                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-22-1996

Beck v. Williams
Precedential or Non-Precedential:

Docket 95-3328




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation
"Beck v. Williams" (1996). 1996 Decisions. Paper 108.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/108


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                      ___________________

                          No. 95-3328
                      ___________________


                          ROBERT BECK,
                                         Appellant,

                               v.

                      CITY OF PITTSBURGH,
                                        Appellee.

                       __________________

        An Appeal from the United States District Court
            for the Western District of Pennsylvania
                       D.C. No. 94-cv-156
                      ___________________

                      Argued May 21, 1996

                Before: SLOVITER, Chief Judge,
              SAROKIN and ROSENN, Circuit Judges.

                  (Opinion Filed July 22, l996)
                      _____________________


Colin E. Fitch, Esquire (argued)
Marriner & Crumrine
800 Washington Trust Building
Washington, PA 15301
Counsel for Appellant


Virginia S. Scott, Assistant City Solicitor (argued)
Jacqueline R. Morrow, City Solicitor
City of Pittsburgh
Department of Law
Firm #046
313 City-County Building
414 Grant Street
Pittsburgh, PA 15219
Counsel for Appellee


                     ________________________
                       OPINION OF THE COURT
                     ________________________


ROSENN, Circuit Judge.
     This appeal raises a question of considerable interest in
this period of alleged rising police brutality in major cities
across the country: when does an aggrieved citizen adduce
sufficient evidence to a jury from which it can infer that a
municipality has adopted a custom of permitting its police
officers to use excessive force in the performance of their
duties. Specifically, we must determine if the plaintiff, Robert
G. Beck, presented sufficient evidence to withstand a motion for
judgment as a matter of law pursuant to Federal Rule of Civil
Procedure 50(a).
     Beck, a rehabilitation counsellor for the Epilepsy
Foundation of America, sued Police Officer Anthony Williams and
his employer, the City of Pittsburgh, in the United States
District Court for the Western District of Pennsylvania, under 42
U.S.C.   1983, for deprivations of his constitutional rights.
Beck alleged that Williams engaged in police brutality and used
excessive force against him while making an arrest, and that the
City of Pittsburgh's custom of tacitly authorizing its police
officers to use excessive force resulted in Beck's personal
injuries and damages. Beck brought additional pendent state law
tort claims against Officer Williams.
     The district court bifurcated Beck's cases against Williams
and the City of Pittsburgh. Beck's case against Williams ended
in a mistrial when the jury could not return a verdict. Beck
dropped his case against Williams, and proceeded only against the
City. After Beck presented his case, the City moved for judgment
as a matter of law. The court granted the motion, holding that
Beck presented insufficient evidence for a reasonable jury to
find that the City of Pittsburgh had established a policy or
custom tacitly authorizing its police officers to use excessive
force. Beck timely appealed to this court. We reverse the
judgment of the district court and remand for further proceedings
consistent with this opinion.

