills properly, run the risk of

aggravating the very situation which thev are

called upon to assist.

After Beck rested his case, the City moved for

judgment as a matter of law. See Fed.R.Civ.P. 50(e). The

district court granted the motion, holding that Beck failed to

present sufficient evidence to prove that the City had a policy

or custom authorizing the use of excessive force by its police

officers.

II.

Federal Rule of Civil Procedure 50(a) provides, in

pertinent part:

*5 (1) If during a trial by jury a

party has been fully heard on an issue and there

is no legally sufficient evidentiary basis for a

reasonable jury to find for that party on that

issue, the court may determine the issue against

App. 9

that party and may grant a motion for judgment

as a matter of law against that party with

respect to a claim or defense that cannot under

the controlling law be maintained or defeated

without a favorable finding on that issue.

Fed.R.Civ.P. 50(a)(1). This court's review of the district

court's grant of judgment as a matter of law is plenary, and we

must apply the same standard as the district court. See

» 4 F.3d 1153, 1166(3d

Cir. 1993). A motion for judgment as a matter of law under

Federal Rule 50(a) "should be granted only if, viewing the

evidence in the light most favorable to the nonmoving party,

there is no question of material fact for the jury and any

verdict other than the one directed would be erroneous under

the governing law." Macleary, 817 F.2d at 1083.

Beck claims that the City of Pittsburgh is liable for the

injuries and damages he sustained at the hands of one of its

police officers. He alleges that the City, "through its relevant

officials, tolerated and acquiesced in a custom of excessive use

of force by its police officers by permitting a situation to exist

where police officers were not disciplined or subject to review

for the use of excessive force against citizens." Beck brings

this claim under 42 U.S.C. §1983, which provides, in relevant

part:

Every person who, under color of any

Statue, ordinance, regulation, custom, or usage,

of any State ... subjects, or causes to be

subjected, any citizen of the United States ... to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law ...

42 U.S.C. §1983.

App. 10

Because Beck's claim is not based on ordinary

negligence or tort principles but on a federal civil rights

statute, the City is not liable under the doctrine of respondent

superior for the misconduct of its police. Andrews v. City of

Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). When a

suit against a municipality is based on §1983, the municipality

can only be liable when the alleged constitutional

transgression implements or executes a policy, regulation or

decision officially adopted by the governing body or

informally adopted by custom. Monell v. New York City

Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56

L.Ed.2d 611 (1978). Thus, although the municipality may not

be held liable for a constitutional tort under §1983 on the

theory of vicarious liability, it can be held responsible as an

entity when the injury inflicted is permitted under its adopted

policy or custom. Id. at 694.

*6 The Court's holding and reasoning in Monell

have created a two-path track to municipal liability under

§1983, depending on whether the allegation is based on

municipal policy or custom. See Pembaur v. City of

Cincinnati, 475 U.S. 469, 481 & n. 10. 106 S.Ct. 1292, 89

L.Ed.2d 452 (1986). In Andrews, this court articulated the

distinctions between these two sources of liability:

A government policy or custom can be

established in two ways. Policy is made when a

"decisionmaker possess[ing} final authority to

establish municipal policy with respect to the

action" issues an official proclamation, policy, or

edict. A course of conduct is considered to be a

"custom" when, though not authorized by law,

"such practices of state officials [are] so

permanent and well-settled" as to virtually

constitute law.

App. 11

895 F.2d at 1480 (citations omitted); see also Bielevicz v.

Dibinon, 915 F.2d 845, 850 (3d Cir. 1990) (same). Custom.

on which the plaintiff relies in this case, may also |

established by evidence of knowledge and acquiescence. See

Fletcher v. O'Donnell, 867 F.2d 791, 793 (3d Cir. 1989), cert.

denied, 492 U.S. 919, 109 S.Ct 3244, 106 L.Ed.2d 59]

(1989).

In Cj ls, 489 U.S. 378, 109 S.Ct.

