By Christopher Zoukis
The Seventh Circuit has ruled that when prison officials intentionally destroy videotaped evidence of an alleged instance of excessive force, a suing prisoner is not entitled to an “adverse inference” jury instruction unless he can show that the prison’s intentional destruction of the evidence was done in bad faith.

Larry Bracey is an inmate confined at Wisconsin’s “Secure Program Facility.”  During a scuffle with guards in 2005, a guard allegedly yanked Bracey’s arm through a cell door by Bracey’s handcuff.  Bracey’s arm bled to the point where it soiled a guard’s uniform, and he was injured again when guards brought him down to the floor during transport to another cell.  Bracey suffered an injury to the head.  Prison security cameras were in position to capture both incidents.

In the days following the alleged assault, Bracey asked for the preservation of the tapes, which operated on a three-day loop.  A guard reviewing Bracey’s complaint two days later elected not to download or preserve the tapes.  According to court documents, the prison’s policy required preservation of evidence “only in certain situations,” which did not include an officer’s use of reactionary force unless the prisoner assaulted staff.”

Bracey sued the officers who allegedly assaulted him in a suit under 42 U.S.C. § 1983, alleging an Eighth Amendment excessive force claim.  At a trial in the United States District Court for the Western District of Wisconsin (Crabb, J.), Bracey requested an instruction to the jury that it may infer that the destroyed evidence contained incriminating content, a so-called “adverse inference instruction.”  The district judge denied the motion on the basis that none of the defendants, the guards involved in the alleged assault, “were involved in the decision not to preserve the video.”  Bracey lost at trial.

On appeal, Bracey argued that the district court abused its discretion in denying the instruction.  He argued that the prison had a duty to preserve the tapes, and that the individual guards should not benefit from the destruction of the tapes even if they were not personally involved in destroying them.

Bracey’s argument is one that several courts have adopted in similar circumstances, where videotapes can be a “crucial piece of evidence,” and can be “the only ‘objective’ witness to the altercation.” Kounelis v. Sherrer, 529 F.Supp.2d 503, 519 (D.N.J. 2008).  Another court has noted that tapes of such encounters constitute “not only relevant evidence, but the best evidence.” Peschel v. City of Missoula, 664 D.Supp.2d 1137, 1144 (D.Mont. 2009).  Rejecting proof of bad faith as the determining factor, such courts have weighed the prejudice to the opposing party in assessing sanctions, even in the absence of bad faith altogether. Peschel, 664 F.Supp.2d at 1147-48 (“The spoliation of the recording has hindered the most accurate determination of this case upon its merits”).  Such courts have even imposed dispositive sanctions, recognizing the importance of such evidence, going beyond mere adverse inference instructions as sanctions.

The Seventh Circuit acknowledged the existence of contrary precedent by noting dryly, “Indeed, discretion by its very nature permits different judges to reach different but reasonable conclusions on the same set of facts.”  As such, the court declined to comment on the issue of the “justifiable concern” that prison officials “would have an incentive to destroy evidence that is damaging to [their] case.” Adkins v. Wolever, 692 F.3d 499, 506 (6th Cir. 2012)(declining to apply bad faith requirement in prison surveillance context).

Bracey’s request for counsel under 28 U.S.C. § 1915(e) to assist in discovery of the prison policies relating to the spoliation issue had also been denied, and the Seventh Circuit was quick to affirm.  The fact that Bracey could not access certain prison policies did not require allowing him access via “attorney eyes only” review, said the court.  Apparently on policy grounds, the court said, “all inmates confront the discovery restrictions facing Bracey: internal prison policies have relevance in nearly every prison lawsuit alleging the use of force.  Thus, if the need to access otherwise inaccessible documents requires recruitment of counsel, recruitment would result in nearly all such cases.  Section 1915 does not impose that burden.”

See: Bracey v. Grondin, et al., No. 12-1644, 2013 WL 1007709 (7th Cir., March 15, 2013).

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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