Under Title 29, Section 1983 of the United States Code, Counties, Cities and Towns and their police departments are frequently sued by citizens who assert that various officials in the police department have deprived the citizen of some constitutional right. For example, excessive force allegations are brought under this section.

    The jury awards against these municipalities can be staggering. In the Fourth Circuit Court of Appeals, which covers Virginia, Maryland and the Carolinas, the court upheld a $900,000 award against the local government even though an earlier trial resulted in only a $1,000 award. See, Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987), cert. denied, 108 S.Ct. 752 (1987).

    What is the cause of such sizable awards? One cause is that the citizens have greater access to the police department's files -- including their internal affairs files -- than the officers have. The files often remain incomplete and flawed because the investigated officer never had an opportunity to review and comment upon the investigative findings. Then, these inaccurate files are used by citizens in court to demonstrate a history or policy of permitting excessive force. For example, in upholding the nearly one million dollar award in the Spell v. McDaniel case noted above, the Fourth Circuit permitted the jury to consider evidence in the department's records of arrest quotas and racially discriminatory attitudes to establish the department's liability.

    In one of the most recent cases, the Fourth Circuit held that it was improper in an excessive force case, to exclude evidence that the officer had previously been accused of killing a suspect who had killed the officer's dog. The Fourth Circuit ruled that this evidence should have been admitted both to show the excessive force in the instant case and to show that the officer would retaliate against the present defendant for kicking the officer's dog. Kopf v. Skvrm, 993 F.2d 374 (4th Cir. 1993). In these cases, which rely on flawed departmental records, the incensed jury, believing the citizen that this was not the first time the officer used excessive force, then awards astronomical damages.

In suits which do not even involve wrongful death or significant shootings, the courts routinely uphold jury awards of damages against municipalities in excess of $50,000 and as high as $900,000. For example, the First Circuit Federal Court of Appeals (New England) upheld a $75,000 award resulting from an illegal search of a business. IB.C.R. Transport'Co., Inc. v. Fontaine, 727 F.2d 7 (lst Cir. 1984). In another case, this court also upheld an award of $150,000 in compensatory damages and $27,040 for future medical expenses due to a Sheriffis unconstitutional strip search policy which the plaintiff claimed caused traumatic stress and sexual dysfunction. See, Cole v. Snow, 586 F. Supp. 655 (D. Mass 1984), affld sub nom., Blackburn v.Snow, 771 f.2d 556 (ist Cir. 1985). More recently, in 1987, the First Circuit upheld a compensatory award of $160,000 and a punitive award of $200,000 against a department and the officers involved in a racially motivated false arrest and false imprisonment. See, Hall v. Ochs, 817 F.2d 920 (lst Cir. 1987).

    In an excessive force and malicious prosecution case, the Second Circuit Federal Court of Appeals (North East) upheld an original jury award of $650,000 in compensatory damages and $150,000 in punitive damages despite a second jury's lower verdicts. See, Ismail v. Cohen, 899 F.2d 183 (2d Cir. 1990).

    In a case where the court ruled that the sheriff failed to provide reasonably safe jails because the detainee was assaulted by other inmates, the Fifth Circuit Federal Court of Appeals (South) upheld a $250,000 award. The court also upheld $105,000 against the deputy sheriff who failed to prevent a second assault. See, Stokes v. Delcambre, 719 F.2d 1120 (5th Cir. 1983).

    In the midwest, the Sixth Circuit Federal Court of Appeals ruled that a plaintiff who was falsely imprisoned and claimed to suffer depression, although no medical testimony was introduced, should be awarded $60,000. Whitley v. Seibel, 676 F.2d 245 (7th Cir. 1982), cert. denied, 459 U.S. 942 (1983).

    A jury award of $285,000 against a city and $15,000 against the police chief (including lesser damages against the individual officers) was upheld on the West Coast by the Ninth Circuit Federal Court of Appeals due to the department's harassment of a business. See, Becinini v. City of Hemet, 879 F.2d 473 (9th Cir. 1988).

    In a case in which the city was accused of failing to train its officers, the Tenth Circuit Federal Court of Appeals (West) upheld an award of $100,000 against the city and $2,100 against the police officers. As a result of a 23 minute improper stop of a motorist, the Eleventh Circuit Federal court of Appeals (South East) upheld a jury award of $25,000. Trezevant v. City of TamDa, 741 F.2d 336 (llth Cir. 1984).

    Moreover, courts will award plaintiffs large damage awards despite state statutes setting compensatory or punitive damage limits. For example, in Thompson v. Village of Hales Corners, 340 N.W.2d 704 (Wis. 1983), the court upheld the jury award of $88,000 despite Wisconsin's limit of $25,000. In Tennessee, the court has declared that compensatory awards of $10,000 to $41,000 in a notorious brutality and municipal liability case were insufficient. It further upheld awards of $25,000 for each plaintiff involved. Brandon v. Allen, 645 F. Supp. 1261 (W.D. Tenn. 1986). In Texas, although the court stated that $150,000 in compensatory damages was excessive, it allowed the plaintiff to win $50,000 in compensatory damages and $50,000 in punitive damages against the city. Smith v. City of seven Points, 608 F. Supp. 458 (E.D. Tex. 1985).

