Alanda Forrest v. Kevin Parry

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-4351
_____________
ALANDA FORREST,
Appellant
v.
KEVIN PARRY, PHM; Camden City Police Officer; JASON
STETSER, PHM; Camden City Police Officer; CITY OF
CAMDEN; CITY OF CAMDEN DEPARTMENT OF
PUBLIC SAFETY; WARREN FAULK; PAULA DOW;
DEPARTMENT OF THE TREASURY, State of New Jersey;
JOHN DOES I-IV
______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. Action No. 1-09-cv-01555)
District Judge: Honorable Robert B. Kugler
______________
Argued November 15, 2018
Before: GREENAWAY, JR., BIBAS, and FUENTES, Circuit
Judges.
(Filed: July 10, 2019)
______________
Elizabeth A. Rose [ARGUED]
Sullivan & Cromwell
1700 New York Avenue, N.W.
Suite 700
Washington, DC 2006
Counsel for Appellant
John C. Eastlack, Jr.
Daniel E. Rybeck, [ARGUED]
Georgios Farmakis
Weir & Partners
20 Brace Road
Suite 200
Cherry Hill, NJ 08034
Lilia Londar [ARGUED]
Weir & Partners
215 Fries Mill Road
2nd Floor
Turnersville, NJ 08012
Counsel for Appellee
_______________
OPINION
_______________
GREENAWAY, JR., Circuit Judge.
In Beck v. City of Pittsburgh, we were faced with what
we deemed “a question of considerable interest in [a] period of
alleged rising police brutality in major cities across the
2
country”—what is sufficient evidence from which a jury can
infer that a municipality adopted a custom of permitting its
police officers to use excessive force? 89 F.3d 966, 967 (3d
Cir. 1996). More than two decades later, the interest and
allegations persist, and, as it would appear, so does the
question.
The evidence in this case demonstrates that the Internal
Affairs Unit (“Internal Affairs”) of the since-disbanded
Camden Police Department was woefully deficient in
investigating civilian complaints about officer misconduct.
Citing Beck, the District Court found this to be sufficient.
However, the Court narrowed the case to only this evidence,
and, as a result, did not consider its significance when
combined with the non-Internal Affairs-related deficiencies in
Camden’s supervision and training of its police officers. This
occurred in two phases: first, the District Court unilaterally
divided Appellant, Alanda Forrest’s 42 U.S.C. § 1983municipal liability claim into three theories, labeled failure to
supervise through Internal Affairs, failure to supervise, and
failure to train, and, second, it then associated the evidence
pertaining to the deficiencies in Internal Affairs to only the first
theory.
Forrest argues that this resulted in errors at various
stages. At summary judgment, it resulted in a grant in favor of
Camden on the failure to supervise and train theories. On the
parties’ motions in limine, the Court improperly excluded
evidence that was material to the § 1983 theory that survived
summary judgment, and effectively awarded summary
judgment on the state law negligent supervision claim which it
had previously deemed triable. The jury instructions then
confused the relevant law regarding the sole surviving claim.
3
We agree. The artificial line, drawn by the District
Court, between what were ostensibly theories with largely
overlapping evidence resulted in erroneous rulings as to what
was relevant, as well as instructions as to what law the jury was
to apply. We will therefore reverse those aspects of the District
Court’s rulings that resulted in error, vacate part three of the
jury verdict, and remand for further proceedings consistent
with this opinion.
BACKGROUND
On July 1, 2008, two police officers kicked down
several doors of the residence at 1270 Morton Street, Camden,
New Jersey (“1270 Morton”). According to Forrest, his
encounter with the officers began with him pinned between the
wall and the door of the upstairs bedroom, which had been
kicked open. He heard his acquaintance, Kennedy Blevins,
twice scream, “why you beating on me[?]” Pl.’s Resp. Br. Ex.
64-a, at 105:10–17, ECF No. 144-76. One officer asked,
“where the drugs at?” and Blevins twice responded, “I don’t
know what you talking about.” Id.
Just a few hours earlier, Forrest had just finished work
for a housing contractor at a house across the street. He went
to 1270 Morton Street to speak with some acquaintances. He
and one such acquaintance—Shahede Green—had been on the
porch for a while when the two noticed a police car “coming
down the opposite direction” on a one-way street. Id. at 96:3.
It was around midnight at this point, so Forrest decided to call
a cab. The two went inside as Forrest waited for the cab to
arrive. While waiting, Forrest heard a number of sounds that
4
caused him to be alarmed, all of which culminated in what
sounded like someone kicking the front door.
At the time, the house was occupied by Forrest, Green,
Blevins, and two women. One of the women was known as
Hot Dog and the other, Kesha Brown. Forrest left Green and
Hot Dog downstairs, and went upstairs to Blevins’s room.
Brown was also upstairs, in bed in what is referred to as the
“front room.” Id. at 106:22–23. As Forrest began explaining
to Blevins that the front door had been kicked, Blevins’s
bedroom door was kicked open. Being near the bedroom door,
Forrest reflexively stepped back, and was immediately covered
by the door. Forrest remained pinned between the door and the
wall, fearing that he would immediately be shot by an officer
if he came out from behind the door.
Through the opening between the door and the wall,
Forrest heard Blevins’s screams. He saw another officer come
up the stairs, and moments afterwards, heard Brown scream.
Forrest saw the officer “doing something with his arm,” but
could not make out what the officer was doing. Id. at 107:9–
11. Eventually, the officer told Brown to go downstairs. The
officer then entered Blevins’s room, where Forrest, Blevins,
and the other officer were located. One of the officers swung
the door away from Forrest, and hit him in the face, knocking
him out. When Forrest regained consciousness, an officer,
later identified as Kevin Parry, was on top of him. Officer
Parry repeatedly punched Forrest in the face. Officer Parry
then handcuffed Forrest, and the officers—Parry and Jason
5
Stetser—dragged Forrest down the stairs. Forrest suffered a
laceration to his ear, facial bruising, and injuries to his knees.1
Officer Parry placed Forrest in the back seat of the
supervising Sergeant’s vehicle. Officer Parry proceeded to tell
Forrest that any drugs found in the house would be attributed
to him. The Sergeant, Dan Morris, then took Forrest to a
vacant parking lot, at which point Forrest asked “I’m bleeding
like crazy. Why you got me here? Why don’t you take me to
the hospital?” Pl.’s Resp. Br. Ex. 64-b, at 134:19–21, ECF No.
144-77. Sergeant Morris allegedly ordered Forrest to shut up,
and said, “my officers don’t plant drugs on people.” Id. at
136:25–137:2. Officers Parry and Stetser arrived soon after,
and Sergeant Morris passed something to Officer Parry.
1
Brown’s testimony corroborates the account provided
by Forrest, up to and including his being dragged down the
stairs. For example, she testified that Forrest was behind the
door of Blevins’s room when she walked into the upstairs
hallway, and that, after Forrest was hit in the face with the door,
one officer “beat him up pretty bad,” at one point “hit[ting] him
in the head with a flashlight[.]” Pl.’s Resp. Br. Ex. 44, at 44:3–
6, ECF No. 144-20. According to Brown, the officer hit
Forrest “so many times” that “[h]e urinated all over himself[,]”
“his face was swollen,” and “his head was full of blood.” Id.
at 45:6–11. Brown further testified that 1270 Morton belonged
to her, she was renting a room to Blevins, Green was her
boyfriend, and Hot Dog was visiting on the day of the incident.
And that she was “asleep and . . . naked from the waist down,”
when an officer entered the front room with a flashlight. Id. at
20:18–24.
6
Forrest was taken to the hospital to be treated thereafter.
When the attending nurse inquired as to what caused his
injuries, he simply told her that he tripped and fell. The officers
had previously warned that if Forrest said any more, they
would charge him with having assaulted five officers.
In the police report he prepared regarding this incident,
Officer Parry wrote that he had observed Forrest engaging in a
hand-to-hand drug transaction on the porch of 1270 Morton,
and that Forrest initiated the physical altercation with him and
Officer Stetser. Officer Parry testified to that version of events
before the grand jury and claimed that Forrest was in
possession of 49 bags of a controlled dangerous substance.
Forrest was subsequently charged with possession of a
controlled substance, possession with intent to distribute,
possession within one thousand feet of a school, and resisting
arrest.
Forrest filed a complaint with Internal Affairs on July
21, 2008. He alleged that he was assaulted by Officer Parry
“and his partner,” which resulted in “a cut ear [that] required
stitches, [bruises] on [his] knees, pain in [his neck], and
headaches.” Def.’s Mot. Ex. 33, ECF No. 138-4 at 59. The
complaint went nowhere, so he wrote a follow-up letter two
months later. The letter reiterated the assault charges and
indicated that Internal Affairs had yet to respond to Forrest’s
initial complaint. Forrest ultimately pleaded guilty to
possession with intent. He was sentenced to three years and
eighteen months in a New Jersey state prison.
