MCDANIEL v. CITY OF PHILADELPHIA et al

Filing 31

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 2/13/2017. 2/14/2017 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
____________________________________
NICOLE MCDANIELS,
:
Plaintiff,
:
:
v.
:
CIVIL ACTION NO. 15-2803
:
CITY OF PHILADELPHIA,
:
Defendant.
:

MEMORANDUM OPINION
RUFE, J.

FEBRUARY 13, 2017

Before the Court is Defendant City of Philadelphia’s Motion for Summary Judgment.
For the reasons that follow, the motion is denied, as there are factual disputes regarding nearly
every element of Plaintiff’s claim, and Defendant has failed to put forward any compelling
evidence or argument that it is entitled to judgment as a matter of law.
I.

BACKGROUND
This case concerns the shooting death of Aaron Lamar McDaniels by Jermias Olivo, a

Philadelphia Police Officer with a checkered past. 1 The parties have stipulated to some of the
following facts, although others remain in dispute. 2
A. The August 20 Shooting of Mr. McDaniels
The parties agree that on the evening of August 20, 2013, Officer Olivo and his partner,
Officer Camarote, were in uniform and driving a marked patrol car when they attempted to stop
a Buick for disregarding a stop sign. 3 Mr. McDaniels was riding in the front passenger seat and

1

Plaintiff Nicole McDaniels brings this case as the administrator of Mr. McDaniels’s estate.

2

Doc. No. 16-1 (Defendant’s Statement of Stipulated Material Facts).

3

Id. ¶ 1.

Kareem Gordon was driving. 4 The Buick initially stopped, but sped off when the officers exited
their patrol car. 5 The officers returned to their vehicle and a brief chase ensued, which ended
when the Buick struck a minivan at the intersection of 22nd Street and Glenwood Avenue and
came to rest on a nearby sidewalk. 6 Mr. Gordon fled the scene on foot while Mr. McDaniels
remained in the car. 7 Officer Camarote split off to chase after Mr. Gordon while Officer Olivo
approached the passenger side of the Buick. 8
The parties dispute what happened next. Plaintiff alleges based on independent
eyewitness testimony that Officer Olivo approached the Buick with his gun drawn, opened the
door, and yelled “get out, get out.” 9 Mr. McDaniels, who was unarmed, remained seated and
turned toward Officer Olivo. 10 Officer Olivo “then just started shooting,” paused briefly when
Mr. McDaniels appeared to lean over, and resumed firing. 11 Plaintiff offers the opinions of two
experts that Mr. McDaniels was unarmed at the time of the shooting, although a gun was later
recovered from the car. 12
Officer Olivo provided a different account of the shooting, and testified that as he
approached the Buick, Mr. McDaniels opened the door and pointed a gun at him. 13 Officer
Olivo claims that he instructed Mr. McDaniels to drop the weapon and then fired two shots when

4

Id. ¶ 2.

5

Id. ¶ 3.

6

Id. ¶¶ 4-5.

7

Id. ¶ 6.

8

Id. ¶¶ 6-7.

9

Doc. No. 17-2, Ex. B (Deposition of Tahir Lamar) at 25:7-13.

10

Id.

11

Id. at 25:14-16.

12

See Doc. No. 17-3, Ex. C (Expert Report of Dr. Charles Wetli, MD); Doc. No. 18-1, Ex. E (Expert Report of Dr.
Albert B. Harper).
13

Doc. No. 17-1, Ex. A (Deposition of Jermias Olivo) at 30:8-38:13.

2

Mr. McDaniels failed to do so. 14 In response, Mr. McDaniels raised his weapon again, and
Officer Olivo fired several more rounds until the gun fell from his hands. 15
B. The Philadelphia Police Department’s (“PPD’s”) Use-of-Force Policies and
Training Practices
Mr. McDaniels’s death came during a rise in shootings by PPD officers between 2007
and 2014 despite an overall downward trend in violent crime during the same period. 16 In
August 2013, then-Police Commissioner Charles Ramsey asked the United States Department of
Justice (“DOJ”) to provide technical assistance to the PPD, including an evaluation of its use-offorce policies. 17 The resulting report, An Assessment of Deadly Force in the Philadelphia Police
Department, was issued in 2015 and identified numerous deficiencies in PPD’s use-of-force
policies, training programs, and investigative procedures.
The DOJ Report found that PPD officers did not “receive regular, consistent training on
the department’s deadly force policy,” and were not provided sufficient alternatives to the use of
deadly force. 18 For example, officers lacked de-escalation training, which can reduce the
likelihood that officers will resort to deadly force. 19 PPD also did not provide officers with
comprehensive training covering a wide variety of scenarios, including foot pursuits in high-

14

Id. at 36:18-37:19.

15

Id. at 37:6-41:12.

16

Doc. No. 17 (Plaintiff’s Response to Defendant’s Motion for Summary Judgment) at 5; Ex. J (U.S. DEP’T OF
JUSTICE, COLLABORATIVE REFORM INITIATIVE: AN ASSESSMENT OF DEADLY FORCE IN THE PHILADELPHIA POLICE
DEPARTMENT (2015)) (“DOJ Report”) at 2, 10-11. Defendant has not stipulated to these facts, but does not dispute
that they must be viewed in the light most favorable to Plaintiff for the purposes of this summary judgment motion.
Doc. No. 25 (Defendant’s Reply Memorandum in Support of Motion for Summary Judgment) at 1.
17

DOJ Report at 1.

18

Id. at 40-42.

19

Id. at 69-70.

3

crime areas. 20 This lack of training contributed to threat perception failures by officers in the
field, such as mistakenly believing that an unarmed person was carrying a weapon. 21
The DOJ also found PPD’s use-of-force policies fragmented and confusing. 22 In
particular, PPD Directive 10, which governed the use of deadly force at the time of Mr.
McDaniels’s shooting, was poorly worded and incorrectly led officers to believe they could
employ deadly force whenever they feared for their life. 23 However, this was inconsistent with
the Directive’s intent and controlling Supreme Court precedent, both of which limit the use of
deadly force to situations in which it is objectively reasonable. 24 As a result, PPD officers were
sent into the field without a clear understanding of when the use of deadly force was permissible
under PPD policy or federal law.
The DOJ’s conclusions were consistent with those reached by Plaintiff’s proffered expert
on police practices, Dr. R. Paul McCauley. Dr. McCauley undertook a review of PPD deadly
force incidents over a 15-year period, and found that PPD officers received inadequate training
and lacked clear guidance regarding when the use of deadly force was appropriate. 25 Dr.
McCauley determined that due to a lack of training, PPD officers engaged in dangerous tactics
such as “partner splitting”—in which two partners split up to pursue different suspects—which
can heighten the risk that an officer will fear for his or her life and resort to deadly force

20

Id. at 83-84.

