Martin A. Schwartz
Martin A. Schwartz (NYLJ/Rick Kopstein)

A vital difference between constitutional litigation under 42 U.S.C. §1983 and common law tort litigation is that there is no respondeat superior liability under §1983. This means that a municipality sued under §1983 may not be held liable solely because it employed a constitutional wrongdoer. Rather, the plaintiff must demonstrate that the violation of her constitutional rights was attributable to the enforcement of a municipal policy or practice. This is the familiar Monell rule (Monell v. Department of Social Services, 436 U.S. 658 (1978)), and it is typically quite difficult for §1983 plaintiffs to satisfy.

Consider, for example, a §1983 claim that the arresting officer employed excessive force and, as is common, the plaintiff sues both the officer and the municipality. To establish municipal liability the plaintiff will have to show that the use of excessive force was closely linked to the enforcement of a municipal policy or practice. Since a municipality would not adopt a formal policy authorizing their police officers to employ excessive force, the plaintiff will have to establish some type of municipal custom or practice, such as systemic excessive force inflicted by the municipality’s police officers, or perhaps a custom or practice of deliberately indifferent training or supervision by municipal policymakers. Inadequate training and supervision claims must meet stringent fault and causation standards, normally requiring the plaintiff to prove a pattern of similar constitutional violations. See, e.g., Connick v. Thompson, 131 S. Ct. 1350 (2011); City of Canton v. Harris, 489 U.S. 378 (1989).

Municipal liability claims based on an alleged custom or practice are, by their nature, time consuming, costly and difficult to litigate. What might help save the day for the plaintiff is a favorable governmental investigatory report. U.S. District Court Judge Jack B. Weinstein recognized this over 25 years ago. In Gentile v. County of Suffolk, 129 F.R.D. 459 (E.D.N.Y. 1990), aff’d, 920 F. 3d 142 (2d Cir. 1991), Judge Weinstein ruled that a report of the New York State Temporary Commission of Investigation (the SIC report), which found widespread misconduct in the Suffolk County Police Department, was admissible on the issue of §1983 municipal liability. He wrote:

Avoidance of undue delay is of particular importance in civil rights cases brought against municipalities under section 1983. Were reports such as the SIC report to be excluded, [§1983] plaintiffs would be forced to introduce proof of innumerable incidents of police and prosecutorial misconduct in order to show that a municipal practice, policy or custom existed. This would make it difficult, if not impossible, for many deserving plaintiffs to prevail, thereby frustrating federal [§1983] civil rights policy. Such a policy would also needlessly duplicate—at great cost to the parties, the court and the taxpayers—the work of a competent agency already vested with the expertise and legislative authority to conduct such inquiries.

Gentile, 129 F.R.D. at 459-60.

The U.S. Court of Appeals for the Seventh Circuit, in Daniel v. Cook County, 833 F. 3d 728 (7th Cir. 2016), recently sounded a similar theme. In that case, the circuit court, in an opinion by Judge David F. Hamilton, held that a report of the U.S. Department of Justice, finding systemic deficiencies in the provision of health care to the inmates at the Cook County, Ill. jail, was admissible on a §1983 municipal liability claim. The circuit court noted that the admissibility of DOJ reports has been at issue in several recent §1983 cases. Daniel, 833 F.3d at 740-41. See also Shepherd v. Dallas County, 591 F.3d 445 (5th Cir. 2009); Burns v. Robertson County, 192 F. Supp. 3d 909 (M.D. Tenn. 2016); Berry v. City of Philadelphia, 188 F. Supp. 3d 464 (E.D. Pa. 2016); Shorter v. Baca, 101 F. Supp. 3d 876 (C.D. Cal. 2015). The admissibility of the DOJ report in Daniel raised a number of important issues. Before tackling them, we first sketch out the pertinent evidentiary principles.