                                I.
     In the early morning hours of October 31, 1993, Beck and
two college friends left a Halloween party on the South Side of
Pittsburgh. Beck had borrowed his parents' car for the evening,
and parked it in a vacant lot near the party site. It had begun
to sleet, and as Beck began to drive the car toward the exit of
the parking lot, it skidded in circles on the wet pavement.
Although the parties have differing views on what occurred next,
for the purposes of this appeal, we must view the evidence in a
light most favorable to Beck, the nonmoving party. See Macleary
v. Hines, 817 F.2d 1081, 1083 (3d Cir. 1987). Thus, we take the
facts from Beck's testimony and other evidence presented by him
at trial.
     Beck testified that Officer Williams, working alone,
blocked the only exit from the lot with his police cruiser.
Williams stopped Beck's car, and ordered him out of the vehicle.
Beck claimed that he complied with all of Officer Williams's
commands. Williams kicked the door shut as Beck attempted to get
out of his car, then jerked open the door, and pushed his gun
into Beck's face. After cursing at Beck and using obscene
language, Williams allegedly struck him in the face six to eight
times with the end of his gun, pulled Beck from the car, forced
him to the ground, and kicked him in the ribs. At this time,
several other police officers arrived at the scene. An officer
placed Beck into Williams's police vehicle, and Williams, alone,
removed Beck to the police station. There, he charged Beck with
"driving under the influence" and reckless driving, and lodged
him in a cell.
     Subsequently, Beck filed a formal civilian complaint with
the Police Department against Williams. The Office of
Professional Standards ("OPS"), the city department responsible
for investigating complaints against police officers,
investigated. OPS took statements from Beck, his two companions
who witnessed the incident, and Officer Williams. Although
Beck's friends fully supported Beck's allegations, OPS found
Beck's complaint to be unfounded, noting that the mug shot taken
on the night he was in custody did not reveal any evidence of the
trauma he claimed.
     At trial, Beck called Carla Gedman, a civilian assistant
chief of OPS, as a witness. Gedman supervises all OPS employees
and investigators, and is responsible for forwarding all OPS
findings through the chain of command in the Pittsburgh Police
Department to the Chief of Police. Gedman testified that OPS
acts as a fact-finding body, and is not responsible for
disciplining police officers. OPS merely investigates each
complaint against an officer for use of excessive force, and
decides whether the complaint is "unfounded," "exonerated," "not
sustained," "sustained," or "closed by memo." It makes no
recommendations. OPS merely forwards its result to Police
Department officials (see supra note 4). The Department may
overturn any OPS finding. Gedman could not remember, however, if
the Department ever actually had reversed an OPS finding.
     Gedman testified that OPS will classify a complaint as
"unfounded" when the facts indicate that the complainant is
untruthful or inaccurate; and as "exonerated" when everything the
complainant states is true, but OPS finds that the officer
followed proper police procedure. OPS will label a complaint as
"closed by memo" when a complainant drops the claim, or is
uncooperative in the investigatory process. Further, OPS applies
a preponderance of evidence standard in determining whether to
sustain a complaint. Gedman explained that the complainant has
the burden of showing that 51% of the evidence supports his or
her version of the incident. Beck contends that OPS's
preponderance standard mandates a finding of "not sustained"
whenever OPS is faced with only the complainant's word against
the officer's word. Gedman stated that she "wouldn't be
comfortable" with that assessment. She testified, however, that
a finding of "not sustained" amounts to a "draw," where OPS can
neither prove nor disprove the allegations.
     According to Gedman, OPS approaches each complaint against
a police officer as a separate, independent event. Thus, OPS
cabins each complaint and will not consider prior conduct of or
prior complaints against the officer in determining the outcome
of the pending complaint. Gedman further testified that OPS has
no formal policy or mechanism in place to track prior complaints.
She noted that, in the exercise of her discretion, she may alert
police officials if she notices that an officer has a number of
complaints against him or her within a short period of time,
e.g., two months. From her perspective, Gedman testified that
she did not consider prior complaints of the use of excessive
force relevant in assessing the pending complaint under
investigation. She further stated: "We do not report patterns
of cases to the police bureau." However, the OPS annual report
does contain statistics of complaints relating to police use of
excessive force and statistics pertaining to complaints of police