21

Id.

22

Id. at 40-43.

23

Id. at 43-45.

24

Id.; see also Graham v. Connor, 490 U.S. 386, 397 (1989) (“[T]he ‘reasonableness’ inquiry in an excessive force
case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them, without regard to their underlying intent or motivation.”) (citations
omitted).
25

Doc. No. 19-1, Ex. H (McCauley Report).

4

unnecessarily. 26 Dr. McCauley concluded that PPD’s “longstanding practice and custom” of
failing to train officers caused Officer Olivo to resort unnecessarily to the use of deadly force
against Mr. McDaniels. 27
C. PPD’s Disciplinary System
Plaintiff has put forward evidence that the problems at PPD extended to its disciplinary
system as well. A 2003 report by PPD’s Integrity and Accountability Office (“IAO”) found that
investigations by PPD’s Internal Affairs Division (“IAD”) suffered from excessive and chronic
delays, a haphazard penalty system, inadequate follow-up efforts, and a pervasive failure to
discipline officers who had violated PPD policies or engaged in severe misconduct. 28 The IAO
Report also found that “the conditions necessary for meaningful and lasting reforms” did not
exist because PPD leadership generally tolerated misconduct and an “inherent fraternity” existed
between officers and the IAD personnel charged with disciplining them. 29
Dr. McCauley conducted an audit of IAD investigations and concluded that similar
problems still plagued PPD’s disciplinary system at the time of Mr. McDaniels’s death.
Specifically, Dr. McCauley found that IAD investigations frequently were untimely and
incomplete, and often failed to account for flawed threat perception or poor tactical decisions
when investigating a shooting by an officer. 30 In addition, because disciplinary proceedings only
focused on the shooting in question and did not take into account an officer’s previous
misconduct—including past shootings—they did not adequately penalize officers for repeated

26

Id. at 15-17.

27

Id. at 44-45.

28

Doc. No. 23-1, Ex. L (PHILA. POLICE DEP’T INTEGRITY AND ACCOUNTABILITY OFFICE: DISCIPLINARY SYSTEM
(2003)) (“IAO Report”) at 1-3, 14-19.
29

Id. at 4.

30

McCauley Report at 15, 34.

5

violations of PPD policy, even though repeated shootings are exceedingly rare and thus a strong
red flag that an officer may need additional training or monitoring. 31 Dr. McCauley also found
that PPD lacked an effective early warning system to identify and track problem officers, making
repeated violations of PPD policy more likely. 32
Dr. McCauley determined that PPD’s disciplinary system failed to identify Officer Olivo
as a problem officer and take appropriate disciplinary measures despite numerous red flags.
Before he shot Mr. McDaniels, Officer Olivo had amassed a staggering record of complaints,
including two other shootings, an illegal search, physical and verbal abuse, witness intimidation,
domestic assault, and steroid abuse. 33 Dr. McCauley found that PPD did not meaningfully
investigate these incidents and took no remedial actions in the wake of the two prior shootings
despite evidence that Officer Olivo had made improper decisions regarding the use of force in
both situations. 34 Moreover, none of these prior incidents were taken into account during PPD’s
review of Mr. McDaniels’s death, and Officer Olivo was ultimately cleared of any wrongdoing
in that investigation. 35 Dr. McCauley concluded that Mr. McDaniels’s death could have been
avoided if PPD had intervened and taken remedial action after receiving the previous complaints
against Officer Olivo. 36

31

McCauley Report at 17. In fact, only approximately 3% of PPD officers have been involved in three firearm
discharges, as Officer Olivo was. Id. at 16-17.

32

Id. at 16.

33

Id. at 12-13. These incidents all appear in Officer Olivo’s “Concise Officer History.” Doc. No. 30 (Ex. C. to
Defendant’s Reply in Support of Motion for Summary Judgment).
34

McCauley Report at 12.

35

Id. at 15-16.

36

Id. at 16.

6

D. Procedural History
After Mr. McDaniels’s death, Plaintiff filed suit against Officer Olivo in the Philadelphia
Court of Common Pleas asserting state-law claims. Plaintiff later amended the Complaint to add
a § 1983 claim against the City of Philadelphia. Defendants then removed the case to federal
court, and Officer Olivo was dismissed by agreement of the parties, leaving only the § 1983
claim against the City, which now moves for summary judgment.
II.

LEGAL STANDARD
A. Summary Judgment Standard
A court will award summary judgment on a claim or part of a claim where there is “no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” 37 A fact is “material” if resolving the dispute over the fact “might affect the outcome of
the suit under the governing [substantive] law.” 38 A dispute is “genuine” if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” 39
In evaluating a summary judgment motion, a court “must view the facts in the light most
favorable to the non-moving party,” and make every reasonable inference in that party’s favor. 40
Further, “a court may not weigh the evidence or make credibility determinations.” 41
Nevertheless, the party opposing summary judgment must support each essential element of the
opposition with concrete evidence in the record. 42 “If the evidence is merely colorable, or is not

37

Fed. R. Civ. P. 56(a).

38

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

39

Id.

40

Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

41

Boyle v. Cty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998).

42

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

7

significantly probative, summary judgment may be granted.” 43 This requirement upholds the
“underlying purpose of summary judgment [which] is to avoid a pointless trial in cases where it
is unnecessary and would only cause delay and expense.” 44 Therefore, if, after making all
reasonable inferences in favor of the non-moving party, the court determines that there is no
genuine dispute as to any material fact, summary judgment is appropriate. 45
B. Monell Liability Under § 1983
Plaintiff brings a claim under § 1983 alleging that Officer Olivo violated Mr.
McDaniels’s right to be free from the unreasonable use of deadly force under the Fourth and
Fourteenth Amendments. “[Section] 1983 provides remedies for deprivations of rights
established in the Constitution or federal laws,” but “does not, by its own terms, create
substantive rights.” 46 Thus, as a threshold matter, Plaintiff must establish that Officer Olivo
violated Mr. McDaniels’s constitutional right, which requires showing “that a ‘seizure’ occurred
and that it was unreasonable.” 47
There is no respondeat superior liability under § 1983, 48 so to hold the City liable for
Officer Olivo’s actions, Plaintiff must also establish that Defendant maintained a policy or
custom which led to the constitutional injury. 49 To do so, Plaintiff must: “(1) identify a policy
or custom that deprived [Mr. McDaniels] of a federally protected right, (2) demonstrate that the

43

Anderson, 477 U.S. at 249-50 (internal citations omitted).