1197, 103 L.Ed.2d 412 (1989), Officers of the Canton Police

Department arrested Geraldine Harris. While being processed

at the police station, she fell down several times and became

incoherent. The officers did not summon any medical

assistance for her. Sometime after her release she sued for

damages under 42 U.S.C. §1983. The Court held that the

inadequacy of police training may serve as the basis for §1983

liability "only where the failure to train amounts to deliberate

indifference to the rights of persons with whom the police

come into contact." Id. at 388 (footnote omitted). Although

City of Canton involved a city's alleged failure to train its

police officers, courts have adopted the "deliberate

indifference" standard in other policy and custom contexts.

See i.e., Si la, 947 F.2d 1042,

1070 (3d Cir. 1991), cert. denied, 503 U.S. 985, 112 S.Ct

1671, 118 L.Ed.2d 39] (1992); see also Karen M. Blum,

Monell, DeShaney, and Zinermon: Official Policy,

Affirmative Duty, Established State Procedure and Local

Government Liability Under Section 1983, 24 CREIGHTON

L. REV. 1, 13 (1990). This is consistent with the Court's

narrow construction of municipal liability under 42 U.S.C.

§1983 since Monell, limiting municipal liability to only those

constitutional torts actually caused by the municipality. See

ici , Defining the Contours

of Municipal Liability Under 42 U.S.C. §1983: Monell

through City of Canton v, Harris, 18 STETSON L. REV. 511.

547 (1989).

App. 12

“FT In Simmons, 947 F.2d 1042, the plaintiff sued

the City of Philadelphia under various theories of §1983

liability for failing to prevent her son from committing suicide

while in police custody. The plaintiff alleged that the City

failed to properly train its employees in the prevention of

suicide of intoxicated detainees, and that the City's policy or

custom led to her son's death.

We held, in Simmons, that:

In order to establish the City's liability

under her theory that Simmons's rights were

violated as a result of a municipal policy or

custom of deliberate indifference to the serious

medical needs of intoxicated and potentially

suicidal detainees, plaintiff must have shown

that the officials determined by the district

court to be the responsible policymakers were

aware of the number of suicides in City

lockups and of the alternatives for preventing

them, but either deliberately choose not to

pursue these alternatives or acquiesced in a

long-standing policy or custom of inaction in

this regard.

Id. at 1064 (emphasis added).

In Bielevicz, the plaintiffs alleged a violation of §1983

against the City of Pittsburgh for a municipal custom of

allowing its police officers to make illegal arrests for

intoxication. We held that to sustain a §1983 claim for

municipal liability, the plaintiff must "simply establish a

municipal custom coupled with causation--i.e., that

policymakers were aware of similar unlawful conduct in the

past, but failed to take precautions against future violations,

App. 13

and that this failure, at lease in part, led to their injury."° 915

F.2d at 851.

In the instant case, Beck argues that Officer Williams

has exhibited a pattern of violent and inappropriate behavior,

with five complaints of excessive use of force in less than five

years. These complaints include the Debold incident, which,

although it occurred after Beck's experience, may have

evidentiary value for a jury's consideration whether the City

and policymakers had a pattern of tacitly approving the use of

excessive force. Beck asserts that if the City had proper

investigative and police disciplining procedures in place, its

police, including Williams, would not have pursued a settled

practice of applying excessive force in arresting citizens, and

Williams, in particular, would not have assaulted him.

The district court granted the City's motion for

judgment as a matter of law, holding that Beck did not present

sufficient evidence to show that the City had a policy or

custom of authorizing the use of excessive force or abusive

behavior. The court addressed plaintiff's counsel, stating:

You would have the jury infer that

because Williams was never disciplined, the

City tacitly authorized the use of excessive

force. But I think the law is clear that the jury

can't make that assumption. Judge Cohill has

an opinion in this court saying that isolated

events will not establish a pattern of abusive

We need not address the question of causation in the instant

case because it was not a basis for the district court's judgment. We note,

however, that proof of the existence of an unlawful policy or custom

alone is insufficient to maintain a $1983 action. The plaintiff bears the

burden of provirg that the municipal practice was the proximate cause of

the injuries suffered. Bielevicz, 915 F.2d at 850.