verbal abuse. In some cases where Gedman believes it to be
relevant, Gedman testified that she may report a series of
incidents to the chain of command for a particular officer, but
that is within her discretion. She does not have a formal system
for determining when or what particular conduct calls for such a
report.
     Beck also offered in evidence excerpts of the deposition of
Charles Moffit, Pittsburgh's assistant chief of operations.
Moffit is the first person in the police chain of command to
review OPS findings. He stated that the Police Department will
only take an officer's prior conduct into account in reviewing an
OPS finding if OPS has sustained a complaint against the officer
for that conduct.
     In addition to the above, Beck introduced reports of
specific civilian complaints against Williams for use of
excessive force. In October 1990, OPS investigated a written
complaint filed against Officer Williams by Demetrius Yancey.
Yancey complained that for no apparent reason, Williams grabbed
him and pushed his face hard against the police vehicle. The
officer searched him and was verbally abusive. The OPS report of
the case found: Yancey's brother, who was present at the
incident, gave a statement to the investigator almost identical
to the complainant's. Both brothers were questioned separately
and there were no inconsistencies. "The Yancey brothers were
very vehement on the denunciation of Officer Williams conduct and
also they were believable." The report, however, recommended
that the case be closed as not sustained because "there is [sic]
no in depth corroborations of the allegations."
     On April 10, 1991, OPS received a civilian complaint
against Officer Williams from Dr. Irwin T. Templeton. OPS sent
this complaint to Williams's commanding officer for
investigation. The Chief of Police ultimately exonerated Officer
Williams.
     In June 1991, Dwayne Jones, a citizen, filed a complaint
with OPS charging that while he was jogging, Officer Williams
"for no apparent reason grabbed him and threw him into the rear
of the police car. . . ." He was hand-cuffed and removed to a
police station. Williams ignored Jones's complaints that the
cuffs were too tight and hurting, searched him, found nothing,
issued a citation and released him to a relative. The complaint
was not sustained because "there wasn't any evidence to prove or
disprove the allegations." The complaint also charged that
Williams addressed him with obscene language and called him a
"punk."
     On July 8, 1991, Wayne Harvard filed a citizen's complaint
with OPS charging Officer Williams with assaulting him and
hitting him on the head and face with a billy club and with
verbal abuse. Hospital records described the source of Harvard's
injuries as a fall or beating with a club. Harvard admitted to
falling in a foot chase but claimed that Williams struck him in
the face causing some of the injuries. He alleged that after he
put his hands behind his back as ordered, Williams put handcuffs
on him and "took a billy club, a small billy club, and hit me on
the side of the face." When Harvard inquired why the attack,
Williams did not reply but "kept on hitting me and just beating
me up" and called for back up.
     On November 4, 1993, the plaintiff in this case filed his
handwritten complaint with OPS. In investigating this complaint,
OPS also had written statements from each of Beck's friends who
witnessed the alleged assault. The complaint was disposed of as
"unfounded." In accordance with its practice, OPS made no
reference to previous complaints against Officer Williams.
     Slightly over two months later, on January 24, 1994, Donald
Debold filed a complaint against Williams, who, with other
officers, had come to his home to answer a domestic call. The
officers questioned Debold three times as to whether he had hit
anyone. When Debold answered in the negative, Williams began to
taunt him. Debold then said something to Officer Williams who
responded by punching him in the jaw. OPS exonerated Officer
Williams.
     None of the foregoing complaints was sustained and none of
them resulted in discipline. None of these dispositions was
overruled by the Chief of Police or his assistant. However, the
Police Department did discipline Officer Williams once: this
action arose out of an internal police claim that he verbally
abused a fellow police officer using language similar to that
which Williams allegedly used in his past encounters with the
civilian complainants. As the district court observed and
counsel for the City agreed: "This shows that they treat a
complaint by a fellow officer seriously."
     Finally, Beck introduced OPS year-end reports, circulated
through the Police Department, for the years 1991 and 1994. The
1994 report revealed that OPS sustained an overall 3.4% of "use
of force" complaints in the years 1990 through 1994. The 1991
report noted, inter alia:
         Use of force has been an issue in the past. Actual
         discipline for excessive force is very low.