44

Walden v. Saint Gobain Corp., 323 F. Supp. 2d 637, 641 (E.D. Pa. 2004) (citing Goodman v. Mead Johnson &
Co., 534 F.2d 566, 573 (3d Cir. 1976)).

45

Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).

46

Torres v. City of Allentown, No. 07-0934, 2008 WL 2600314, at *2 (E.D. Pa. June 30, 2008) (citations omitted).

47

Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) (citation omitted).

48

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).

49
Berry v. City of Phila., 188 F. Supp. 3d 464, 474 (E.D. Pa. 2016) (“[I]n order to hold the city liable, she must
prove that a municipal policy or custom caused the constitutional violation.”) (citing Berg v. Cty. of Allegheny, 219
F.3d 261, 275 (3d Cir. 2000)).

8

municipality, by its deliberate conduct, acted as the ‘moving force’ behind the alleged
deprivation, and (3) establish a direct causal link between the policy or custom and the plaintiff’s
injury.” 50
Plaintiff asserts two theories of § 1983 liability: (1) that PPD failed to train Officer Olivo
adequately regarding the use of deadly force; and (2) that PPD failed to discipline Officer Olivo
adequately for previous violations of PPD policy. Both theories are well established. 51
For failure-to-train claims, liability attaches only “where the failure to train amounts to
deliberate indifference to the rights of persons with whom the police come into contact.” 52 In
addition, “a district court should impose liability only when the training should have been more
thorough or comprehensive, not merely because municipal training could have been more
thorough or comprehensive.” 53
Regarding failure-to-discipline claims, “a city may be liable for its failure to discipline an
officer after multiple complaints against him, particularly where the prior conduct which the
officer engaged in is similar to the conduct which forms the basis for the suit.” 54 In determining
failure-to-discipline liability, “[i]t is not enough that an investigative process be in place;” rather,
“[t]he investigative process must be real” and “have some teeth.” 55 For failure-to-discipline
claims, as with failure-to-train claims, it is not enough for the plaintiff to establish merely that
the disciplinary process was inadequate. Rather, the plaintiff must show that the city’s failure
50

Torres, 2008 WL 2600314, at * 4 (internal quotation marks omitted) (citing Bd. of the Cty. Comm’rs v. Brown,
520 U.S. 397, 404 (1997)).

51

E.g., Wnek v. City of Phila., Civil Action No. 05-cv-3065, 2007 WL 1410361, at *3 (E.D. Pa. May 11, 2007)
(“Courts have recognized that municipal liability may arise where a police department has failed to train or
discipline its officers.”) (citations omitted).
52

City of Canton v. Harris, 489 U.S. 378, 388 (1989).

53

Berrios v. City of Phila., 96 F. Supp. 3d 523, 536 (E.D. Pa. 2015) (quoting City of Canton, 489 U.S. at 392).

54

Wnek, 2007 WL 1410361, at *3 (citations omitted).

55

Beck v. City of Pittsburgh, 89 F.3d 966, 974 (3d Cir. 1996)

9

amounted to “deliberate indifference to the rights of persons with whom the police come into
contact.” 56 “Only then can such a shortcoming be properly thought of as a city ‘policy or
custom’ that is actionable under § 1983.” 57
III.

DISCUSSION
Defendant moves for summary judgment on the following grounds: (1) Plaintiff cannot

establish a constitutional violation by Officer Olivo; (2) Plaintiff has failed to offer competent
evidence of liability under either a failure-to-train or failure-to-discipline theory; (3) Plaintiff
cannot establish deliberate indifference on behalf of Police Commissioner Ramsey, the relevant
policymaker here; and (4) Plaintiff cannot establish causation. The Court will address each
argument in turn.
A. Fourth Amendment Violation
The Court begins with the threshold question of whether Plaintiff can establish a
constitutional violation. It is well established that an officer’s unreasonable use of deadly force
may ground a claim for violation of a decedent’s Fourth Amendment rights under § 1983. 58
Here, the parties agree that Officer Olivo killed Mr. McDaniels, and there is a genuine factual
dispute regarding whether Officer Olivo’s use of force was reasonable under the circumstances.
The Court thus turns to the other requirements for Plaintiff’s § 1983 claim.
B. Monell Liability
Defendant argues that Plaintiff cannot adduce competent evidence that PPD failed to train
or discipline Officer Olivo. The Court will address each theory of liability separately.

56

See id. at 972 (citation omitted).

57

Connick v. Thompson, 563 U.S. 51, 61 (2011).

58

Tennessee v. Garner, 471 U.S. 1 (1985).

10

1. Failure-to-Train
Recognizing that Plaintiff’s failure-to-train theory rests upon Dr. McCauley’s Report and
the DOJ Report, Defendant launches a number of attacks on both, not one of which is persuasive.
a. Dr. McCauley’s Report
Defendant does not challenge Dr. McCauley’s expert qualifications. Instead,
Defendant’s primary argument is that because Dr. McCauley’s opinions have been criticized in
other cases, they cannot be credited here, 59 which amounts to nothing more than a credibility
attack that is inappropriate for summary judgment. 60
Moreover, the cases cited by Defendant hardly amount to a wholesale rebuke of Dr.
McCauley’s opinions. Instead, these cases either did not address Dr. McCauley’s report
directly 61 or involved situations where the record as a whole was plainly insufficient to support a
§ 1983 claim. 62 Here, in contrast, Dr. McCauley’s opinions are based, in part, on the DOJ

59

Doc. No. 25 at 4-7.