App. 14

}

behavior.’ Recitation of the number of

complaints filled is not sufficient to prove a

policy or custom. Policy or custom have to be

established by knowledge and acquiescence. |

think [the] absen[ce of] any evidence of a less

than meaningful investigation or less than

meaningful response to complaints of

excessive force is fatal.

III.

*8 Under Federal Rule of Evidence 404(b),

evidence of other wrongs or acts, although not admissibie to

prove the character of a person, are admissible for other

purposes, such as proof of knowledge. What we have here are

not mere isolated events or mere statistics of the number of

complaints. On the contrary, the plaintiff offered in evidence a

series of actual written civilian complaints of similar nature,

most of them before and some after the Beck incident,

containing specific information pertaining to the use of

excessive force and verbal abuse by Officer Williams. All but

one of the complaints had been investigated by OPS and had

been transmitted through the police department chain of

command to the Chief of Police.” Thus, he had knowledge of

The case by Judge Cohill that the court referred to is Mariani v,

City of Pittsburgh, 624 F.Supp. 506 (W.D.Pa. 1986). In Mariani, the

plaintiff alleged that the City had a policy of condoning the use of

excessive force by its police officers by repeatedly refusing to discipline

the officers involved in an alleged assault, and retaining those officers on

the force knowing they were dangerous. Id. at 511. The only evidence

that the plaintiff put forth in that case was that each of the officers

involved in the incident had one prior complaint against him for violent

behavior. The court noted that “[i]solated events will not establish a

pattern of abusive behavior." Id. at 511.

8 ‘ . : ; ,

Who is a policymaker is a question of state law. City

of St. Louis v. Proprotnik, 485 U.S. 112, 142, 108 S.Ct. 915, 99 L.Ed. 2d

App. 15

the complaints. But, under the sterile and shallow OPS system

of investigation, each complaint was insulated from other prior

and similar complaints and treated in a vacuum.

The testimony of witnesses to some of these incidents

was rendered weightless by OPS in its disposition of the

complaints merely because the witnesses had accompanied the

complainant at the time of the incident. OPS appears to have

assumed the credibility of Officer Williams's response, even

though it recognized that "an officers's credibility is at issue

when a discernible pattern of complaints develop. [sic]" (See

infra OPS 199] report) OPS appears to have attached no

credibility, however, to the complainant's witnesses if they

accompanied the complainant at the time of the incident, even

if an OPS investigator found them believable. (See supra

Yancey report) In the absence of testimony by witnesses

having no connection with the alleged incident, OPS

ultimately resolved almost all complaints against Williams or

other officers on the narrow testimony of the complainant and

the accused officer, thereby disposing of them unfavorably for

the complaining citizen. OPS did not consider prior citizen

complaints of an officer's excessive use of force as relevant in

assessing a pending complaint, and manifested no interest in

probing the credibility of the officer under investigation. Thus.

it "did not report patterns of cases to the police bureau."

Without more, these written complaints were sufficient

for a reasonable jury to infer that the Chief of Police of

Pittsburgh and his department knew, or should have known, of

Officer Williams's violent behavior in arresting citizens, even

when the arrestee behaved peacefully, in orderly fashion,

complied with all of the Officer's demands, and offered no

resistance.

107 (1988). "In looking to state law, a court must determine which

Official has final, unreviewable discretion to make a decision or take an

action." Andrews, 895 F .2d at 1481. It is undisputed in this case that the

Chief of Police was a policymaker.

App. 16

Because the complaints, especially those during the

year 1991, came in a narrow period of time and were of

similar nature, a reasonable jury could have inferred that the

Chief of Police knew, or should have known, of Williams's

propensity for violence when making arrests. See Parrish v.