    One cause of these significant damage awards against our local governments is the easy access civilians have to police records such as officer's personnel records and police department internal affairs investigation records. In Federal litigation, civilians simply request these records in the course of normal discovery and police departments must, and routinely do, hand the files over.

    Juries across the country are permitted to review these internal files when considering whether the officer and or the municipality is liable for S 1983 violations. Further, plaintiff's lawyers are successfully arguing that the jury should place great weight on the information within these files which relates to discipline, training records, or similar incidents of misconduct when considering whether the officer or the department is liable in the instant case.

    Before the rise in litigation against police departments, many complaints against officers were handled internally by the department. The internal affairs unit would investigate the complaint. IA would conduct interviews, often using a tape recording an d later transcribing it. They would collect evidence, compare the incident to other incidents and issue a report and a recommended finding including discipline if necessary. The report would make its way up the chain of command to the Chief who ultimately would decide whether the discipline should be imposed. Then, the officer would be advised of the finding and the discipline. In many states, officers have no access to or opportunity to respond in writing to the findings or statements of others. When these matters were largely handled internally, this affected only the officer's individual rights.

    However, now that these files are available to civilians in civil suits, the officers and the municipalities themselves are subject to significant liability based on inaccuracies in these files. For example, suppose the City of Anytown conducted an Internal Affairs investigation in 1990 against Officer Jones for a citizen complaint regarding excessive force. The Police Department concluded that Officer Jones used excessive force. However, the report fails to include crucial facts such as that the suspect was resisting arrest and was attacking Officer Jones.

    Presently, in many states, Officer Jones would have no opportunity to review the file and correct this error. Police Departments claim the files are confidential. However, in 1994 when Officer Jones and Anytown are sued for a separate Section 1983 excessive force allegation, the citizen will have full access to the uncorrected 1990 IA investigation. Moreover, the citizen's attorney will argue vigorously to the jury that the fact that Officer Jones engaged in excessive force in 1990 is relevant to the instant excessive force charge. Any attempts by Officer Jones to correct the facts of the 1990 investigation in the 1994 litigation will appear to be a mere attempt to recreate history. Many courts have already ordered awards against municipalities which were largely based on the internal records of the police department. One court recently permitted evidence that the officer previously exhibited racial bias to demonstrate a pattern or intent in the instant case. Ismail v. Cohen, 899 F. 2d 183 (2d Cir. 1990).

    An Arizona court allowed the plaintiff to obtain the records of a department's disciplinary proceedings against specific officers so that the plaintiff could establish the department's liability for negligently retaining those officers. City of Phoenix v. Peterson, 11 Ariz. App. 136 (1969). Indeed, one court ruled that the trial court improperly refused to allow a plaintiff to question a police officer about his prior incidents of excessive force because it would have been relevant to the question of the department's liability. Fletcher v. O'Donnell, 867 F.2d 791 (3d Cir. 1989). More recently, other federal courts permitted plaintiffs to use evidence of prior misconduct by an officer in order to impose liability on the city. Goetz v. Cappelen, 946 F. 2d 511 (7th Cir. 1991).

    Such departmental evidence is also permissible to demonstrate that the city had a pre-existing unconstitutional policy. Bordanaro v. McLoed, 871 F.2d 1151 (lst Cir. 1989). Evidence in police files regarding an officer's prior civil rights settlements are also permissible against the Chief. Perri v.Daggy 776 F. Supp. 1345 (N.D. Ind. 1991).

    Police Departments across the country are consistently being required to reveal their internal records to citizens who are suing the Department for an alleged violation of their rights. Files which traditionally are closed to everyone but the internal affairs investigators are more frequently being opened up to anyone who sues the police department. Many police officers see their own internal affairs files for the first time while sitting in court when the citizen/plaintiff hands the officer some incriminating and inaccurate report. No jury will give much credence to an officer's current claim that the records are inaccurate. The jury will simply assume the officer is trying to protect himself.

    Indeed, many internal affairs investigations are started because of some rumor. If the investigation concludes that no action should be taken, frequently the officer will not even be aware that the investigation took place. The officer may be denied promotions because of this investigation, although the officer believes the officer has an exemplary record. The officer will have absolutely no notification that there is anything in his or her file until the officer is sued by a citizen for some later incident. Ironically, citizens have greater access to individual police officer's files than the officers themselves.

    Many of these problems can be alleviated by simply permitting officers to have access to all of their files whether investigations conclude the charges are unfounded or that discipline is necessary. officers should be able to periodically review their files so that they may keep current on any charges, allegations, rumors, or complaints about them which the Department is investigating. The officers should then be permitted to include in any file a short statement of their position or why they believe the file is inaccurate or incomplete.

    The simple act of insuring that officers review their files and make any necessary changes will tremendously assist in shielding both the officer and the Department from future liability. Now, when Officer Jones is cross-examined in the 1994 excessive force litigation, the jury will lend more credibility to his assertions that the 1990 excessive force complaint involved an unruly suspect who was resisting arrest because in 1990 Officer Jones will have placed such a statement in the file. The jury will not suspect that Officer Jones is only now rewriting history because of the current suit. Moreover, because Officer Jones will have had full access to the files, he will not be blindsided by the citizen having more information about Officer Jones than Officer Jones has.