An investigatory report offered in evidence to prove the truth of its findings is hearsay. In fact, because investigations commonly encompass interviews with perhaps large numbers of persons and the examination of documents, an investigatory report may be based upon multiple levels of hearsay. As a result, the trustworthiness of a governmental investigatory report can vary greatly from report to report, and admissibility is almost always a sharply contested issue. Federal Rule of Evidence 803(8)(A) creates a hearsay exception for different categories of public records. We are concerned with Rule 803(8)(A)(iii), which creates a hearsay exception for, “in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation,” provided that “the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.”(Fed. R. Evid. 803(8)(B). The one U.S. Supreme Court decision interpreting this hearsay exception held that it encompasses governmental investigatory reports containing fact based opinions or conclusions, so-called evaluative reports. Beech Aircraft v. Rainey, 488 U.S. 153 (1988).

Trustworthiness is normally the key issue. The Advisory Committee Note (ACN) to Rule 803(8) sets forth a non-exclusive list of four factors that the trial judge may consider in evaluating trustworthiness: (1) timeliness; (2) skills of the investigators; (3) whether a hearing was held; and (4) motivational problems. Some courts have considered other factors, such as whether the report is final or subject to further review. Rule 803(8)(B) makes clear that investigatory reports are presumed trustworthy, which means that the burden is on the party opposing the introduction of the report to show lack of trustworthiness. This presumption is based on the assumption that public officials perform their duties properly and in good faith which, unfortunately, is not always the case.

With that background we return to Daniel v. Cook County. The plaintiff, Alex Daniel, a pretrial detainee, alleged in his federal court §1983 complaint that while confined in the Cook County jail he did not receive adequate medical care for a serious injury to his hand and wrist, which resulted in permanent damage. The complaint included a municipal liability claim based on allegations that the county jail had an official policy and widespread custom of failing to establish an adequate health care system for the inmates.

The U.S. DOJ, pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA) (42 U.S.C. §1997), carried out an investigation of the health care at the Cook County jail, and issued a report finding systemic deficiencies in the jail’s health care and that the sheriff had notice of these deficiencies. “The investigation found systemic flaws in the Jail’s scheduling, record keeping, and grievance procedures that produced health care below the minimum requirements of the United States Constitution.” Daniel, 833 F. 3d at 730-31.

The district court ruled that the DOJ report was not admissible for the truth of its findings because, after considering the four trustworthiness factors identified in the ACN, found that the report was not sufficiently trustworthy. The district court allowed the plaintiff to use the report only to show that the sheriff was on notice of the widespread problems described in the report. Even if a governmental investigatory report is found to be inadmissible hearsay because it does not meet the Rule 803(8) investigatory report requisites, the mere existence of the report, apart from the truth of its findings, may be relevant and admissible to show that the defendant was on notice of the findings in the report. Burns v. Robertson County, 192 F. Supp. 3d at 923-24; Shorter v. Baca, 105 F. Supp. 3d at 907. For this purpose the report would not be hearsay.

On appeal, however, the plaintiff in Daniel argued that the district court erred in ruling that the DOJ report was not admissible for the truth of its findings. The Seventh Circuit agreed with the plaintiff, ruling that the report satisfied the Rule 803(8) investigatory report hearsay exception, and that the defendants failed to meet their burden of demonstrating that the report was not trustworthy. The circuit court evaluated the four ACN trustworthiness factors and found that they “weighed strongly” in favor of the admissibility of the DOJ report:

• Timeliness: Although the ACN refers to “the timeliness of the investigation,” both the district court and circuit court in Daniel referred to the timeliness of the report. It would seem that timeliness of the investigation and of the report may both be relevant in evaluating trustworthiness. In any case, there was no serious issue concerning timeliness in Daniel because, given the ongoing health care deficiencies at the jail, the investigation and the report were clearly timely.