Forrest served eighteen months of that sentence. He
was released when Officer Parry later admitted that he had
7
falsified the police report regarding the incident with Forrest.
Specifically, Sergeant Morris, and Officers Parry and Stetser
were three of five officers that were charged with, and pleaded
guilty to, conspiracy to deprive individuals of their civil rights.
Officers Stetser and Parry admitted to filing false reports,
planting drugs, and lying under oath in front of grand juries, at
suppression hearings, and at trials. The investigation into their
activities resulted in judgments vacated, charges dismissed, or
pending indictments forfeited in over 200 criminal cases. As
to Forrest in particular, Officer Parry admitted that he did not
observe a hand-to-hand drug transaction, but falsely included
that in the report he had prepared.2
2
Camden emphasizes that Forrest nonetheless admitted
that his plea was not coerced, but rather free and voluntary.
Appellees’ Br. 7. In addition, at argument, it represented that
there remains a dispute as to whether Forrest “was engaged in
drug possession.” Oral Arg. Audio at 23:30–24:10. Forrest
puts forth that this may not have been the first time that he
freely and voluntarily entered a guilty plea to an offense he
believed he did not commit. He testified that, in those
circumstances, he does not like “putting [his] life in somebody
else’s hand” and that he would much rather take his own
chances. Pl.’s Resp. Br. Ex. 64a, at 60:15–20, ECF No. 144-
76. Thus, if he thinks he is “getting another break,” he takes
the plea. Id. at 60:20–22.
He attributes this approach to when he chose to go trial
in a case brought against him when he was a minor. He
testified that sometime in 1971, two police officers lured him
from the porch of his mother’s home in Camden, accused him
of having committed a robbery, and arrested him. He did not
take a plea, but “went all the way to court with it.” Pl.’s Resp.
8
While still in prison, Forrest brought this action in
federal court in the District of New Jersey. By April 2015, his
was one of approximately 89 lawsuits brought against the City
of Camden (“Camden”) based on the actions of the above-
referenced officers. Camden proposed a global settlement for
these suits,3 but Forrest opted out. He moved forward with his
claims, which included a municipal liability claim under 42
U.S.C. § 1983, a conspiracy claim under 42 U.S.C. § 1985(3),
and a state law claim for negligent supervision.4 Camden
moved for summary judgment on all counts in March of 2015.
Br. Ex. 64, at 37:4–5, ECF No. 144-75. He was found guilty
and ended up serving seven months in a juvenile correctional
facility before he was told that a mistake had been made.
Forrest ultimately laments the situation, stating, “I think that
might have damaged me.” Id. at 38:23.
3
It has no bearing on the analysis in this case, but
Camden also disbanded its police department, and formed a
new one. See, e.g., Kate Zernike, To Fight Crime, a Poor City
Will Trade In Its Police, https://www.nytimes.com/2012/09/2
9/nyregion/overrun-by-crime-camden-trades-in-its-police-
force.html.
4
Forrest’s conspiracy claim did not survive summary
judgment, and he does not mention this claim in his opening
brief. Any argument as to this claim is therefore waived. See
United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It
is well settled that an appellant’s failure to identify or argue an
issue in his opening brief constitutes waiver of that issue on
appeal.” (citations omitted)).
9
Despite the breadth of Camden’s motion, its brief only
mentioned Forrest’s municipal liability claim under § 1983.
Forrest responded in kind, with a singular focus on his
§ 1983 claim. His brief opposing summary judgment divided
that claim into two: first, he argued that, through its policy or
custom of permitting officers to be “essentially unsupervised,”
Camden was “the moving force” behind the constitutional
deprivation of his rights, Pl.’s Resp. Br. 30, ECF No. 144; and
second, that Camden’s failure to train and supervise their
officers constituted “a deliberate indifference to the rights of
persons those officers would come into contact with,” id. at 34.
The evidence he cited reflects the police department’s troubled
history in the years leading up to Forrest’s arrest, and is best
described in six segments, all of which pertain to Camden’s
supervision and investigation of its officers.
First, the New Jersey Attorney General (“NJAG”) had
been commissioned to conduct a review of Camden’s police
operations on five separate occasions prior to Forrest’s arrest,
in 1986, 1996, 1998, 2002 and, most recently, 2006. The
NJAG twice appointed the Camden County Prosecutor to
oversee the police department, once in 1998, and the other in
2003. One of the NJAG reports warned that Camden’s failure
to commit manpower and resources to proactively managing
police misconduct would place it “in the position of failing to
adequately protect the civil rights of its citizens and sets the
stage for significant civil liability.” App. 128. More
specifically, with a backlog of over 350 uninvestigated
complaints in 2002, the same report expressly cautioned:
The number of open investigations is simply
unacceptable and overwhelms whatever progress
the unit may have accomplished since our last
10
review. . . . The failure to immediately address
the complaint backlog and, over the longer term,
ensure that the backlog does not reoccur on a
regular basis, could lead one to conclude that the
City of Camden and the police department are
deliberately indifferent to the conduct of its
police officers and the civil rights of its citizens.
App. 123 (emphases added).
Second, Camden did not address the backlog. Rather, it
maintained an extensive, recurring backlog in the years leading
up to Forrest’s arrest. The backlog was as high as 487
complaints in 2004, and 461 in 2005, and, though declining,
remained in 2006 and 2007, at 205, and 175, respectively. As
to complaints regarding excessive force, which Forrest’s
complaint and follow-up letter alleged, Camden was
investigating and closing a mere fraction, and sustaining an
even smaller number. Taken together, Camden sustained
about 1% (7 of 622) of the complaints alleging serious
misconduct from 2004 to 2008, consisting of excessive force,
improper arrest, improper search, and differential treatment.5
Third, the evidence suggests that the investigations that
were conducted were seriously deficient. A representative
5
Excluding Forrest’s, there were six complaints lodged
against Officer Stetser in that span, including one for excessive
force, one for improper arrest, and one for
harassment/improper detainment. Officer Parry was the
subject of two complaints during the same time frame, one of
which does not appear on the mechanism used to track such
complaints.
11
example is an Internal Affairs investigative memorandum
where the investigator did not interview witnesses, but rather
solely based the determination on the incident reports authored
by the officers involved. The memorandum derived from an
investigation into a complaint filed against Officers Stetser and
Parry about a year before Forrest’s arrest and which contained
allegations that were nearly identical to Forrest’s. Indeed, the
complainant alleged the officers planted drugs on him. The
Internal Affairs investigator concluded that this complaint was
“unfounded,” which means that the complainant was “lying,
more or less.” Pl.’s Resp. Br. Ex. 48, at 30:11–15, ECF No.
144-27. This finding was premised on the incident report
prepared by Officer Parry, which stated that he and Officer
Stetser observed the complainant engage in a drug transaction
in an alleyway. The investigation into this complaint revealed
that two similar complaints had been filed against Officer
Stetser, and that the incident report for both—prepared by
Stetser—also stated that each complainant was separately
observed engaging in a drug transaction.6
The fourth segment is the testimony of former high
officials in the police department, including the former Chief
of Police, a former Deputy Chief, the former Supercession
Executive,7 and the Sergeant who took over Internal Affairs in
6
The investigation into these complaints was prompted
by a request from the complainant’s lawyer to access the other
two complaints.
7
The NJAG appointed the Camden County Prosecutor
to “supercede the management, administration and operation”
of the police department in 2003. App. 103. The Camden
12
2009. Their combined testimony reflects that, in the years
leading up to and including the year of Forrest’s arrest, there
were deficiencies with how the department tracked officer
whereabouts, there were no performance reviews (contrary to
recommendations by the 2006 NJAG report) and the sergeant-
to-officer ratio was two to three times more than
recommended.
Specifically, John Scott Thomson (“Chief Thomson”),
who became Chief of the now-defunct Camden Police
Department in 2008 and is now Chief of the newly-established
Camden County Police Department, testified. He explained
that, prior to his taking over the department and at the time of
Forrest’s arrest, the police department “relied upon what you
wrote on your log to determine where you were” and that “an
officer could [theoretically] write anything they wanted down
[, since] there just wasn’t a checks and balance (sic) on it.”
Pl.’s Resp. Br. Ex. 42-a, at 57:11–13, 65:5–8 ECF No. 144-16.
The Supercession Executive testified that he was not aware of
another major police department that did not have a
performance evaluation system. Yet despite his and the
NJAG’s recommendations, Camden failed to implement such
a system throughout the entirety of his term.