60

See Miller ex rel. Miller v. Evenflo Co., Civil Action No. 3:09-108, 2011 WL 7037127, at *2 n.2 (W.D. Pa. Dec.
15, 2011) (rejecting “a challenge to the credibility of the opinion of Plaintiff’s expert at the summary judgment
stage”); Donohoe v. Am. Isuzu Motors, Inc., 155 F.R.D. 515, 521 n.7 (M.D. Pa. 1994) (rejecting argument that
plaintiff’s expert was not credible due to opinions expert had provided in other cases on the ground that such
credibility attacks were inappropriate at summary judgment).
61

Carswell v. Borough of Homestead, 381 F.3d 235, 243-44 (3d Cir. 2004) (holding that officer was entitled to
qualified immunity, an issue of law that could not be decided by reference to Dr. McCauley’s opinion).
62

Palm v. Las Vegas Metro. Police Dep’t, No. 97-15896, 1998 WL 196727, at *2 (9th Cir. 1998) (unpublished
opinion) (affirming grant of summary judgment and finding that Dr. McCauley’s opinion did not create a triable
issue of fact regarding whether officer used unreasonable force in shooting plaintiff’s son where uncontroverted
eyewitness testimony established that decedent had just committed a rape and was lunging toward officer at time of
shooting). Most of the other cases cited by Defendant similarly involve factual records so inadequate that Dr.
McCauley’s opinion alone was insufficient to establish liability. See Woloszyn v. Cty. of Lawrence, 396 F.3d 314,
325-26 (3d Cir. 2005) (affirming grant of summary judgment for municipality on failure-to-train claim involving
jailhouse suicide because Dr. McCauley did not suggest any specific training methods that might have prevented the
suicide and there was no other evidence of a failure to train); Taylor v. Moletsky, Civil Action No. 07-4883, 2010
WL 299747, at *8-9 (E.D. Pa. Jan. 22, 2010) (granting summary judgment on Monell claim where plaintiff was
struck by a police car because plaintiff could not identify any other instance where a similar harm occurred and
therefore could not establish that his injuries were caused by a municipal policy or custom); Small v. City of Phila.,
Civil Action No. 05-5291, 2007 WL 674629, at *10-11 (E.D. Pa. Feb. 26, 2007) (finding Dr. McCauley’s opinion
that PPD failed to train officers on the execution of high-risk arrest warrants was insufficient to survive a summary
judgment motion because Dr. McCauley’s report focused only on the incident in question and there was no evidence
that PPD’s training practices as a whole were inadequate); Henderson v. City of Phila., Civil Action No. 98-3861,

11

Report, which found widespread deficiencies in PPD’s training practices. 63 Courts in other
§ 1983 cases have relied upon Dr. McCauley’s opinions regarding police practices in denying
summary judgment motions, and the Court cannot conclude that doing so here would be
improper simply because Dr. McCauley’s findings were not accepted in other, factually
distinguishable, cases. 64
Next, Defendant identifies six areas of Dr. McCauley’s report that it believes are either
conclusory or unsupported by the record. Defendant’s unsubstantiated quarrels with Dr.
McCauley go only to the weight of his opinions, however, and are insufficient to carry
Defendant’s burden at summary judgment. 65 They are also unconvincing.
First, Defendant criticizes Dr. McCauley’s focus on partner splitting, arguing that such
tactical decisions are irrelevant to whether Officer Olivo’s use of deadly force was
unreasonable. 66 But Dr. McCauley’s opinion is not that partner splitting rendered Officer

1999 WL 482305, at *22 (E.D. Pa. July 12, 1999) (granting summary judgment on Monell claim that PPD’s failure
to train officers regarding involuntary confinement procedures caused plaintiff’s schizophrenic son to jump out of a
second-floor window because there was no evidence that the son’s injuries could have been prevented through
superior training).
63

See McCauley Report at 4-6 (listing materials reviewed), 18-22 (discussing DOJ Report), 22-24 (discussing IAO
Report).
64

See Lyons v. City of Phila., Civil Action No. 06-5195, 2007 WL 3018945, at *8-9 (E.D. Pa. Oct. 12, 2007)
(finding that Dr. McCauley’s report and other record evidence created a triable issue of fact as to whether PPD’s
deficient investigative process caused plaintiff officer’s injuries during a physical altercation with another officer,
who had numerous red flags including off-duty criminal charges); see also Doswell v. City of Pittsburgh, Civil
Action No. 07-0761, 2009 WL 1734199, at *12-13 (W.D. Pa. June 16, 2009) (denying summary judgment on claim
that the Pittsburgh Police Department failed to train and supervise its employees based in part on Dr. McCauley’s
opinion that the department’s internal investigation practices were deficient); Williams v. Twp. of W. Deptford, Civil
Action No. 05-1805, 2008 WL 1809134, at *11 (D.N.J. Apr. 22, 2008) (denying municipality’s motion for summary
judgment in part due to Dr. McCauley’s opinion that police department’s procedures for investigating complaints of
excessive force were inadequate).
65

Fed. Labs., Inc. v. Barringer Research Ltd., 696 F.2d 271, 274 (3d Cir. 1982) (on summary judgment, a court is
not “at liberty to disbelieve the good faith statements of experts . . . presented by the non-moving party”) (citations
omitted). Cf. Walker v. Jacques, Civil No. 04-351 (RMB), 2007 WL 2122028, at *6 n.7 (D.N.J. July 23, 2007)
(identifying portions of expert’s opinion as conclusory but determining that such problems constituted “an issue of
credibility more appropriately left to the province of the jury”).
66

Doc. No. 25 at 8.

12

Olivo’s ultimate use of force unreasonable, but that partner splitting is a dangerous tactic that
stems from flawed PPD training programs and, here, placed Officer Olivo in a position where he
was more likely to use deadly force against an unarmed civilian. 67 Thus, partner splitting may be
relevant to the extent it shows that PPD failed to train Officer Olivo, and that this training failure
caused Mr. McDaniels’s death. 68
Second, Defendant argues that Dr. McCauley has no basis to criticize IAD’s investigation
into Mr. McDaniels’s death. 69 However, Dr. McCauley based his criticism on the record of the
investigation, which showed that IAD did not address alleged tactical failures such as partner
splitting, accepted Officer Olivo’s version of events over independent eyewitness accounts, and
ignored evidence from the Medical Examiner. 70 Dr. McCauley also found that IAD did not
account for Officer Olivo’s two previous shootings when investigating Mr. McDaniels’s death—
a potentially serious omission, given that it is exceedingly rare for officers to be involved in
more than one shooting. 71 All of this could lead a reasonable factfinder to conclude that IAD’s