Luckie, 963 F.2d 201, 205 (8th Cir. 1992). Three of the 199]

complaints were filed between April and J uly.

*9 We reject the district court's suggestion that

mere Department procedures to receive and investigate

complaints shield the City from liability. It is not enough that

an investigative process be in place; as Beck's brief to us

notes:

That investigative process must be real.

It must have some teeth. It must answer to the

citizen by providing at least a rudimentary

chance of redress when injustice is done. The

mere fact of investigation for the sake of

investigation does not fulfill a city's obligation

to its citizens.

None of the cases cited by the district court at trial

Support its conclusion that Beck's claim is barred simply

because the City investigated his complaint, regardless of the

adequacy of the investigation. In Brandon vy. Hart, the

Supreme Court mentions that twenty complaints were filed

against the officer whose behavior precipitated the suit in that

case, 469 U.S. 464, 466 n. 3, 10S S.Ct. 873, 83 L.Ed. 2d 878

(1985), but there is no discussion as to whether or not the

Police Department had investigated those complaints. In

Harris v. City of Pagedale, 821 F.2d 499 (8th Cir. 1987), cert.

denied 848 U.S. 986, 108 S.Ct. 504, 98 L.Ed.2d 502 (1987),

not only were there numerous complaints filed against the

accused officer which were investigated, but in addition the

officer was suspended for two days as the result of one of the

complaints. Id. at 502. There is no discussion of the City's

App. 17

procedures for handling complaints in

Columbia, 850 F.2d 708 (D.C Cir. 1988), cert. denied, 489

U.S. 1065, 109 S.Ct. 1339, 103 L.Ed.2d 809 (1989). We did

note in Bielevicz that the City-defendant in that case "followed

an express policy of not investigating--or even accepting--

complaints regarding alleged pretextual arrests" under a charge

of public drunkenness, 915 F.2d at 849, but we never

Suggested that this was a requirement for a successful §1983

claim. See also Fletcher, 867 F.2d 791;

653 F.2d 1220 (8th Cir. 1981).?

There are, on the other hand, very sound reasons to

reject the rule that the district court implicitly suggests.

Formalism is often the last refuge of scoundrels: history

teaches us that the most tyrannical regimes, from Pinochet's

Chile to Stalin's Soviet Union, are theoretically those with the

mere existence of superficial grievance procedures as a

guarantee that citizens’ constitutional liberties are secure.

Protection of citizens’ rights and liberties depends upon the

substance of the OPS investigatory procedures. Whether those

procedures had substance was for the jury's consideration.

*10 On reviewing the record, we find considerably

more than Beck's complaints from which a reasonable jury

could have found that the City's procedures are inadequate to

protect civilians from police misuse of force. The OPS itself

was structured to curtail disciplinary action and stifle

investigations into the credibility of the City's police officers.

Even if complainant's witnesses were credible, their testimony

became inert under OPS policy, while at the same time police

Officers’ statements appeared to have been given special,

favorable consideration. A jury readily could have found the

It should be noted that Herrera was abrogated on other grounds

by City of Canton. 489 U.S. at 389 n.7.

App. 18

Office of Professional Standards was nothing more than a

facade to cover the violent behavioral patterns of police

officers under investigation, to protect them from disciplinary

action, and thereby perpetuate the City's custom of acquiescing

in the excessive use of force by its police officers.

Because there is no formalized tracking of complaints

for individual officers, a jury could find that officers are

guaranteed repeated impunity, so long as they do not put

themselves in a position to be observed by someone other than

another police officer. As we noted in Bielevicz, "it is logical

to assume that continued official tolerance of repeated

misconduct facilitates similar unlawful actions in the future."

915 F.2d at 851.

Further, a jury would have had the benefit of OPS's

1991 year-end report, which OPS had circulated to police

department officials and which Beck introduced into evidence.

