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BIFURCATION IN EXCESSIVE FORCE CASESSteven S. Glickman

Excessive force cases under the federal Civil Rights Act, 42 U.S.C. §1983 against police officers are being argued with greater frequency based upon Monell v. Department of Social Services, 436 U.S. 658 (1980). This allows plaintiffs’ attorneys to introduce evidence related to a “pattern and practice” of a police department that otherwise, in a majority of cases, would be inadmissible as to the actions of the police officer or officers in the specific case being tried. To avoid such undue prejudice, a motion to bifurcate is warranted.

Federal Rule of Civil Procedure 42(b) states in relevant part that "[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more . . . claims . . . ." The Third Circuit has "cast its lot with the views expressed by the Advisory Committee that bifurcation 'be encouraged where experience has demonstrated its worth . . . .'" Lis v. Robert Packer Hosp., 579 F.2d 819, 824 (3d Cir. 1978). The Third Circuit has upheld the bifurcation under the precise circumstances presented here. See Asbury v. Connelly, 53 Fed. App'x. 655, 657 (3d Cir. 2002).

Bifurcation of Monell claims has become a commonly utilized remedy in several districts. In fact, one of the defining Monell cases involving internal affairs policy, Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996), was bifurcated at the trial level.

Most recently, a court ordered the bifurcation of plaintiff's excessive force claim against Atlantic City police officers and the Monell claim against Atlantic City. Harrison v. City of Atlantic City, et al., No. 1:14-cv-06292, Docket No. 195. The bifurcation of 42 U.S.C. §1983 excessive force claims brought against both a municipality and the police officers accused of using excessive force against the plaintiff has proven its worth. The experience and sound reasoning of trial courts in this jurisdiction and numerous trial courts in other districts supports that bifurcation is warranted as to the claims raised against Defendants.

In City of Los Angeles v. Heller, 475 U.S. 796 (1986), an excessive force case, the Supreme Court further clarified that, generally speaking, a municipality cannot be held liable for violating a plaintiff's civil rights when the officers involved in the event at issue have been found to have inflicted no constitutional harm to the plaintiff. Specifically, the Court held:

If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.
 
Accordingly, courts have consistently held that it would be "a waste of judicial resources" to ask a jury to assess a plaintiff's Monell claim absent a prior determination of the plaintiff's claim against the individual defendant that could ultimately render the Monell claim unfeasible:

Because plaintiffs must show that their constitutional rights were violated . . . before they even address the "pattern and practice" claim against the municipalities, it makes sense to sever the trial so that [the claims against] the three individual officers are tried first. That way, the defendants assert, the plaintiffs will no longer have any claims against the others. The Court would be thus spared significant time and effort.
 
Carson v. Syracuse, 1993 WL 260676 at *5 (N.D.N.Y. July 7, 1993).

Bifurcation has also been found to expedite and make more economical trials involving individual officers and Monell claims. Trying the case against the individual defendants before addressing the more expansive and potentially unnecessary Monell claim. Is the most efficient way to proceed.

Defense attorneys in excessive force cases would be remiss not to consider attempting to bifurcate Monell claims from the constitutional excessive force claims.