67

In another variation on its “partner splitting” argument, Defendant argues that Dr. McCauley’s opinion on this
point is irrelevant because “it was Officer Olivo’s partner who split and ran . . . not Officer Olivo.” Doc. No. 25 at
8. But Plaintiff’s sole remaining claim is for municipal liability, not personal liability against Officer Olivo, so it is
hardly dispositive that it was Officer Camarote who “split and ran,” as that decision still may have resulted from
deficient PPD training practices, and the effect was that Officer Olivo was alone with Mr. McDaniels.
68

See Jones v. City of Phila., Civil Action No. 08-3336, 2011 WL 710212, at *4-5 (E.D. Pa. Feb. 25, 2011)
(denying summary judgment on Monell claim where plaintiff alleged that officer fatally shot individual after
engaging in partner splitting, and concluding that “a reasonable jury could find that the City’s failure to adopt a
‘partner splitting’ and ‘foot pursuit’ policy . . . rendered [the officer] unequipped to properly handle the incident in
question and thereby ‘caused’ the alleged constitutional violation.”) (citation omitted); Pelzer v. City of Phila., 656
F. Supp. 2d 517, 532 (E.D. Pa. 2009) (denying summary judgment on Monell claim because there was evidence that
PPD failed to train its officers adequately concerning pursuit of suspects, including by not training them regarding
partner splitting). Despite the existence of these two cases—both of which involved the City—Defendant’s counsel
maintains that he is aware of “no precedential case law in either the 3rd Circuit or any other Federal Circuit which
holds that the tactical decision to partner split by an officer is a factor to be used in analyzing the reasonableness of
an officers’ use of force.” Doc. No. 25 at 8.
69

Doc. No. 25 at 8-9.

70

McCauley Report at 12.

71

Id. at 13-15.

13

investigation into Mr. McDaniels’s death was flawed in ways that were symptomatic of broader
problems in PPD’s disciplinary process, as Dr. McCauley did. 72
Third, Defendant argues that Dr. McCauley erred by focusing on IAD’s investigation of
Officer Olivo after Mr. McDaniels’s death, because any deficiencies in an ex post investigation
cannot have contributed to Mr. McDaniels’s death. 73 But Dr. McCauley does not opine (and
Plaintiff obviously does not argue) that the post-shooting investigation caused Mr. McDaniels’s
death, but rather that his death could have been avoided if Officer Olivo had been identified as a
problem officer prior to the shooting. 74
Fourth, Defendant argues that Dr. McCauley’s opinion is predicated upon “outdated audit
reports,” 75 but Dr. McCauley also based his opinion on the 2015 DOJ Report, a 2009 Use of
Force Assessment conducted by the Police Executive Research Forum, and a “Police Shooting
Spreadsheet” produced by PPD that included details on 1,509 shootings and the corresponding
IAD investigations between 2003-2014, all of which can hardly be described as outdated. 76 And
the 2003 IAO Report, which Dr. McCauley reviewed, found that IAD’s deficiencies were deeprooted and resistant to change, so Dr. McCauley’s opinion that similar problems remain is not so
far-fetched as to warrant summary judgment. 77

72

Defendant also claims that a review of the IAD investigations alone is inadequate because no depositions of City
officials were taken, Doc. No. 25 at 9, but there is no requirement that an expert rely on all possible sources of
evidence, and the lack of deposition testimony on this subject goes, at most, to Dr. McCauley’s credibility.
73

Doc. No. 25 at 9.

74

See Beck, 89 F.3d at 974-75 (holding that pattern of complaints against an officer could establish that police
department knew officer was likely to act unreasonably and therefore ground a § 1983 claim).

75

Doc. No. 25 at 9.

76

McCauley Report at 17-21, 23-24, 27-34.

77

IAO Report at 4 (“[T]he conditions necessary for meaningful and lasting reforms do not exist in the
Department.”).

14

Fifth, Defendant argues that Dr. McCauley erred by reviewing all Complaints Against
Police (“CAPs”) between 2003-2014, including those involving physical abuse and harassment,
rather than focusing only on shooting incidents. 78 But Dr. McCauley cited the CAPs report to
show that IAD sustained only 3.3% of all complaints, and only 1% of complaints involving
physical abuse, during that period—a rate below the expected range of 10-13% that Dr.
McCauley opines is typical of police departments. 79 That IAD sustains complaints at below the
expected rate may evidence overall failures or biases in PPD’s disciplinary system and thus may
support Dr. McCauley’s opinion.
Finally, Defendant argues that Dr. McCauley’s audit of shooting investigations—one per
year from 2003-2014—fails to reveal a pattern of unreasonable use of deadly force. 80 However,
Dr. McCauley reached the opposite conclusion and determined that these incidents made it
“abundantly clear the PPD systematically fails to address critically important factors, including
tactics threat assessment, and de-escalation when investigating police misconduct.” 81 While
Defendant may not agree, the issue of whether Dr. McCauley’s assessment is reasonable is a
factual dispute for the jury, not grounds for summary judgment. 82
b. The DOJ Report
Rather than offering evidence that disputes the conclusions of the DOJ Report, Defendant
argues that the Report is inadmissible because: (1) it contains hearsay; (2) it contains expert

78

Doc. No. 25 at 9.

79

McCauley Report at 25-26.

80

Doc. No. 25 at 9-10.

81

McCauley Report at 34.

82

Cf. Owens v. City of Phila., 6 F. Supp. 2d 373, 293 (E.D. Pa. 1998) (denying defendant’s motion for summary
judgment on § 1983 claim because plaintiff presented unrebutted expert testimony that, combined with the facts in
the record, would allow factfinder to conclude that the defendant had failed to train corrections officers regarding
suicide prevention).

15

testimony that does not comport with Federal Rule of Evidence 702; and (3) it is a subsequent
remedial measure barred by Federal Rule of Evidence 407. 83 None of these arguments is
compelling and, in fact, similar challenges to the DOJ Report have been rejected by other courts
in this District. 84 The Court will briefly retread this ground here.
i.