Edward Hargis, who was Deputy Chief from 2004
through January of 2008, doubled down on that testimony,
stating, “[a]fter [the NJAG 2006 report] was issued, we started
County Prosecutor later installed a Supercession Executive to,
inter alia, manage the day-to-day activities of the police
department, and represent the County Prosecutor in overseeing
all department activities. The Supercession Executive was
installed in 2006 and remained until 2008.
13
designing a performance evaluation [system], but then it did
not become much of a concern.” Pl.’s Resp. Br. Ex. 40, at
35:15–36:17, ECF No. 144-8. Along those lines, the Sergeant
who took over Internal Affairs in 2008 testified that the officer-
to-sergeant ratio is supposed to be five to seven officers to a
sergeant. Yet, between 2004 and 2009, the Supercession
Executive stated that “they were woefully over in number” in
some commands, with “12, 15 plus to a sergeant.” Pl.’s Resp.
Br. Ex. 41-b, at 137:1–6, ECF No. 144-13.
Chief Thomson ultimately commented that one of the
most pressing problems facing the department when he took
over in 2008 was a “culture of apathy and lethargy”—by which
he meant that there were no “mechanisms of accountability,”
and, as such, “CPD was an organization in which you could
have the greatest cop in the world or the laziest cop in the world
. . . .” Pl.’s Resp. Br. Ex. 41-c, at 37:23–39:4, ECF No. 144-
15.
Fifth, Officers Parry and Stetser were aware of the
alleged inadequacies in supervision. Officer Parry explained
that he continued to engage in illicit behavior even when
Sergeant Morris could no longer cover for him as his
supervisor. When asked whether he was concerned that a
Sergeant who was not a party to the conspiracy would
“discover what was going on,” Officer Parry responded, “No.
. . . Because, like I said, nobody seemed to care.” Pl.’s Resp.
Br. Ex. 68, at 36:2 to 37:7, ECF No. 144-87. He noted that, in
fact, supervision was worse after Sergeant Morris stopped
supervising him, stating:
Because the more sergeants had to do, the more
that—you know, the more paperwork that had to
be completed for our squad, the less they were on
14
the street and there was no supervision for them
. . . [B]ecause before if you were on regular
patrol, if you were at a job, a sergeant was on the
street with you. They would show up a lot of
times. Sergeants were getting so, you know,
backed up with paperwork, they were really
never around. . . . These guys, like I said, they
would take their liberties because they knew that
nobody was going to be around and they had to
answer no questions.
Id. at 28:22 to 29:17. And when Sergeant Morris was their
supervisor, Officer Parry testified that he and Officer Stetser
had no concern about their misconduct, as it was very rare that
a Captain or Lieutenant would show up or review their reports.
Nor did concern about complaints being filed with Internal
Affairs ever cross their mind. Worse yet, Officer Stetser also
testified that, Lieutenant Pike, his supervisor at one point,
“most likely” knew that he was writing false reports and
accepted them. Pl.’s Resp. Br. Ex. 54-a, at 40:16–18, ECF No.
144-43.
Sixth, Officer Vautier, a fellow officer at the time,
testified about two incidents in which Officer Stetser engaged
in questionable behavior in front of his superiors without
reprimand. The first took place in Spring of 2007 when Officer
Stetser put drugs in a Lieutenant’s bag in front of the entire
squad as a prank. According to the officer, the Lieutenant
discovered this and did nothing. The officer also testified that
he reported this, as well as that Officer Stetser bragged about
passing out drugs at parties, to a Sergeant within Internal
Affairs. The Sergeant responded by confirming that there had
been other complaints about Officer Stetser’s passing out drugs
at parties, but never wrote anything down and kept the report
15
off the record. The second incident was in May of 2007, and
involved a Sergeant who conducted an integrity test on Officer
Stetser, whereby he placed a precise amount of an illegal
substance in a bag and handed it to Officer Stetser to turn it in
before the end of the day. Officer Stetser failed—he was given
45 bags and only turned in 30.
*****
Camden prevailed. The District Court granted partial
summary judgment. It divided Forrest’s § 1983 claim into
three theories that it devised. Each theory was then associated
with a specific subset of the above segments, without
consideration of the segments’ combined impact on any
particular theory. The result is that, along with Forrest’s state
law negligent supervision claim, only one of the theories was
considered to have the evidentiary support necessary to survive
summary judgment. This surviving theory was then narrowly
framed as a failure to supervise through the Internal Affairs
process, which again reflected the Court’s view that
supervision-related deficiencies that were apparent elsewhere
were not relevant to the incident with Forrest.
The jury returned a verdict in favor of Camden on the §
1983 theory that was presented to them. In parts one and two
of the verdict form, it unanimously found that Officers Stetser
and Parry violated Forrest’s Fourth Amendment right to be free
from excessive force and to be free from false arrest. But, in
part three, the jury found that Forrest had not proved that these
deprivations of his constitutional right resulted from Camden’s
actions.
Forrest appealed.
16
DISCUSSION8
Forrest challenges the District Court’s rulings at various
stages of the underlying proceedings. At summary judgment,
he argues that the District Court erred in granting Camden’s
motion on any portion of his § 1983 claim. Regarding the
Court’s rulings at the motions in limine hearing, he argues that
it effectively awarded summary judgment on his state law
negligent supervision claim, and improperly excluded
evidence that was material to the remaining portion of his §
1983 claim. Lastly, Forrest contends that the Court issued jury
instructions that were erroneous and prejudicial as to the §
1983 claim.
We agree that there were several errors below,
beginning with some of the District Court’s rulings at summary
judgment. Indeed, the Court unilaterally divided Forrest’s
claim into three theories it devised—failure to supervise
through the Internal Affairs process, failure to supervise, and
failure to train. To support that division, the District Court
considered the Internal Affairs-related evidence—consisting
of segments one through four—as only supporting the first
theory. In turn, the first theory was the only that survived
summary judgment. We conclude that aspects of all three
theories should survive when the evidence, consisting of
segments one through six, is considered in its entirety.
Moreover, the District Court’s subsequent efforts to exclude
the segments that supported the theories that did not survive
summary judgment resulted in erroneous evidentiary rulings as
8
The District Court had jurisdiction under 28 U.S.C. §§
1331, 1367(a); we have jurisdiction over appeals from all final
decisions by the District Court under 28 U.S.C. § 1291.
17
to what was relevant, as well as incorrect instructions as to
what claims the jury was required to consider and the requisite
legal elements. We will therefore reverse the portions of the
District Court’s summary judgment and evidentiary rulings
that resulted in error, vacate part three of the verdict rendered
by the jury, and remand for further proceedings.
Summary Judgment
Standard
Our review of a district court’s decision at summary
judgment is plenary, and we apply the same standard as the
District Court. See Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d
Cir. 2014). We determine whether the moving party has
established that there is no genuine dispute of material fact and
is entitled to judgment as a matter of law. See Wharton v.
Danberg, 854 F.3d 234, 241 (3d Cir. 2017) (citing Fed. R. Civ.
P. 56(a)). We view all facts in the light most favorable to the
non-moving party and draw all inferences in that party’s favor.
Id. The elements of the underlying claim are central to our
determination, as a fact is only material if it might affect the
outcome of the suit under the governing law. See
Scheidemantle v. Slippery Rock Univ. State Sys. of Higher
Educ., 470 F.3d 535, 538 (3d Cir. 2006). We therefore begin
our discussion with an examination of the underlying elements
of the species of § 1983 claim that Forrest presented to the
District Court.
As we recently reiterated, a § 1983 claim against a
municipality may proceed in two ways. Estate of Roman v.
City of Newark, 914 F.3d 789, 798–99 (3d Cir. 2019). A
plaintiff may put forth that an unconstitutional policy or
custom of the municipality led to his or her injuries, id. at 798
18
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978)), or that they were caused by a failure or inadequacy by
the municipality that “reflects a deliberate or conscious
choice,” see id. (internal quotation marks omitted) (quoting
Brown v. Muhlenberg Twp., 269 F.3d 205, 215 (3d Cir. 2001)).
The latter avenue arose in the failure-to-train context, but
applies to other failures and inadequacies by municipalities,
including those related to supervision and discipline of its
police officers. Id. at 798–99 (“[Plaintiff] has not pled a
municipal policy . . . [but] has . . . adequately pled that the City
failed to train, supervise, and discipline its police officers.”).
