Acre et al v. Chambers et al

Filing 77

MEMORANDUM OPINION AND ORDER that the 60 Motion for Sanctions for Spoliation of Evidence be and is hereby DENIED as further set out in the opinion and order. Signed by Honorable Judge Charles S. Coody on 2/17/2015. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
LINDSAY ACRE, et al.,
Plaintiffs,
v.
JASON CHAMBERS, et al.,
Defendants.

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CIVIL ACT. NO. 2:14cv211-CSC

MEMORANDUM OPINION and ORDER
Plaintiffs Lindsey Acre and Robert Morris, as the personal representative of the Estate
of Jeremy Acre, allege that the defendant police officers, Officers Cox and Chambers, used
excessive force when they entered the Acre home without legal justification on March 19,
2013, and shot and killed Jeremy Acre. Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR
73.1, the parties have consented to a United States Magistrate Judge conducting all
proceedings in this case and ordering the entry of final judgment.
This case is now pending before the court on the plaintiffs’ motion for sanctions for
spoliation of evidence (doc. # 60) filed on December 22, 2014. The court has reviewed the
arguments in support of and in opposition to the spoilation issue and finds that the request
for sanctions is due to be denied.
For the purpose of the spoliation motion, the pertinent facts1 are as follows. At
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For the purpose of this motion, the court takes the facts as alleged by the plaintiffs as true and
construes them in the light most favorable to them. The court makes no factual findings, and the actual

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approximately 11:00 p.m. on March 19, 2013, defendants Chambers and Cox arrived at the
home of Jeremy and Lindsay Acre. According to the plaintiffs, the officers knocked on the
front door but did not identify themselves as police officers.2 Jeremy opened the door, armed
with a handgun. He did not threaten the officers with the weapon. When the officers
demanded Jeremy put down the gun, Jeremy attempted to close the door. The officers then
forcibly entered the house. Because Jeremy refused to put down the handgun, defendant Cox
deployed his taser on Jeremy. As he attempted to get up from the floor, defendant Chambers
shot and killed Jeremy. The defendants assert that defendant Cox fired the taser before
defendant Chambers shot Jeremy.
On March 22, 2013, a data download was obtained from Cox’s taser. That download
revealed that taser had been fired for five seconds at 23:08:11 on March 19, 2013. After the
data was downloaded, the taser was returned to defendant Cox for continued use in his duties
as a law enforcement officer.
On July 11, 2014, defendant Cox turned his taser over to Sergeant Marsh to be
preserved as evidence. (Doc. # 63, Ex. 1). Sergeant Marsh “removed the battery to test the
remaining life of the battery,” and then stored the taser in an evidence bag in the Evidence
Room at the Elmore County Sheriff’s office. (Id. at 2, ¶¶ 3-5).
On December 18, 2014, the taser was removed from the Evidence Room for

facts may be different than those stated here.
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The officers contend that they were sent to the house by Lieutenant Zeigler to perform a
“welfare check” at the residence.

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inspection by plaintiffs’ counsel. “During this process, it was discovered that the battery had
been removed from the taser, thereby disabling the internal clock in the taser.” (Doc. # 60
at 2.) Nonetheless, a second data download was obtained from the taser which matched the
initial data download indicating that the taser had been fired at 11:08:11 p.m. on March 19,
2013.
Because the battery disabled in the internal clock, the plaintiffs argue that they are
now unable to determine “to what degree the taser clock was accurate on March 22, 2013.”
(Id.) The accuracy of the clock becomes relevant because, according to the plaintiffs, a call
log from the Elmore County Sheriff’s Department indicates that defendant Chambers
reported shots fired at 10:58:43 p.m. (Doc. # 60 at 1-2). Consequently, the plaintiffs seek
to establish that the taser was discharged after Chambers shot and killed Cox.
It is the plaintiffs’ position that because the defendants did not secure the taser in a
manner that maintained the internal clock, the defendants should be prevented “from
contending or offering any evidence in this case, that the taser at issue . . . was fired at any
time relevant to this case other than 11:08:11 p.m. on March 19, 2013.” (Doc. # 60 at 2).
“Spoliation refers to the destruction or significant alteration of evidence, or the failure
to preserve property for another’s use as evidence in pending or reasonably foreseeable
litigation.” Graff v. Baja Marine Corp., 310 F.Appx. 298, 301 (11th Cir. 2009). The court
applies federal law in this case “because spoliation sanctions constitute an evidentiary
matter.” Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005). Spoliation