The DOJ Report Is Admissible as a Public Report Under
Rule 803(8)

In general, an out-of-court statement offered for the truth of the matter asserted
constitutes hearsay and is inadmissible. 85 However, Rule 803(8) contains an exception for
“factual findings from a legally authorized investigation” in a civil case so long as “the opponent
does not show that the source of information or other circumstances indicate a lack of
trustworthiness.” 86 The DOJ Report satisfies these criteria—it contains factual findings from an
investigation carried out by the DOJ at PPD’s request, and Defendant has not suggested that it
lacks trustworthiness. 87 While Defendant argues that portions of the Report are inadmissible
because they reference statements of PPD officers and thus contain hearsay within hearsay, this
is not true of the Report’s conclusions and recommendations, which are factual findings and thus
admissible under Rule 803(8). 88

83

Under Federal Rule of Civil Procedure 56(c)(2), at summary judgment “[a] party may object that the material
cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”

84

See Berry, 188 F. Supp. 3d at 475 (denying summary judgment motion and noting that “both [other] courts in this
District that have addressed this DOJ Report in the context of summary judgment motions on § 1983 Monell claims
have similarly denied the defendants’ motions); Valdez v. City of Phila., Civ. A. No. 12-7168, 2016 WL 2646667, at
*4 (E.D. Pa. May 10, 2016) (similar); Coyett v. City of Phila., 150 F. Supp. 3d 479 (E.D. Pa. 2015) (similar).
85

Fed. R. Evid. 801, 802

86

Fed. R. Evid. 803(8)(A)(iii)-(B).

87

See Valdez, 2016 WL 2646667, at *3.

88

E.g., Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170 (1988) (holding that portions of public reports stating
conclusions or opinions constitute “factual findings” within the meaning of Rule 803(8) and are admissible as such).
There are two other problems with Defendant’s hearsay argument. First, it is not clear that statements by PPD
Officers in the DOJ Report are hearsay at all, as they may constitute statements by an opposing party’s agent or
employee under Fed. R. Evid. 801(d)(2)(D). Second, even if statements within the DOJ Report are inadmissible as

16

ii.

The DOJ Report Is Not Expert Opinion Subject to Rule
702

Defendant next argues that the DOJ Report is inadmissible because it does not meet Rule
702’s requirements for expert testimony. 89 However, the premise of this argument—that the
DOJ Report contains expert opinions subject to Rule 702—is misplaced because the Report is
not offered as expert testimony, and merely contains factual findings made by the DOJ at PPD’s
request. There is no requirement that a public report admissible under Rule 803(8) must also
satisfy Rule 702, 90 and the DOJ Report is therefore properly before the Court. 91
iii.

The DOJ Report Is Not a Subsequent Remedial Measure
Barred By Rule 407

Finally, Defendant argues that the DOJ Report is inadmissible under Rule 407, which
provides: “When measures are taken that would have made an earlier injury or harm less likely
to occur, evidence of the subsequent measures is not admissible to prove . . . culpable conduct.”
However, the DOJ Report does not constitute an improvement in PPD’s practices that would be
barred by Rule 407 because it contains only recommendations, not actual remedial measures. 92
Defendant nonetheless claims that public policy requires the Court to ignore the DOJ Report

hearsay within hearsay, Dr. McCauley is still likely able to rely upon them in forming his expert opinions, as he did
here. See Fed. R. Evid. 703.
89

Doc. No. 25 at 11 (citing Daubert v. Merrill Dow Pharms., Inc., 509 U.S. 579, 592-593 (1993)).

90

Clark v. Clabaugh, 20 F.3d 1290, 1294-95 (3d Cir. 1994) (“Rule 803(8) does not on its face require that the one
who undertakes the investigation and authors the report be qualified as an expert before the report becomes
admissible, as the defendants contend.”).

91

Valdez, 2016 WL 2646667, at *4 (rejecting argument that DOJ Report was inadmissible under Rule 702).

92

Id. at *4 (“The Report itself does not contain any measures that would have made [an] alleged violation any less
likely to occur; only the Philadelphia Police Department’s decisions to implement those recommendations would
have done so. Instead, the Report is more appropriately viewed as a sort of ‘step zero’— providing facts, data, and
conclusions that would guide future policy decisions, but not the policy decisions themselves.”); see also Coyett,
150 F. Supp. 3d at 482 n.5 (“The [DOJ Report] is not a ‘subsequent remedial measure’ as articulated in Rule 407.”).
Defendant cites Kelly v. Las Vegas Metropolitan Police Department, No. 2:12–cv–02074–LRH–CWH, 2014 WL
3725927, at *11 (D. Nev. July 25, 2014) in support of its position, and while it is true that the court in that case
found a similar DOJ report inadmissible under Rule 407, the court also found the report irrelevant and, in any event,
this decision is not binding on the Court.

17

because “parties should not be penalized for looking at ways to improve their processes, policies,
or products.” 93 That logic is backwards, however, because it would allow parties to escape
liability merely for speculating about ways to improve their practices without actually doing so.
That is why Rule 407’s prohibition extends only to evidence of remedial measures that “are
taken,” not those that are merely hypothetical. 94
In short, none of Defendant’s arguments warrants disregarding the DOJ Report on
summary judgment, and the Court concludes that it, combined with Dr. McCauley’s testimony,
creates a genuine issue of material fact regarding whether PPD failed to train its officers
adequately.
2. Failure-to-Discipline
Regarding failure-to-discipline liability, Defendant argues that Plaintiff has failed to
adduce sufficient evidence to bring this theory to a jury because: (1) IAD adequately
investigated Officer Olivo after his two prior shooting incidents; and (2) PPD’s disciplinary
policies have been found to be sufficient in other cases. Neither argument is persuasive.
Defendant’s first argument amounts to little more than an assertion that IAD adequately
investigated Officer Olivo prior to the shooting of Mr. McDaniels, which cannot satisfy
Defendant’s burden at summary judgment. 95 As explained, Plaintiff has put forward expert

93

Doc. No. 25 at 12.

94

See CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 4:50 (2016) (“Rule 407 does not
apply to investigative reports, or post-accident inspections that reflect the condition of the machine or
instrumentality in question or analyze the cause or reasons for an accident. The reason is that such reports or
inspections are not themselves remedial measures, and do not themselves even reflect decisions to take or implement
such measures.”).

95
Celotex, 477 U.S. at 328 (White, J., concurring) (“It is not enough to move for summary judgment without
supporting the motion in any way or with a conclusory assertion that the plaintiff has no evidence to prove his
case.”).