Plaintiffs that proceed under a municipal policy or
custom theory must make showings that are not required of
those who proceed under a failure or inadequacy theory, and
vice versa. Notably, an unconstitutional municipal policy or
custom is necessary for the former theory, but not for the latter,
failure or inadequacy theory. Id. at 798 (“[F]or failure-to-train
claims . . .[,] a plaintiff need not allege an unconstitutional
policy.”) (citing Reitz v. County of Bucks, 125 F.3d 139, 145
(3d Cir. 1997)). This difference can be significant because a
plaintiff presenting an unconstitutional policy must point to an
official proclamation, policy or edict by a decisionmaker
possessing final authority to establish municipal policy on the
relevant subject. And, if alleging a custom, the plaintiff must
evince a given course of conduct so well-settled and permanent
as to virtually constitute law. Id. On the other hand, one whose
claim is predicated on a failure or inadequacy has the separate,
but equally demanding requirement of demonstrating a failure
or inadequacy amounting to deliberate indifference on the part
of the municipality. See id. This consists of a showing as to
whether (1) municipal policymakers know that employees will
confront a particular situation, (2) the situation involves a
19
difficult choice or a history of employees mishandling, and (3)
the wrong choice by an employee will frequently cause
deprivation of constitutional rights. Carter v. City of
Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999).
Although we have acknowledged the close relationship
between policy-and-custom claims and failure-or-inadequacy
claims, Barks v. First Corr. Med, 766 F.3d 307, 316–17 (3d
Cir. 2014), the avenues remain distinct: a plaintiff alleging that
a policy or custom led to his or her injuries must be referring
to an unconstitutional policy or custom, and a plaintiff alleging
failure-to-supervise, train, or discipline must show that said
failure amounts to deliberate indifference to the constitutional
rights of those affected. That is not to say that the plaintiffs
cannot be one and the same, with claims sounding in both.
They can. See id. at 798–99 (“[Plaintiff] has sufficiently
alleged a custom of warrantless or nonconsensual searches . . .
[and] has also adequately pled that the City failed to train,
supervise, and discipline its officers.”).
Analysis
With that understanding, recall that, in his brief
opposing summary judgment, Forrest purported to divide his §
1983 municipal liability claim into two theories. One alleged
that a policy or custom of “essentially unsupervised” officers
was the “moving force” behind the constitutional deprivation
of his rights. Pl.’s Resp. Br. 30, ECF No. 144. The other
alleged that Camden’s failure to train and supervise their
officers constituted deliberate indifference to the rights of
individuals with whom the officers would come into contact.
Id. at 34.
20
The District Court did not adopt that framing, and
instead further divided the claim into three separate theories.
It described them as, first, “that [Internal Affairs] was
inadequate and provided no accountability for Stetser and
Parry[,]” second, “that the City’s supervisory structure and
inadequate monitoring system left Stetser and Parry
unsupervised[,]” and third, “that Stetser and Parry received
inadequate training because training about how to recognize
and eradicate excessive force and misconduct was necessary.”
App. 14 (internal quotation marks omitted). Further, the
District Court enunciated the legal requirements for all three
theories as that Forrest had to demonstrate a policy or custom
as to the alleged failures or inadequacies and that said policy
or custom amounted to deliberate indifference.9
9
In setting forth the law, the District Court purports to
rely on our decision in Beck. See App. 7 (citing Beck, 89 F.3d
at 972, for the proposition that, “[w]hile the Supreme Court
originally fashioned ‘the deliberate indifference’ doctrine in
the context of a city’s alleged failure to train its police officers,
the Third Circuit has since adopted this standard in other policy
and custom situations.” (emphasis added)). The portion of
Beck cited by District Court quotes language from our decision
in Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir.
1991), which references a policy or custom of deliberate
indifference. However, contrary to what the District Court’s
opinion suggests, neither Beck nor Simmons established a
species of § 1983 municipal liability predicated on the
existence of an unconstitutional policy or custom of or
amounting to deliberate indifference. Beck involved a claim
regarding an unconstitutional policy or custom of tacitly
authorizing police officers to use excessive force in violation
21
Forrest does not challenge the District Court’s ruling
regarding the first theory—that a policy or custom of
inadequate supervision through Internal Affairs amounted to
deliberate indifference—as it survived summary judgment.
But he does take issue with how he was allowed to proceed on
that claim. We take up those challenges in subsections (B),
(C), and (D). We now turn our focus to Forrest’s challenges to
the District Court’s ruling regarding his failure-to-supervise
and failure-to-train theories.
At the outset, we emphasize that, properly considered,
there are two ways in which Forrest’s § 1983 claim against
Camden may have proceeded: first, that Camden’s policy or
custom of permitting excessive force, false arrest, or other
constitutional violations led to Forrest’s injuries; and/or
second, that Camden’s failure to supervise, discipline, or train
its officers amounted to deliberate indifference to the rights of
the individuals with whom those officers would come into
contact. As a result, the bare notion that a custom or policy of
“essentially unsupervised” officers led to Forrest’s injury has
no basis in law. See Pl.’s Resp. Br. 30, ECF No. 144. We
therefore consider his claim as sounding in the latter—that
Camden’s failure to supervise, investigate, and train its officers
amounted to deliberate indifference.
Despite incorrectly announcing that Forrest had to
demonstrate an unconstitutional policy or custom of, or
of the Fourth Amendment. Beck, 89 F.3d at 968. Similarly,
Simmons involved an alleged policy that violated the Eighth
Amendment—that is, one of “deliberate indifference to the
medical needs of intoxicated and potentially suicidal
detainees.” Simmons, 946 F.2d at 1064.
22
amounting to, deliberate indifference, the District Court treated
Forrest’s claim as we will: it properly conducted a deliberate
indifference analysis for each alleged failure on the part of
Camden. However, it divided up the quantum of evidence to
the detriment of Forrest’s failure-to-supervise theory and
adopted an unduly narrow view of the evidence supporting
Forrest’s failure-to-train theory.
Per the evidentiary division, the lion’s share of the
evidence we laid out in Section I.C.—four out of the six
segments—was associated with only the first theory, which the
Court labeled “Failure to Supervise, Investigate, and
Discipline.” App. 16. This consisted of the evidence that
Internal Affairs had substantial backlogs and was not
adequately investigating complaints in the years leading up to
Forrest’s arrest, as well as the evidence of a lack of adequate
supervision based on the absence of a system of progressive
discipline and any mechanism to track officer performance.
Despite its overlap with the first theory, the second
theory, labeled “Failure to Supervise,” App. 21, was limited to
the evidence pertaining to Camden’s failure to track officer
whereabouts, “CPD’s supervisory structure, and generally
inadequate supervision of its officers’ day-to-day activities . . .
.” App. 21–22. The District Court did not mention the
evidence suggesting that the particular officers at issue
engaged in illicit conduct knowing that that they were not
being supervised, and the testimony regarding the two
incidents that should have alerted the officers’ superiors but did
not. Nor did the Court consider how, if taken together, the
quantum of evidence laid out in Section I.C. supported a
failure-to-supervise theory. Camden’s motion was ultimately
denied as to the “Failure to Supervise, Investigate, and
23
Discipline” theory, but granted as to the “Failure to Supervise”
theory. App. 21–22.
A different, yet equally problematic narrowing occurred
with regard to the third theory, labeled “Failure to Train.” App.
22. The District Court construed this theory as merely focusing
on the inadequacies in Camden’s training program, as it
pertained to Officers Stetser and Parry. See App. 22–23
(stating, “Plaintiff has not adequately demonstrated that the
training Parry and Stetser received was so deficient as to reflect
[Camden]’s deliberate indifference to constitutional rights.”).
It then granted Camden’s motion.
We will reverse the District Court’s grant of summary
judgment on the failure to supervise theory, and, to the extent
that it overlooked Forrest’s allegations regarding the training
supervisors received, also its ruling on the failure to train
theory.
Failure to Supervise
The evidence presented by Forrest may convince a
reasonable jury that Camden’s failure to supervise and
discipline its officers amounted to deliberate indifference to the
rights of individuals with whom those officers would come into
contact. The record would support a finding that Camden’s
policymakers knew that their officers would require
supervision, that there was a history of officer supervision
being mishandled, and that, in the absence of such supervision,
constitutional violations were likely to result. Indeed, the
evidence suggesting that the particular officers at issue
engaged in illicit conduct—often consisting of false arrest and
excessive force—knowing that that they were not being
supervised, and that there were a few incidents that should have
24
alerted the officers’ superiors, but did not, is significant. Those
evidentiary points combined with the NJAG reports, the
evidence regarding Internal Affairs’ complaint backlog and
other deficiencies, and the testimonies offered by Chief
Thomson, the Supercession Executive, former Deputy Chief
Hargis, and the Sergeant who took over Internal Affairs in
2009, is sufficient to withstand a motion for summary
judgment.