The 1991 OPS report brought to light several of the problems

to which Beck refers. It recognized that the department had a

problem with police use of excessive force, and that the

procedures in place may be inadequate to respond to the

problem. ("Use of force has been an issue in the past. Actual

discipline for excessive force is very low."). It acknowledged

that many complaints were effectively dismissed because no

independent witness was at the scene to observe the encounter.

("Most cases cannot be sustained because it is usuaily the

officer and complainant on the scene only: and no "neutral

evidence is available."). And it conceded that repeated

complaints against one officer may be cause for concern and

some uncertainty as to that officer's veracity. ("The officer's

credibility is at issue when a discernible pattern of complaints

develop [sic]."). The report also suggested that better

procedures "would certainly identify points for retraining, and

officers typically engaged in this behavior."

Gedman testified that the City took no action

subsequent to the 1991 report. The 1994 report showed that

OPS had received 34 complaints of police officer violence

App. 19

during the year 1991, none of which had resulted in

disciplinary action. OPS Statistics for 1992 and 1993 showed

39 and 38 civilian complaints of excessive police officer force

respectively, and in 1994, an increase to 77 complaints.

*11 The City cites Bryant v. Whalen, 759 F.Supp.

410 (N.D. M. 1991) for the Proposition that statistical

information alone is insufficient to Support a §1983 claim. In

Bryant, the City of Chicago had a system similar to

Pittsburgh's to investigate the use of excessive force by its

police officers with an office, OPS, to do the investigation.

OPS would determine if the complaint was "unfounded,"

"exonerated," "not Sustained," or "sustained." It used a

preponderance of the evidence Standard of proof, which

mandated a “not sustained" verdict if the evidence presented

the OPS with only the complainant's word against the officer's

word.

The plaintiffs alleged that several of Chicago's police

officers assaulted them, and that these officers each had an

extensive prior compliant history. One of the officers had 39

prior complaints of excessive use of force, none of which the

OPS sustained. The plaintiffs presented statistical evidence

revealing that the OPS sustains 6.2% of complaints per year.

Id. at 421. They asserted that the low percentage of sustained

complaints, and the repeated allegations against the defendant

police officers, proved that the City showed deliberate

indifference to the constitutional rights of its citizens.

The district court in Bryant held that statistics alone of

unsustained complaints of excessive use of force, without

evidence that those complaints had merit, will not suffice to

establish municipal liability under §1983. Id. at 424. See also

icago, 760 F.2d 765, 768-69 (7th Cir.

1985)(finding statistics insufficient to prove municipal liability

because people may file complaints "for many reasons, or for

no reason at all.")

Bryant, even if it were precedential and/or persuasive.

is distinguishable from the instant case. Beck presented

App. 20

considerably more than mere statistics. He also presented

evidence of actual written civilian complaints. Further, he

presented evidence that the City of Pittsburgh has no formal

system in place for tracking complaints against its officers and

that the citizen complaints were not isolated incidents.

Finally, in colloquy with counsel, the trial court

indicated that the absence of expert testimony to support

plaintiff's case was a factor that influenced its decision to enter

judgment as a matter of law. To the extent that Gedman

herself brought to light deficiencies in her own departments

procedures, we see little need for the use of expert testimony

to confirm her own insights. As for drawing inferences from

the evidence regarding the adequacy of the investigatory

process, we again agree with Beck that "[t]o require expert

testimony to prove this fact is ridiculous. It is not beyond the

ken of an average juror to assess what a reasonable municipal

policymaker would have done with the information in this

case."

IV.

*12 In sum, we draw no conclusion as to whether

the evidence presented by Beck supports a determination that

Pittsburgh policymakers knew about and acquiesced in a

custom that tolerated the use of excessive force by officers of

the Police Department. We do conclude, however, that Beck

presented sufficient evidence from which a reasonable jury

could have inferred that the City of Pittsburgh knew about and

acquiesced in a custom tolerating the tacit use of excessive

force by its police officers. This evidence sufficiently

precluded the entry of judgment as a matter of law by the

district court.