• Expertise: The ACN lists as a pertinent trustworthiness factor the “special skill of the official.” The circuit court in Daniel found it “difficult to imagine an official investigation with more expertise or facial credibility. The [DOJ] relied on a team of experts in medicine, corrections, and medical administration.” Daniel, 833 F. 3d at 741.

• Procedures: Courts consider the procedures used to conduct the investigation and whether a public hearing was held. The ACN refers to “whether a hearing was held and the level at which conducted.” Although the fact that a hearing was held is a plus in favor of trustworthiness, a report can be trustworthy even if no hearing was held. The fact that a hearing was not held in Daniel did not trouble the circuit court because the DOJ had “provided a draft [of the report] to Cook County officials [and afforded them] an opportunity to respond.” Id. at 741. The circuit court treated the provision of the draft of the report and an opportunity to respond as an effective substitute for a hearing. Id. (“There was no hearing, but the Department provided a draft to Cook County officials and an opportunity to respond.”).

• Motivational Concerns: This is the most interesting and arguably most important aspect of the circuit court’s decision. The ACN refers to “possible motivational problems suggested by Palmer v. Hoffman, 318 U.S. 109 [1943],” i.e., whether the report was prepared for the purpose of litigation. If it was then its reliability is very likely suspect. The circuit court in Daniel concluded that the fact that U.S. Attorney General had statutory authority to bring suit against Cook County did not mean that the DOJ report was prepared for the purpose of or anticipation of litigation and “suffers from “motivational problems … .” Id. at 742. The court reasoned as follows:

The report was not prepared for purposes of litigation. It was prepared as part of an investigation that [DOJ] carried out pursuant to its duties under [CRIPA]. Litigation [commenced by the U.S. Attorney General] could follow, of course, depending on the outcome of the investigation and the response of institutional officials to the findings … . But litigation was not the point of the investigation or the report. The mere fact that “the Attorney General may initiate a lawsuit” against the Jail if a resolution is not otherwise reached to address its unconstitutional conditions does not mean that the preliminary investigation was conducted as anticipatory fact-finding for a potential lawsuit. If the law were otherwise, many official investigative findings would be inadmissible.

Id. at 741 (emphasis added).

The circuit court thus found that the defendants failed to rebut the presumption of trustworthiness. In particular, they failed to offer any “evidence of a motivational problem other than the [DOJ] has the statutory authority both to investigate and then, if necessary, to litigate against the county.” Id. at 742.

The DOJ report was clearly relevant on plaintiff’s municipal liability claim and would likely be given “considerable weight” by the trier-of-fact. Plaintiff’s municipal liability claim required the plaintiff to demonstrate “systemic failings that reflect official deliberate indifference to the health needs of inmates.” Id. at 742. This demanding standard “is difficult, time-consuming, and expensive for most private plaintiffs to meet.” Id. Yet these systemic failings are precisely what DOJ was investigating and precisely what it found in the Cook County jail. Id. Like Judge Weinstein in Gentile, the circuit court acknowledged that the findings in the DOJ report “would be difficult to replicate through ordinary processes of litigating individual private cases.” Id.

Although the Rule 803(8)(A)(iii) investigatory report hearsay exception encompasses the report’s findings of fact and any fact based opinions and conclusions, it does not encompass the underlying statements by third parties, documents, reports, and so forth relied upon by the investigators. This information is hearsay when offered for its truth, unless it satisfies some other hearsay exception. Id. at 740 (“Mere transcripts of third-party statements do not constitute factual findings and still count as hearsay.”). But the underlying data would not be hearsay if not offered for its truth but only for the purpose of showing the basis for the report’s findings and conclusions. While the circuit court did not spell out its reasoning, perhaps that is what it meant when it said that “[a] report that combines such [third party] statements with an investigator’s on-the-scene observations and conclusions based on the sum of the evidence falls within the Rule 803(8) exception.” Id.

Daniel is an important decision, both because of its thorough and realistic evaluation of trustworthiness, and its articulation of the importance of the admissibility issue on §1983 municipal liability claims.