Camden argues that Forrest cannot demonstrate a nexus
between the deprivation he suffered and Camden’s conduct
because, in the months leading up to Forrest’s arrest, its hands
were tied. To support that argument, it cites its internal
processes: when Internal Affairs received a complaint, it
forwarded that complaint to the Camden County Prosecutor’s
Office (“CCPO”), and took no further action. Id. at 8. It left
the investigation entirely up to the CCPO. Id. Camden asserts
that this process was in effect with respect to Officers Stetser
and Parry in 2008, and, as such, Internal Affairs’s
investigations of those officers were stayed up to and through
the time of Forrest’s arrest. Id. at 8.
We reject this argument for two reasons. First, as the
District Court pointed out, Camden’s own submission
demonstrates that the CCPO did not take over investigations
into Officers Stetser and Parry until September 16, 2008, well
over two months after Forrest’s arrest. See Def.’s Mot. Ex. 29,
ECF No. 138-4 at 13. Second, even assuming that was not the
case, there is a genuine dispute of material fact as to whether
Internal Affairs’s investigation would have resulted in
Forrest’s arrest (and the surrounding incident) being prevented.
Indeed, even when Camden did investigate complaints against
these officers, its investigation amounted to a review of the
25
false reports they prepared, and thus resulted in no disciplinary
action against the officers.
We will therefore reverse the District Court’s decision
granting summary judgment as to the § 1983 claim that
Camden’s failure to supervise its officers amounted to
deliberate indifference to the rights of individuals with whom
those officers would come into contact.
Failure to Train
As to the failure to train theory, Forrest’s arguments to
the District Court did not only focus on the training Officers
Stetser and Parry received, but also the training that
supervising officers received. Pl.’s Resp. Br. 35 (arguing that
“training session[s] for officers, supervisors and command
officers about how to recognize and eradicate excessive force
and misconduct [are] necessary”). Forrest reiterates the same
two-part argument on appeal: that “the training provided to
Stetser and Parry . . . was inadequate” and “[s]imilarly, training
for supervisors was deficient, as sergeants did not receive
training geared toward officer discipline.” Appellant’s Op. Br.
40.
We agree with the District Court that evidence
regarding the training that officers received is insufficient as a
matter of law. The alleged deficiency in a training program
must be closely related to the alleged constitutional injury
because “[i]n virtually every instance where a person has had
his or her constitutional rights violated by a city employee,
[said] plaintiff will be able to point to something the city ‘could
have done’ to prevent the unfortunate incident.” City of
Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989) (citation
omitted).
26
Here, even if we accept that, based on the sheer volume
of complaints, Camden had to have known that it had a
problem with officers violating the constitutional rights of
citizens, the link between that and the alleged deficiencies in
the training program is simply too tenuous. The officers knew
that their conduct was criminal, and, as the encounter in this
case shows, used their authority to pressure victims to refrain
from immediately reporting their activities. As a result, there
is no proof from which to infer that implementing the changes
to the training program that Forrest suggests would have made
any difference. Lastly, in terms of awareness, the testimonial
evidence from higher officials point to supervision and
accountability as the critical issues, not training.
The opposite is true of the evidence regarding the
inadequacies in training that supervisors received. Camden
policymakers knew or should have known that supervisor-level
officers would be confronted with officer misconduct, whether
first hand or via complaints and reports from others, and that
the wrong choice—failure to report or admonish—would lead
to the sort of behavior that occurred here: officers whose
behavior caused the deprivation of constitutional rights, but
who had no reason to change that behavior. And, although the
situation does not necessarily involve a difficult choice, the
evidence here demonstrates a genuine dispute of material fact
as to whether supervisors had a history of mishandling this
choice.
Indeed, the sheer volume of complaints from outsiders,
coupled with the absence of any internal response may lead a
reasonable jury to conclude that Camden was aware of
supervisors mishandling or being unable to handle their duties.
This is even more pronounced when one examines the
testimonies of higher officials who expressed great concern
27
that officers were not being adequately supervised, and called
for various measures to address that reality, including a formal
performance evaluation system and a reduction in the
supervisor-to-officer ratio. See also App. 128 (warning that
Camden’s failure to commit manpower and resources to
proactively managing police misconduct would place it “in the
position of failing to adequately protect the civil rights of its
citizens and set the stage for significant civil liability.”).
The call for these measures was warranted and the need
for training apparent. The testimony provided by Officers
Stetser and Parry reflects that they were aware that supervision
was lacking, whether co-conspirator Sergeant Morris covered
for them or not. Officer Stetser, in particular, explained that
one of his supervisors “most likely” knew that he was writing
false reports, and accepted them. Pl.’s Resp. Br. Ex. 54-a at
40:16–18, ECF No. 144-43. The record further provides ample
basis for this confidence. Recall that Officer Stetser failed an
integrity test administered by a supervising officer, and
pranked another by planting drugs in the supervising officer’s
bag. When this was reported to a Sergeant in Internal Affairs,
the Sergeant merely responded with his own account of similar
behavior by Officer Stetser in other contexts. See Supra
Section I.C., Segment Six.
The foregoing demonstrates Camden’s policymakers
were aware that Camden needed a large shake up in its
supervisory regime. It also raises significant questions as to
whether Camden’s supervisor-level officers were adequately
trained on how to discipline and combat officer misconduct
when it was brought to their attention, including the kinds of
misconduct—false arrest and excessive force—that led to
Forrest’s injuries. Thus, while we agree that Forrest’s claim
regarding the adequacy of the training officers received fails
28
on causation grounds, we conclude that a genuine dispute of
material fact exists as to whether the need for more or different
training for supervisors was obvious, and the failure to provide
that was very likely to result in a violation of constitutional
rights. We will therefore reverse the District Court’s summary
judgment ruling as to this iteration of Forrest’s § 1983 claim.
Motions in Limine
Forrest presents two challenges to the District Court’s
decisions on the motions in limine. He argues that the District
Court improperly granted summary judgment on his state law
negligent supervision claim, and excluded evidence that was
material to his surviving § 1983 claim. We agree—the District
Court sua sponte granted summary judgment without
providing the procedural safeguards the Federal Rules of Civil
Procedure require before judgment on the merits can be
granted. We also agree that the Court’s evidentiary rulings
constituted an abuse of discretion, as they stemmed from an
incorrect, narrow view of Forrest’s surviving § 1983 claim.
State Law Negligent Supervision Claim
The District Court ruled that Forrest’s state law
negligent supervision claim survived summary judgment. But
there is no mention of the claim for the remainder of the
proceedings, including at trial. On appeal, Forrest contends
that the District Court effectively granted summary judgment
on that claim at the motions-in-limine hearing. Appellant Op.
Br. 42–43. He argues that this is clear from District Court’s
opening remark at that hearing that the only remaining claim
was the failure to supervise through Internal Affairs. Id. at 43.
Camden counters that Forrest waived this issue by failing to
object when the District Court made that remark. Appellee
29
Resp. Br. 40. We first address the District Court’s remark and
its effect, and then the question of plain error.
The District Court’s Remark
It is well-settled that district courts may grant summary
judgment sua sponte, so long as the losing party is given notice
when summary judgment is being contemplated. See Fed. R.
Civ. P. 56(f) (permitting a sua sponte grant “[a]fter giving
notice and a reasonable time to respond . . .”); Gibson v. Mayor
& Council of City of Wilmington, 355 F.3d 215, 222 (3d Cir.
2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 326
(1986)); see also Otis Elevator Co. v. George Washington
Hotel Corp., 27 F.3d 903, 910 (3d Cir. 1994). The purpose is
to give the losing party the opportunity to marshal all the
evidence that would be used to oppose summary judgment.
Gibson, 355 F.3d at 224. Along those lines, although motions
in limine are not designed to eliminate claims or theories, see
Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d
Cir. 1990), the Federal Rules of Civil Procedure do not prohibit
a grant of summary judgment when said motions have been
filed. Whenever the summary judgment ruling is made, the
court must provide the parties with adequate notice and an
opportunity to oppose. Id. at 1069–70 (finding notice
inadequate where neither the parties nor the court suggested
the possibility of trial not going forward).
In the past, we have determined that a motion in limine
resulted in a sua sponte grant of summary judgment based on
an express statement by the district court, see Brobst v.
Columbus Servs. Int’l, 761 F.2d 148, 154 (3d Cir. 1985)
(quoting the district court as having stated, “The court finds, as
a matter of law, that . . .”) (emphasis added), or, indirectly, by
30
way of the court having eliminated the evidentiary basis for a
claim, see Bradley, 913 F.2d at 1069–70.