Accordingly, the judgment of the district court will be

reversed and the case remanded for further proceedings

consistent with this opinion.

Costs taxed against the City of Pittsburgh, appellee.

App. 21

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBERT G. BECK,

Plaintiff,

v.

THE CITY OF PITTSBURGH,

Defendant.

Civil Action No. 94-156

OPINION

Entered: May 11, 1995

THE COURT: I have read all these cases. |

have read, I bet, 50 more than either of you have read. I have

not yet found a case that said statistics in and of themselves

prove this. In fact, I have found several cases that say exactly

the opposite. And it seems to me that would make sense. If

we were to take statistics that show that of a large number of

complaints there were only a small number of disciplinary

actions taken and transposed those statistics into sufficient

proof to show deliberate indifference on the part of the

municipality and the use of excessive force by police officers,

I think that it would be absurd. I think it would be absurd.

There are many reasons why a citizen might file a complaint

about a use of excessive force. Or there might be no reason at

all why a citizen files a complaint. But to say that the filing

automatically gives the allegation merit is just not something

that I think follows. You know, basic common sense tells you

that.

MR. FITCH: Your Honor, I am not saying

that the mere filing of the complaint is what proves that the

App. 22

Pen ee eT ee Oe Meee 7 |

Fe Oe ne | >) a Pee) ne SR 7. be oe enen yee wa Se ay A,

City had notice that Officer Williams had dangerous and

unconstitutional propensities. But what I am saying is that the

combination of all of those complaints is what proves that, and

that they had notice before this particular incident happened.

They should have done something. I think it is for the jury to

decide whether or not the similarity of - - -

THE COURT: What you are saying is what

they did wasn't sufficient. That is what you are saying, what

they did wasn't sufficient.

MR. FITCH: Yes. And I am saying they had

an inadequate investigation.

THE COURT: Where is the evidence of the

inadequacy of the investigation? Just show me. Because

every other case I have read, there is evidence.

MR. FITCH: Well, the facts. He was beaten

in the same way that the other three people before him were

treated. Well, there were four. There was Templeton then

there was Yancey. And he said - -

THE COURT: You are saying that is your only

evidence, Mr. Beck's testimony.

MR. FITCH: No, I am saying - - well, the

four complaints that were brought and either not sustained,

found unfounded, or exonerated. That therefore after that

number comes in that close proximity of time and they don't

do anything about it, that is acquiescence. It is deliberate

indifference, and it is acquiescence. I think the jury could find

that based on that evidence.

THE COURT: Mr. Schulberg, any response?

MR. SCHULBERG: Yes. The only thing I would

like to say, Judge, is that I don't believe | am making a

ludicrous argument here on behalf of the city. And as far as

public policy is concerned, I do think that based upon just raw

numbers of complaints being filed against an officer would

cause the City of Pittsburgh to lose a great number of police

officers. Merely because some citizen has filed a complaint

doesn't mean that we then got to watch over them. That is

App. 23

|

why we have this investigative branch in place. And I am not

going to walk out of here - - if I am successful on this motion

or successful in this trial, | am not going to walk out of here

with my head low because I have gotten out of here on some

technicality. I think the City of Pittsburgh is entitled to

judgment as a matter of law because we have not done

anything unconstitutional here. We have the procedures in

place. They work, and they were successful.

MR. FITCH: Well, Your Honor, I think

based on what he just said, it is for the jury to determine

whether they were successful and whether they worked in this

instance. I just have on other, Judge Sloviter's concurrence. |

think the - -

THE COURT: In Simmons?

MR. FITCH: Yes. I think that is a recent

Third Circuit case which lays out or somewhat lays out and

shows that there is a difference in terms of how the various

judges on the third circuit look at this. I mean, Judge Sloviter

says the failure of a municipality to fulfill the duty to guard

against foreseeable harm when its officials have knowledge of

circumstances making that harm likely is clearly reckless and

culpable conduct.