             Unlike many other police departments, ours does
        not employ any formalized reporting mechanism for the
        use of force . . . . This type of report allows
        objective evaluations of the use of force before
         complaints are filed. It would certainly identify
         points for retraining, and officers typically engaged
         in this behavior. We could develop a better
         understanding of the vague phrase "reasonable use of
         force," as incidents routinely reported could be
         audited and properly examined . . . . Most cases
         cannot be sustained because it is usually the officer
         and complainant on the scene only; and no neutral
         evidence is available. We do report patterns of cases
         to the Police Bureau however; e.g. an officer receiving
         three complaints in two months.

              The independent events do not indicate that the
         civilians conspired against one particular officer.
         The officer's credibility is at issue when a
         discernable pattern of complaints develop [sic] . . .
         officers and patterns like this will be focus [sic] of
         our "early I.D." program . . . those that can't control
         their temper or use verbal skills properly, run the
         risk of aggravating the very situation which they are
         called upon to assist.

     After Beck rested his case, the City moved for judgment as
a matter of law. See Fed. R. Civ. P. 50(e). The district court
granted the motion, holding that Beck failed to present
sufficient evidence to prove that the City had a policy or custom
authorizing the use of excessive force by its police officers.

                               II.
     Federal Rule of Civil Procedure 50(a) provides, in
pertinent part:
         (1) If during a trial by jury a party has been fully
         heard on an issue and there is no legally sufficient
         evidentiary basis for a reasonable jury to find for
         that party on that issue, the court may determine the
         issue against that party and may grant a motion for
         judgment as a matter of law against that party with
         respect to a claim or defense that cannot under the
         controlling law be maintained or defeated without a
         favorable finding on that issue.

