Sunday, February 1, 2009
I (Was) Shot (By) The Sheriff: Eleventh Circuit Incorrectly Applies Employee Admission Rule In Section 1983 Appeal
I strongly disagree with at least part of the recent opinion of the Eleventh Circuit in Lloyd v. Van Tassell, 2009 WL 179622(11th Cir. 2009), because I think that it contains an incorrect interpretation of Federal Rule of Evidence 801(d)(2)(D), the employee admission rule.
In Van Tassell, Orvel Winston Lloyd appealed inter alia the district court's grant of summary judgment to the defendants in his 42 U.S.C. Section 1983 action challenging actions allegedly taken during and after his arrest in Nassau County, Florida. According to the Court, "[c]onstrued liberally, Lloyd argue[d], among other things, that the district court erred when it granted summary judgment on his excessive force claim against Deputy Clarence Card, his deliberate indifference claim against Nurse O'Quinn, and his excessive force claim against Sheriff Ray Geiger, in Geiger's individual, supervisory, and official capacities."
The Eleventh Circuit ended up affirming in part, reversing in part, dismissing in part, and remanding for further proceedings. Among the parts that the court affirmed was the district court's grant of summary judgment to Sheriff Geiger, and I think that this is where it erred. According to the court,
"Lloyd's primary argument against summary judgment for Sheriff Geiger on the excessive force claim is that during the incident Card supposedly said that Geiger had told him to kill Lloyd. While the statement is admissible against Card under Fed.R.Evid. 801(d)(2), it is inadmissible hearsay as to Geiger. The best argument Lloyd has for the admissibility of Card's statement against Geiger is under Rule 801(d)(2)(D), but that argument fails because a directive to kill a suspect is not properly 'within the scope of the agency or employment' of a deputy sheriff."
Here is my take on things. First of all, Card's alleged statement was hearsay within hearsay because he allegedly made a statement which referenced an earlier statement by Geiger. Thus Federal Rule of Evidence 805 applied, and each layer of "hearsay" had to qualify for admission under an applicable "exception." The easier part of the analysis is Geiger's alleged instruction to Card to kill Van Tassell as this would be the admission of a party-opponent -- a civil defendant -- under Federal Rule of Evidence 801(d)(2)(A).
The harder part is Card's alleged statement. As the Eleventh Circuit correctly noted, the best avenue for admission of this statement would be Federal Rule of Evidence 801(d)(2)(D), which indicates that:
"A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship."
So, was the Eleventh Circuit correct that this Rule didn't apply because a directive to kill a suspect is not properly within the scope of the agency or employment of a deputy sheriff? I don't think so based upon two sources. First of all, there is the Advisory Committee's Note to Rule 801, which indicates in relevant part that it was adopted because:
"[t]he tradition has been to test the admissibility of statements by agents, as admissions, by applying the usual test of agency. Was the admission made by the agent acting in the scope of his employment? Since few principals employ agents for the purpose of making damaging statements, the usual result was exclusion of the statement. Dissatisfaction with this loss of valuable and helpful evidence has been increasing. A substantial trend favors admitting statements related to a matter within the scope of the agency or employment."
So, if the fact that a statement is "damaging" does not preclude it from being an employee admission (the drafters of the Rule having followed the "substantial trend"), what is the test that courts have applied in tort cases to determine whether a statement is an employee admission? Well, according to Aliotta v. National R.R. Passenger Corp., 315 F.3d 756, (7th Cir. 2003),
"To qualify an admission, an employee need only be performing the duties of his employment when he comes in contact with the particular facts at issue. See Polec v. Northwest Airlines (In re Air Crash Disaster), 86 F.3d 498, 536 (6th Cir.1996) (holding that, where an accident investigation is conducted as part of a vice president's duties, comments made during it are admissions under Rule 801(d)(2)(D))."
Clearly, Card's statement was made while he came in contact with the particular facts at issue -- the arrest of Van Tassell -- and thus his statement should have qualified as an employee admission.