THE COURT: Let me just say this about

Simmons because now that we are on Simmons, I had a very

wise professor who used to say the facts make it law. In

Simmons the statistics were considered by the court in

conjunction with four witnesses. First of all, there was a

police officer who was responsible for drafting department

policy and procedure. He testified that there was absolutely no

policy at all in place in the City of Philadelphia dealing with

training and suicide prevention. And there was another police

officer, the defendant, as I believe, the individual defendant

police officer who testified that he had received no training at

all in suicide prevention with regard to his duty. Then there

were two expert witnesses. One of the experts said that the

deceased inmate, the one who had committed suicide, was

App. 24

clearly a predictable suicide candidate. And this expert

testified his death was the product of deliberate indifference on

the part of the City of Philadelphia. That was expert testimony

given in that case. The second expert testified about the

correlation between inmates incarcerated for public

intoxication who committed suicide and further said that the

deceased inmate was a prime candidate to be a suicide given

the circumstances under which he was incarcerated, and,

again, the product of deliberate indifference on the part of the

City of Philadelphia. So Judge Sloviter's comments | totally

agree with, but there is all kinds of evidence to support the

inadequacy of what the city did. We have got expert

testimony as well as police testimony.

MR. FITCH: But, Your Honor, she was

responding to those requirements. She was responding to

Judge Becker's statements making it a much higher standard to

meet. She was saying it shouldn't be that high a standard.

That's what I understand her - -

THE COURT: She never said you don't need

that expert testimony.

MR. FITCH: I think it is implicit in what I

have just quoted to you, Your Honor.

THE COURT: A couple of the cases I want to

review just briefly with you on the record. Herrera, for

instance, the testimony was that the city council was given

citizen complaints about police misconduct. The evidence

introduced in the case was that there was no response, no

action at all. There was nothing done with complaints, not a

thing, in spite of the fact that there was a county attorney's

report critical of department policy which was just ignored by

the city. So that is the kind of evidence that existed in Herrera.

In Fletcher versus O'Donnell the evidence was that

there was absolutely no investigation of the citizen complaints.

The complaints were received and nothing more was done.

App. 25

In Harris versus City of Pagedale the evidence was that

the city failed to even receive, let alone investigate or act on a

complaint.

In Bielevicz verses Dubinon the evidence was that the

police department procedures were inadequate. Someone got

up on the stand and said these procedures are inadequate to

address a known problem. There was also further evidence in

that case about the failure to even receive complaints

concerning public intoxication arrest.

In Brandon versus Hart cited by you, Mr. Fitch, the

Supreme Court case, in the district court level there was

evidence again somebody came up and said these police

department procedures are sufficient for discovering police

misconduct.

In Parker verses District of Columbia no discipline was

imposed even though there was an internal order from the

police department recommending that discipline be imposed.

MR. FITCH: I guess I am saying that there

was no adequate investigation, Your Honor. I know I have

Said that before, so I guess I don't have to Say that again. It

seems to me that if you allow them to do their own

investigation and hide behind that, that doesn't - -

THE COURT: I think you could have

conducted discovery or produced a witness to say that, but you

didn't. And I think that is fatal to your case. | do.

You would have the jury infer that because Williams

was never disciplined, the city tacitly authorized the use of

excessive force. But I think the law is clear that the jury can't

make that assumption. Judge Cohill has an opinion in this

court saying that isolated events will not establish a pattern of

abusive behavior. Recitation of the number of complaints

filed is not sufficient to prove a policy or custom. Policy or

custom has to be established by knowledge and acquiescence.

I think absent any evidence of a failure to investigate or

evidence of a less than meaningful investigation or less than

meaningful response to complaints of excessive force is fatal.

App. 26

OO

There is a case that is almost exactly like this case

from the Northern District of Illinois, Bryant verses Whalen,

759 Fed Sup 410. The City of Chicago has an OPS system

identical to the one in this case. They had a civilian neutral

investigative agency. The complaints were disposed of by

either being sustained, not sustained, unfounded or exonerated.