Fed. R. Civ. P. 50(a)(1). This court's review of the district
court's grant of judgment as a matter of law is plenary, and we
must apply the same standard as the district court. SeeLightening Lube,
Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.
1993). A motion for judgment as a matter of law under Federal
Rule 50(a) "should be granted only if, viewing the evidence in
the light most favorable to the nonmoving party, there is no
question of material fact for the jury and any verdict other than
the one directed would be erroneous under the governing law."
Macleary, 817 F.2d at 1083.
     Beck claims that the City of Pittsburgh is liable for the
injuries and damages he sustained at the hands of one of its
police officers. He alleges that the City, "through its relevant
officials, tolerated and acquiesced in a custom of excessive use
of force by its police officers by permitting a situation to
exist where police officers were not disciplined or subject to
review for the use of excessive force against citizens." Beck
brings this claim under 42 U.S.C.   1983, which provides, in
relevant part:
         Every person who, under color of any statute,
         ordinance, regulation, custom, or usage, of any State .
         . . subjects, or causes to be subjected, any citizen of
         the United States . . . to the deprivation of any
         rights, privileges, or immunities secured by the
         Constitution and laws, shall be liable to the party
         injured in an action at law . . . .

42 U.S.C.   1983.
     Because Beck's claim is not based on ordinary negligence or
tort principles but on a federal civil rights statute, the City
is not liable under the doctrine of respondeat superior for the
misconduct of its police. Andrews v. City of Philadelphia, 895
F.2d 1469, 1480 (3d Cir. 1990). When a suit against a
municipality is based on   1983, the municipality can only be
liable when the alleged constitutional transgression implements
or executes a policy, regulation or decision officially adopted
by the governing body or informally adopted by custom. Monell v.
New York City Dept. of Social Services, 436 U.S. 658 (1978).
Thus, although the municipality may not be held liable for a
constitutional tort under   1983 on the theory of vicarious
liability, it can be held responsible as an entity when the
injury inflicted is permitted under its adopted policy or custom.
Id. at 694.
     The Court's holding and reasoning in Monell have created a
two-path track to municipal liability under   1983, depending on
whether the allegation is based on municipal policy or custom.
See Pembaur v. City of Cincinnati, 475 U.S. 469, 481 & n.10
(1986). In Andrews, this court articulated the distinctions
between these two sources of liability:
         A government policy or custom can be established in two
         ways. Policy is made when a "decisionmaker
         possess[ing] final authority to establish municipal
         policy with respect to the action" issues an official
         proclamation, policy, or edict. A course of conduct is
         considered to be a "custom" when, though not authorized
         by law, "such practices of state officials [are] so
         permanent and well-settled" as to virtually constitute
         law.

895 F.2d at 1480 (citations omitted); see also Bielevicz v.
Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (same). Custom, on
which the plaintiff relies in this case, may also be established
by evidence of knowledge and acquiescence. See Fletcher v.
O'Donnell, 867 F.2d 791, 793 (3d Cir. 1989), cert. denied, 492
U.S. 919 (1989).
     In City of Canton v. Harris, 489 U.S. 378 (1989), Officers
of the Canton Police Department arrested Geraldine Harris. While
being processed at the police station, she fell down several
times and became incoherent. The officers did not summon any
medical assistance for her. Sometime after her release she sued
for damages under 42 U.S.C.   1983. The Court held that the
inadequacy of police training may serve as the basis for    1983
liability "only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come
into contact." Id. at 388 (footnote omitted). Although City of
Canton involved a city's alleged failure to train its police
officers, courts have adopted the "deliberate indifference"
standard in other policy and custom contexts. See e.g., Simmons
v. City of Philadelphia, 947 F.2d 1042, 1070 (3d Cir. 1991),
cert. denied, 503 U.S. 985 (1992); see also Karen M. Blum,
Monell, DeShaney, and Zinermon: Official Policy, Affirmative
Duty, Established State Procedure and Local Government Liability
Under Section 1983, 24 CREIGHTON L. REV. 1, 13 (1990). This is
consistent with the Court's narrow construction of municipal
liability under 42 U.S.C.   1983 since Monell, limiting municipal
liability to only those constitutional torts actually caused by
the municipality. See Michael T. Burke & Patricia A. Burton,
Defining The Contours of Municipal Liability Under 42 U.S.C.
1983: Monell through City of Canton v. Harris, 18 STETSON L. REV.
511, 547 (1989).
     In Simmons, 947 F.2d 1042, the plaintiff sued the City of
Philadelphia under various theories of   1983 liability for
failing to prevent her son from committing suicide while in
police custody. The plaintiff alleged that the City failed to
properly train its employees in the prevention of suicide of
intoxicated detainees, and that the City's policy or custom led
to her son's death.
     We held, in Simmons, that:
         In order to establish the City's liability under her
         theory that Simmons's rights were violated as a result
         of a municipal policy or custom of deliberate
         indifference to the serious medical needs of
         intoxicated and potentially suicidal detainees,
         plaintiff must have shown that the officials determined
         by the district court to be the responsible
         policymakers were aware of the number of suicides in
         City lockups and of the alternatives for preventing
         them, but either deliberately chose not to pursue these
         alternatives or acquiesced in a long-standing policy or
         custom of inaction in this regard.