The situation here is different. The District Court did
not make an express statement, at least not one outright
purporting to grant summary judgment. Nor did it necessarily
eliminate the evidentiary basis for Forrest’s state law negligent
supervision claim, given the evidentiary overlap with his
surviving § 1983 claim. Instead, Forrest’s argument is
premised on the District Court’s lone remark that, “This is the
only claim left in the case, the failure to supervise through the
Internal Affairs process.” App. 345. But these are differences
without a distinction. The principle remains: whether
expressly or in effect, a district court may not grant summary
judgment without providing the losing party notice, or a notice-
equivalent, and an opportunity to oppose. See Gibson, 355
F.3d at 223 (citing Otis, 27 F.3d at 910).
Thus, as we ordinarily would, we examine whether the
Court granted summary judgment on Forrest’s state law
negligence claim, and, if so, whether Forrest had adequate
notice and an opportunity to oppose.
By itself, the District Court’s remark that “the failure to
supervise through the Internal Affairs process” was “the only
claim left in the case” is ambiguous, at best. By the time the
District Court makes this statement, the case had been
narrowed to two claims: a § 1983 claim on the theory that
“[Camden]’s Internal Affairs system was inadequate and
provided no accountability . . . [,]” App. 14; and a state law
negligent supervision claim “on the theory that the internal
affairs department provided inadequate supervision of its
officers,” App. 24. Thus, a remark that the only remaining
claim is the failure to supervise through Internal Affairs leads
31
one to ask: is it the § 1983 or the state law? The answer can
be found in the remainder of the Court’s other statements at the
motions-in-limine hearing, as well as the jury instructions and
verdict form.
The remainder of the Court’s motions-in-limine
statements demonstrate that the remark at issue was referring
to the § 1983 claim as the only remaining claim. Specifically,
in the moments before making the remark Forrest cites, the
District Court stated, “I’m going to start with the order in which
[the motions] were filed on the docket. And the first is number
164, which is defendant’s motion to bar evidence unrelated to
the Monell claim.” App. 345. The Court then proceeded to
explain that “there are no training claims left in the case,” and,
having narrowed the surviving municipal liability claim to the
theory involving the inadequate supervision provided through
Internal Affairs, stated, “This is the only claim left in the case,
the failure to supervise through the Internal Affairs process.”
Id.
The jury instructions and verdict form further
demonstrate that Forrest’s state law claim was not the claim
being referred to as the only one remaining. This claim is
absent from the portion of the jury instructions that sets forth
what the jury was to consider. Instead, the jury is instructed
that, “[t]he plaintiff, Alanda Forrest, is suing under Section
1983 . . . .” App. 456. As to the verdict form, the portion
identifying the claims against Camden singularly asks,
“Has plaintiff proven by a preponderance of the
evidence that the deprivation of Alanda Forrest’s
constitutional right(s) was the proximate result
of a well-settled policy of inadequate supervision
32
by the City of Camden of its officers, including
Jason Stetser and/or Kevin Parry?”
App. 442.
This singular ask is particularly significant because, as
the District Court noted at summary judgment, Forrest’s state
law negligent supervision claim was an independent claim,
with distinct elements. See App. 24. Notably, the claim is not
limited to injuries arising from constitutional violations, and
neither requires that the plaintiff’s injuries result from a well-
settled policy or custom nor a showing of deliberate
indifference. Rather, the consensus is that a negligent
supervision claim under New Jersey law only requires a
relatively straightforward negligence showing—that is, that
the employer knew or had reason to know the employee
exhibited dangerous characteristics, that there was a reasonable
foreseeability of harm to others, and that the negligent
supervision was the proximate cause of the injuries. Panarello
v. City of Vineland, 160 F. Supp. 3d 734, 769 (D.N.J. 2016);
see also Smith v. Harrah's Casino Resort of Atl. City, 2013 WL
6508406, at *3 (N.J. Super. Ct. App. Div. 2013) (“Several
jurisdictions have held that a claim of negligent supervision
requires proof of the same elements recited by our Supreme
Court . . . with respect to a claim of negligent hiring.”).
With all that in view, we conclude the District Court’s
statement amounted to a sua sponte grant of summary
judgment as to Forrest’s state law negligent supervision claim.
We also conclude that the Court did so without
providing Forrest with notice and an opportunity to respond.
Indeed, prior to its sua sponte grant, the Court held that
Forrest’s state law negligent supervision claim would be tried,
33
and had not made any interim rulings that would contradict
that. See App. 23–24. So, as of the time of the Court’s remark,
Forrest had no reason to believe that this claim was at risk of
an adverse summary judgment ruling.10
Plain Error
Camden argues that even if the District Court’s grant
constituted error, we should not reverse because Forrest
waived this issue by failing to object. Forrest counters that the
failure to object can be excused because the issue qualifies
under our plain error doctrine. We agree with Forrest.
Where a timely objection is not raised below, we reverse
only where the grant constitutes plain error. See Gibson, 355
F.3d at 255 n.4 (citing United States v. Knight, 266 F.3d 203,
206 (3d Cir. 2001)). In this context, this is true where we find
(1) an error, (2) that is plain—i.e., clear and obvious—and (3)
the error affected the defendant’s substantial rights. See
10
Forrest points to the Joint Pre-Trial Order as evidence
that he had reason to believe that his state law negligence claim
would be tried. However, the document is, at best, ambiguous
on this point. Under a subsection labeled “PLAINTIFF’S
LEGAL ISSUES:” it lists the issue of whether “[Camden was]
negligent in failing to adequately supervise and monitor the
actions of its police officers.” Joint Pretrial Order 35, ECF No.
161. But, like the District Court’s remark, it does not specify
whether this is referring to the state law negligent supervision
claim or Forrest’s § 1983 claim. For our purposes, it is enough
that the District Court’s summary judgment opinion indicated
that this claim would be tried, and the record is devoid of any
interim ruling or reference that suggested otherwise.
34
Walden v. Georgia-Pacific Corp., 126 F.3d 506, 522 (3d Cir.
1997); see also Selkridge v. United of Omaha Life Ins. Co., 360
F.3d 155, 166 (3d Cir. 2004). Even then, we exercise our
power to reverse “sparingly”—that is, only for “serious and
flagrant” errors jeopardizing “the integrity of the proceeding.”
Pennsylvania Environmental Defense Foundation v. Canon-
McMillan School Dist., 152 F.3d 228, 234 (3d Cir. 1998).
The District Court’s sua sponte grant constituted such
an error. It is well established that noncompliance with the
notice provisions of the Federal Rules deprives a court of the
authority to grant summary judgment. See Fed. R. Civ. P. 56(f)
(permitting a sua sponte grant only “[a]fter giving notice and a
reasonable time to respond . . .”). And, as a result of the
District Court’s noncompliance, the plaintiff was deprived of a
jury trial on a claim that the Court previously deemed triable—
in other words, a designation that a reasonable jury could find
in his favor—despite there being no change in the quantum of
evidence between the designation and subsequent deprivation.
The seriousness of this error cannot be overstated: it not
only deprived a litigant of his day in court, but it effectively
designated a matter for the jury and then stepped into the jury’s
province to decide the same matter. All of this occurred
without any explanation, and in a procedural setting that serves
an entirely different function: on the parties’ motions in
limine, rather than on a dispositive motion. See Gibson, 355
F.3d at 224 (issuing a cautionary note that “the sua sponte grant
of summary judgment, without giving notice to the parties, is
not the preferred method by which to dispose of claims . . .
because [courts] run the risk of unduly prejudicing the parties
. . . [and] such grants . . . can have serious, if unintended,
consequences.”).
35
We will reverse and remand, with the instruction that
the claim should go to the jury unless the District Court seeks
to grant summary judgment on it. If the Court so seeks, it may
grant summary judgment only after providing adequate notice
and opportunity for Forrest to oppose.
The District Court’s Evidentiary Rulings
A ruling on the admissibility of evidence is reviewed for
abuse of discretion. Forrest v. Beloit Corp., 424 F.3d 344, 349
(3d Cir. 2005). There is an abuse of discretion if the district
court’s decision “rests upon a clearly erroneous finding of fact,
errant conclusion of law, or an improper application of law to
fact.” Id. (quoting Oddi v. Ford Motor Co., 234 F.3d 136, 146
(3d Cir. 2000)).
