The difference between a Monell excessive force claim that fails at summary judgment and one that reaches the jury is almost always the quality of the pre-litigation investigation. Pattern-or-practice claims — the theory most often invoked in use-of-force cases — require evidence of prior incidents, departmental notice, and deliberate choice to tolerate misconduct. That evidence rarely materializes through routine litigation discovery alone; it must be systematically gathered through public records, internal affairs files, and targeted open-records requests before the complaint is filed.
The Pattern-or-Practice Framework
A municipality is liable under 42 U.S.C. § 1983 for a constitutional violation caused by its "custom or usage" even in the absence of a formally adopted policy. Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978). A custom, for this purpose, is a practice "so persistent and widespread as to practically have the force of law." The custom must be both the direct and the moving force behind the plaintiff's injury.
In an excessive force case, pattern-or-practice liability requires evidence that:
- The municipality had a custom or practice of permitting (or failing to correct) unconstitutional uses of force;
- Final policymakers knew or should have known of the custom because prior incidents put them on notice; and
- The municipality's failure to act in response to that notice constituted deliberate indifference to the constitutional rights of the people its officers would encounter — and the plaintiff's injury was a foreseeable consequence.
The more tightly the prior incidents mirror the conduct that produced the plaintiff's injury — same type of force, same context, same officer or unit — the more powerful the pattern evidence. A single incident of prior similar misconduct is rarely sufficient; multiple incidents, particularly involving the same officer, begin to establish the pattern.
Gathering the Pattern: Pre-Litigation Investigation
Federal FOIA
The federal Freedom of Information Act, 5 U.S.C. § 552, applies only to federal agencies — not to local police departments. However, federal FOIA requests directed to the Department of Justice, the FBI, or the Department of Homeland Security (in cases involving joint task forces or federally funded initiatives) can yield:
- Civil rights investigation files maintained by the DOJ Civil Rights Division or the FBI's civil rights unit;
- DOJ pattern-or-practice investigation reports for departments under consent decrees or formal investigation;
- Task force operational reports and federal grant records that include reporting on use-of-force incidents.
These requests are particularly valuable in cases involving police departments that have been the subject of prior DOJ investigations, even if no formal consent decree resulted. Investigation reports and letters of findings, if issued, may contain exactly the kind of pattern evidence that is difficult to obtain from the department itself.
Florida Public Records Law: Chapter 119
Chapter 119 of the Florida Statutes is one of the broadest public records schemes in the country. Florida's public policy — codified at § 119.011(12), Fla. Stat. — presumes public access to all records "made or received pursuant to law or ordinance or in connection with the transaction of official business" by any agency or body subject to the Act.
Arrest and crime reports are generally open to inspection. Incident reports documenting use-of-force incidents are subject to the active criminal investigative information exemption under § 119.071(2)(c), Fla. Stat., but only while the investigation is "active." Once the investigation closes — by prosecution, declination, or administrative closure — the exemption expires and the records become available. In excessive force cases where no criminal prosecution was initiated, these files are often available relatively promptly.
Body-camera recordings. Section 119.071(2)(l), Fla. Stat., exempts body-worn camera recordings from disclosure during an active investigation. Once the investigation closes, body-camera footage generally becomes a public record. In cases where the footage is critical — as it almost always is in use-of-force litigation — counsel should submit public records requests for body-cam footage immediately after learning of a potential claim, before any investigation opens, and again promptly when any pending investigation closes.
Internal affairs files. Section 112.533, Fla. Stat., specifically addresses law enforcement officer complaint records. While active complaints are confidential during investigation, files of closed investigations — including disciplinary records and findings — become accessible. In practice, departments frequently resist production or redact heavily; mandamus actions under § 119.11, Fla. Stat., are available to compel disclosure.
Pattern-building through Chapter 119. The most effective pre-litigation investigation under Florida law combines:
- Requests for all use-of-force incident reports for a defined officer, unit, or category of force type over a three-to-five-year period;
- Closed IA investigation files for the involved officer and, if possible, similar incidents involving other officers;
- Settlement and judgment records for prior § 1983 cases — these are public court records in any event, but settlements often appear in city or county budget records that are themselves public.
Alabama Open Records Act: Ala. Code § 36-12-40
Alabama's public records law, Ala. Code § 36-12-40, is less expansive than Florida's Chapter 119 but still provides meaningful access to municipal records. The statute states that "[e]very citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute." Alabama courts have recognized the right to obtain records of public agencies, including law enforcement entities.
Specific exemptions apply to ongoing criminal investigations and to personnel records protected by state employment law. Alabama's statute does not have an explicit exemption for IA complaint files, but departments frequently invoke general personnel privacy protections or active-investigation exemptions to resist disclosure of IA records. Practitioners should be prepared to litigate the exemption claims through a circuit court mandamus action if the department denies access.
Alabama's public records act has been amended most recently by Act 2024 legislation (codified at §§ 36-12-43 through 36-12-46), which established formalized procedures for responding to records requests — including defined response timelines and the obligation to identify the proper custodian when the responding agency does not have custody of the requested records. These procedural requirements give practitioners new tools to enforce timeliness and trace the records chain.