Id. at 1064 (emphasis added).

     In Bielevicz, the plaintiffs alleged a violation of    1983
against the City of Pittsburgh for a municipal custom of allowing
its police officers to make illegal arrests for intoxication. We
held that to sustain a   1983 claim for municipal liability, the
plaintiff must "simply establish a municipal custom coupled with
causation--i.e., that policymakers were aware of similar unlawful
conduct in the past, but failed to take precautions against
future violations, and that this failure, at least in part, led
to their injury." 915 F.2d at 851.
     In the instant case, Beck argues that Officer Williams has
exhibited a pattern of violent and inappropriate behavior, with
five complaints of excessive use of force in less than five
years. These complaints include the Debold incident, which,
although it occurred after Beck's experience, may have
evidentiary value for a jury's consideration whether the City and
policymakers had a pattern of tacitly approving the use of
excessive force. Beck asserts that if the City had proper
investigative and police disciplining procedures in place, its
police, including Williams, would not have pursued a settled
practice of applying excessive force in arresting citizens, and
Williams, in particular, would not have assaulted him.
     The district court granted the City's motion for judgment
as a matter of law, holding that Beck did not present sufficient
evidence to show that the City had a policy or custom of
authorizing the use of excessive force or abusive behavior. The
court addressed plaintiff's counsel, stating:
         You would have the jury infer that because Williams was
         never disciplined, the City tacitly authorized the use
         of excessive force. But I think the law is clear that
         the jury can't make that assumption. Judge Cohill has
         an opinion in this court saying that isolated events
         will not establish a pattern of abusive behavior.
         Recitation of the number of complaints filed is not
         sufficient to prove a policy or custom. Policy or
         custom have to be established by knowledge and
         acquiescence. I think [the] absen[ce of] any evidence
         of a less than meaningful investigation or less than
         meaningful response to complaints of excessive force is
         fatal.

                               III.
     Under Federal Rule of Evidence 404(b), evidence of other
wrongs or acts, although not admissible to prove the character of
a person, are admissible for other purposes, such as proof of
knowledge. What we have here are not mere isolated events or
mere statistics of the number of complaints. On the contrary,
the plaintiff offered in evidence a series of actual written
civilian complaints of similar nature, most of them before and
some after the Beck incident, containing specific information
pertaining to the use of excessive force and verbal abuse by
Officer Williams. All but one of the complaints had been
investigated by OPS and had been transmitted through the police
department chain of command to the Chief of Police. Thus, he
had knowledge of the complaints. But, under the sterile and
shallow OPS system of investigation, each complaint was insulated
from other prior and similar complaints and treated in a vacuum.
     The testimony of witnesses to some of these incidents was
rendered weightless by OPS in its disposition of the complaints
merely because the witnesses had accompanied the complainant at
the time of the incident. OPS appears to have assumed the
credibility of Officer Williams's response, even though it
recognized that "an officer's credibility is at issue when a
discernable pattern of complaints develop. [sic]" (See infra OPS
1991 report) OPS appears to have attached no credibility,
however, to the complainant's witnesses if they accompanied the
complainant at the time of the incident, even if an OPS
investigator found them believable. (See supra Yancey report)
In the absence of testimony by witnesses having no connection
with the alleged incident, OPS ultimately resolved almost all
complaints against Williams or other officers on the narrow
testimony of the complainant and the accused officer, thereby
disposing of them unfavorably for the complaining citizen. OPS
did not consider prior citizen complaints of an officer's
excessive use of force as relevant in assessing a pending
complaint, and manifested no interest in probing the credibility
of the officer under investigation. Thus, it "did not report
patterns of cases to the police bureau."
     Without more, these written complaints were sufficient for
a reasonable jury to infer that the Chief of Police of Pittsburgh
and his department knew, or should have known, of Officer
Williams's violent behavior in arresting citizens, even when the
arrestee behaved peacefully, in orderly fashion, complied with
all of the Officer's demands, and offered no resistance.
     Because the complaints, especially those during the year
1991, came in a narrow period of time and were of similar nature,
a reasonable jury could have inferred that the Chief of Police
knew, or should have known, of Williams's propensity for violence
when making arrests. See Parrish v. Luckie, 963 F.2d 201, 205
(8th Cir. 1992). Three of the 1991 complaints were filed between
April and July.
     We reject the district court's suggestion that mere
Department procedures to receive and investigate complaints
shield the City from liability. It is not enough that an
investigative process be in place; as Beck's brief to us notes:
         The investigative process must be real. It must have
         some teeth. It must answer to the citizen by providing
         at least a rudimentary chance of redress when injustice
         is done. The mere fact of investigation for the sake
         of investigation does not fulfill a city's obligation
         to its citizens.