The District Court excluded evidence of conduct that (a)
post-dated Forrest’s arrest,11 (b) was not specific to Internal
Affairs, and (c) related to other wrongdoing by Officers Stetser
and Parry. It found this evidence inadmissible on the grounds
11
In a footnote, Forrest also argues that the District
Court’s exclusion of evidence that pre-dated his arrest was
improper. Appellant’s Br. 45 n.13. This evidence included the
2002 NJAG report which warned that the failure to
immediately address the complaint backlog could lead to an
adverse finding on deliberate indifference. It also included
complaints regarding Sergeant Morris, who supervised
Officers Stetser and Parry during Forrest’s arrest. For all the
same reasons we set forth below, the exclusion of that evidence
constituted an abuse of discretion—the evidence is highly
relevant to determining deliberate indifference on the part of
Camden.
36
that it was insufficiently related to the theory that Camden
failed to supervise through the Internal Affairs process.
Under the Federal Rules, relevant evidence is generally
admissible, and irrelevant evidence is not. Fed. R. Ev. 402.
Yet the bar for what constitutes relevant evidence is low. See,
e.g., Failla v. City of Passaic, 146 F.3d 149, 159 (3d Cir. 1998)
(“The test of relevance under the Federal Rules of Evidence is
low.”); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 783 (3d
Cir. 1994) (describing the Federal Rules as having a “low
threshold of relevancy”). The test is whether the evidence has
“any tendency to make a fact more or less probable than it
would be without the evidence,” where “the fact is of
consequence in determining the action.” Fed. R. Ev. 401
(emphasis added).12
The District Court framed the facts of consequence in
this case as only those that demonstrated a failure to supervise
through the Internal Affairs process. In so framing the case,
the District Court concluded that (a) evidence that post-dated
12
Camden appears to suggest that the evidence was
properly excluded under Federal Rule of Evidence 403, which,
in broad terms, permits the exclusion of relevant evidence if its
probative value is substantially outweighed by its prejudicial
effect. However, the District Court excluded the evidence at
issue on Rule 401, relevancy grounds. In addition, Camden
does not (and we cannot) identify what prejudice, if any, would
result from admitting the evidence at issue. We thus construe
Camden’s arguments as speaking to relevancy alone and
proceed accordingly. See Appellee Br. i. (characterizing the
District Court’s rulings as “[p]roperly [e]xcluding [i]rrelevant”
evidence and testimony).
37
Forrest’s arrest was not relevant because it was not causally
connected—that is, such evidence would not have helped
Internal Affairs prevent the incident with Forrest; (b)
testimonies by Chief Thomson, the Supercession Executive,
and the Camden County Prosecutor were not relevant because
they were not specific to Internal Affairs, but referred to the
police department in general; and (c) the complaints against
Officers Stetser and Parry were not relevant because they did
not concern planting drugs or excessive force.
The District Court’s framing of the case was unduly
narrow and incorrect. Forrest’s sole surviving claim was not
that Internal Affairs failed to supervise, but, more broadly, that
Camden failed to investigate and discipline its officers, and
that failure amounted to deliberate indifference to the rights of
those to whom those officers would come into contact. To that
effect, evidence is not irrelevant merely because it does not
show causation, does not specifically pertain to one unit of
Camden’s police department, or does not focus on the
particular activities carried out by the officers that were
involved in Forrest’s encounter. It is only irrelevant if it bears
on no aspect of the overarching theory and its underlying
elements. With that framing in mind, we conclude that the
District Court’s evidentiary rulings constituted an abuse of
discretion as to the evidence set forth above.
Post-arrest evidence is highly relevant to whether
Camden’s failure amounted to deliberate indifference.
At the outset, causation is not the sine qua non of
relevance. The post-arrest evidence included Forrest’s
complaint, the follow-up letter that he sent to Internal Affairs,
and other Internal Affairs complaints regarding similar
38
misconduct by Officers Stetser and Parry.13 Although the
failure to investigate those complaints could not have caused
Forrest’s alleged injuries, they are highly relevant to whether
Camden was deliberately indifferent to a continued pattern of
police misconduct. Specifically, Camden’s handling of
complaints after Forrest’s arrest is highly relevant to
demonstrating that it maintained the same practice prior to and
at the time of said arrest.
We held as much in Beck. 89 F.3d at 957–68. The case
involved a college student, Beck, who brought an excessive
force claim against the City of Pittsburg. Id. at 969–70. He
alleged that an officer used excessive force in the process of
arresting him for driving under the influence. Id. Inter alia,
Beck produced evidence that several complaints had been filed
alleging similar acts of excessive force by the officer, some
before and some after his arrest, but none of them were
sustained or resulted in discipline. Id. at 970. As to the pre-
arrest complaint, we stated, “[it] may have evidentiary value
for a jury’s consideration [as to] whether the City and
policymakers had a pattern of tacitly approving the use of
excessive force.” Id. at 973. We found that the post-arrest
complaint could support an inference that policymakers knew,
or should have known of the officer’s behavior, and, “because
13
We need not reach Forrest’s argument that the District
Court excluded the Sergeant who took over Internal Affairs’s
testimony that, when he took over in May of 2009, “there were
a lot of [Internal Affairs] cases open . . . and the investigations
weren’t done,” in addition to other department-wide
deficiencies. See Appellant Br. 49–50. The District Court
ruled that the Sergeant would be permitted to testify about “the
400 open [Internal Affairs] cases.” See App. 365.
39
the complaints . . . came in a narrow period of time and were
of a similar nature,” they could also support an inference that
policymakers knew of the officer’s “propensity for violence
when making arrests.” Id.The same is true of the evidence that was excluded by
the District Court here. Forrest’s complaint was filed days
after his arrest, with a follow-up note not long after that. In
addition, the complaints in this case also came in a narrow
period of time and are of a similar nature. Indeed, the three
related complaints are dated December 27, 2007, August 12,
2008, and August 26, 2008, which is less than two months
removed from Forrest’s arrest or, in the case of the first, may
have pre-dated his arrest or was made less than six months
after.14 In terms of the nature of the incidents, the first
complaint contained allegations that Officers Stetser and Parry
threw drugs on the floor and claimed that they belonged to the
complainant. The second alleged that Officer Stetser was
taking drugs from drug dealers and putting them on other
people. And the third was that Officer Stetser slammed a minor
onto his marked vehicle, falsely accused the minor of having
drugs on his person, and threatened to arrest everyone inside
the minor’s residence.
This evidence clearly lends credence to the notion
Camden was aware of related, concerning conduct by its
officers and had not responded. It was therefore an abuse of
14
The parties dispute this issue. The ambiguity arises
because the document containing the testimony states that the
“Date of Occurrence” is December 27, 2007, App. 236, but the
questioner says the date on which the testimony is being given
is December 1, 2009.
40
discretion to exclude this evidence merely because it was not
causally related to the incident involving Forrest.
The excluded testimonies are highly relevant to
Camden’s investigative and disciplinary inadequacies,
as well as the issue of deliberate indifference.
The excluded testimonies consisted of Chief Thomson’s
statement that, when he became Chief, “the greatest weakness
of [Camden] was a culture of apathy and lethargy,” in which
there was “no mechanism of accountability in place”;
Supercession Executive Venegas’s testimony that Camden
failed to implement the NJAG 2006 report’s recommendations,
which included a recommendation to implement formal
personnel evaluation and progressive discipline processes;
and, the Camden County Prosecutor’s testimony that he
received allegations in 2005 that Officer Stetser engaged in
criminal activity and referred those allegations to Internal
Affairs for investigation. We examine each, in turn.
The District Court’s conclusion that Supercession
Executive Venegas’s testimony was not relevant is belied by
the fact that it cited the crux of that testimony in its opinion
denying Camden’s summary judgment motion. Specifically,
the opinion states,
In August 2006, Arturo Venegas began his duties
as Supercession Executive, and his consulting
agreement implied that the Police Department
lacked “clear standards of performance for the
police department and its employees” and a
“system of progressive discipline that holds both
employees and their managers accountable for
performance and behavior.” While this evidence
41
does not compel a finding of Monell liability, it
aids Plaintiff in establishing genuine issue of
material fact suitable for a jury.
App. 20 (emphasis added). Simply put, evidence that aids a
plaintiff in establishing a genuine dispute of material fact more
than meets the low threshold set by Rule 401.
In addition, the record is clear that both Chief Thomson
and Supercession Executive Venegas were directly responsible
for all of Camden Police, including Internal Affairs. Their
testimony regarding Camden’s across-the-board investigatory
and disciplinary deficiencies is thus highly relevant to
establishing Camden’s awareness of, and response to, those
deficiencies.
Finally, the District Court excluded the Camden County
Prosecutor’s testimony that the office received allegations
against Stetser in 2005 and referred those allegations to
Internal Affairs. Internal Affairs’s records do not reflect that
referral or a subsequent investigation. See App. 392–93. The
District Court deemed this evidence irrelevant because there
was no evidence that Camden received the referral. Camden
defends that ruling on the additional ground that the incident
involved an informant who could not identify a picture of
Officer Stetser.