In that case the plaintiff alleged excessive use of force by two

police officers. He presented statistical evidence by way of

affidavit because this was done on summary judgment, but in

the City of Chicago only a small percentage of excessive force

compiaints are found to have merit. Also, the two police

officers in that case had prior excessive complaints. One had

39. The other had five. All of them were not sustained. The

court said in the absence of any evidence that the OPS findings

and prior incidents were wrong or that the investigations were

perfunctory, the claim cannot go forward. The court held that

the statistics in themselves were proof of nothing, much less

than deliberate indifference. And the fact that there was no

evidence of a wrong result reached on any prior OPS

investigation or the existence of a perfunctory investigation

was fatal to plaintiff's complaints.

That was, of course, decided on a summary judgment

motion, and most of these cases were decided on summary

judgment. But, again, there was no summary judgment

motion filed here.

MR. FITCH: Well, had there been, Your

Honor, I would have had the opportunity to engage an expert,

if there had been, if it had been raised at that point in time. The

city was well aware of what I was arguing. And, you know,

based on the pretrial statement, they knew how we intended to

prove this. They could have moved for summary judgment.

Of course, I would request that we continue this case so that I

can get the expert testimony because I think that would be

appropriate under Rule 15, 15-B. I think I have seen a case,

but to be honest with Your Honor, I can't recall, that says you

can continue a case.

App. 27

THE COURT: I think you have rested. Mr.

Fitch. I think it is clear that it is not time to continue a case.

MR. FITCH: Okay.

THE COURT: This doesn't - - it's not because

I think there is a claim here or I think that there isn't a claim. |

don't know. But I think I have looked for three days now since

you came in and said on Monday morning or whenever that

you were going to drop your claim against Officer Williams

and pursue the claim against the city. Looking at the

complaint and seeing there was no allegation of policy,

custom, I have been looking for days to find something that

Suppors your position, and I have been unable to do so. |

think that you may have established knowledge of or notice of

some potential problem on the part of the city by Officer

Williams, but the record is absent of any proof of

acquiescence, and I don't think there is anything that I have to

do except grant Mr. Schulberg's motion and determine as a

matter of law that the evidence presented by’ the plaintiff is

insufficient for a reasonable jury to find for the plaintiff

against the City of Pittsburgh. So I am granting defendant's

motion for judgment as a matter of law, and I am going to

dismiss the jury. And I don't think I have to do that on the

record by bringing them back in. I can just put it on the record

that is my finding in this case.

MR. SCHULBERG: Do you want us to stay?

THE COURT: Unless you want to. It is not

necessary. I think it is all right to be on the record.

MR. SCHULBERG: Thank you.

MR. FITCH: Thank you, Your Honor.

App. 28

IN THE UNITED STATES COURT OF APPEALS,

FOR THE THIRD CIRCUIT

Robert BECK,

Appellant,

v.

CITY OF PITTSBURGH,

Appellee.

No. 95-3328.

Entered: October 24, 1996

Present: SLOVITER, Chief Judge, BECKER,

STAPLETON, MANSMANN, GREENBERG,

SCIRICA, COWEN, NYGAARD, ALITO,

ROTH, LEWIS, McKEE, and ROSENN, *

Circuit Judges

The petition for rehearing filed by

Appellee, city of Pittsburgh,

in the above-entitled case having been submitted to the judges

who participated in the decision of this court and to all the

other available circuit judges of the circuit in regular active

service, and no judge who concurred in the decision having

asked for rehearing, and a majority of the circuit judges of the

circuit in regular active service not having voted for rehearing

by the court en banc, the petition for rehearing is denied.

By the Court

/s/ Slovi

Chief Judge

° Hon. Max Rosenn, Senior Circuit Judge, as to panel rehearing

only.

App. 29