Attorneys must clear several procedural hurdles to have hope of using report
By Heather Cobun
BridgeTower Media Newswires
BALTIMORE, MD — When the U.S. Department of Justice issued a lengthy report on unconstitutional policing practices in Baltimore city, plaintiff’s attorneys were anxious to find ways to reference the findings in civil litigation against police.
More than a year later, however, lawyers who have sued police say no one has found a way to make serious use of the scathing document.
“It has had virtually no use in the criminal or civil arena that I’ve had any experience observing,” said Baltimore attorney J. Wyndal Gordon. “That’s not to say I wouldn’t try.”
Lawyers who defend police agree – but that has not stopped them from preemptively trying to keep the report out of litigation.
“It’s only fair that (the officers’) case be about their case,” said Chaz R. Ball, an associate at Schlachman, Belsky & Weiner P.A. in Baltimore.
Gordon said he has had one civil case in which he suggested he might want to use the report, but the presiding Baltimore City Circuit Court judge “sent a strong signal” there would be very limited use allowed, if any, “so that unless the door is opened by the police department itself, it would be limited to no use of it at all.”
The Justice Department report was issued in August 2016 following a 14-month patterns and practices investigation initiated after Freddie Gray sustained a fatal injury in police custody and subsequent unrest in Baltimore. The report ultimately led to a consent decree between the city and the Justice Department earlier this year under which the city agreed to move forward with police reforms.
In the report, investigators concluded officers disproportionately stop black residents in poorer neighborhoods, often lacking a constitutional basis to do so, and routinely use unreasonable and excessive force.
Attorney A. Dwight Pettit said he mentions the report in complaints and motions and believes it is relevant to most excessive force allegations.
In one of those cases, defense attorneys for the officers — Ball and colleague Michael Marshall — acted preemptively to avoid having the report come up at trial, filing a motion in limine to preclude any reference to it in their clients’ case.
Ball and Marshall have filed similar motions in multiple cases. The motion has been granted in at least one case in state court and one case in federal court, according to court records.
Marshall said they have seen plaintiffs bring up the report and want to avoid being forced to object to a reference at trial and hope the jury follows instructions to disregard it.
“We have plenty of plaintiffs who are making reference in the initial complaint they filed and in interrogatories who are making reference to the findings report or, now, the consent decree,” Marshall said.
The Baltimore City Law Department did not respond to a request for comment on use of the report in civil litigation.
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Admissibility questions
Attorneys must clear several procedural hurdles to even have hope of using the report. While the report is hearsay, both federal and state rules of evidence potentially allow for its admission as a public record of the factual findings of a legally authorized investigation.
Pettit said he believes the report is an admissible hearsay exception and should be used in motions, evidence and opening arguments.
“We think we should be able to use it throughout,” he said. “The courts, obviously, haven’t totally agreed with us.”
Several motions filed by Ball and Marshall have either not been ruled on or were rendered moot by a settlement. The motions that were granted were done so without a written opinion explaining the ruling, but Marshall said judges appear to be finding the report is more prejudicial than probative and not relevant to the case.
The public records exception also allows the opponent to show the source or circumstances surrounding the report indicate a lack of trustworthiness, which Marshall said they believe is another reason to keep the report out.
Federal investigators relied on “limited anecdotal and sometimes unsubstantiated allegations” in reaching their conclusions, according to one of the motions. Marshall said some of the stories told to investigators by unidentified sources “were almost apocryphal.”
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Other jurisdictions
In other states, Justice Department reports have been deemed relevant and referenced by plaintiffs in lawsuits against police departments and prison systems that were investigated.
The report on the Ferguson Police Department in Missouri survived a motion for summary judgment in a 2015 wrongful death lawsuit, with a federal judge finding it qualified as a public record but allowing for a later debate on whether it would be admissible as evidence.
In that case, the family of Jason Moore alleged an officer fired his Taser four times at Moore, including three times after he had fallen to the ground, and did not give Moore time to respond to his commands. The Justice Department report had concluded Ferguson’s police used excessive force, including Tasers, and failed to review incidents thoroughly.
“Defendants are free to challenge the reliability and accuracy of the Report’s summaries,” U.S. District Judge Stephen M. Limbaugh Jr. wrote last October. “But for the purposes of summary judgment... the evidence relied upon by the plaintiffs is properly before this Court.”
The 7th U.S. Circuit Court of Appeals ruled last year a Justice Department report on Cook County, Illinois jails could be used as evidence to avoid summary judgment and show an unconstitutional custom, policy or practice, finding the report “would seem to provide a thorough and reasonably trustworthy starting point.”
Similarly, the 5th U.S. Circuit Court of Appeals determined in 2009 that a Justice Department report on Dallas County, Texas jails was properly admitted as evidence despite being prejudicial to the county because it was “probative as well.”
Gordon, the plaintiffs’ lawyer, said attorneys attempting to use the Baltimore report should be prepared to explain to a judge why it is reasonable to attempt to introduce it.
“The worst thing that can happen is it’s not coming in and the judge calls you up to the bench to ask why you’re doing it,” he said. “I’m sure there are a set of facts that exist in the universe that would make it relevant and (lawyers) should not be afraid to test boundaries.”