Because Alabama sheriffs are state officers under McMillian v. Monroe County, discussed in Post 53, Alabama open-records requests for sheriff's office records may be directed to the sheriff as a state constitutional officer rather than as a county officer — which may affect both which statutes govern and which exemptions apply.
Sister-Incident Evidence: FRE 404(b) and 406
Evidence of prior use-of-force incidents by the defendant officer or by the department serves double duty in Monell litigation: it establishes the constitutional pattern for Monell liability, and it may be independently admissible under the Federal Rules of Evidence to prove the officer's conduct on the occasion in question.
Rule 404(b): Prior Acts of the Individual Officer
Federal Rule of Evidence 404(b)(1) prohibits evidence of prior acts to prove that a person acted in conformity with a character trait — the classic "he did it before so he did it again" inference. Rule 404(b)(2), however, permits such evidence when offered for a non-propensity purpose: to prove knowledge, intent, motive, absence of mistake, or identity.
In excessive force cases, Rule 404(b) evidence of an officer's prior use-of-force incidents is admissible to demonstrate:
- Knowledge: The officer was aware that the technique or amount of force used in the prior incidents was excessive or at the constitutional borderline, making his decision to repeat the conduct intentional rather than inadvertent.
- Absence of mistake: Where the officer claims the force was an instinctive response to a perceived threat, prior incidents where the same officer used similar force in analogous circumstances rebut the accident/mistake defense.
- Intent: In cases where excessive force requires proof of intent to harm or willfulness, evidence of a consistent pattern of force against the same class of individuals is probative of intent.
Practical note: Rule 403's balancing test applies. Courts will exclude highly inflammatory prior-acts evidence if its prejudicial impact substantially outweighs its probative value. The admissibility argument for Monell purposes — where the prior incidents go to the municipality's notice, not the officer's propensity — is distinct from the Rule 404(b)(2) argument for admissibility against the individual defendant. Keep these theories separate and argue each on its own logic.
Rule 406: Routine Practice
Federal Rule of Evidence 406 permits evidence of an organization's or person's routine practice to prove that on a particular occasion the person or organization acted in conformity with the routine practice. Unlike Rule 404, Rule 406 does not require a limiting instruction and is not subject to the propensity prohibition.
For Monell purposes, evidence that a police department's standard response to a particular type of encounter — persons in mental health crisis, individuals exhibiting signs of intoxication, suspects who fail to comply immediately with verbal commands — routinely involves a specific use-of-force technique is admissible under Rule 406 to prove that the department acted in conformity with that routine practice when its officers used the same technique in the plaintiff's case. This is the pattern-or-practice theory expressed in evidentiary terms: the department's consistent practice is simultaneously Monell evidence and Rule 406 evidence.
Developing Rule 406 evidence: Rule 406 evidence is most persuasive when it is specific rather than general. Rather than offering broad testimony that "officers regularly use excessive force," develop specific evidence of a defined category of conduct — "the department's practice, applied across at least 12 documented incidents over the past five years, was to deploy taser weapons on individuals already handcuffed on the ground" — that is specific enough to constitute a "routine practice" rather than a vague propensity assertion.
Pattern-or-Practice Pleading Mechanics
A complaint that will survive a motion to dismiss under Iqbal/Twombly and withstand summary judgment must allege the pattern with sufficient specificity:
Name or describe the prior incidents. A complaint alleging "on numerous occasions officers employed by the defendant used excessive force" is too vague. A complaint alleging at least a handful of specific prior incidents — with approximate dates, types of force, and outcomes — provides the factual specificity that courts in the Eleventh Circuit require. Research prior cases before filing.
Connect the prior incidents to policymaker notice. Pattern evidence is only valuable for Monell purposes if the pattern was known — or should have been known — to the final policymaker. Allegations that prior incidents resulted in IA complaints reviewed by the chief, civil judgments or settlements paid by the city, or press coverage that reached senior officials are essential to the notice element.
Allege the deliberate choice. After the municipality knew of the pattern, it chose to take no remedial action — no revised training, no disciplinary changes, no policy modifications. That deliberate non-response is the functional equivalent of endorsing the unconstitutional custom. Allege with specificity what remedial action was available and not taken.
Tie the pattern to the plaintiff's injury. The prior incidents must be analogous in a constitutionally meaningful sense: same type of force, same category of circumstances. Prior incidents involving officer-involved shootings do not, by themselves, establish a pattern of unconstitutional chokeholds. The connection must be close enough that the policymaker's awareness of the prior pattern, combined with failure to act, constitutes deliberate indifference to the specific risk that materialized in the plaintiff's case.
Closing
The architecture of a strong excessive force Monell claim is assembled before the complaint is filed. The investigation begins with public records, extends to body-camera footage, and culminates in IA files and prior case records that collectively establish what the department did, what the final policymakers knew, and why their failure to respond was a deliberate institutional choice rather than inadvertence. That pre-litigation record shapes every subsequent stage of litigation — the complaint's resilience to a motion to dismiss, the scope of discovery, the expert opinions that will support or oppose the pattern claim, and ultimately the sufficiency of the evidence that reaches the jury.
Talk to Yates Anderson
If you are litigating a matter in this area — or weighing whether to — the working analysis above only goes so far. Request a case evaluation and a Yates Anderson attorney will respond within one business day.
Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.