18

opinion that these prior investigations were inadequate, which is enough to create a genuine
dispute regarding the sufficiency of IAD’s processes.
Defendant also suggests that Officer Olivo’s history of complaints is insufficient to
ground a failure-to-discipline claim as a matter of law, relying on the Third Circuit’s decision in
Beck v. City of Pittsburgh. 96 In Beck, the plaintiff brought a failure-to-discipline claim alleging
excessive force by a Pittsburgh police officer, and presented evidence at trial that the officer had
incurred five excessive-force complaints prior to the incident in question and that the police
department’s internal investigation system was structurally flawed. 97 The trial court nonetheless
granted judgment as a matter of law in favor of the defendant, finding that the mere fact the
department had investigated plaintiff’s complaint barred plaintiff’s claim. 98 The Third Circuit
reversed, explaining that the officer’s prior complaints, combined with the evidence that the
department’s investigative process was lacking, was sufficient to bring the case to the jury. 99
Many of the salient facts from Beck are present here. Like the officer in Beck, Officer
Olivo had a history of disciplinary complaints, and Dr. McCauley found that IAD failed to
investigate these incidents properly, including by ignoring evidence that Officer Olivo had
violated PPD policy in both prior incidents. 100 And like the investigative process in Beck, 101 Dr.
McCauley found that IAD investigations were deficient because they evaluated incidents in a
vacuum, rather than taking past infractions into account, and were suspect in general because

96

89 F.3d 966 (3d Cir. 1996).

97

Id. at 972-974.

98

Id. at 970.

99

Id. at 973-74.

100

McCauley Report at 12-16.

101

Beck, 89 F.3d at 973 (noting that “under the sterile and shallow . . . system of investigation, each complaint was
insulated from other prior and similar complaints and treated in a vacuum”).

19

they routinely failed to sustain complaints, even against repeat offenders such as Officer
Olivo. 102 Beck thus does not foreclose Plaintiff’s claim.
Defendant’s second argument—that IAD’s disciplinary practices have been found
sufficient in other cases—is based upon two cases from this District, neither of which stands for
the proposition that IAD’s practices are adequate as a matter of law. In Glass v. City of
Philadelphia, the court found that the plaintiffs did not establish that IAD’s investigation
practices were deficient at trial, but in that case the plaintiffs “did not present any evidence that
the IAD investigation process was flawed other than [one of the plaintiff’s] own allegations.” 103
And Defendant’s reliance upon Whichard v. Cheltenham Township is simply bizarre, as in that
case (which did not involve PPD at all) the court denied the defendant’s motion for summary
judgment on a failure-to-discipline claim, finding that a genuine issue of material fact existed
regarding the sufficiency of the defendant’s internal investigation practices. 104
In short, Plaintiff has put forward sufficient evidence to create a genuine issue of material
fact regarding whether PPD’s disciplinary processes were adequate.
C. Deliberate Indifference
Defendant argues that Plaintiff cannot establish deliberate indifference because: (1)
Plaintiff has not adduced evidence sufficient to show that the relevant decision-maker, former
Police Commissioner Ramsey, was deliberately indifferent; and (2) the mere existence of PPD

102

McCauley Report at 17. Defendant asserts that unlike the disciplinary system in Beck, IAD maintains an
“Internal Affairs Case Management System” that provides officer “alerts” with respect to complaints, and therefore
functions as a tracking system, Doc. No. 25 at 21, but cites no evidence regarding the existence or effect of this
system. Even taking Defendant at its word, Dr. McCauley’s review of IAD investigations shows that any tracking
system IAD had in place may not have been effective, creating a triable issue of fact. Moreover, the DOJ Report
found that PPD’s early intervention systems “remain largely untested and unverified.” DOJ Report at 108.
103

455 F. Supp. 2d 302, 344 (E.D. Pa. 2006).

104
Civ. A. No. 95-3969, 1996 WL 502281, at *6 (E.D. Pa. Aug. 29, 1996) (“The Court is satisfied that Plaintiff has
come forward with evidence upon which a reasonable juror could conclude that the Township’s internal
investigation procedures are inadequate by today’s professional standards.”).

20

training programs regarding the use of deadly force precludes a finding of deliberate
indifference. Similar arguments have already been rejected in other cases in this District, and
they fail here as well.
1. A Genuine Issue of Material Fact Exists Regarding Whether
Defendant Was Deliberately Indifferent
First, Defendant argues that Plaintiff has failed to put forward evidence of deliberate
indifference. In order to establish deliberate indifference, Plaintiff must show: “(1) municipal
policymakers know that employees will confront a particular situation; (2) the situation involves
a difficult choice or a history of employees mishandling; and (3) the wrong choice by an
employee will frequently cause deprivation of constitutional rights.” 105 Typically, “deliberate
indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a
known or obvious consequence of his action.” 106 However, in the context of the use of deadly
force by police, the Supreme Court has stated that the need for sufficient training is “so obvious,
that failure to do so” itself can “properly be characterized as deliberate indifference to
constitutional rights.” 107
Here, it is beyond peradventure that PPD policymakers “knew that officers would
confront situations where they would have to determine whether to use deadly force, and that the
wrong choice was likely to lead to a constitutional violation.” 108 And there is also evidence that
PPD officers had a history of inappropriately resorting to deadly force, because the DOJ Report

105

Coyett, 150 F. Supp. at 485-86 (quoting Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)).

106

Thomas v. Cumberland Cty., 749 F.3d 217, 233 (3d Cir. 2014) (quoting Bd. of Cty. Comm’rs of Bryan Cty., Okl.
v. Brown, 520 U.S. 397, 410 (1997)).
107

City of Canton, 489 U.S. at 390 n.10 (“[C]ity policymakers know to a moral certainty that their police officers
will be required to arrest fleeing felons . . . . Thus, the need to train officers in the constitutional limitations on the
use of deadly force can be said to be ‘so obvious,’ that failure to do so could properly be characterized as ‘deliberate
indifference’ to constitutional rights.”).
108

Berry, 188 F. Supp. 3d at 475.

21

found that the number of shootings by PPD officers rose between 2007 and 2014, and that
approximately 15% of these shootings involved unarmed suspects. 109 Indeed, this trend was
alarming enough that Commissioner Ramsey requested the DOJ’s assistance. All of this could
lead a reasonable factfinder to conclude that PPD policymakers were deliberately indifferent to a
pattern of violations of constitutional rights, as three other courts in this District have found. 110
Defendant nonetheless argues that the DOJ Report cannot show deliberate indifference
because it only suggests “best practices” but does not indict current PPD practices. 111 This
creative reading of the DOJ Report ignores many of its conclusions, such as that PPD officers
did “not regularly receive in-service training” on “threat perception, decision making, and deescalation,” and that PPD’s policies sent confusing signals about when the use of deadly force
was permissible. 112 A reasonable jury could conclude from this that PPD’s training programs
did not merely have room for improvement, but reflected a deliberate indifference to widespread
problems regarding the use of deadly force by PPD officers.
Defendant also argues there is no evidence that Commissioner Ramsey specifically was
aware of any deficiencies in PPD’s training programs and disciplinary system. But there is no

109

DOJ Report at 2, 33; Berry, 188 F. Supp. 3d at 475 (finding that PPD’s knowledge of police shootings, as found
by the DOJ Report, could establish deliberate indifference).