This argument and the District Court’s basis are beside
the point. As Forrest points out, when viewed in conjunction
with the fact that Internal Affairs had instances in which certain
complaints were missing, a reasonable jury could construe this
as further evidence of the inadequacy of Camden’s
investigatory regime.
42
The excluded other-misconduct complaints further
demonstrate Camden’s investigative deficiencies and is
also highly relevant to the issue of deliberate
indifference.
The excluded other-misconduct complaint was dated
May 28, 2008, a few months prior to Forrest’s experience. The
complainant alleged that on May 1, 2008, he was approached
by two officers when he came out of a Chinese restaurant after
ordering food. Officer Stetser approached and greeted the
complainant in a nice manner, but then proceeded to “jump in
his face all of a sudden (literally face to face) yelling,
‘Motherfucker, you been watching me, motherfucker!’” App.
341. The officers then handcuffed and searched the
complainant, who then proceeded to explain that he only came
out for some food. The officers thereafter walked the
complainant back to their police van and handed him a
summons for loitering before releasing him.
The District Court excluded this evidence because
“Well, it has nothing to do with planting drugs or [excessive
force],” despite previously acknowledging that it contained an
allegation that Officer Stetser “wrongfully arrested someone.”
App. 376–77. Further, while the complaint itself concerned the
issuance of a wrongful ticket, the underlying conduct is
analogous to what the officers exhibited with Forrest a few
months later—that is, abruptly approaching unwitting civilians
and flagrantly ignoring Fourth Amendment prohibitions.
Thus, given the temporal proximity and the similarities
between the incident and Forrest’s own experience, the District
Court’s decision to exclude this evidence as irrelevant
amounted to an abuse of discretion.
43
For the foregoing reasons, we conclude that the District
Court abused its discretion when it excluded evidence that
post-dated Forrest’s arrest, albeit not specific to Internal
Affairs or strictly related to other wrongdoing by Officers
Stetser and Parry.
Jury Instruction Errors
Forrest did not object to the instructions provided to the
jury. The errors he alleges here have therefore not been
preserved. Rule 51(d)(2) provides that we “may consider a
plain error in the instructions that has not been preserved . . . if
the error affects substantial rights.” Harvey, 635 F.3d at 609
(quoting Fed. R. Civ. P. 51(d)(2)). Under that standard, we
reverse only if the error is “(1) fundamental and highly
prejudicial or if the instructions are such that the jury is without
adequate guidance on a fundamental question and (2) our
refusal to consider the issue would result in a miscarriage of
justice.” Id. at 612 (quoting Alexander v. Riga, 208 F.3d 419,
426–27 (3d Cir. 2000). We therefore proceed by first
considering whether the District Court committed an error, and
if so, whether the error meets the threshold for reversal.
The jury instructions errors are twofold: first, the
instructions confuse the jury as to the legal requirements for
each species of § 1983 liability, and, second, it narrows the
jury’s focus to only evidence pertaining to Internal Affairs and
Officers Stetser and Parry.
Per the former, recall that the onus of demonstrating an
official policy or custom only falls on a plaintiff whose
municipal liability claim is predicated on an unconstitutional
policy or custom, but that such a plaintiff need not show
deliberate indifference on the part of the municipality. On the
44
other hand, a plaintiff advancing a claim predicated on a
municipality’s failure or inadequacy in training, supervision,
or otherwise is spared from demonstrating the existence of an
unconstitutional policy or custom but must make the deliberate
indifference showing. To the contrary, the jury here was
incorrectly instructed that, in order to find a municipal liability
for inadequate supervision, it had to find that Camden adopted
a policy or custom of inadequate supervision amounting to
deliberate indifference to the fact that it would “obviously
result in the violation of an individual’s right to be free from
unlawful arrest and excessive force.” App. 463–64.
Indeed, in relevant part, the instructions begin by stating
that the jury must find “that an official policy or custom of
[Internal Affairs] caused the deprivation [of his constitutional
rights].” App. 462. And, after presenting the requirements for
determining whether a policy or custom existed, it frames
Forrest’s claim as “[Camden] adopted a policy of inadequate
supervision and that this policy caused the violation of
[Forrest’s] right[s] . . . .” App. 463. It then immediately follows
with instructions that the jury must also find that Internal
Affairs failed to adequately supervise Officers Stetser and
Parry, and that said supervision amounted to deliberate
indifference. App. 463–64. The result is confusion as to
whether the policy or custom finding is antecedent to reaching
the deliberate indifference inquiry, or if the two are intertwined
in some other way.
Per the second error, the instructions frame the case as
solely pertaining to the adequacy of Internal Affairs’s
supervision of Officers Stetser and Parry, rather than the
adequacy of Camden’s supervision and investigation of its
officers in general. Specifically, the instructions state that,
45
In order to hold the municipality liable for the
violation of [Forrest’s constitutional rights] . . .,
you must find that [Forrest] has . . . proved by
preponderance of the evidence . . . [that] [f]irst,
[Internal Affairs] failed to adequately supervise
Stetser and Parry. Second, [Internal Affairs]’s
failure to supervise Stetser and Parry amounted
to deliberate indifference . . . . Third, [Internal
Affairs]’s failure to adequately supervise[ ]
proximately cause[d] the violation . . .
App. 463–64 (emphasis added). Further, in instructing the jury
on the elements of deliberate indifference, the Court again
directed the jury to examine whether “[Internal Affairs] knew
that Jason Stetser and Kevin Parry would confront a particular
situation.” Id.15
In contrast, the legal requirement for deliberate
indifference is whether “(1) municipal policymakers know that
employees will confront a particular situation; (2) the situation
involves a difficult choice or a history of employees
15
Forrest argues that the District Court also instructed
the jury on the failure-to-supervise theory that did not survive
summary judgment, rather than the failure to investigate and
discipline theory that did. But the District Court repeatedly
referred to the surviving theory as one for failure to supervise,
but only through Internal Affairs. See App. 463 (“[O]fficials
within [Internal Affairs] are policymaking officials for the
issue of whether [Camden] inadequately supervised its
officials and investigated [I]nternal [A]ffairs complaints.”)
(emphasis added). We are therefore not persuaded that what
Forrest asserts amounted to error.
46
mishandling; and (3) the wrong choice by an employee will
frequently cause deprivation of constitutional rights.” Carter,
181 F.3d at 357 (emphasis added). It is not narrowed to the
particular employees in the case. Notably, as the record makes
clear, the Chief of Police had ultimate authority over Camden’s
police department and Internal Affairs but is not properly
considered within Internal Affairs. We therefore conclude that
the instructions provided to the jury regarding Forrest’s § 1983
claim constituted error.16
16
At argument, Camden made the case that the jury
instructions were not erroneous because they were consistent
with the Third Circuit’s Model Jury Instructions. As we
recently reiterated, despites their label, the Third Circuit Model
Jury Instructions are not drafted by members of this Court, and
are thus “neither law nor precedential.” See Robinson v. First
State Cmty. Action Agency, 920 F.3d 182, 189–90 (3d Cir.
2019). We nonetheless have observed that it is unlikely that
“the use of a model jury instruction can constitute error.” Id.
at 90 (quoting United States v. Petersen, 622 F.3d 196, 208 (3d
Cir. 2010)). To that effect, the instructions regarding
inadequate training or supervision claims do not suggest that a
showing of a policy or custom is required, but merely that a
program was inadequate, that this inadequacy amounted to
deliberate indifference, and proximately caused the violation
complained of. See Third Circuit Model Civil Jury Instruction
4.6.7. Similarly, on deliberate indifference, the same set of
instructions ask whether the entity at issue knew that
“employees would confront a particular situation.” Id.(emphasis added). For the reasons we have set forth, we are
not persuaded that the District Court’s instructions were
consistent.
47
We also conclude that both errors meet the threshold for
reversal. The District Court’s instructions narrowed the
universe of evidence that the jury could rely on to only
evidence that pertained to Internal Affairs’ supervision of
Officers Stetser and Parry, to the exclusion of its broader
investigatory inadequacies. It also left the jury without
guidance on the fundamental question of what it needed to find
to conclude that Camden was or was not liable. Our failure to
consider either error would result in a miscarriage of justice.
We therefore consider both. As Part 3 of the jury verdict is the
only aspect that concerned Camden’s liability under § 1983,
we will vacate that aspect of the verdict.
CONCLUSION
For all of the above reasons, we will reverse the above-
specified aspects of the District Court’s summary judgment
and evidentiary rulings, vacate part three of the jury verdict,
and remand for further proceedings consistent with this
opinion.
48