The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Noel, Socorro and Lourdes Padilla, together with Irene Santiago and Erling Johnson, have invoked 42 U.S.C. §1983 ("Section 1983") to sue the City of Chicago ("City") and certain of its police officers ("Defendant Officers") assigned to the Special Operations Section ("SOS"). Plaintiffs assert that Defendant Officers violated their constitutional rights and that City caused that violation by failing to train, supervise and discipline police officers and to track reports of officer misconduct throughout the Chicago Police Department ("Department"). For discovery purposes the case was referred to Magistrate Judge Arlander Keys, who denied plaintiffs' motion to reconsider an earlier order that had refused to compel City to produce certain documents relating to its allegedly "broken disciplinary and supervisory systems."
Plaintiffs have again sought reconsideration of that ruling, this time under Fed. R. Civ. P. ("Rule") 72(a), which permits this Court to modify or set aside the ruling to the extent that it is clearly erroneous or contrary to law. For the reasons stated in this memorandum opinion and order, plaintiffs' motion is granted in part and denied in part.
Municipal Liability Under Section 1983 Under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978) a plaintiff seeking to hold a municipality responsible for a Section 1983 violation must do so on a showing of direct rather than vicarious liability. Where as here plaintiffs claim "that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee" (Board of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 405 (1997)).
For that purpose Monell and its almost innumerable progeny have prescribed and applied a few alternative routes for reaching that goal. In this instance plaintiffs' chosen path is well described by the plurality opinion in City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)(internal quotation marks omitted), under which they must establish that City's alleged failure to train and discipline its police officers and track misconduct reports constitutes "a widespread practice that, although not authorized by written law or express municipal policy , is so permanent and well settled as to constitute a custom and usage with the force of law."
In addition, plaintiffs must demonstrate that City condoned the asserted practice by acting with deliberate or reckless indifference toward complaints of misconduct (Wilson v. City of Chicago, 6 F.3d 1233, 1240 (7th Cir. 1993)). Merely showing that City responded slowly, ineffectively or even carelessly is not enough (id.). Moreover, "the existence or possibility of other better policies which might have been used does not necessarily mean that the defendant was being deliberately indifferent" (Frake v. City of Chicago, 210 F.3d 779, 782 (7th Cir. 2000)).
To demonstrate that City had the ability to identify and track officers accused of repeatedly violating citizens' constitutional rights but failed to address those abuses adequately, plaintiffs seek what they describe as "summary data" regarding complaints of police misconduct on a Department-wide basis (P. Mem. 2). At issue here are plaintiffs' Fourth Set of Requests for Production ("Requests") Nos. 7-16, 18-24, 26 and 35 (P. Mem. 6, 17, 18).*fn1
Specifically, for the 2000 to 2005 period plaintiffs seek
(1) the complaint and assignment histories of every City police officer (Nos. 7-9, 11), (2) disciplinary outcomes for every officer who either accrued more than 10 complaints (Nos. 13-16) or was assigned to SOS in 2004 or 2005 (No. 10), (3) breakdowns as to all officers by number of complaints received, assignment units and referral to "Early Warning" programs (Nos. 12, 20, 21) and (4) breakdowns of complaints by type, assignment unit of the officer and final outcome (Nos. 18-19, 22-24). Plaintiffs also seek a list of City's assignment units in 2004 and 2005 (No. 26) and detailed information regarding every complaint received by three specific nonparty officers throughout their careers (No. 35).
Judge Keys held that while discovery pertaining to Defendant Officers and other SOS officers is appropriate, plaintiffs cannot justify taking discovery on every City police officer and every report of alleged misconduct of any kind across the Department during a five-year period. Plaintiffs argue that ruling is "clearly erroneous" for two reasons:
1. Department-wide summary data is relevant and necessary to plaintiffs' Section 1983 claim against City.
2. Judge Keys denied not only Department-wide
discovery requests but also those limited solely to SOS. Plaintiffs'
first point as to the potential utility of--and therefore the need
for--the Department-wide discovery is well taken. Whether Defendant
Officers and their SOS co-workers accrued disproportionately high
numbers of civilian complaints but were rarely disciplined in
comparison to the rest of Department is clearly relevant to the
possible validity of plaintiffs' claim that City was indifferent to
the presence of, and the need to deal with, rogue officers.*fn2
Without Department-wide data plaintiffs would be unable to
demonstrate (if such is the case) that the pattern of complaints as to
SOS generally and among Defendant Officers specifically stood out from
the situation as to the remainder of the police force.
Any more limited comparison as between Defendant Officers and their SOS co-workers would be insufficient, because (according to Defendant Officer Herrera's own admissions) misconduct was officially encouraged by SOS "bosses," which suggests it was widespread throughout the assignment unit (P. Mem. 5). Department-wide statistics are necessary to determine whether the SOS unit as a whole routinely received high numbers of complaints, yet had (or also had) low rates of discipline.
It should be remembered that this opinion deals only with the discoverability of possible evidence, not with what the discovered facts will or will not turn out to prove. It need not be assumed that the data gathered will be admissible--the question of admissibility is not before this Court. As Rule 26(b)(1) ...