     None of the cases cited by the district court at trial
support its conclusion that Beck's claim is barred simply because
the City investigated his complaint, regardless of the adequacy
of the investigation. In Brandon v. Hart, the Supreme Court
mentions that twenty complaints were filed against the officer
whose behavior precipitated the suit in that case, 469 U.S. 464,
466 n.3 (1985), but there is no discussion as to whether or not
the Police Department had investigated those complaints. In
Harris v. City of Pagedale, 821 F.2d 499 (8th Cir. 1987), cert.denied 484
U.S. 986 (1987), not only were there numerous
complaints filed against the accused officer which were
investigated, but in addition the officer was suspended for two
days as the result of one of the complaints. Id. at 502. There
is no discussion of the City's procedures for handling complaints
in Parker v. District of Columbia, 850 F.2d 708 (D.C. Cir. 1988),
cert. denied, 489 U.S. 1065 (1989). We did note in Bieleviczthat the
City-defendant in that case "followed an express policy
of not investigating--or even accepting--complaints regarding
alleged pretextual arrests" under a charge of public drunkenness,
915 F.2d at 849, but we never suggested that this was a
requirement for a successful   1983 claim. See also Fletcher,
867 F.2d 791; Herrera v. Valentine, 653 F.2d 1220 (8th Cir.
1981).
     There are, on the other hand, very sound reasons to reject
the rule that the district court implicitly suggests. Formalism
is often the last refuge of scoundrels; history teaches us that
the most tyrannical regimes, from Pinochet's Chile to Stalin's
Soviet Union, are theoretically those with the most developed
legal procedures. The point is obviously not to tar the Police
Department's good name with disreputable associations, but only
to illustrate that we cannot look to the mere existence of
superficial grievance procedures as a guarantee that citizens'
constitutional liberties are secure. Protection of citizens'
rights and liberties depends upon the substance of the OPS
investigatory procedures. Whether those procedures had substance
was for the jury's consideration.
     On reviewing the record, we find considerably more than
Beck's complaints from which a reasonable jury could have found
that the City's procedures are inadequate to protect civilians
from police misuse of force. The OPS itself was structured to
curtail disciplinary action and stifle investigations into the
credibility of the City's police officers. Even if complainant's
witnesses were credible, their testimony became inert under OPS
policy, while at the same time police officers' statements
appeared to have been given special, favorable consideration. A
jury readily could have found the Office of Professional
Standards was nothing more than a facade to cover the violent
behavioral patterns of police officers under investigation, to
protect them from disciplinary action, and thereby perpetuate the
City's custom of acquiescing in the excessive use of force by its
police officers.
     Because there is no formalized tracking of complaints for
individual officers, a jury could find that officers are
guaranteed repeated impunity, so long as they do not put
themselves in a position to be observed by someone other than
another police officer. As we noted in Bielevicz, "it is logical
to assume that continued official tolerance of repeated
misconduct facilitates similar unlawful actions in the future."
915 F.2d at 851.
     Further, a jury would have had the benefit of OPS's 1991
year-end report, which OPS had circulated to police department
officials and which Beck introduced into evidence. The 1991 OPS
report brought to light several of the problems to which Beck
refers. It recognized that the department had a problem with
police use of excessive force, and that the procedures in place
may be inadequate to respond to the problem. ("Use of force has
been an issue in the past. Actual discipline for excessive force
is very low."). It acknowledged that many complaints were
effectively dismissed because no independent witness was at the
scene to observe the encounter. ("Most cases cannot be sustained
because it is usually the officer and complainant on the scene
only; and no neutral evidence is available."). And it conceded
that repeated complaints against one officer may be cause for
concern and some uncertainty as to that officer's veracity.
("The officer's credibility is at issue when a discernable
pattern of complaints develop [sic]."). The report also
suggested that better procedures "would certainly identify points
for retraining, and officers typically engaged in this behavior."
     Gedman testified that the City took no action subsequent to
the 1991 report. The 1994 report showed that OPS had received 34
complaints of police officer violence during the year 1991, none
of which had resulted in disciplinary action. OPS statistics for
1992 and 1993 showed 39 and 38 civilian complaints of excessive
police officer force respectively, and in 1994, an increase to 77
complaints.
     The City cites Bryant v. Whalen, 759 F. Supp. 410 (N.D.Ill.
1991) for the proposition that statistical information alone is
insufficient to support a   1983 claim. In Bryant, the City of
Chicago had a system similar to Pittsburgh's to investigate the
use of excessive force by its police officers with an office,
OPS, to do the investigation. OPS would determine if the
complaint was "unfounded," "exonerated," "not sustained," or
"sustained." It used a preponderance of the evidence standard of
proof, which mandated a "not sustained" verdict if the evidence
presented the OPS with only the complainant's word against the
officer's word.
     The plaintiffs alleged that several of Chicago's police
officers assaulted them, and that these officers each had an
extensive prior complaint history. One of the officers had 39
prior complaints of excessive use of force, none of which the OPS
sustained. The plaintiffs presented statistical evidence
revealing that the OPS sustains 6.2% of complaints per year. Id.at 421.
They asserted that the low percentage of sustained
complaints, and the repeated allegations against the defendant
police officers, proved that the City showed deliberate
indifference to the constitutional rights of its citizens.
     The district court in Bryant held that statistics alone of
unsustained complaints of excessive use of force, without
evidence that those complaints had merit, will not suffice to
establish municipal liability under   1983. Id. at 424.     See
also Strauss v. City of Chicago, 760 F.2d 765, 768-69 (7th Cir.
1985) (finding statistics insufficient to prove municipal
liability because people may file complaints "for many reasons,
or for no reason at all.")
     Bryant, even if it were precedential and/or persuasive, is
distinguishable from the instant case. Beck presented
considerably more than mere statistics. He also presented
evidence of actual written civilian complaints. Further, he
presented evidence that the City of Pittsburgh has no formal
system in place for tracking complaints against its officers and
that the citizen complaints were not isolated incidents.
     Finally, in a colloquy with counsel, the trial court
indicated that the absence of expert testimony to support
plaintiff's case was a factor that influenced its decision to
enter judgment as a matter of law. To the extent that Gedman
herself brought to light deficiencies in her own department's
procedures, we see little need for the use of expert testimony to
confirm her own insights. As for drawing inferences from the
evidence regarding the adequacy of the investigatory process, we
again agree with Beck that "[t]o require expert testimony to
prove this fact is ridiculous. It is not beyond the ken of an
average juror to assess what a reasonable municipal policymaker
would have done with the information in this case."

                               IV.
     In sum, we draw no conclusion as to whether the evidence
presented by Beck supports a determination that Pittsburgh
policymakers knew about and acquiesced in a custom that tolerated
the use of excessive force by officers of the Police Department.
We do conclude, however, that Beck presented sufficient evidence
from which a reasonable jury could have inferred that the City of
Pittsburgh knew about and acquiesced in a custom tolerating the
tacit use of excessive force by its police officers. This
evidence sufficiently precluded the entry of judgment as a matter
of law by the district court.
     Accordingly, the judgment of the district court will be
reversed and the case remanded for further proceedings consistent
with this opinion.
     Costs taxed against the City of Pittsburgh, appellee.