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sanctions are “intended to prevent unfair prejudice to litigants and to insure the integrity of
the discovery process.” United States v. McCray, 345 F.Appx. 498, 501 (11th Cir. 2009)
(emphasis in original). It is not sufficient for the plaintiffs to merely show that the evidence
is relevant, rather they must demonstrate that the evidence is crucial to proving their case.
Wandner v. American Airlines, — F.Supp.3d —, 2015 WL 145019, * 9 (S.D. Fla. 2015).
In essence, the plaintiffs seek to have the court draw an adverse inference from the
defendants’ failure to preserve the internal clock in the taser. “In this circuit, an adverse
inference is drawn from a party’s failure to preserve evidence only when the absence of that
evidence is predicated on bad faith.” Bashir v. Amtrak, 119 .F3d 929, 931 (11th Cir. 1997).
See also Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009); Silver v.
Countrywide Home Loans, Inc., 483 F.Appx. 568, 572 (11th Cir. 2012). “While this circuit
does not require a showing of malice in order to find bad faith, mere negligence in losing or
destroying records is not sufficient to draw an adverse inference.” Mann, 588 F.3d at 1310.
See also Bashir, 119 F.3d at 931 (“‘Mere negligence’ in losing or destroying the records is
not enough for an adverse inference, as ‘it does not sustain an inference of consciousness of
a weak case.’”)
Although shortsighted, the defendants’ decision to initially place the taser back into
service in March 2013 and then to remove the battery in July 2014 for storage in the evidence
room does not rise to the level of bad faith. At best, it constitutes negligence, and in this
circuit, even gross negligence is insufficient to justify an adverse inference. See Wandner,

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2015 WL 145019 at *11. There is no evidence before it from which the court could conclude
that the defendants removed the battery on the taser for the purpose of losing or destroying
the internal clock. See Bashir, 119 F.3d at 931 (“no probative evidence in this case to
indicate [defendants] purposely lost or destroyed the relevant [evidence].”)
Finally, the plaintiffs’ claim of severe prejudice is unpersuasive. It is undisputed that
plaintiff Lindsey Acre and defendants Cox and Chambers were present at the residence on
the night Jeremy was shot, and can testify about the series of events. Nothing in the record
indicates that they will be unavailable to testify at trial. Furthermore, in support of and in
opposition to the spoliation motions, the parties have presented expert testimony regarding
“clock drift.” There is no evidence before the court to suggest that the experts will be
unavailable to testify at trial.
Relying on Flury v.Daimler Chrysler Corp., 437 F.3d 939 (11th Cir. 2005), the
plaintiffs argue that a demonstration of bad faith is only required “when dismissal is the
requested sanction.” (Doc. # 73 at 2). The plaintiffs’ position is unavailing. First, the court
in Flury, supra, was a panel decision and did not overrule Bashir, supra, which is a prior
panel decision. This court is bound by the Eleventh Circuit’s earlier holding, which requires
a showing of bad faith. See Clark v. Housing Auth. of Alma, 971 F.2d 723, 726 n. 4 (11th Cir.
1992) (“Where circuit authority is in conflict, the earliest panel opinion resolving the issue
in question binds this circuit until the court resolves the issue en banc.”). More importantly,
in cases following Flury, supra, the Eleventh Circuit has specifically required a showing of

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bad faith before an adverse inference instruction is given as a sanction for spoliation. See
Mann, 588 F.3d at 1310 (“an adverse inference is drawn . . . only when the absence of that
evidence is predicated on bad faith.”); Cox v. Target Corp., 351 F.Appx. 381, 383 (11th Cir.
2009) (“[a] jury instruction on spoliation of evidence is required “only when the absence of
that evidence is predicated on bad faith.’”)
Accordingly, for the reasons as stated and for good cause, it is
ORDERED that the motion for sanctions for spoliation of evidence (doc. # 60) be and
is hereby DENIED.
Done this 17th day of February, 2015.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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