110

See Valdez, 2016 WL 2646667, at *6 (finding that DOJ Report constituted sufficient “evidence of a lack of
training in de-escalation tactics that a reasonable jury could determine that Defendant’s failure to train constituted
deliberate indifference on the Philadelphia Police Department’s part”); Berry, 188 F. Supp. 3d at 475 (finding that
the DOJ Report “could lead a reasonable jury to determine that the City of Philadelphia knew about a pattern of
violations of constitutional rights and . . . was deliberately indifferent to the inadequacies of the PPD’s deadly force
training”); Coyett, 150 F. Supp. 3d at 487-88 (finding that DOJ Report, coupled with procedural failures evident in
officer’s disciplinary proceedings, suggested deliberate indifference).
111

Doc. No. 25 at 14-15.

112

DOJ Report at 5, 44-45. In a somewhat different factual context, the Third Circuit has found that evidence of a
lack of de-escalation training itself is sufficient to create a genuine issue of material fact regarding deliberate
indifference. See Thomas, 749 F.3d at 225-226 (holding, in context of failure-to-train claim concerning corrections
officers, that evidence of a lack of de-escalation training was sufficient to establish deliberate indifference for
summary judgment purposes).

22

requirement “that the responsible decisionmaker must be specifically identified by the plaintiff’s
evidence,” and “[p]ractices so well-settled as to have the force of law are ascribable to municipal
decisionmakers.” 113 Moreover, the Third Circuit has explained that “[a] reasonable fact-finder
may conclude that a Police Chief has constructive knowledge of constitutional violations where
they are repeatedly reported in writing to the Police Department.” 114 Here, Defendant does not
seriously argue that Commissioner Ramsey was unaware of the spate of police shootings prior to
Mr. McDaniels’s death or dispute that PPD was on notice of potential problems with Officer
Olivo through a series of written complaints. Thus, there is a genuine issue of material fact
regarding whether Commissioner Ramsey was deliberately indifferent to the inadequacies in
PPD’s training and disciplinary practices. 115
2. The Mere Existence of a Training Program Does Not Insulate
Defendant From Liability
Second, Defendant argues that the mere existence of PPD’s training programs means that
Plaintiff cannot establish deliberate indifference. 116 This argument is meritless, as there is ample
evidence that PPD policymakers were aware of serious deficiencies in PPD training programs.
And the evidence Defendant points to in support of its position—a 2001 manual entitled “Use of
Force in Law Enforcement” and a “Training Academy Syllabus”—is insufficient for summary
judgment, as it simply shows that PPD officers were given written instructions regarding the use
of force at some point, but does not call into question the findings in the DOJ Report or Dr.
McCauley’s opinions. 117 In fact, Defendant’s reliance on a 2001 written training manual
arguably confirms some of the DOJ’s criticisms, including that certain training consisted of

113

Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (citations and internal quotation marks omitted).

114

Hernandez v. Borough of Palisades Park Police Dep’t, 58 F. App’x 909, 913 (3d Cir. 2003) (citation omitted).

115

E.g., Berry, 188 F. Supp. 3d at 475 (DOJ Report, combined with other evidence, established that the relevant
policymaker was deliberately indifferent to inadequacies in PPD’s training programs).

23

“little more than lecture and observation,” and that PPD’s use-of-force training practices were
outdated. 118
In short, Defendant has failed to establish that it is entitled to summary judgment on the
issue of deliberate indifference.
D. Causation
Finally, Defendant argues that Plaintiff cannot establish causation. 119 To do so, Plaintiff
must show that PPD’s decisions were the “moving force behind an actual constitutional
violation.” 120 In the context of a failure-to-train or supervise theory of liability, the causation
inquiry focuses on whether “the injury [could] have been avoided had the employee been trained
under a program that was not deficient in the identified respect.” 121 In general, “[t]he question of
causation should be left to a jury as long as the causal link is not too tenuous.” 122 And where, as
here, the plaintiff’s claim concerns police misconduct, if the defendant “is shown to have
tolerated known misconduct by police officers,” the issue of whether the defendant’s inaction
contributed to the alleged constitutional deprivation “is a question of fact for the jury.” 123
Here, as discussed, Plaintiff has put forward evidence that Mr. McDaniels’s death would
have been avoided had Officer Olivo either been trained properly regarding the use of deadly

116

Doc. No. 25 at 17.

117

Doc. No. 27 (Ex. A to Defendant’s Reply in Support of Motion for Summary Judgment); Doc. No. 28 (Ex. B to
Defendant’s Reply in Support of Motion for Summary Judgment).
118

DOJ Report at 69.

119

Doc. No. 25 at 22.

120

Grazier ex rel. White v. City of Phila., 328 F.3d 120, 125 (3d Cir. 2003) (quoting City of Canton, 489 U.S. at
389) (internal quotation marks omitted).
121

Thomas, 749 F.3d at 226 (quoting Canton, 489 U.S. at 391).

122

Coyett, 150 F. Supp. 3d at 486 (citation and internal quotation marks omitted).

123

Id. (citation omitted).

24

force, or disciplined adequately for his previous shooting incidents. The issue of causation will
therefore be left to the jury. 124
IV.

CONCLUSION
For the reasons stated above, Defendants’ motions will be denied. An appropriate Order

will be entered.

124

See Coyett, 150 F. Supp. 3d at 488-89 (determining that the “question of causation—specifically, whether the
City’s custom of failing to provide adequate use of force training, or a suitable internal disciplinary process for its
officers, was the ‘moving force’ behind [a police shooting]—is one best left for a jury resolution”); see also Berry,
188 F. Supp. 3d at 464 (finding that there was “sufficient evidence of a causal link between the PPD’s training
failures and [plaintiff’s decedent’s] death for [p]laintiff to defeat summary judgment”).

25