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The Third Circuit in Jutrowski v. Township of Riverdale, a § 1983 suit against local police officers and state troopers, found a legal theory to pierce the alleged “blue wall of silence” in a case where the plaintiff could not identify the particular officer who kicked him on the face  when he was pinned to the ground. None of the dashboard cameras captured the incident, and the officers all testified that they had not kicked the plaintiff, nor did they know who did.

Excessive force claims under § 1983 require proof of personal involvement. Liability may not be based upon membership in a group in which other members were guilty of abuses. The lack of direct proof and the denial by all the officers precluded § 1983 responsibility.

Plaintiff's conspiracy claims under state law and § 1983 had also been dismissed by the district court. The Third Circuit reversed, holding that personal liability for a § 1983 conspiracy could be based upon either a prior understanding to use excessive force, or an agreement after the fact to cover up the use of that force. It is the latter claim that the circuit revived. “A 'conspiracy of silence' among officers is actionable as a § 1983 conspiracy because coordinated officer conduct” impede[s] and individual's access to courts” and renders 'hollow' a victim's right to redress in a court of law.” The officers had conferred, and the court held that a jury could find that they had acted in concert to cover up and protect each other.

This case calls to mind a New Jersey Supreme Court case in an entirely different context, but providing an alternative theory to permit assessment of responsibility when all possible defendants deny responsibility. In Anderson v. Sonberg, the court was faced with a claim by a patient under anesthesia for injuries occurring when the tip of surgical instrument broke off and lodged in his spinal canal. He sued the surgeon, the hospital, its personnel, and the instrument manufacturer. All disclaimed liability and moved for summary judgement. The plaintiff could not identify the tortfeasor. A plurality of the court held that the jury should be charged to find at least one of the defendants liable as the accident must have been the fault of at least one of them; the jury should scrutinize the proofs and assign liability.

In both Anderson and Jutrowski, the law required proof of individual responsibility. In neither case could the plaintiffs obtain proof of the tortfeasor's identity, although all potential responsible parties were before the court. In Jutrowski, there was the option of a conspiracy theory, but a jury could find no agreement, thus permitting the tortfeasor to escape responsibility. Might not the Anderson approach have been a way to have a jury assess the defendants' denials and ferret out the tortfeasor?