Discovery, Evidence, and Motions Practice under Section 1983 Police Liability

This practical webinar will cover three main topic areas that are at the core of any successful police misconduct practice under 42 U.S.C. § 1983. First, discovery: what law enforcement files are kept, which ones the plaintiff should request and how the defense can protect them, including incident reports and investigations, officer personnel files, and Monell custom and policy related files; and a checklist of discovery the defense should obtain from the plaintiff. Second, evidence: 15 evidentiary issues, including admissibility of the plaintiff's previous contacts with police, prior citizen complaints and officer discipline, results of the investigation, and failure to follow better alternatives like de-escalation; plus, five evidentiary issues relating to testimony of police practices experts. Third, the top 10 motions for the plaintiff or the defense to file, covering three involving discovery, motions to dismiss and summary judgment, pretrial motions in limine or to bifurcate individual and municipal liability claims, motions at trial and post-trial under Federal Rules 50 and 59, and petitions for fees for prevailing plaintiffs.

Learning Objectives:

1. Identify, obtain, or protect discovery regarding police investigations and claims of privilege, party and non-party police personnel files, and potentially burdensome discovery regarding unconstitutional practices, policies, and customs

2. Prepare for evidentiary issues that will affect your case, such as the plaintiff's criminal record; how much of the incident investigation will be admitted into evidence; prior complaints, discipline, even termination of police officer defendants; whether local or national standards of police procedure will be discussed, and allowed as evidence; whether the jury will be permitted to consider better alternatives, such as de-escalation; and why demonstrations are admitted but reenactments frequently are not

3. Identify the limits of expert testimony, whether the police practices expert must testify according to national standards or can rely on personal experience and training; whether the expert can find facts, assess credibility, address the ultimate issue of liability, and testify that violations in accepted procedure caused the incident

4. Discuss when to file motions to dismiss and for summary judgment and the governing standards; motions to stay, protect, compel discovery; pre-trial motions to admit or exclude evidence; the must-make Federal Rule 50(a) argument; and what can be argued post-trial under Rule 50(b) and Rule 59

5. Review what a prevailing plaintiff's fee petition under § 1988 should contain, and the defense's best arguments for opposing it